Toby Kleinman and Daniel Pollack
Women sometimes raise the issue of domestic violence while a case is pending. (For ease of writing, and because most domestic abuse victims are women, this article identifies the abuse victim as “she,” “woman,” or similar terms. Since most batteries are men, masculine pronouns are also used.) Discussed when issues of child custody or visiting are raised, or when the victim of domestic violence is accused of inappropriately protecting a child. It can also show up when the client changes attorney. Sometimes women mention violence early on in litigation and the attorney rejects it or suggests not to bring it to court. Men who commit domestic violence may be smart, polite, calm, and cool in public, but still violent at home. Believing that the person seen in court with sympathetic behavior is a violent man is counter-intuitive. What should a lawyer do?
Lawyers need sufficient knowledge of the nature of domestic violence to adequately determine whether or not to raise the issue of marital violence in court. Studies show that domestic violence is underreported by women and that these victims downplay domestic violence, often to their disadvantage and to the disadvantage of their children. When a victim raises the domestic violence issue with a lawyer, how should a lawyer assess the need for and the manner in which the matter can be brought into litigation? How does a lawyer who is in litigation decide how and when to raise and possibly litigate the issue of domestic violence and argue its effects on children?
Some lawyers advise their clients not to bring up the issue of domestic violence at all. This is generally a bug. A detailed history of domestic violence in a marriage often prepares later attacks on the victim. This also applies if no protection order is requested. The problem becomes a dilemma for an attorney handling a case while a dispute is pending. In either case, it is important to provide the court with a detailed history of domestic violence, whether or not the history is used to specifically seek some type of relief.
Therefore, attorneys should consider having a child domestic violence expert conduct an abused women assessment. This will help the attorney understand the victim’s presentation, if necessary, have the appraiser testify at a protection order or custody hearing, or even later in the lawsuit when the matter is fully investigated, and assist a court-appointed custodian to do so possibly did has insufficient knowledge of domestic violence. It is therefore important to hire an expert sooner rather than later. The opinion that is made available to a custody officer can be especially helpful if it has not previously been used in court.
Batteries consume power and control. These behaviors will not stop because a marriage breaks down. Indeed, the need for control can be increased during this time. You can do this by labeling the victim a liar, accusing her of problems between him and the children, and using other attacks such as beating the victim. B. accuse them of alienation and gatekeeping. You can do this even if the victim is behaving appropriately in the parental role.
For these reasons, regardless of whether or not a victim feels a need for physical protection, the court should be made aware of a history of violence and threats so that if at any point the perpetrator applies for custody, the court should already be aware of the relationship and the Danger is informed The victim need not first describe the incidents as a defense of the behavior.
Here are some key points the attorney should be aware of:
- Most domestic violence perpetrators are men. According to a study, every fourth woman suffers from “… severe physical violence by intimate partners, sexual violence by intimate partners and / or stalking by intimate partners with effects such as injury, anxiety, post-traumatic stress disorder, use of victim services and contraction of sexually transmitted diseases …”
- Domestic violence is not adequately reported.
- There is a causal link between domestic violence and child abuse.
- Children exposed to domestic violence are at higher risk for depression and other problems.
- There are studies that show a prejudice on the part of evaluators in court, in which protective parents from violent families lose custody of their children to abusive husbands.
- The latest study by Professor Joan Meier shows that the person who brings up the problem often loses custody if violence is committed against children and women during custody disputes.
Suppose a person is looking for a replacement who has not previously caused domestic violence and the family matter is already going to court. Assume the customer has not previously applied for a protection order. The client tells her lawyer that there has been violence in the home that has been witnessed by children and this issue has not been addressed. The victim’s previous attorney told her not to raise it. The lawyer must first decide whether the client should apply for a protection order or not. This problem is and should not be a strategic one. Whether a protection order is requested is a question of security for the victim and the children. According to victim, are there new threats from their partner? If the client does not believe that she is currently at risk, the question might be how to address the issue of domestic violence to protect children
An attorney should provide the client with information about the standards by which the court will issue a protection order. In this way, the attorney can help determine how to establish a history of violence as well as the client’s current circumstances, especially when past and present threats have existed. An early assessment can be extremely helpful in this regard.
An attorney should also discuss with the client how these legal standards are likely to be met and, if not, how best to proceed to maintain security. Sometimes children should testify. This can be a valuable addition to an expert opinion that confirms that the woman is being abused. Preparation is key. How litigation begins sets the stage for everything to follow. It is imperative that the client learn to withstand intense cross-examination.
If a protection order is requested but not issued, that fact is likely to be used by an opponent throughout the litigation to prove that the victim is habitually lying. It is also likely used to attack the victim in order to alienate the children from the spouse. This can be a setup for losing custody. It can also create the conditions for a reviewer to recommend custody to the violent parent. For this reason, it is helpful if an expert evaluates the customer early on. It is different than counteracting an evaluation. This early assessment by a licensed professional who is an expert on domestic violence can then be given to the custody investigator.
Because of the link between child abuse and spouse abuse, children who witness or are abused themselves need protection. What types of protective measures are needed? If the children are not in danger when they apply for a protection order, this must be recognized. On the other hand, the attorney should make the link between spouse abuse and child abuse in order to alert the court to possible future problems.
If a client does not feel the need for immediate protection and feels that their child is safe in the care of the other parent, but the marriage has historically been violent, it is imperative to record that story even as much as the rest of the affidavit .
The obvious dilemma of whether or not to bring the issue of violence to justice early or not is not a dilemma at all. The only dilemma is whether or not the litigant needs a protection order and, if not, what document that was filed with the court at the beginning of the litigation is the best way to present this history of violence to the court. This protects the customer’s credibility and can improve the customer’s credibility in the long run if they provoke similar behavior later during a legal dispute.
Toby Kleinman, a New Jersey attorney and partner with Adler & Kleinman, has litigated domestic violence, custody and abuse cases and has advised on domestic violence and child abuse cases in over 45 states. Daniel Pollack is professor at the School of Social Work at Yeshiva University in New York. He has been an expert in more than 25 countries. You can be reached at [email protected]lerkleinman.com and [email protected], respectively. This column is for general informational purposes only and should not be construed as NY-specific legal advice.