Legal Issues, Part Two A BIPP Educational Series, Part One

Online Module

CJAD Approved Hours: 1

Build a foundation of knowledge about basic legal information related to family violence

Identify relief of divorce petition

Explain basics of child custody petition

Explain basics of child visitation provisions

Objectives

The petition for dissolution must state whether a protective order is in effect or has been filed.

Petitioners must attach to the petition copies of all protective orders between the parties, without regard to the date.

If at any time while a divorce is pending the judge suspects family violence, the court must inform victims of their right to apply for a protective order.

Protective Orders and Divorces

Definitions: Petition=Request for Divorce Petitioner--The individual who is filing the protective order

For married survivors who are try to use legal means to escape violence, protective orders and divorces will most likely be an option.. Below are items to consider.

Temporary conservatorship and possession (custody) of and access (visitation) to children

Temporary child support Temporary spousal support Temporary restraining order as to harming,

concealing, or reducing the value of property Production of documents Attorney fees Occupation of the residence Injunction as to property and funds Restraining order as to a person

Divorce: Temporary Relief

On the written agreement of the parties or on the court’s own motion, the court may refer a divorce case to mediation.

A party may file a written objection to the referral to mediation on the basis of family violence.◦ The other party can request a hearing to determine (using the

lowest legal standard) whether violence has occurred.◦ If mediation is ordered, the court shall order safety measures,

including that mediation cannot be face-to-face and that the parties must be in separate rooms.

MediationMediation is never recommended in court cases involving the power and control dynamics of family violence.

Batterers can easily manipulate and intimidate victims during mediation with looks or gestures. Batterers may also take the opportunity to coerce victims.

The court can order parties to a divorce to undergo counseling to determine whether the marriage can be reconciled.

If the counselor’s report indicates the possibility of reconciliation, the court can order a continuance (temporary halt to the proceedings).

No specific exclusion exists for family violence. Problem: The perpetrator can manipulate the

system by her/his statements to the counselor, especially if the victim is scared to mention the abuse.

Counseling

The best interest of the child is the primary consideration.

A child 12 or older can file a preference with the court. Texas has a legal presumption that joint custody is in

the best interest of the child. Credible evidence of family violence (including

protective orders) must be considered and overrides the presumption of joint custody in Texas.◦ No joint managing conservatorship can be ordered if there is

evidence of a history/pattern of past or present family violence.

◦ There is a rebuttable presumption that a perpetrator of family violence will not be awarded sole conservatorship.

Child Conservatorship and Possession (Custody)

However, research show us that:◦ Up to 50% of contested custody cases involve family violence.◦ Batterers win contested custody cases nearly 70% of the time.

Why is this true?◦ Victims often fear reporting the abuse to the court, based on threats

by the abuser.◦ Batterers are manipulative and abuse the legal system through

expensive custody battles that victims cannot afford, financially or emotionally.

◦ Victims are often judged by their past behavior. (Some courts still wonder why the victim did not leave if the abuse was real, and blame the victim for exposing her /his children to the abuse.) In contrast, batterers are often judged by their seeming emotional caring for the children - their current and promised future behavior.

◦ Batterers act “more emotionally stable” than the victim - in court, to mediators and psychologists doing custody evaluations. Victims are often scared or angry. Batterers are outwardly calm and charming.

Child Conservatorship and Possession (Custody)

The court must consider the commission of family violence in determining whether to deny, restrict or limit access to the children.

There is a rebuttable presumption against unsupervised access if there has been family violence.

If there is proof (by the lowest legal standard) of family violence within the last two years prior to filing the divorce/custody case, the court may not allow access, unless:◦ There is no danger to the child’s mental/physical health and it

is in the best interest of the child;◦ The court renders the access order with safety provisions:

Supervision by a third party Exchanges in a protected setting No alcohol/drug use by the parent 12 hours prior to and during

visitation Completion of BIPP

Child Access (Visitation)

Some of the legal child abuse definitions are often used against a family violence victim.◦ Mental or emotional injury to a child◦ Causing or permitting a child to be in a situation

in which the child sustains mental or emotional injury

◦ Failure to make reasonable efforts to prevent an action by another person that results in physical injury to a child.

Child Abuse

Legal definitions of child neglect are also often used against the victim.◦ Leaving a child in a situation where the child would be

exposed to a substantial risk of physical or mental harm Problems with abuse and neglect definitions:

◦ While 40-60% of batterers also abuse their children under the legal definitions, they are rarely reported by victims, who fear losing their children, and batterers can often manipulate the system if they are reported.

◦ Victims are often injected into the juvenile court system which places many restrictions on them, with which they cannot comply. This can lead to out of home placement, sometimes with the batterer or the batterer’s family. Victims know and fear this.

Child Neglect

Affirmative defenses (admitting the crime, but giving a legally-recognized reason why there should be no guilty verdict) are available to family violence victims in limited circumstances.

Criminal penalties for abuse/neglect are state jail offenses to felonies depending on the severity.

Removal of the child from the home or loss of custody is a possibility.

Child Abuse and Neglect

There are distinct differences between the law as written and its practical application, which exist on a continuum. ◦ Intent and wording of the law◦ Knowledge of the law by those in the legal system◦ Practical application of the law◦ Community response to the law and its application

and demands for reform Conflicts still exist between the dual goals of

victim safety and offender accountability. Consider your role in both.

Legal Responses to Family Violence – Considerations and Conflicts