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Beware Family Court:
What Victims and Advocates Should Know

Part II - Avoiding the Risks of Family Court.


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.

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