Domestic Violence – What you need to know before entering Family Court

DOMESTIC VIOLENCE – THE ONLY CRIME A VICTIM HAS TO PROVE HAPPENED TO HIM/HER. WHAT YOU NEED TO KNOW BEFORE COURT!
Part I. Key Differences Between the Criminal and Family Court System by Marie De Santos, Women’s Justice Center, Santa Rosa, CA
Most people mistakenly think that the difference between family court and criminal court consists mainly in the different issues these courts deal with. It’s a mistake that can seriously endanger victims of family violence who too often trust that the family court system is built to protect her in much the same way as the criminal system. Nothing could be further from reality.
Family court and criminal court are profoundly different in premise, structure, power, and purpose. The moment a victim steps into family court, whether to seek a restraining order, custody and visitation rulings, a divorce, or any other family court order regarding her abuser, she’s literally opening the door for her abuser to launch unchecked counterattacks against her, in an arena that was never designed to deal with criminal dynamics, with the very real possibility that the abuser may end up turning the family court against her. In family court, an unprepared victim of family violence can be as vulnerable to the perpetrator’s abuse as she is in the home.
The following are some of the reasons this is so. As you read this, don’t give up on getting justice in family court. Remember, we’re pointing out the risks and flaws of family court so that in later sections, you can better understand how to avoid them.
A. In Family Court a Victim Is on Her Own Against the Abuser.
In Criminal Court it’s the State That Takes On the Abuser.
The criminal court system pits the immense powers of the state against the accused. In marked contrast, family court is merely a stage set by the state where two private individuals can come to battle out their personal differences, using their own devices, with the state acting more as a weak referee, and wielding very little power.
This is why criminal cases are named in the form of ‘The People (meaning the state or society) versus John Doe’,whereas family court cases are named in the form of ‘Jane Doe versus John Doe’.
If you take a minute to ponder the significance of just this difference alone, you’ll begin to see why victims of family violence can be very unsafe in family court.
When victims of violence against women try to deal with a violent relationship in family court, it’s as if the victim, herself, is getting into a boxing ring with the violent perpetrator; a boxing ring where the victim must fight it out with her abuser using only her own devises. In contrast, in criminal court, it’s the all powerful state that gets in the boxing ring with the abuser.
In family court, the family issue at hand – whether custody, divorce, visitation, or restraining orders, etc. – is deemed a private matter of such minor consequence to the community that the two individuals in a family court case are on their own; each responsible for investigating, preparing, conducting, and defending their own cases. To be sure, they are each free to hire their own private attorney to help them if they wish – or if they can. But this factor also generally serves to further disadvantage a victim of family violence and to further empower a violent abuser, since it’s usually the abuser who controls the family funds and can hire a private attorney, and the victim who cannot.
In contrast, in criminal court the issue being dealt with is considered an offense against the public. A just outcome to a criminal case is considered so important to society that it is the state itself that pursues justice and protection. In criminal court it’s the state that makes the accusations. It’s the state’s power and the state’s resources that takes up the fight against the accused. It’s the state, through its police and prosecutors, acting as state agents, that carries out the investigation, the preparation, and the prosecution of the offense. In criminal court, none of this burden falls on the victim. The victim need only serve as a witness, and, many times, even that isn’t necessary either.
B. In Family Court an Abuser can Launch Free Ranging Counterattacks against the Victim.
In Criminal Court, Counterattacks by the Abuser Are Forbidden or Tightly Restricted.
In family court the two contesting parties are presumed to be equal, basically law abiding individuals who have a disagreement over a private family matter. A core assumption of family law is that family disputes are not criminal disputes. As such, there are few safeguards built into the family court system to protect against the criminal dynamics that dominate family disputes in cases of family violence.
In addition, the accusations the victim makes in family court, no matter how serious, carry no more authority than one private person’s say so. Given the totality of this framework, one of the most serious consequences is that when a family violence victim opens a case in family court against her abuser, the abuser is given equal opportunity, not only to fight back against the victim’s accusations, but to put forth his own set of accusations against her.
(At the start of this text we mentioned that some protections for family violence victims have recently been patched into family law. But to date, the scope of these protections doesn’t reach to correct this flaw, that the abuser can launch an attack against the victim, with the ever present possibility that he may ultimately turn the court against her.)
In family court, no matter how horrendous the violence claimed by the victim, the abuser is free to make any counter charges he wishes against the victim. And precisely because the abusers are, in reality, violent criminals, many seize the opportunity with a vengeance. They hurl all manner of back attacks, true or false, often with false evidence and false witnesses to back them up. You don’t have to work with domestic violence victims for very long before you see the endless procession of cases where the batterers easily fashion the family court system into one more weapon he can wield against the victim, and a very sophisticated weapon at that.
For example, consider the case of a domestic violence victim who petitions family court to obtain a domestic violence restraining order against her abuser. Even if the family court grants the victim’s request by giving her a temporary restraining order, the court simultaneously sets a date a few weeks hence for both the victim and the abuser to come back into court and to fight it out.
It’s at that next court date that the abuser so often comes into court fully armed not only to shoot down her accusations, but also to launch his own set of unrestricted accusations against the victim. True or untrue, he piles it on: ‘she uses drugs’, ‘hits the kids’, ‘neglects the kids’, ‘drives drunk’, ‘is crazy’, ‘won’t get a job.’ ‘works all the time,’ ‘is mentally ill’, “spends the rent money,” and whatever other rant comes into his abusive head.
When this happens, as it so often does, victims who didn’t understand the family court system are stunned. They naively appealed to the family court thinking the court’s purpose was to protect victims like her from a perpetrator’s abuse. She reached out to the court because she was already exhausted by the abuser. Now look! She not only has the burden of proving her own case against a violent perpetrator, she must now also mount a defense against as many accusations as the batterer wishes to hurl against her. And she must do it in an arena that was never really built to deal with, nor protect against, criminal behavior.
In contrast, in criminal court the accused cannot launch counter charges against the victim who is only a witness for the state. In criminal court, the abuser can attempt to disprove the specific elements of the victim’s testimony, but he cannot push beyond this strict boundary and open new charges and accusations against her, even if they are true.
Even if the victim does, in fact, use drugs, or is crazy, or hits the kids, it’s simply not relevant and not admissible unless it goes directly to disproving her testimony. This is because, in contrast to the family court situation where it’s just the victim’s ‘say so’ making the accusations against the abuser, in criminal court, it’s the state making the accusation of a specific criminal act against the abuser. And those state accusations already carry the considerable authority of ‘probable cause’ that the abuser did the criminal act; ‘probable cause’ based on the impartial investigation done by the police and on the district attorney’s review.
Once in criminal court, the accused already has the heavy boot of the state pressing firmly on his neck. He can defend himself against the specific accusations of the state. But he cannot open free ranging attacks against the victim or anyone else.
These beginning points should also make clear the immense injustice being perpetrated when police tell domestic violence victims that her situation is a family matter, and that she should deal with it in family court. In essence, the officer is wrongly telling the victim she doesn’t merit the exercise of state powers on her behalf, and that she should deal with the violence on her own.
C. Family Court has Virtually No Power to Protect Victims from Violence.
Criminal Court wields the Ultimate State Power to Protect Victims from Violence.
In family court, even if a victim does successfully prepare and conduct her own case and then successfully defends against her abuser’s accusations, and even if the family court judge decides in her favor, family court has virtually no power to wield on her behalf. Certainly family court doesn’t have the kind of power needed to control a violent perpetrator. Remember, a founding assumption of family law is that family disputes are not criminal disputes. Family court can write paper court orders, such as family court restraining orders or visitation orders, but even so, family court depends mainly on the criminal law system to handle violations of those orders.
Again, you don’t have to work with domestic violence victims for very long to know what happens when victims go to police because the abuser has violated a family court order. Though the situation is improving, it’s still difficult to get many police to enforce what they consider to be minor violations of a lowly family court restraining order. And it’s even more difficult to get most police to enforce violations of visitation and custody orders, even though violations of any court order are criminal offenses.
Police have so little respect for family court orders, that when victims call police to report violations, the all too common police response is to tell the victim (wrongly) that the abuser’s violation of the family court order is a family court matter and that she should go back into family court to deal with it.
But if the victim does go back into family court, the same flawed dynamics prevail. The abuser once again is given the same opportunity as in the first go-around to invent another whole set of denials and counter accusations, with the same risk to the victim that he may end up turning the family court against her. Even at best, if the family court believes the victim, they may scold the violator, or issue a modified order which the abuser has no intention of respecting, or the judge will roll his or her eyes, and send the case for mediation, psych evaluations, or child protective services workers, etc.
In the latter case, the abuser is now in a better position than ever. He now has gotten the victim completely outside the court room, and outside the rule of law. The psychologists, mediators, evaluators, and social workers to whom the case is now assigned are non-judicial personnel. Their processes, their decision making, and recommendations are not bound by any rules of evidence or law. Here, then, in this virtually lawless terrain, the abuser can continue to counter attack and make false accusations, and he can now do so with impunity. (A situation which we describe in more detail in the next section.)
In stark contrast to the weak powers of family court, criminal courts wield the ultimate power of the state, the power to throw the abuser in jail, or to hold that threat tightly over his head. In addition, once police name the abuser as the suspect, state protections are available to the victim (and other witnesses) without any burden on the victim (or witnesses) to prove their need.
One of the questions we’re asked all the time is “Why, then, do so many officials in the criminal system continue to try and shunt domestic violence victims into the family court system?” A big part of the answer is because a defining tactic of any sexist system is to deny females real power. And the real power is in the criminal system.
But there’s more…
D. The Family Court System Operates on the Weakest Standard of Evidence.
The Criminal Court System Operates on the Strictest Standard of Evidence.
Family law operates on a ‘preponderance of evidence’ standard of proof. This means that family court decisions can be made when as little as 51% of the evidence supports the decision. This is the weakest standard of proof. Criminal law, on the other hand, operates on a ‘beyond a reasonable doubt’ standard of proof, the strictest level of proof.
On first thought, you may think that this low level of proof in the family law system will work in the victim’s favor since she doesn’t have to come up with that much evidence to prove her case. At times, this may, indeed, work in the victim’s favor. But, more often, for a number of reasons that follow, the low standard of evidence in family court favors the abuser.
For one thing, the low standard of evidence required to support decisions in family court leaves lots of room for arbitrary, biased, and non-evidence based factors to fill the evidence void and influence the court’s rulings. With evidence playing such a weak role, sexist and racist stereotypes can insert themselves virtually unchecked. As can the well oiled family court mantras that have flourished in its denial of domestic violence, such as “It takes two to tango”, “Everything should be split down the middle”, and “Every child needs their father”. Similarly, very sexist, and already disproved syndromes, such as the infamous ‘parental alienation syndrome’ are allowed to be hurled against the victim, without any rigorous test of their admissibility.
Secondly, a weak standard of evidence leaves ample room for a perpetrator to construct his counterattacks unrestrained. There’s so little rigorous inspection of the evidence that he can often concoct phony charges, bogus witness statements and documents. She can too, of course, but, remember, he’s a criminal and she’s not. And remember also, she’s fighting her own case, and she doesn’t have the first clue on how to cross examining or challenge the evidence the abuser puts forth. And add to that the fact that the perpetrator generally has more time, money, and resources than the victim, and you can see why the low standard of evidence makes both the court and the victim highly vulnerable to a big snow job by the perpetrator, the kind of snow job that would never survive, or even be admissible, under the much stricter examination of evidence that governs the criminal court.
And there’s one more negative consequence of the low standard of evidence that infects both the letter and the spirit of family law. It’s a consequence we referred to earlier that in many ways embodies the family court problem overall. Once the family court is confronted with the high voltage counter accusations common to the criminal dynamics of domestic violence, the family court judge isn’t going to initiate a rigorous investigation to find out who’s telling the truth. That isn’t what family court is designed for. So over the last few decades, as women have increasingly dared to bring the desperate realities of family violence into family courts, the family courts have devised ever more elaborate ways to show her out the back door.
The family courts have hired all manner of non-judicial, non-official investigators, mediators, psychologists, evaluators, – family court janitors really – whose job it is to mop up the messy little problems of family violence and remove them from upsetting the harmonious, ‘his and hers’ ideals of the family court system. Confronted with the harsh conflicts of family violence, the family court judge simply turns the case over to these ‘family court janitors’ so that they can make the determinations of who’s right and who’s wrong, and they can do so unencumbered by any standard of evidence at all, nor any rule of law.
Now the victim is in the worst situation possible. She’s been thrown out of the court room and back into a total state of lawlessness to deal with her abuser. These mediators, psychologists, and evaluators operate on NO standard of evidence. There is NO law governing how they go about making their decisions and recommendations. NONE! They make their recommendations to the judge as they personally see fit, and the judges, in virtually all cases, blindly rule accordingly.
The family violence victim, who came to the family court seeking the power of the law to help her deal with a violent abuser, has been shown the door and been piped right back into the lawless terrain of psychologists, mediators, and counselors; not very far from where we started out thirty years ago. Here, as always has been, the perpetrator can ply his manipulations with impunity.
And while it’s true some women come out of this swamp with court decisions that are just and in her favor, it’s a risky, arbitrary, roll of the dice. Way too many family violence victims become hopelessly entrapped in this family court hell, sometimes for years. And in far too many cases, the abuser succeeds in turning the family court against her. Some victims end up losing custody of their children, and some lose their lives. Which brings us to the final distinction between the family and criminal court system we want to point out here.
E. Family Court Can Take Harmful Actions Against the Victim.
Criminal Court Cannot Take Any Action Against the Victim.
This last distinction we discuss between the family law and criminal law system is perhaps the most ironic. At the same time that the family law system provides only minimal protections for victims of family violence, it also has the power to take devastating actions against them. The most tragic example of this occurs when the family court wrongly gives custody of the couple’s children to the abuser (see Part IV). Less severe examples, but more common, occur when victims who go into family court attempting to get the abuser out of their lives, and end up under family court orders that bind her to him in ways that are oppressive or dangerous to her, or to the children.
These things, of course, don’t always happen. There are many women who are helped by family court. But a final irony is that it’s often the most dangerous and manipulative abusers who are the most successful at turning the family court process against the victim.
In contrast to family court, the criminal court has no authority to take any action against the victim, with the one exception that the criminal court can order the victim to testify.
(Looked at in a broader framework, the criminal system can take action against the victim. When a family violence victim first calls police, the abuser may convince the police that she is the real perpetrator, in which case the police may arrest her. No doubt this occurs all too often.(See Advocating for Domestic Violence Victims Who Have Been Arrested for Domestic Violence.) But once the abuser is named as the suspect or defendant in a criminal case, he cannot turn the criminal court against her.)
NOTE: Recent Protections for Family Violence Victims ~ At the very beginning of this text, we mentioned that there have been some recent protections for domestic violence victims added to family law. An example of one such protection, and why it’s inadequate, is the California family law which creates a rebuttable presumption that custody cannot be given to a domestic violence perpetrator. On first take this seems like exactly the kind of law that would protect family violence victims on this crucial issue of custody in family court.
Indeed, this new family law, and others like it, are big improvements. And many victims have benefited. But because the law doesn’t alter the flawed, underlying structure of the court itself, the result has been all too predictable. Now when abusers and their attorneys come into court to respond to a victim’s petition, many of them come prepared to put forth a case that she is the real perpetrator of the violence, either against him or against the children. In other words, the abusers just escalate their counterattacks so as to override the patched in protections. In which cases, the judge shakes his head, rolls his eyes, and predictably marches them off again to the mediators, back to the murkiness and lawlessness of the quicksand swamp.
NOTE: Family Law Attorneys ~ A very small percentage of domestic violence victims who have sufficient funds may seek to protect themselves and advance their cause in family court by hiring a family law attorney to represent them. All too often, however, this only compounds the disaster in that now the victim loses her life savings to a family law attorney and comes out no better than if she had no attorney at all. This is because, even at their very best, family law attorneys are steeped in and bound by the same flawed family law tenets as the court.
But that’s only part of the story. Despite the severe limitations of family law for dealing with family violence, it’s rare that a family law attorney will advise victims of these limitations. And it’s even rarer that family law attorneys will make sure that victims get the appropriate legal help they so desperately need.
Suppose a person who has been run over by a truck mistakenly goes to a facial reconstruction surgeon for help, and it becomes evident that in addition to facial trauma, the patient is suffering from multiple life threatening traumas. If that facial reconstruction surgeon doesn’t immediately get that patient to a trauma surgeon, he or she is guilty of gross malpractice. In our opinion, every last one of these family law attorneys who don’t at least advise family violence victims of their limitations in dealing with the matter, is similarly guilty of gross malpractice.
And one more note of warning. Many family violence programs have a family law attorney on staff to represent victims in family court. If a victim uses these attorneys it’s critical to keep in mind that a) these attorneys are burdened with hundreds of such cases and cannot possibly give every case more than cursory examination, and b) these attorneys are also steeped in and legally bound by the same flawed family law structure as the courts.
Part II. Avoiding the Risks of Family Court
Introduction
In reading the above, you’ve probably asked yourself many times, “How, then, does a victim of family violence deal with her family law needs – like restraining orders, custody, visitation, and property division – and at the same time avoid the risks of going into family court?” The following section is meant to give you some strategies for doing just that.
Though there are no guarantees in one strategy or another, the following is not just wishful thinking, either. We’ve successfully used these strategies for years to keep most of our family violence victims from getting trapped in family court hell.
In brief outline, the best ways to avoid the risks of family court are:
• Consider the option of staying out of family court for as long as possible, or until you feel you have adequate criminal case documentation to back up your claims of violence in family court.
• Aim to make the criminal case as strong as possible.
• Use the criminal law system, to the maximum extent possible, to meet your protective order needs.
• Use criminal case documents as the leading edge of your family court case. Family court judges will virtually always believe criminal case documents over whatever the abuser may say.
• Always remember that the circumstances of your individual situation should be your main guide in choosing the strategy that’s best for you.
For the purposes of illustrating these strategies in more detail, let’s assume we’re talking about a domestic violence victim who is trying to get out of the relationship with her violent husband. She has two children. She wants custody. And she wants protection from her husband’s violence for herself and her children. Keep in mind, though, that the same general principles apply for cases of intra-familial sex crimes and child abuse.
1. Staying Out of Family Court – When the Criminal Case is Strong
(The best case scenario)
Here’s how it can work in the best case scenario. The victim reports her husband’s violence to police. She tells police everything and gives police as much evidence as she can think of to bolster the criminal case. Police give the victim an emergency protective order which covers the victim and her children for a week. Police arrest the husband (or kick him out of the home), and the district attorney files a domestic violence criminal charge (whether misdemeanor or felony) against her husband.
Before the arraignment (or at any other criminal court date), the victim calls and tells the district attorney (or an advocate in the district attorney’s office) that she wants a criminal protective order against her husband, and that she also wants her two children covered by the order. She also tells the district attorney (or DA advocate) that she is willing to testify in the case if necessary, and that she wants to keep in communication with the attorney.
At the arraignment, which occurs within two days after her husband’s arrest, (or at any other case court date), the district attorney requests the criminal protective order from the judge and the judge signs it. In virtually all cases, the judge will do so automatically. There’s no need for the victim to appear in court on the issue of the protective order, neither at the time of the request nor at any other time. Nor does she have to fill out any forms. Nor does the judge have to weigh any evidence nor hear the defendant’s side of the story before granting the order. There’s nothing to debate. The whole criminal court process to obtain a criminal protective order for the victim – from district attorney request to signing – takes less than a minute.
It’s key to understand why the criminal court, different from the family court, can automatically grant the criminal protective order. The reason is that the criminal judge already has enough evidence to rule on the question. The fact that the district attorney has filed a criminal charge based on a police investigation has already established sufficient evidence (probable cause) for the judge to sign the order.
Another way of understanding this important point is by considering that when a victim applies for a restraining order from family court, it’s the women’s word alone telling the family court judge that the guy is a bad guy. In criminal court, it’s the police and the district attorney telling the judge the guy is a bad guy – and they’ve done so based on the police investigation, the evidence they’ve gathered, the police report, and the district attorney review of that report. The fact that the district attorney has filed charges already surpasses the level of evidence needed by the court to protect the victim (or any other witness) with the criminal protective order.
What about the children? Though criminal court judges grant protective orders for the primary case victims as a matter of course, getting the children covered on the order may or may not be as easy. In the situation where the children were present during the crime, judges are generally willing to cover the children on the criminal protective order without further ado. When this happens, it’s the equivalent of giving the victim full custody of the children for the duration of the order – and presto, the woman has no need to go into family court on the critical issues of custody and visitation until a much later date, if at all.
If the children were not present during the crime, many criminal judges are still willing to include the children on the criminal protective order. The law (in California) gives them ample jurisdiction to do so. Other judges may request some argument on the question – at which point the victim informs the judge (through the district attorney or advocate or in a note directly to the judge) that the children are afraid of the father, or that the father has threatened the children in one way or another, or whatever other argument the victim feels supports her request. Whether or not this sways the judge to include the children on the criminal protective order will generally depend on the individual judge and on the effectiveness of the individual district attorney.
In the situation in which the judge fails to or refuses to include the children on the criminal court protective order, the victim will then have to decide whether or not she wants to go into family court. Sometimes the best strategy in this circumstance is to do nothing. If the victim decides to do nothing, this puts the abuser in the position of having to make the effort to open the family court case. Given that he’s already tied up in criminal court, many abusers become hesitant to open up a case in another court. Most abusers are instinctively aware that being charged with a violent crime will be a major strike against them in family court.
Or even if the abuser does petition family court to try to get visitation, the victim is still in much better shape than a victim who goes into family court without a criminal case and without a criminal court protective order. This is because the criminal charge already establishes the same probable cause to the family court judge that the woman is, in fact, a victim of domestic violence. And the criminal court protective order establishes the additional fact that a criminal judge finds that this victim needs protection. As such, by bringing the criminal charges and the criminal court order to the attention of the family court judge, the family court judge is unlikely to tolerate any kind of arguments from the abuser that he’s the real victim, or that she’s really the violent one, and family proceedings will be tightly limited to the question of visitation arrangements.
So whenever there is a solid criminal court case, we strongly advise victims to get a criminal court protective order as soon as possible, and to stay out of family court for as long as possible.
Unless otherwise specified, a criminal protective order will stay in effect for as long as the perpetrator is under the criminal court’s jurisdiction – this includes all the time the abuser is a defendant, and if he is convicted, it includes all the time he is in jail and/or on probation. If for any reason the order is granted for a more limited period of time, the victim should simply request the district attorney that it be extended.
Once a victim, or the victim and her children, are covered by a criminal court protective order, no family court order can override the criminal order. This is because a criminal court order always prevails over a family court order. So once a victim is covered by a criminal court order, she doesn’t have to worry that her abuser can go into family court and attempt to win a family court order that contradicts the criminal order. A criminal court order always trumps a family court order.
One other advantage of a criminal protective order over a family court order is that the police and the courts almost always will treat violations of a criminal court orders more seriously than violations of family court orders. (For more information on other advantages of a criminal court protective order, see First Line Criminal Justice Advocacy Criminal Protective Orders)
NOTE A – A Possible Pitfall of Criminal Court Protective Orders: Victims and advocates should be aware of one possible pitfall that can occur even in this best case scenario. If, for whatever reason, the criminal case is suddenly dismissed, any criminal protective order connected to the case is automatically dropped at the same time. As such, a sudden dismissal of criminal charges would leave the victim suddenly without any protective order at all.
But this is not as nearly as risky as it first sounds. If the criminal case is solid, and if the victim has communicated her willingness to testify, and if the victim or her advocate is staying in communication with the district attorney, it’s very unlikely that once a district attorney has filed criminal charges on such a case, that the same attorney would suddenly turn around and dismiss the charges. And if the victim (or advocate) is being vigilant to the case, particularly before court dates on the case, she would most likely be forewarned of such an event, anyway. At which point she would have time to petition the family court for a restraining order to fill the void.
Another uncertainty occurs if the defendant has succeeded in taking the case to trial. If the jury returns a ‘not guilty’ verdict, at that moment the defendant is no longer under the jurisdiction of the court, and, as above, the criminal protective order is void. But this would be rare, too, since the very last thing the DA, the defense attorney, or the judge wants to do is to take a misdemeanor case to trial.(95% of felonies never go to trial, and an even much lower percentage of misdemeanors ever go to trial. They’re resolved in plea agreements.)
So in this situation of a solid criminal case, even if the defendant wants to go to trial on a misdemeanor, the court will generally just keep postponing the case in an attempt to turn up the pressure to get the defendant to plead guilty. In the rare event that a defendant insists on taking the case to trial, the victim can talk with the district attorney at that point to evaluate the possibilities, and make a decision then about reconsidering going into family court to a restraining order. (It’s very important for victims to understand that just because a trial date has been set, that in no way means that the case is going to trial, or even that it’s likely to go to trial. Setting a trial date is just the beginning of a long attempt to get the defendant to accept a plea.)
NOTE B – What if the Victim Wants the Abuser to Have Visitation: Some domestic violence victims may both be serious about pursuing the criminal case and, at the same time, may also want the father to continue seeing the children. And she may want the help of the family court to work out the visitation arrangement. In these cases, the strategy is the same, except that the children can be intentionally left off of the criminal court order to begin with. Or the children’s names can be removed from the criminal protective order at any time. And since we’re talking about a situation in which the criminal case is strong, this victim would make the family court judge aware of the criminal charges against the abuser, and she should be in fairly good shape in family court.
As a general guideline, keep in mind that the best way for a domestic violence victim to get the upper hand in family court is to bring key criminal case documents into family court with her to present to the family court judge; documents such as the police report, the district attorney filings, and the abuser’s past criminal history.
Still, when a domestic violence victim with a solid criminal case says she wants to open a family court case so the father and children can visit – we usually suggest she consider waiting a while. This gives the victim and the children time to break out of their hyper-vigilance to the abuser’s moods and manipulations. For many domestic violence victims this all-consuming hyper-vigilance to the abuser was so essential to their survival when living with the abuser that they’ve often completely lost touch with their own needs. Waiting a while gives the victim and the children time to set a healthier new stride, independent of worrying how the abuser will react. And it gives time to strengthen the criminal tract.
But most important, waiting a while before confronting the abuser in family court, gives time for the weight of the criminal case (delete: time) to work its influence on the abuser, and to break the abuser’s stride. To be sure, it doesn’t work in all cases. But, in general, waiting a while gives the message time to sink in.
If a mother wants her children to have a future with their father, we tell her, it’s more important than ever that the abuser get the message.
2. Avoiding Family Court Pitfalls – When the Criminal Case Starts Out Weak
In most cases when a domestic violence criminal case is weak, it’s weak only because either the police did an incomplete job, or the victim didn’t tell the police everything, or the district attorney didn’t properly take action on the case. So the key in these situation is for the victim and her advocate to take the weak criminal case and make it strong. Then you’re back to the best case scenario.
If you stop and think about it, it’s very difficult for a batterer to carry out on-going abuse without leaving a lot of evidence. Another thing to consider is that police, even when responding well, are generally not going to carry an investigation much beyond the point at which they feel they’ve gotten enough evidence to make the arrest and to support the case. What this means is that if the case is later found to be insufficient for any reason, there’s almost certain to be a whole lot more evidence to be found just by going back through the case.
By going over the police report with the victim, by talking with the victim at length, and by engaging her in the search, you can almost always come up with additional evidence and witnesses that were overlooked on the first go around. (Since we’ve covered this process of evaluating and strengthening the criminal case in other texts, we don’t go into it here. See If Your Client Has Already Made a Police Report)
The important thing we want to convey here is that just because a criminal case hasn’t been filed by the district attorney, it’s not at all time to give up on the criminal case. Most of the time, a victim and an advocate need only add additional evidence to the case, and then press the district attorney to reconsider filing criminal charges. In other words, do everything possible to make the criminal case strong, and move yourself back into the best case scenario.
3. When the Criminal Case Really is Too Weak
What about the family violence case where there really isn’t enough evidence for a district attorney to file criminal charges? This does happen sometimes, even in the most serious of cases and with the best efforts of officials. And without the filing of criminal charges against the abuser, the criminal court has no jurisdiction over the defendant, cannot take any action against the abuser, and cannot issue a criminal court protective order for the victim.
In this situation where a criminal case is not possible, the victim will have to make a decision of whether or not to take the case into family court. It’s not an easy decision to make. On the one hand, if the victim decides not to open a case in family court, the victim runs the risk of not having any court orders in place to verify her need for protection, the custody status of her children, child support orders, property settlements, and divorce. On the other hand, (add: if) she goes into family court without any criminal court documents to back up her claims of violence and abuse, she runs the significant risk of having the abuser highjack the family court system and turn it against her as we laid out in Part I.
Whether or not it’s best for the victim to open a family court case is a decision that requires careful consideration of individual circumstances. Victims and advocates should sit down and try to think two or three moves ahead in terms of how you think the abuser and the court will be likely to respond. Is the abuser likely to hire an attorney? Likely to build a case of lies against the victim? To use the children as pawns in his counterattack? Likely to disregard family court orders? Likely to keep the fight going as long as possible? Or once before the court, will he be likely to be in respect of the process?
Option A. The victim can decide not to open a
family court case.
Given the advent of domestic violence restraining orders in family law, often the first advice given to victims is to go immediately into family court and get one. No doubt, these restraining orders and other protections in family law have helped many victims. But the reflex rush into family court, as we’ve shown in Part I, can also doom a victim to disaster.

After weighing individual circumstances, there are many cases that point more to the wisdom of ‘Let sleeping dogs lie’! The victim decides not to open a case in family court and leaves the burden of opening a case on the abuser. Because the option to stay out of family court is so often overlooked, we present three examples where victims decided to take this course.
Case #1 The victim called us frantic to find a family attorney who would go into court to get her a new restraining order (her current order is about to expire) and to open battle to terminate or severely limit the abuser’s parental rights of their three year old daughter. The father of the child has just gotten out of prison for felony convictions of violence against more than one woman, including against the victim who called us. He currently lives far away, has no money, and is involved in a custody battle in a far away court with another woman. Since getting out of prison, he’s made one phone call to the victim asking to see the daughter. The victim reported this violation of the restraining order to police. No charges were filed citing insufficient evidence.
We asked the victim what she thought this man would do if he were served with a new restraining order from her and with it the usual court date (in this county) for him to respond to the order. Her answer was immediate, “He would find a way to get up here. And he would fight it tooth and nail.”
So the question is, “Why give him an official invitation to come up here, if it may be he’s already stirred himself enough trouble to keep him focused down there?”
There’s no question the abuser in this case is a very dangerous man. And precisely for that reason, the victim decided that staying off his radar was the best way to go for now. If at some point in the future, the abuser does make attempts to see the daughter, or opens his own case in family court, the victim will be in no worse position with a family court case than if she were to open a case now. If by outside chance he calls police, police will likely refer him to family court, anyway. Or if police come to his door, they will likely be even more impressed by his prison record than by a family court order. But by deciding to wait before going into family court for a new restraining order, this victim leaves open the best possibility of all, that this man will get lost and stay lost – far away.
Case #2 This domestic violence victim has a 14-year-old daughter who is very vocal, articulate, and adamant that she never wants to see her father. The victim and the abusive husband had been separated for some time. They had never gotten a divorce, nor family court orders of any kind. Nor have police ever been called. They simply separated, and the abuser has been out of the picture for a number of years.
Now he’s come back around making noises about how he’s going to go into family court and get visitation rights. When the mother called us, she was panicked, frantically looking around for a family attorney to take her into family court and do battle to get full legal custody of her daughter. After talking it through, though, here’s what she decided to do.
She decided to do nothing; to relax, to wait and see if he really is willing to open a family court case, or is he just bluffing. As she waits, there are two possibilities. The hope is he’ll do nothing. Or, he may call the police, and complain to police that the mother won’t allow him to see his daughter. The police will most likely tell him to go into family court. Or, at worst, the police would swing by the mother’s home, at which time the mother produces the daughter who tells police in no uncertain terms, she won’t go to her father’s, and she tells the police why she won’t go. That would put the police in the position of having to use force to take the 14-year-old daughter out of her real home to a strange home without even a court order to back him up. It would be highly unlikely the police would do so.
And what if the father does go into family court? First of all, the mother’s in no worse position if he opens the case first than if she had opened the case. And she actually may have one advantage, i.e., the advantage of never having made an attempt to prevent the father from seeing the daughter.
An important point to remember in this case is that, in general, the older the child, the more likely authorities (from police to judges) will abide by the child’s wishes in determining which parent has physical or legal custody. Another important point is that if a child doesn’t want to see or visit the abuser, it’s often best to have the child make that known to the authorities rather than the mother. When the mother does so, she may be accused of being vindictive.
But to this date, none of this has been necessary. The father has not followed through on his threats. And the mother has not spent a dime on a family attorney, nor lost a minute of time, nor an ounce of stress in family court. The father was bluffing. He wasn’t really interested in seeing the daughter per se. His purpose was to harass the mother, to see if he could get a rise out of her, and the mother didn’t take the bait.
Case #3 This domestic violence victim is a mother of two small children who is just now planning to leave her abuser. He has been arrested twice for domestic violence. And the third time she called police, he lied to police and managed to get her arrested once. Neither of them was ever convicted.
Now she wants to take the two children and leave. Her first thought was to go into family court to get a domestic violence restraining order, and to get custody of the children. But after talking it through, it became clear that she didn’t feel particularly afraid of him, they both wanted to separate, and she was willing to let him visit the kids, even though she didn’t think he really had much interest in doing so. In addition, she has a job. So she decided to see if she could work it out on her own, rather than stir up a tangled mess in the courts, a mess she was sure would just antagonize the both of them more. To date, this strategy is working fine. And the day that problems arise, she still always has the option to go to the court.
Option B. The victim decides to go into family court.
If after considering her other options, a family violence victim decides to go into family court, it may be that the family court right away sees things her way and gives the victim the orders she needs to start a peaceful new life. It may also be that it’s the beginning of a protracted battle in which the victim’s going to need a lot of help. So this brings us to Part III ~ Tips for Handling a Family Court Case.
Part 3 – Tips for Handling a
Family Court Case

The following section is not meant to be a guide for handling the specifics of your family court case. Rather it’s a general set of tips for domestic violence victims and advocates for dealing with family court, in particular, on issues of restraining orders, custody decisions, and visitation orders.
4. Understand family court’s limitations in dealing with Domestic violence (as outlined in Part I)

Consider these limitations carefully before you decide to open a family court case. In particular, you should understand that unless you obtain a private attorney, you’ll be responsible for the preparation of evidence and presentation of the case in court. You should also understand that the abuser will be given the opportunity to present counter accusations against you, and that if the abuser does present counter accusations, you’ll also be responsible for preparing and presenting your defense against those accusations.
Be Aware! When you apply for a domestic violence restraining order, you are opening a family court case in which the abuser will be given ample opportunity to contest the restraining order, and to counter your declaration with his own accusations against you. For more specific tips on applying for a domestic violence restraining order in family court, see #13 at the end of this section.
NOTE: Even if you do hire a family law attorney, the family court limitations in dealing with domestic violence are essentially the same as if you don’t hire an attorney – except that now you will have an attorney who will prepare and present the case. Nonetheless, if you do hire a family law attorney, it’s crucial that you stay active in preparing and overseeing the case. In addition to being bound by the same limitations of family law as the court, family law attorneys are also notorious for ignoring the significance of family violence, and for disregarding or minimizing the violence in their handling of family law cases. Many women lose their life’s savings by paying a family law attorney thousands of dollars, when, in the end, they could have handled the case on their own just as well, or better than, the family law attorney.
1. If there is a criminal case against the abuser, do everything you can to maximize the strength of the new
Criminal case and/or civil case

Make sure the police have all the evidence, and that the police report covers all the evidence. Make sure the DA files adequate charges, and pursues the case aggressively. Make sure your willingness to testify is known to the district attorney. And obtain a criminal court order. See Part II of this text, and use the many tools we’ve provided on this web site to help you make the criminal case strong. Strong criminal case documents against the abuser will help you in family court more than anything else.
If there isn’t a criminal case against the abuser, consider opening one by making a report to police about the abuser’s criminal acts of physical or sexual violence, threats of violence, stalking, or other domestic violence related crimes. Even if there’s not enough evidence to result in a conviction, the fact that a police officer has documented the existing evidence, and named you as the victim in a crime report, can be very helpful to you; not just in family court, but in many other arenas as well.
2. Before each family court hearing, inform yourself as much as possible as to the purpose of the hearing and the specific question before the court. Knowing the purpose of the hearing will guide your presentation.
Don’t wait until the last minute to try to figure out what the next court date is all about. If you don’t understand what’s going to happen at the next court date, you need to call a victim advocate or the family court office to answer your questions. Only by knowing what the court is trying to decide, can you properly prepare. So ask, ask, ask, and do it as soon as possible.

3. Gather the relevant documents on the abuser’s criminal record and status, in particular as it pertains to the abuser’s record of violence.
Your ability to convince the family court judge of the abuser’s violence against you or against the children is an essential key to the judge ruling in your favor on restraining order, child custody, and visitation issues. The best way to convince the judge is to rely, as much as possible, on the criminal system records, instead of relying on your own statements. The family judge will always believe what the criminal justice system has already established over what either you or the abuser have to say. We keep repeating this. Because putting criminal justice system documentation of your abuser’s violence and criminality in front of the family court is the key to your success in family court.
So, first, gather as much of the abuser’s criminal case record as possible, and then write a brief, very brief (one or two paragraphs), summary of the abuser’s criminal record and status.
Do not get discouraged by this task! Nor by what at first looks like a long list of things to gather up. It’s usually very easy to gather up all this documentation with one trip to the court house and one trip to the police station.
So here’s a list of the kind of criminal record information you should obtain, and the places where you can most easily obtain it.
A good place to start is by talking with a victim advocate who works in the district attorney’s office. Victim advocates in the district attorney’s office generally have access to the criminal justice system computer, and they may be able to provide you with much of what you need in a matter of minutes. At the very least, the advocate can direct you where to go.
Here’s the information you should obtain in the form of official printouts:
• All criminal charges currently pending against the abuser – especially those related in any way to his violence. (Print out of current charges against the abuser can be obtained from the local district attorney’s office, unless there are charges for criminal acts in another county.)
• The history of all criminal convictions and past criminal charges against the abuser (whether or not those past charges led to a conviction). Most important, of course, are the convictions and charges related to the abuser’s violence, whether with you as the victim, or with other victims. A printout of this information can usually be obtained on request from the criminal court clerk’s office. Don’t worry if the abuser was charged with crimes, but not convicted. Even charges that were subsequently dismissed are likely to carry more weight in the family court than anything you can say. So, without question, yes, inform the family court judge of all criminal charges in the abuser’s record.

NOTE: Each county only keeps records on crimes committed in their own county. So if the perpetrator committed crimes in another county, the victim will have to get these records in the relevant county. One way to do this is to call a victim advocate in the DA’s office in that other county. She may be willing to fax you the printout and save you a trip.
• Police reports and arrest history of the abuser. In general, you won’t have any difficulty getting copies of police reports in the situations where you were the victim of the crime. You can get these reports by going into the police department where the report was taken. However, you may have difficulty obtaining copies of police reports on crimes in which you were not the victim. Try to obtain them, anyway. Sometimes another women’s report can provide just the evidence you need to fill in the evidence gaps of your own story.

(Remember, in California, police are obligated under California Family Code 6228 to give domestic violence victims a complete copy of the police reports re her case on the victim’s request. It’s very important that victims have copies of these reports, not just for family court, but to buttress all aspects of her escape from domestic violence. Many other states have a similar law.)

The ability to obtain police reports and arrest history on crimes in which the victim was not ‘the victim’ will vary from one police department to another.
• The current custody status of the abuser, i.e. whether in jail, on parole or probation, or out on bail. If the abuser is on parole or probation, the victim should obtain a copy of the terms and conditions of that parole or probation. (The district attorney’s office can quickly give you the custody status of the abuser over the phone. In order to obtain the terms of probation or parole, you’ll probably have to call the county probation department or the state prison victim assistance office.)
• A copy of your criminal court protective order, if you have this order. (This can be obtained from the district attorney’s office, if you don’t already have a copy. If there are current domestic violence charges against the abuser, and you don’t have a criminal protective order, we strongly recommend that you get one. See Part Il

4. Prepare a concise summary of the abuser’s criminal record and abusive behaviors. A time-line is useful.
This summary should be done in a way that the judge can read it at a glance. Make multiple copies of this statement so you can give it to any mediators, evaluators, or new judges who may become involved in the case. This concise statement of the abuser’s criminal record is also excellent to have on hand for occasions when you have to call the police, deal with the landlord, the children’s teachers, and all the other places where the abuser may attempt to disrupt your peace and safety.
Sample criminal case Summary:
Date:
Re: Criminal Status of John Doe as of date
To the Family Court Judge,
John Doe is currently charged with one count of misdemeanor domestic violence, and one count of misdemeanor threats. There is a criminal court protective order in effect ordering John Doe to have no contact with me.
Over the past three years, police have written three domestic violence crime reports in which John was the suspect and I was the victim. The police report dates and crime report numbers are: ………………
In addition to the current charges, on Date y, the district attorney filed one charge of terrorist threats against John Doe on the crime report number x, but that case did not result in a conviction.
John has had two convictions for drunken driving on date 1 and date 2.
Thank you,
Signed, Jane Doe
5. Think ahead about how the abuser is going to respond to family court
Trying to anticipate the abuser’s response is something that you should think about before you open a family court case, and at every step in the family court case.
Do you think the abuser has enough respect for a court of law that he won’t attempt to lie and make a false case against you? Do you think he’ll deny the violence and abuse? Or do you think he will abuse the family court system in any way he can, including making up false accusations and false evidence to attack you? If you think he’ll likely make up accusations against you, what will those accusations be?
Will he hire an attorney? Will he attempt to get custody of the children? Will he put a lot of effort into preparing a case against you?
It’s worth spending time thinking about these things. Because, naturally, the better you can anticipate what the abuser will do, the better you can prepare to defeat his moves.
6. Gather and prepare your own evidence
If there is no criminal justice system documentation of the abuser’s violence or other criminality, and if you don’t plan to go to police to report his violence, you’ll have to prove the abuser’s violence to the family court judge on your own. And even if you do have this documentation, it’s still likely you’ll want to add some additional evidence to your family court case. For example, suppose the district attorney has filed a domestic violence charge against your abuser. This may provide sufficient evidence that the abuser has been violent against you. But you may also want the family court to know that he is violent toward the children, too.
So think like a detective, gather up the evidence, and put it together in as concise a package as possible. Think back over the times your partner has used violence or threats of violence against you, or against the children. Give special consideration to the most recent incidents and to the most severe incidents. Then think of the kinds of evidence that might be available to support your claim that these events occurred.
Are there medical records of injuries? Photographs of injuries? Photographs of damage? Telephone message recordings? Phone records? Tape recordings? A pattern of missed days at work? etc.
Are there witnesses? Witnesses who actually saw or heard your partner’s violence? Who saw the injuries on you? Witnesses you’ve told about the violence? Professionals to whom you went for help (clergy, counselors, advocates, women’s shelters, etc.)? Ask your witnesses if they would be willing to write just a few paragraphs saying what they know. Have them date and sign the statement. Make multiple copies of all statements.
If child custody is the question before the court, and if your children are old enough, have your children write a statement as to their wishes and the reasons for those wishes. If they are fearful of their father, they should state why. As much as possible, have the children’s words speak for themselves. Too often when a mother tells the family court that the children don’t want to see their father, or are afraid of their father, this gets turned against the mother as proof that she is a “vindictive” woman who is using the children to hurt the father. So as much as possible, have the children put their feelings on paper in their own words.
7. Put your evidence together in as tight a package as possible, starting with criminal status of the abuser and arrange things in descending order of importance.

Always remember, Less is More! If you really want to take it up a notch, put a cover sheet that outlines the package:
Evidence for Jane Doe v. John Doe
Criminal Status of John Doe
Criminal System Printouts
Hospital Record of My Injuries
Three witness statements re John Doe’s violence
Statements of our two children re custody wishes
8. Make multiple copies of this packet. Bring multiple copies to court with you. Keep multiple copies at your home.

As much as possible, and wherever possible, let the written packet do the talking for you. It doesn’t matter how smart you are, or how educated you are, the emotional stress of confronting your abuser in court, in front of strangers, can easily throw you off balance, and make you forget the principal points you wanted to make.
9. Prepare an easy to read index card on which you’ve written the three or four main points you want to make to a judge.

Make a couple copies. Give one of the copies to the friend who’s going to accompany you (see #11) to court. It’s worth repeating. The emotional surges of confronting your abuser in court are usually so intense, it doesn’t matter how articulate or how prepared you are. The emotions can easily unbalance you. Start thinking about the main points you want to make ahead of time. Make your index card in a way that you can read it at a glance. Hold it in your hand and refer to it as you talk to the judge. Make sure your friend has a copy in case you misplace yours.
10. If the abuser hires an attorney, you don’t have to (and you should not) speak with that attorney, nor deal with his attorney in any way, unless the judge orders you to do so.

We strongly advise that you don’t speak to your abuser’s attorney under any circumstances, unless you are ordered by the judge to do so! There’s only one most likely reason the abuser’s attorney would want to question you, ask you to do something, or try to deal with you, and that is to gain an advantage for the abuser. It’s never to try to help you!
Even though this is obvious, many women are so confused by the process or so emotionally upset, it’s easy for the abuser’s attorney to take advantage, and move in on the victim. Almost always, the abuser’s attorney will be trying to sweet talk you into saying something, or agreeing to something, that will help the abuser. Remember, the only person you have to obey or respond to is the judge. So if the abuser’s attorney comes over to you in or out of court, it’s best to turn and walk away. And if you feel uncomfortable doing that, just tell the attorney that you’ll cooperate with whatever the judge recommends. Don’t get pushed around or tricked by your abuser’s attorney. And if you even talk to him or her, it’s almost certain you will get tricked.
11. Don’t’ go to court alone!

Ask a friend to go with you! Ask someone with whom you feel comfortable and confident. Even if you have a victim advocate or an attorney, there is no one like a friend to help you feel centered. The more confidence you feel, and the more support you have around you, the more the abuser will be thrown off balance. A good friend at your side is gold.
Don’t wait until the last minute to start thinking about whom you want to be with you in court. Start early. This gives you time to sit down and give your friend a good idea of why you need someone to be with you. It also gives you time to look for someone else if the first friend is unable to attend.
If at all possible, go together with your friend to the court, rather than meeting up with her at the court. You don’t want to be standing alone in the court hallway anxiously waiting for someone while your abuser stands a few feet away intimidating you.