DOMESTIC VIOLENCE

+ How does domestic violence affect divorce proceedings?

Domestic violence, or the accusation of domestic violence, may have profound effects upon a divorce proceeding, particularly upon custody of children. If there is domestic violence, the Courts often have separate proceedings wherein the victim can receive substantial remedies against the aggressor, which may include a restraining order that the aggressor spouse not come near the other spouse, that spouse’s work place, or home; physical and legal custody of a child; an order for no visitation or only supervised visitation; monetary compensation; an order that the aggressor take an anger management class, etc. Although it is generally thought that domestic violence against a spouse should not necessarily have an impact upon the parent’s relationship with a child, judges have substantial discretion to affect that relationship, especially where the child witnessed some act of violence.

If a spouse is forced to leave a marital residence because of domestic violence, that spouse’s address can be “impounded,” or kept secret, so that the aggressor spouse cannot find the other spouse. Also, a spouse who is a victim can often obtain a restraining order “ex parte,” meaning, without notice to the other spouse if there is an emergency. There will then be, in short order, a follow-up hearing with advance notice and an opportunity to be heard to determine if the restraining order should be extended.

- Jerome L. Aaron, Attorney at Law, Massachusetts

+ What if I am falsely accused of domestic violence?

In most instances, one accused of domestic violence has a right to a hearing where witnesses are called, documents are presented, and the complaining spouse is cross-examined. If you believe you are falsely accused, you need to defend the matter vigorously since so much is at stake. Unfortunately, most of these allegations are said to happen at home where there are no witnesses, so it may come down to your word against your spouse’s. The absence of prior violence or calls to the police, and the failure of the alleged victim to take pictures, to seek medical attention, or to tell anyone, may be evidence that the victim is not being truthful or is exaggerating or embellishing. Generally, domestic violence claims are for “serious bodily injury,” or imminent threats to commit serious bodily injury. Although any physicality, such as shoving or grabbing, is regrettable, it should be remembered that these may not rise to the level of “domestic violence,” and so may not warrant a restraining order.

- Jerome L. Aaron, Attorney at Law, Massachusetts

+ How do I go about ceasing false accusations of child abuse, and holding the other party responsible for making a false report?

The first recommendation that you will hear repeatedly for many of the questions that arise here is "Document Everything". By this, we mean create a journal with dates, times and descriptions any time you have contact with the other party. Keep especially close track of any contacts with Child Protective Services or police, when you are served papers, and when you are brought to court.

The second recommendation is to protect yourself. Without alarming them or telling them what you're doing, make it a habit to take photographs of your children when they arrive for your parenting time on every occasion - and then take photographs shortly before they leave on every occasion. Label the photographs with dates and keep them safe so that you can show there was no physical abuse while they were with you. Photos of your children being happy with you also helps to show that you are a good parent. Make sure that any time you anticipate a Child Protective Services investigator will come to your house that your house is clean and well stocked with healthy food - a clean and healthful environment goes a long way toward building a good defense against allegations of abuse or neglect.

If the allegations are repeatedly being found by Child Protective Services to be false or unfounded, get a record of those findings. File a motion with the court for a hearing and take your records before a judge. Ask the judge to place sanctions upon the other party for each new false accusation that occurs after that date - these sanctions can be monetary, a loss of parenting time, or other punitive action. It may take more than one hearing to be successful - be tactful and respectful of the judges time and decision.

You may also be able to request that the other party be required to have supervised parenting time. This will depend on the level of alienation that is being used by the other parent, your current share of parenting time, and whether the court may believe that statements and actions of the other parent are negatively affecting your relationship with your child(ren) and/or their well being.

- Curtis Vandermolen, Member, Executive Committee, National Parents Organization of California