Criminal Law: Domestic Assault and Battery Defined
Ben Hilfiger • November 3, 2020
Criminal Law: Domestic Assault and Battery Defined
A common scenario is when two parties get into an altercation. Party ‘A’ calls the police on party ‘B.’ The police arrest ‘B.’ After some time passes, ‘A’ decides they no longer want to pursue the charges. ‘A” then requests to the district attorney to dismiss the case, but the case continues to move forward. A common misconception is that a victim can “drop the charges” by telling the district attorney they no longer wish to pursue the case. This is incorrect because the district attorney decides whether to pursue or dismiss a case, not one of the parties involved.
Domestic assault and battery is one of the most common charges filed. It is filed when the State acquires evidence of an assault and battery upon a person who falls into a specific category in relationship to the defendant. This could be a current or former significant other, or it could be a family or household member. These are often highly emotional cases because the parties have a close relationship with each other.
In short, assault is an unlawful attempt to hurt another person. While battery is an unlawful use for force to hurt another person. In Oklahoma, a person who is charged with Battery will also be charged with Assault, but not necessarily vice versa. Assault and Battery become “Domestic” when the victim falls into one of the above categories. The punishment for domestic abuse assault and battery, for a first-time offense, can be up to one year in the county jail. The punishment for a second or subsequent offense can be up to four years in the Department of Corrections. Probation can also be an alternative to incarceration for these types of charges.
Having legal representation from the beginning is essential to receiving the best possible outcome when charged with a crime. If you or anyone you know needs more information, please call or email Ben Hilfiger at Cook and Hilfiger to schedule a free consultation.
Ben Hilfiger, Attorney at Law
(918) 218-2817
ben@cookhilfiger.com
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When Determining Custody, Is Oklahoma A “Mother First” State? Short answer: No. The court determines custody based on the best interest for the child. Fathers can feel defeated from the beginning of a custodial dispute due to this misconception. Mothers can feel they will win custody solely by being the mother. Oklahoma courts do not award custody to mothers based solely on their being the mother. Historically, a large percentage of custodial disputes may have ended in the mother’s favor, but times have changed. A father’s legal rights to their child is equal to the mother’s. In scenarios with multiple children of the same parents, the custodial dispute is determined within one case. Judges make custodial determinations based on the best interest of the child. It is presumed that the best interest of the child is to have equal time with both parents. It is the parents’ actions and livelihood that the judge uses to determine whether or not a parent should have less than equal time with the child. Each person will have an equal opportunity to provide the court their case. This does not mean that the court will automatically give both parents equal visitation time with the child. It simply means that the court will assess the case as a whole. Specifically, the court will look into the lives of the mother and father, then determine the best custody and visitation situation for the child. Attorneys provide the court evidence showing each of the parents’ ability (or inability) to be a fit and proper person to care for the child. People may rely on Oklahoma Statute 10 O.S. 2011 § 7800 which states, “Except as otherwise provided by law, the mother of a child born out of wedlock has custody of the child until determined otherwise by a court of competent jurisdiction.” This statute applies to a child’s custody situation at birth for an unmarried mother. Once a father establishes that he is the father then he will have equal rights to the child. Neither party is guaranteed to win or lose a custody dispute based on their being the mother or father. Custody disputes are complex and emotionally draining. It is important to hire an attorney to help navigate the process for you. Call Ben Hilfiger or Parker Wilkerson at Cook and Hilfiger Law Office for a free consultation. Cook and Hilfiger Law Office 918-683-4445 ben@cookhilfiger.com parker@cookhilfiger.com
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The harsh truth about sex crimes is the public assumes guilt from the beginning. The phrase “innocent until proven guilty” afforded to all criminal defendants, is immediately destroyed when charged with a sex crime. Assuming a person is guilty based solely from the government’s accusation is the exact opposite of what the framers of the Constitution intended when creating the phrase. Unfortunately, this is the reality in which we live. A person charged with a sex crime, innocent or not, will often have their reputation destroyed because of the accusation. Avoiding prison time or getting the case dismissed from prosecution will not eliminate the hovering black cloud even though some allegations are fabricated due to vengeance or even to get the upper hand in a custody dispute. A person accused of a sex crime will often try to clear their name by going to social media or talking to the police. These can be extremely harmful to your reputation as well as your court case. The police will gladly talk to you, but it is extremely important to know that they are talking to you to gain evidence against you. Charging defendants with crimes is their job. If you or someone you know have been accused of a sex crime, the first step to take is to contact an attorney. The stress that accompanies a serious crime of this nature can be greatly relieved by knowing an attorney is on your side, guiding you through the process. Contact Ben Hilfiger at Cook and Hilfiger to schedule a free consultation. Ben Hilfiger, Attorney at Law (918) 218-2817 ben@cookhilfiger.com
If the State filed charges and the defendant or victim is an Indian, and the crime occurred on an Indian Reservation, the case must be dismissed. If the defendant already pled guilty or was found guilty at trial, the defendant can have the convictions vacated. If you are an Indian and have an open case or a past conviction, you may be able to have your case dismissed. The State of Oklahoma cannot prosecute a case where the defendant or victim is an Indian if the crime occurred on an Indian reservation. On July 9, 2020, Supreme Court Justice Neil Gorsuch issued an opinion from the United States Supreme Court (McGirt v. Oklahoma) that turned the criminal prosecution world in Eastern Oklahoma upside down. This opinion decided an issue concerning the Muscogee (Creek) Nation and whether their land is an Indian reservation. It stated that the Muscogee (Creek) Nation is still an Indian Reservation. Gorsuch wrote that this land is and always has been an Indian reservation. The opinion only concerned the Muscogee (Creek) Nation, however the Oklahoma Court of Criminal Appeals ruled that the Cherokee Nation and the Chickasaw Nation are in the same position. The remaining two tribes of the Five Civilized Tribes (Choctaw and Seminole) are expected to follow suit. What does this mean? It means that a state court does not have the ability to prosecute cases involving Indians if it occurred on an Indian reservation, such as the Muscogee (Creek) Nation, Cherokee Nation and the Chickasaw. The Muscogee (Creek) Nation covers eight counties: Creek, Tulsa, Wagoner, Muskogee, Okmulgee, Okfuskee, McIntosh, and Hughes. The Cherokee Nation covers Tulsa, Washington, Nowata, Rogers, Craig, Mayes, Ottawa, Delaware, Adair, Cheroke Muskogee, and Sequoyah Counties. Chickasaw Nation covers Grady, McClain, Stephens, Garvin, Pontotoc, Murray, Carter, Johnston, Jefferson, Carter, Love, and Marshall Counties. However, it is expected that the remaining two tribes that comprise the Five Civilized Tribes will be found to still be Indian Reservations. This will cover almost the entire eastern half of Oklahoma. If you have an open case or have a past conviction and an Indian was involved in the matter (defendant or victim), the State of Oklahoma did not have the ability prosecute the matter if it occurred on an Indian reservation. If you think you or someone you know falls in this category, please call or email Ben Hilfiger at Cook and Hilfiger to schedule a consultation. Ben Hilfiger, Attorney at Law (918) 218-2817 ben@cookhilfiger.com
Everyone deserves the chance to see their children. In the majority of all custody cases, both parents receive some form of visitation. Even once custody lines have been drawn, there can still be a level of contention between parents. But what happens when the other parent prevents you from seeing your kids? This is a serious situation that needs to be handled with legal assistance. Here is what you can do to enforce visitation no matter how difficult your ex may be. 1. Is There Already an Agreement in Place? First things, first. You need to be aware if there is an actual custody agreement already in place. If so, what does the visitation schedule look like? You would be surprised how many exes fight over visitation times because neither has a full understanding of the existing agreement. Some visitation schedules are more complicated than others. 2. Establish a Court-Ordered Agreement If no current custody plan is in place, then it’s time to establish a court-ordered agreement. This not only spells out just what the terms are, but it is also enforceable. Court-ordered agreements don’t allow for exes to make up their own rules about visitation. 3. Enforce the Agreement What if you have a custody arrangement and your ex is still preventing visitation? Now is the time to legally enforce it. Don’t indulge in nasty fights with your ex, or any other behavior that could be questioned by authorities. You want to enforce your visitation legally, either by motion, contempt, or writ of habeas corpus. Always consult the advice of your attorney when enforcing custody agreements. 4. Take Notes If your ex is preventing you from seeing your kids, you need to do your homework to be reunited with them as soon as possible. First, you need to document any and all communication you do have with your children whether by phone, email or in person. Additionally, only speak with your ex through written communication going forward. You want to be completely transparent. Compile notes of how long this has been going on, how often and how many times you’ve been declined visitation and the reasons why it was declined. Lastly, include what actions you have taken before hiring an attorney. 5. Hearing with a Judge Once all of the above steps have been taken care of, you may need to schedule a hearing with a judge. Hopefully, you and your ex can reach an amicable agreement before it comes to this, but if not, a judge will enforce a visitation schedule for you and your children. Sharing a child with someone can be a joy or it can be a complete headache. Reduce the amount of stress for you, your ex and your child with a court-ordered custody agreement. And if that still fails, know that there are legal steps you can take to enforce visitation and that the right attorney can help make it happen.
In a Divorce, Who Gets What Property? Property in a divorce can be divided into two different categories: Marital/Joint Property, and Separate Property. During the divorce proceedings, the court will identify in what category each property should be placed. The court will divide marital property and then award separate property to its owner. The division of marital property must be equitable, keeping in mind that equitable means fair, not necessarily equal. Separate property includes property acquired by one of the spouses prior to marriage; property acquired by one of the spouses by gift during the marriage; property acquired by one of the spouses during the marriage through inheritance; and property acquired in exchange for separate property, unless it changes character through transmutation. Marital property is determined at the time of divorce and is property acquired by the parties during the marriage. Separate property can become marital property during the marriage through transmutation or commingling. Transmutation is when a court determines that certain property changed its character. This happens when the owner of separate property jointly titles the property with their spouse or adds a spouse onto a bank account. Commingling exists when property is said to lose its identity and cannot be traced. Examples of commingling include when spouses use their separate money together to purchase a joint piece of property, or when a spouse deposits their inheritance into the joint checking account. If the court finds that a certain property is marital property, but is titled in only one name, the court can still equitably divide the property among the parties. Indeed, a spouse may be awarded property that is titled solely in the name of the other spouse. The court considers many factors when considering equitable division, including: the contribution of each spouse to the acquisition of the property; the needs of the children are considered, but the needs of the parties are not a factor; marital misconduct is not a factor; and the court will also consider negatively when a party is caught hiding an asset(s), such as a secret bank account. If one of the spouses is a homemaker, the court will consider that as contributing to the marital estate, even if they are not employed outside the home. When the court considers these factors to equitably divide the property, their decision is final. The judge’s final order determines who gets each property. For some, this is the only way to complete the divorce. However, for others, coming to an agreement on property division on their own is more beneficial. This can be done by the parties themselves, their attorneys, or through a mediator. When parties agree on property division the process can be much shorter and cheaper than going to trial. Call Attorney Ben Hilfiger at Cook and Hilfiger Law Office for more advice or to represent you in your divorce. (918) 218-2817 Ben Hilfiger May 11, 2020
Possession of a controlled dangerous substance (CDS) is one of the most highly filed charges in Oklahoma. An often-heard response from a defendant to the charge of Possession of CDS is that the drug was in someone else’s pocket or possession. Oklahoma does not require for a person to have actual physical control of a drug to charge that person with Possession of CDS. Instead, the statute (63 O.S. § 2-402) is much more broad. Possession of CDS can also be proven by showing that someone knew of the CDS’ presence and had the power and intent to control its use. Often, defendants will be charged with Possession of CDS when they are near the substance such as at a friend’s house or in another’s vehicle. The Oklahoma Court of Criminal Appeals has held in multiple cases that the mere presence of CDS is not sufficient proof to convict a defendant with Possession of CDS. The State must also prove that the defendant knew of its presence as well as the control and dominion over the CDS. In other words, for the State to convict someone of Possession of CDS, they must prove that the defendant knew of the CDS’ presence, had some sort of control over the CDS, and intentionally possessed the CDS. In Oklahoma, the penalty for Possession of any CDS is considered a misdemeanor which carries a penalty of up to one year in jail and up to a $1000 fine. This is good news for anyone charged with Possession of CDS because until recently, the penalty was a felony. However, if you are found to have any amount of CDS in your possession, Possession with Intent to Distribute is another charge you could potentially receive, which is a felony. Possession with the Intent to Distribute is a fact-based analysis based on the circumstances surrounding the CDS found at the time of arrest. For example, if you were to be caught with any amount of CDS and it was in individual packages equally weighted, you likely would be charged with Possession of CDS with Intent to Distribute. Ben Hilfiger March 16, 2020
When a divorce involving minor children becomes final, one party typically ends up paying child support to the other. In Oklahoma, the Oklahoma’s Child Support Guidelines are used to calculate the amount one part should pay to the other. I won’t bore anyone with the details, but many different factors are considered such as income of the parties, type of care needed for the children, the number of children, predivorce standard of living (for high income cases), and many more. Child support can be modified only when one party can show that there has been a material change in circumstances. A material change in circumstances include a substantial increase or decrease in income of one or both parties and/or substantial change in the needs of a child, or combination of both. If there are multiple children, then a child reaching 18 years old would also constitute a material change in circumstances, but may not automatically modify the order. An order to modify child support takes effect on the date the motion is filed. The modification cannot be modified retroactively. This means that when a party does not learn of the opposing party’s material change in circumstances until a few months or years have passed. The party cannot look back and try to recover money. At this point, it is in their best interest to file a motion to modify as soon as possible. If you believe that there has been a material change in circumstances, call Cook and Hilfiger immediately to have a Motion to Modify filed on your behalf. Ben Hilfiger March 16, 2020
