Saturday, April 20, 2013

Determining the Best interest of the Child: Domestic Violence Restraining Orders and Settlement Agreements

This is the second in a three part series of articles about the 2006 Published opinion in re: The Marriage of J.M. v N.M. There are three distinct issues that are covered in this case that will be of benefit to anyone experiencing contested child custody.

The first segment was about the use of third-party evaluators and mental health professionals in shaping child custody decisions. Today I continue with the use of Domestic Violence Restraining Orders [DVRO] in shaping child custody settlement agreements.

From the outset I again note that this is not a case where there have been unjust attributions to parental fitness. This is the type of case where the appointment of a GAL / CASA is a good thing. It is not so much that there is a conflict between the parents over parenting time, but rather, it is the potential endangerment to the child's physical and emotional well-being that is at issue. Of concern is whether the use of a DVPO is being used to achieve a modification of the child custody and parenting time order. I am currently looking for interview subjects who have been involved in cases alleging Domestic Violence.

Three months after preliminary reaching agreement to custody, parenting time and the appointment of a Guardian ad Litem the mother filed a verified petition for a protective order and a verified petition to modify parenting time. In the DVPO petition she alleged instances in which Father appeared to have consumed alcohol and forcibly, over Mother’s objection, took the child from the marital residence; berated the child after a soccer practice – severely affecting him; and displayed an explosion of rage in the kitchen of the marital residence. I have not seen the petition and am not aware of whether there were additional factual allegations.

Ten days later the parties presented the trial court with an agreed order for modification of parenting time. Signed by both parties, the order provided that Father’s parenting time would be supervised by Choices, “in a manner approved of by” the GAL, and that the parties would “follow the recommendations and requests of Choices and the” GAL regarding parenting time issues. The order also stated that Father denied the allegations in Mother’s DVPO petition, and Mother maintained that it was accurate, but that “in exchange for” Father’s agreement not to enter the marital residence unless invited by Mother and to “supervised parenting time at Choices,” Mother would dismiss her petition.

The American Bar Association in it's guidelines for judges making child custody decisions claims that “[c]ustody disputes can be a litigation tactic that allows the battered woman to be revictimized. A father may threaten to sue for custody, seek modification, or oppose relocation as a bargaining tool. He may discover that his wife may be willing to forego rights to child support and alimony in exchange for custody. For example, one study indicated that women reduced their requests for resources during negotiations when they were afraid that they might lose custody.”[fn1-emphasis added] It is not clear whether the original authors supported the ABA's proposition that only fathers could use litigation tactics in custody disputes but I think logic tells us that it is a gender neutral reality. I also find it interesting that the ABA's concluding statement in that paragraph makes no attribution to alleged Domestic Violence by the Father but, just as criminals are willing to forgo some freedom and plead guilty to a lesser offense, some women are willing to reduce demands for whatever reason.

The concern I have in this matter as it relates to the DVPO is that a person agreeing not to perform a legal obligation -- IPTG already says a parent is not to enter the other parent's home unless invited[fn2] – and accepting restrictions on parenting time does not make a true abuser less of a threat. In other cases, divorce attorneys have been known to offer to drop the allegation of abuse in exchange for financial concessions.[fn3] I consider mutual concessions in contested DVPO case agreements that do not involve some type of intervention effort for the alleged perpetrator to reveal either a non-meritorious DV claim or to be neglecting the welfare of the child. It's the equivalent of an agreement with a landlord to drop a health department complaint for leaking plumbing and mold if you get a covered parking spot and new carpeting of your colour choice. The agreement is not germane to the complaint: so how could the complaint be genuine? I caution judicial officers to look for these types of inconsistencies and to reject these agreements and, instead, hold an evidentiary hearing on the DV petition. To do less is to allow judicial economy – the settling of issues by the parties – to supersede the best interest of the child which is contrary to statute.[fn4]

I am deeply disturbed by this trend and concerned by the ramifications. I had one judge tell me that the prosecutor's office usually helps petitioners complete the DVPO petition. When she gets one involving a child custody case and it has not been obtained through the prosecutor's office the she doubts its' veracity. This type of bias, which arises as a result of concocted claims that are really just part of a trial or settlement strategy, cast the shadow of doubt on legitimate complaints. Judges may become dismissive of allegations that truly merit court interdiction.

Bias is aptly demonstrated in one such court hearing where the alleged victim brought photographs of injuries, medical documentation of the emergency room visit, and a copy of the police report. The judge’s explanation for denying the DVPO petition: “Well, you have to expect one knock-down drag-out fight per divorce.”[fn5]

The misuse a DVPO as a trial strategy tool cause those who truly need intervention or protection to find it increasingly difficult to get help. It is incumbent upon judicial officers, practitioners and parents to be vigilante towards recognizing false allegations and ensuring that settlements and the negotiation process are undertaken in good faith. Doing so should better meet the best interest of the children and result in parents abiding by agreements that were entered voluntarily rather than coerced through by the threat of a court imposed power imbalance.

Notes [1] Lou Brown, Francois Dubau, & Merritt Mckeon, Stop Domestic Violence: An Action Plan For Saving Lives 109 (St. Martin’s Griffin 1997).
[2] IPTG § Sec I(B)(4) Privacy of Residence. A parent may not enter the residence of the other, except by express permission of the other parent, regardless of whether a parent retains a property interest in the residence of the other. Accordingly, the child shall be picked up at the front entrance of the appropriate residence unless the parents agree otherwise. The person delivering the child shall not leave until the child is safely inside.
[3] Cited in Young C. Hitting below the belt., October 25, 1999.
[4] Indiana Code § 31-17-2-8 and 31-14-13-2: The court shall determine custody and enter a custody order in accordance with the best interests of the child.
[5] Cook P. Abused Men: The Hidden Side of Domestic Violence. Westport, CT: Praeger, 1997. pp. 83–84.

In the finally posting I will caution you about the reliance upon attorneys to advocate for your parent-child relationship.

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