The Law in Your Life

Family

Domestic Violence: Civil Court Remedies

Introduction to Civil Courts - What Can They Do?

Surprisingly, if you are willing to agree that there are some limitations, the civil courts can assist a battered spouse in many ways. One of the first ways to obtain assistance is that while the civil court requires that a crime occurred [even though an assault crime has a fairly low proof level], the Family or Civil courts do not have such a requirement. In some instances, it is easier to obtain some type of Restraining Order against the batterer than to get the police to take action.

Typically if you are proceeding to some type of Civil or Family Court and you are not yet seeking a divorce, you will be filing paperwork that will enable a court to grant some type of Restraining Order.

What are a "Restraining Order" a "Protective Order" and an "Order of Protection?"

In civil courts, judges issue orders to enforce their rulings, state statutes or other case law. If a judge did not issue an order, no entity or person would know what to do, and no entity or person would be able to act. Orders issued by judges are required to be filed, and usually it is incumbent on some form of enforcement branch, such as the police, to ensure enforcement of the order. If the order is not followed in civil court, contempt citations may be issued by the court, that will enable the law enforcement agency to enforce the order, and arrest the non-complying party.

A Restraining Order or a Protective Order typically requests the court to order some or all of the following actions:

  • Order the batterer to remain away from the children;
  • Order the batterer to stay away from all aspects of the children, including babysitters, nannies, daycare, teachers and other such persons;
  • Order the batterer to stay away from you;
  • Order the person not to call, write or otherwise contact you;
  • Order the batterer not to harass your property or your house and not to visit the house or reside there;
  • Order the batterer not to abuse you; and/or
  • Order the batterer not to visit your work, or harass your colleagues.

In order to obtain a Restraining Order, a victim must prove certain elements required by the courts. States vary in their restraining order requirements and a local lawyer should always be consulted in such cases. However, as a general rule, the victim must prove that there is some harm either being inflicted on the victim, or his/her children, or some threat of harm to either. Also, such orders may issue for demonstrations of harm to property, harassment, and other behavior that is viewed in the light of harassment and interferes with the victim's normal life that is caused by the batterer. It is wise to remember at least two things in seeking a Restraining Order: (1) Courts are most concerned with serious harm or threats of harm to children and/or victims; and (2) courts require that the party seeking the order bring the evidence to the court in the format required by the court.

Can Restraining Orders Really Help?

You may have heard that a Restraining Order cannot really help. Can it?

It is true that a Restraining Order must be enforced by some law enforcement agency, and therefore, it is only as effective as the police officer enforcing it. Thus, effective Restraining Orders can:

  • Get the Police to act on your behalf easier, since they have a court order;
  • Get the Police to help you move or protect you, while you are traveling around town easier;
  • Have the Police arrest the batterer if he is harassing you in a manner which violates the court order;
  • Have the Police protect you at work;
  • Provide the means by which to "drag the batterer back before the judge" for violating it; and
  • Have the batterer arrested for conduct which violates a court order, but which otherwise might not rise to the level of a serious crime, e.g., letting the air out of your car tires, or making repeated harassing phone calls to you at work.

It is up to you and your advisors to decide it you think the Police Department will be effective in enforcing the order. If so, one should give careful consideration, along with your professional advisors, to seeking such an order for protection.

What About Divorce?

Along with a Protective Order, one might explore the possibility of a divorce. State laws vary and this subject is far too complicated for this Web site, except to say consult with one of your Plan Attorneys, or some attorney to make an informed decision about the prospects and effect of a divorce.

Will They Take My Children From Me?

Battering partners are often not determined to be such, either because the spouse victim has not reported their battering, or because the criminal justice system has not yet become involved in their case. As a result, victims who break away and seek a divorce as a means of ending the relationship often face a battering spouse who is (1) vindictive; and (2) sees the children as a means of obtaining revenge on the victim.

As a result, in the divorce proceedings, unless the battering is established to be significant to the court, couples are often awarded joint custody of children. Especially in today's family law courts, the husband is no longer routinely dismissed from custody considerations. The problem is that the court never learns the extent of the battering, and the children end up suffering.

Studies show that children who are hustled between divorced parents, are likely to encounter differences in parental behavior. As an example, one spouse may be domineering, while the other is less structured and controlling. Their children may become confused in their actions, since each parent may demand different behavior. Also, as they grow older, the children will adapt and learn to exploit each parent's weaknesses, often to the detriment of the victim. Knowing the children may be manipulative, and not knowing how to obtain help, may lead a victim to stay married and in a relationship that may be destructive to her/him.

Additionally, abusive fathers, whose primary motivation is often to obtain revenge on the victim who instituted the divorce proceedings, may learn to manipulate the children so as to cause continued grief to the victim. The scene of one parent who sees their children two times per month giving them everything, forgetting about discipline and "becoming their friend," all while the other spouse has to be the "disciplinarian" ,can be common today.

What may be important to initiate, especially for the divorced victim, is serious therapy and counseling for themselves and their children, so that the counselor may help to determine remedies for dealing with the negative behavior engaged in by one spouse. If possible, counseling for the batterer may also be productive, at least as it relates to the children's growth and emotions.

Helping the Court to Evaluate What is Really Happening in the Family.

During the divorce proceedings, it is imperative for the victim to help her/his attorney and the court understand the extent of violence in the family. This may be one of the most important roles the victim can undertake, once the decision to leave has been made. It is imperative for the victim to present to their advocate and to the court, the "real story" of the marriage, and its impact on the children. One must not rely on detached professionals to present this aspect of the case, because regardless of their level of professionalism and interest in your case, they simply do not have the knowledge about the abuse that a victim does.

Knowing the key points that custody interviewers are looking for can help you decide how to present your case. A list of some of the important items is as follows:

  • Provide a detailed and documented statement to your attorney;
  • Facilitate interviews by the attorney with as many family members as you can provide. There is strength in numbers. Tip from practicing attorney: Never underestimate the power of corroboration for judges. You might consider the value of the following: Rather than preparing the statements for the family members, make yours in detail, and then allow the family members to be interviewed by the attorney without you. [NOTE: This approach is not meant as advice and has inherent risks for the success of your case, and it is just a suggestion. If your case is not airtight, or may have some holes, this approach can backfire and make your attorney less interested in your case. Thus, consider this approach carefully and talk to your professional advisors about your case first.]
  • Make sure other witnesses are not present when statements are given that might be used in court. Independent statements by witnesses are always important evidence.
  • It may be worth considering videotape interviews, especially if the batterer is strong-willed, controlling or abusive to others. You may want to consider having the victim present at the time the batterer's statement is taken, but this too, should be discussed with your professional advisors in your case.
  • Consider which friends might be helpful in presenting the truth in your case. Some witnesses may be biased toward you, but this may still be helpful to your case. Do not dismiss your best friend for forty years, for example, for that reason alone. This friend may make an incredibly powerful statement on your behalf. On the other hand, do not rest your entire case on the statement of your best friend for forty years. You must realize that no matter how truthfully your friend testifies, she/he will be viewed as somewhat biased toward your case.
  • Be ready to present specific evidence about battering in the relationship. Dates and times, along with specific acts can help. Consider the following questions:
  • How much violence occurred?
  • How much is occurring?
  • What is the impact on the children?
  • What evidence is there that the violence impacts the children?
  • Is the child being psychologically affected?
  • Is there danger to the child?
  • Has there been any sexual abuse on the children?
  • What other risks do the children face?
  • What evidence is there of harm, or the risk of harm, to the children?
  • Focus on the parenting skills that you have, and identify objective evidence of these. Be specific. This can be a great area for the victim to "tip the scales" toward their parenting value to the children.
  • Focus on the parenting deficiencies the batterer has, and be detailed about these. For instance, a diary showing that the batterer never came home until midnight and was always intoxicated would be extremely helpful in presenting to the court an accurate picture of the marriage.
  • Present any professional evaluations, treatment or opinions that the children have undergone, prior to and during the divorce, which may show a negative affect on the children by the batterer, even if he/she is not battering the children.

Remember that to the court, the first priority is usually a reuniting of the family. Naturally, this can be the absolute worst result in some situations. But you must take a stand and affirmatively provide, to your professional advisors, including your attorney, the evidence demonstrating that reuniting may be the absolute worst result. It is your responsibility, and one of the items in the control of the victim that could favorably impact your case.

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