Copyright © Marie De Santis,
Women's Justice Center,
Despite some new protections patched into family law for victims of violence against women, the family law and family court system remain a flawed and risky venue for victims of family violence. It's especially risky for victims who present claims of violence and abuse in family court without any criminal case documents to back up those claims.
The structure and powers of the family court system are radically different from the criminal system. By understanding these differences, victims and advocates can minimize the risks of family court, and get the best of each system to work for them.
Part I of this text describes some of the key differences between the family and criminal court systems. It explains why family court is so prone to fail victims of family violence. Part II provides some strategies for avoiding family court when possible, or for protecting against the risks when a family court case is opened. Parts III & IV provide some general tips for handling your family court case.
Part V offers some tips on what to do if you lose in family court, particularly if you lose child custody. And Part VI tells a story of how one domestic violence victim who had become badly trapped in family court hell, ultimately managed to get free.
Part I - Key Differences Between
the Criminal and Family Court System
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.
A. 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.
B. 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 her.)
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 are true.
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.
C. Family Court has Virtually No Power to Protect Victims from Violence.
Criminal Court wields the Ultimate State Power to Protect Victims from Violence.
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 orders.
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 system.
But there's more...
D. The Family Court System Operates on the Weakest Standard of Evidence.
The Criminal Court System Operates on the Strictest Standard of Evidence.
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 proof.
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 criminal court.
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 door.
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 out here.
E. 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.)
NOTE: Recent 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.
NOTE: Family 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.