October is Domestic Violence Awareness month and I want to take this opportunity to write about the effect that domestic violence has on the family and dispel some myths. . Studies show that children who grow up in a household with domestic violence are more likely than children who did not grow up in a family with domestic violence to continue the cycle in their own families.
One of the many myths of domestic violence is why a victim stays in an abusive relationship. It is also commonly thought that the only person to blame is the abuser.
Although I agree that any claim of domestic violence should not be taken lightly, if there are children involved, and the parties were already heading towards separation or a modification of custody was brewing, the fact that a petitioner may be bringing an action in order to obtain (at least a temporary) upper hand in the custody “battle” is alarming.
There are significant consequences (as there should be if the allegations are true) if a Judge finds that domestic abuse has occurred.
In the context of criminal cases, incarceration or fines may be imposed and “no contact” orders entered which may include requiring the perpetrator to vacate the family residence or to have no contact between a parent and their children.
In the civil context, including divorce and custody proceedings, the consequences are equally severe and can include the following:
No Mediation of Disputes
It is often presumed that when domestic abuse has occurred, mediation for family law disputes should not be required (even if the ultimate Petition is denied).
No Contact & Criminal Violation & Parenting Issues
When domestic abuse has occurred, the Court will enter a Protective Order which can prohibit the Respondent from contacting the Petitioner directly or indirectly, whether through letters, e-mail, phone calls or messages through third parties (there are times that limited contact can be allowed depending on the situation). Any violation of those restraining provisions, regardless of whether the contact is initiated by the Respondent or not, is a criminal violation which may result in incarceration. This makes any sort of co-parenting impossible (in turn making it more difficult for the alleged abuser to obtain a favorable custody arrangement). This may result in no parenting time or supervised parenting time. The Court may also require a Respondent to participate in an anger management program, chemical dependency treatment and other therapies as a condition of normalizing contact with children (which may not be necessary or even ordered if the allegation of abuse was never filed).
Exclusive Use of Home
The Respondent is often excluded from the family residence including any property within that residence regardless of whether the residence or household is jointly or solely owned or leased by the parties. Often the order will make allowances for law enforcement officers to accompany a party to the residence to supervise the removal of limited personal belongings, but that is it.
Restriction of Civil Liberties
Additionally, the entry of a Protective Order may affect other civil liberties. For example, a Respondent found to have abused the Petitioner is precluded from owning or possessing a firearm for any purpose so long as the Protective Order is in place.
If the respondent has a high security clearance or public service position it is possible that the respondent can be suspended (or terminated) by their employer or not receive a job due to the finding of abuse.
Clearly, when false allegations of abuse are made, the stakes are very high. Ironically, this is contrasted by the low burden of proof necessary for those seeking civil protective orders involving domestic abuse and the abbreviated manner in which such hearings are generally held.
Even if the final Protective Order is denied, it is possible for a week (or more at times) where the Respondent is prevented from seeing their children due to the pendency of the Final Protective Order hearing (even if said Petition is ultimately denied).
The issue becomes how do we ensure we are protecting the victims that need to be protected while ensuring that a person is not alleged to be an abuser solely in an attempt to manipulate the system relating to child custody. How do we protect both the true victim and the wrongfully accused (as well as the children stuck in the middle)? I am not sure we are able to with the system we have in place.
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