Domestic Violence

Developed by the Family Law Council,Domestic Violence Committee

2011

Topics to be covered- Why it’s important to know about domestic violence Prevalence of domestic violence

Statistics Definitions Understanding the parties

Screening and interviewing Representing victims safely Remedies and legal relief

Custody and parenting time PPOs

Community resources

Why you need to learn about domestic violence(1):Attorneys: Domestic violence effects all parts of your case Your client may not disclose it unless you ask the

right questions. You can not effectively represent an abused client

unless you understand the effects of domestic violence has.

You commit malpractice if you fail to take the appropriate steps to protect your client.

A perpetrator is dangerous to your client, her family and potentially both attorneys.

Why you need to learn about domestic violence(2):Judges: Failure to understand and appropriately address

domestic violence places victims at risk. Domestic violence cases can have dramatically

awful and highly publicized outcomes. Domestic violence cases present conflicting

allegations, and attorneys often handle these cases poorly. A basic understanding of the dynamics of domestic violence can help you get to the truth and take appropriate action.

Domestic violence cases present the greatest danger of violence in the courthouse.

Why domestic violence is relevant in child custody disputes: Abuse does not end with separation Half of abusers are likely to be child abusers Children are exposed to abuse and poor role model Abuse undermines the non-abusive parent New relationships are likely to be violent Lengthy litigation as a form of ongoing control and

harassment Higher risk of stalking and homicides

(Jaffe, P.G. Lemon, N. & Poisson, S.E. (2002) Child Custody Disputes and Domestic Violence: Clinical and Legal Issues. Sage, Thousand Oaks, CA)

Statistics

In the United States, 1 in every 4 women will experience domestic violence in her lifetime.

An estimated 1.3 million women are victims of physical assault by an intimate partner each year.

About one-third of female homicide victims are killed by an intimate partner. [By contrast, about 3% of male murder victims were killed by an intimate partner.]

-National Coalition Against Domestic Violence, http://www.ncadv.org/

Statistics

The cost of intimate partner violence exceeds $5.8 billion each year, $4.1 billion of which is for direct medical and mental health services.

30% - 60% of perpetrators of intimate partner violence also abuse children in the household.

On average, children were residents of the households experiencing intimate partner violence in 38% of the incidents involving female victims.

-National Coalition Against Domestic Violence, http://www.ncadv.org/

-USDOJ, Bureau of Justice Statistics, http://bjs.ojp.usdoj.gov/content/intimate/ipv.cfm#contents

Domestic Violence can be defined in several ways-The MI Batterer Intervention Standards:

“Domestic Violence is a pattern of controlling behaviors, some of which are criminal, that includes but is not limited to physical assaults sexual assaults, emotional abuse, isolation, economic coercion, threats, stalking and intimidation. These behaviors are used by the perpetrator in an effort to control the intimate partner. The behavior may be directed at others with the effect of controlling the intimate partner.”

http://www.michigan.gov/dhs/0,1607,7-124-5460_7261_18139---,00.html

Statutory definition-MCL 400.1501 Domestic violence means any of the following acts that is not an act of self-defense:

(i) causing or attempting to cause physical or mental harm to a family or household member.

(ii) placing a family or household member in fear of physical or mental harm.

(iii) causing or attempting to cause a family or household member to engage in involuntary sexual activity by force, threat of force, or duress

(iv) engaging in activity toward a family or household member that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed or molested.

“Family or household member” includes:

A spouse or former spouse. An individual with whom the person resides or has resided. An individual with whom the person has or has had a

dating relationship. An individual with whom the person is or has engaged in a

sexual relationship. An individual to whom the person is related or was

formerly related by marriage. An individual with whom the person has a child in

common. The minor child of an individual described above.

Some common warning signs

Abusers may use some or all of the following tactics:

ABUSE TO THE FAMILY PET FINANCIAL CONTROL ISOLATION FROM FAMILY AND FRIENDS ENTITLEMENT (especially male entitlement) SUPERIOR ATTITUDE SUBSTANCE ABUSE (but note that substance

abuse doesn’t cause domestic violence; it may accompany it)

Warning Signs (cont)

CONTROLLING POSSESSIVE SELF CENTERED INTIMIDATES WHEN ANGRY DOUBLE STANDARDS DISRESPECTFUL SHOW OF GENEROSITY

Warning Signs (cont)

NEGATIVE ATTITUDES ABOUT WOMEN TREATS PARTNER DIFFERENT AROUND

OTHERS SARCASM AND RIDICULE DISTORTS WHAT PARTNER SAYS

Warning Signs (cont)

YELLING/SHOUTING NAME CALLING, INSULTS AND PUT DOWNS BODILY INTIMIDATION THREATS TO LEAVE JEALOUS AND POSSESSIVE THREATS TO HURT OR KILL PARTNER, SELF

OR OTHER FAMILY MEMBERS

Identifying Domestic Violence

Understanding the Abuser

Characteristics may include: Dependency and jealously Psychological and social isolation Poor interpersonal skills Belief in male entitlement -“Jekyll and Hyde” personality Refusal to accept responsibility for the violence

Environment for abuse includes: Abuser has learned to abuse Abuser has the opportunity to abuse Abuser has chosen to abuse

Victim Responses

Typical responses to trauma: Shock, disbelief, fear, withdrawal, confusion Panic, minimization, denial, rationalization Posttraumatic Stress Disorder Depression

Coping strategies: Drug or alcohol use Self defense Remaining in the relationship Leaving the relationship Seeking help

“Why Doesn’t She Leave?”

This is the wrong question. Instead ask, “why is the abuser allowed to continue?”Barriers to leaving:

concern for children (also major reason for leaving)

Fear of financial loss Belief that the children need their father Fear she will lose custody Fear she and children will be stalked, abused

and/or killed Family pressures

Yet, victims do leave.

Attorneys--

Questions to ask your

client to determine if she is

a victim of domestic

violence.Also, see the SCAO Domestic Violence Screening Protocol for a list of mediator screening questions available at:http://courts.michigan.gov/scao/resources/standards/odr/dvprotocol.pdf

Questions Lawyers Should Ask Are you afraid of your partner?

Has your partner ever hit, slapped, pushed or hurt you in any way?

Questions Lawyers Should Ask Has your partner ever forced you to do

something that you did not want to do?

Does your partner own a weapon?

Questions Lawyers Should Ask Does your partner ever prevent you from

eating or sleeping or otherwise do anything that may endanger your health?

Do you have or have you ever had a protection order against your partner?

Questions Lawyers Should Ask Has your partner ever hurt or killed a family

pet?

Has your partner ever taken your children without your consent?

Questions Lawyers Should Ask Does either party have any mental health

needs?

Does either party have a history of drug or alcohol abuse?

Questions Lawyers Should Ask Has your partner followed your, left

harassing messages or calls or placed you under any kind of surveillance?

Is your partner affecting your ability to go to work or school?

Questions Lawyers Should Ask Has your partner ever threaten to harm you,

your children or other family members?

Does anything happen in your home that makes you afraid?

Questions Lawyers Should Ask Have you sought or are you in need of

medical attention?

Have you reported any violence to any third party, e.g. police, hospitals, rape crisis centers, etc.?

Questions Lawyers Should Ask Do you (and your children) have a safe

place to go?

Are you in need of financial assistance?

What to do if you learn

your client has been a

victim of domestic

violence:Maximizing Client Safety

Tips for Lawyers

Assure client that all communications to you, including about the violence, will be confidential.

Discuss with your client how it is safe to communicate with her and inform your staff.

Review your office security with your staff.

Tips for Lawyers

When you call your client, if questioned by a family member about who you are, do not leave a last name, do not indicate you are a lawyer and do not reveal your purpose for the call.

Talk to your client in advance about what to do if she disappears or cannot be located. Does she want you to contact the police, family or friends?

Tips for Lawyers

Keep your client’s location out of all court or public documents and otherwise confidential.

When calling your client, block your number from caller i.d. and before you start to talk, ask if it is safe to talk.

Tips for Lawyers

If you feel your client is in danger, call the police.

Direct your client to the local domestic violence agency and other third parties for needed assistance.

For a Michigan DV resource directory by county, go to:http://www.michigan.gov/som/0,1607,7-192-29941_30586_240-2884--,00.html

Consider Confidentiality:

Court rules and statutes generally require disclosure of child’s address. MCR 3.206, MCL 722.1209

Victim could be in danger if perpetrator learns her address.

In a PPO, victim may choose to keep her address confidential. MCL 600.2950(3)

In a custody action, no disclosure to other party if a party’s or child’s safety would be at risk by disclosure of identifying information. MCL 722.1209(5)

Personal Protection Order

An order that enjoins specific behavior, including: Assaulting, assaulting, beating, molesting or wounding a

named individual Entering onto property Threatening to kill or injure a named individual Removing minor children from legal custodian Purchasing or possessing a firearm Interfering with efforts to remove children or property

from respondent’s premises Interfering with petitioner’s employment/education Access to information regarding petitioner’s address Stalking Any other specific act that imposes on personal liberty or

causes reasonable apprehension of violence

Michigan PPO

Three types of orders: Domestic Relationship PPO

Spouse, former spouse, child in common, residing or have resided together, dating relationship.

Non-Domestic Stalking PPO No special relationship required Must show 2 or more separate incidents of stalking

Sexual Assault PPO Not required to have a domestic relationship or show 2

stalking incidents. Must show respondent was convicted of sexual assault, or Petitioner was threatened with sexual assault.

Michigan PPO

Filing Requirements: Filed as a separate action No filing fees charged Filed in any county in MI regardless of residency Petitioner may omit address, but provide mailing

address Forms available through SCAO Mutual PPOs are prohibited PPOs are entered into LEIN (law enforcement

information network)

The Court Must Consider…

Testimony Documents Or other evidence

Court cannot consider: Lack of police report Lack of medical report Lack of physical injury

Court cannot make the PPO mutual.

The Court SHALL Issue a PPO… If the court determines that there is reasonable

cause to believe that the individual to be restrained may commit one or more of the acts listed.

The Court must rule on request for ex parte PPO within 24 hours of filing.

If the court refuses to enter the PPO, it must state reasons in writing and advise petitioner of right to hearing (unless no merit).

How long does a PPO continue?Duration: Ex parte PPO – valid for not less than 180 days. All PPOs – must include an expiration date on

the order.Effectiveness: Effective and enforceable anywhere in MI and

the US when signed by a judge (even before service).

But, if respondent hasn’t been served, before making an arrest law enforcement must give respondent an opportunity to comply with the order.

Modifying a PPO

Modification or Termination: Respondent may file a motion within 14 days

after service unless good cause is shown for filing after 14 days.

Petitioner may file a motion any time.

Extension: Petitioner may file ex parte motion to extend

expiration date no later than 3 days before the order expires.

Enforcement of PPO

Warrantless arrest – after service, respondent may be immediately arrested if reasonable cause exists that PPO was violated.

Show cause petition – if no arrest, petitioner may file a petition for an order to show cause.

Criminal contempt proceeding. Some due process protections – right to hearing;

right to attorney; proof beyond a reasonable doubt; but no right to jury.

Penalties – imprisoned for not more than 93 days and/or fined not more than $500.

May also be charged with separate criminal offense.

PPO and a Custody Order

A PPO takes precedence over existing custody or parenting time order until the PPO expires or the custody order is modified to accommodate the PPO.

If respondent’s custody or parenting time would be adversely affected by a PPO, the court must determine whether conditions should be specified in the PPO to accommodate respondent's rights or whether safety of petitioner and children would be compromised by conditions.

MCR 3.706(C)

RESOURCES

Michigan: Michigan Coalition Against Domestic and Sexual

Violence www.mcadsv.org Michigan Domestic Violence Prevention and

Treatment Board http://www.michigan.gov/dhs/0,1607,7-124-5460_7261---,00.html

Batter Intervention Services Coalition of Michigan www.biscmi.org

MORE RESOURCES

Domestic Violence Bench Book www.courts.michigan.gov/mji/resources/dvbook/dvbook.htm

Friend of the Court Domestic Violence Bench Bookwww.courts.michigan.gov/mji/resources/focdv/focdv/focdv.htm

Michigan Judicial Institutehttp://courts.michigan.gov/mji/

MORE RESOURCES

National: American Bar Association, Domestic Violence

Committee http://www.abanet.org/domviol/ National Domestic Violence Hotline

http://www.ndvh.org/ National Stalking Resource Center

http://www.ncvc.org/src/Main.aspx

MORE RESOURCES

National Sexual Violence Resource Center http://www.nsvrc.org/

National Network to End Domestic Violence

http://www.nnedv.org/ National Council Against Domestic Violence

http://www.ncadv.org/ Lundy Bancroft http://www.lundybancroft.com/

The Batterer as Parent Why Does He Do That? When Dad Hurts Mom