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.
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.
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
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
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.
Family Court has Virtually No Power to Protect Victims from Violence.
Criminal Court wields the Ultimate State Power to Protect Victims
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
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
But there's more...
The Family Court System Operates on the Weakest Standard of Evidence.
The Criminal Court System Operates on the Strictest Standard of
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
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
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
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
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.)
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.
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.