Thursday, March 15, 2012

Copyright © Jonathan D. Gordon, Esq. 2012

.              A.     Being an Unfit Mother (or father):

      Let’s first talk about a frequent emotional abuse tactic that many angry or controlling husbands use against their wives (or partners if not married) when a dissolution is about to take place.  I have had many consultations as well as phone calls from panicked mothers asking if the father of their child “can really do that”, after they were threatened with the common threat of:  “I’ll take the kids away from you.”  Often, (but obviously not in all cases), a divorcing spouse uses this threat to intimidate, as leverage, or as a control technique with an insecure spouse.  Many people who are not sophisticated or otherwise knowledgeable regarding family law can be led to believe that they have the power to take children away from the other parent, or that the dominant spouse can actually do that to them.  It is not that easy, as we will discuss.  For the sake of clarity, I will refer to the accuser as the husband, but I have seen it work the other way when a mother with a strong personality intimidates the father who is more docile and insecure.  But that is not usually the case, so permit me the poetic license to generalize here for informational purposes.

            First, this threat of taking the children away is often part of a pattern of intimidation and emotional abuse that has been going on throughout the marriage or other relationship where children are involved.  Often, this new threat is used to intimidate a weaker spouse into not asserting their financial rights, whether it be alimony, equitable distribution or child support. Or it can just be downright malicious and vindictive for one’s own reasons.  The victim of this threat is often (paradoxically) a stay-at-home mother, who does not work and who is financially dependent on the husband.  It is hard to believe that a generally fit mother who has spent most of her days taking care of the children can be led to believe that she can lose her children that easily.  But when a relationship is falling apart, the more submissive parent becomes more insecure and doubts herself more than usual.  As I said, it is not that easy, or even possible in most cases.  First of all, with a mother of young children who is a full time mom, the Courts will not change the status quo except under extreme circumstances.  Here are some examples, but not the only ones since all cases have their own particular facts:

The mother is an alcoholic, substance abuser, has a psychiatric disorder that is not being treated or is not under control, or has a history of spousal or child abuse or child neglect. The mother hangs out with other substance abusers, goes to clubs with friends, is often not at home, comes home late, leaving the older children in charge of the younger ones, etc.  Parents who disappear and then later re-appear after a few weeks or even months are also looked at suspiciously by the Courts.   
Usually when allegations such as the ones above are made in good faith, there is a long history of alcoholism or psychiatric disturbance, etc., and the divorcing spouse will be able to document or otherwise prove the allegations.  But the accusing spouse will need to explain, in certain instances, why he allowed an unreliable, allegedly unstable alcoholic mother with wild mood swings to take care of their children up until the time that the divorce proceedings began.  Why was it ok for her to care for the children while he went to work for the past five years, and now once that the divorce has begun, it is suddenly not ok?  These are questions that the Court will want answers to and the accusing husband will be scrutinized as well.  For example, was it child neglect for the dad to go to work and leave a pre-school child alone with an alcoholic mother? Or are his allegations full of hot air?  The accuser might unexpectedly find himself on the defensive as well.  The Court will not simply believe allegations if there is no proof or good reason to initially believe them (pending more information).

            If the above examples have no basis, and the father actually makes these false allegations to the Court, he may be liable for paying the wife’s attorney’s fees if the Court believes that the father brought these false complaints maliciously, to gain an advantage in the divorce.  There could even be worse sanctions if the Court believes that the allegations are frivolous, or designed to interfere with the mother’s parenting time or with her relationship with the children.  So what I am saying is that things can backfire on someone with baseless accusations.  The allegations are not instantly believed by the Court.  The Courts need proof, and all family court judges know that there is a lot of angry mudslinging in divorce that they will not act upon until there is adequate reason to believe that the allegations are actionable.  When there is reason to doubt a parent’s fitness, however, the Court will order one or both parents to be evaluated by psychologists, psychiatrists and if appropriate, substance abuse evaluators.  The child will also be evaluated as well, if the Court deems it to be needed.  Evaluations will be discussed further later.  But suffice it to say, the court will ensure that enough data are gathered regarding the allegations so that the child’s best interests will be protected.  That is the obligation of the Court when children are involved.  Ultimately, (and this will be the subject of a future blog), a child custody trial may have to be conducted so that the Court can hear testimony regarding what is in the child’s best interests.  Witnesses will be called to testify, including psychological experts and others who are in a position to testify about the child and about the parents.  As will be discussed further below, a Judge can appoint a psychological expert, and then each of the parents can hire their own expert.  So ultimately in some cases, you can have as many as three psychologists testifying in a child custody and parenting time trial.  There can be more, depending on the circumstances of the case.  In particularly contentious cases, the Court may appoint a Guardian ad litem (GAL) for the child, who will do an independent investigation of the child’s best interests and needs, and report directly to the Court.  The GAL can testify at trial, and in some cases the GAL can appoint her own expert if necessary.  Needless to say, custody trials cost a fortune in expert and legal fees.
            My advice to a parent threatened with having their children taken away—by the other parent—is to seek legal advice, remain calm, and not to discuss the issues with the other parent.  If you are being threatened maliciously, there is nothing to talk about.  You are being intimidated, bullied and played with.  It is not necessarily based on reality, and is not necessarily going to result in what your spouse/partner is proclaiming.  Just because he (or she) is talking to you like they know what they are talking about, sounding very confident, does not mean that any of it will be given any weight by the Court.  You need to honestly discuss your particular circumstances with your family law  attorney so that you can be properly advised.  Do not post anything about this on Face Book, do not text back and forth, do not be intimidated into admitting anything whether in emails or in a private conversation.  Understand that your “private” conversation with your spouse—in person or on the phone--may be recorded and you will not want to hear that tape played in the courtroom later on.  Remain calm, try not to let the other party push your buttons, and seek the professional advice you need.

            B.     Domestic Violence:

Each State has its own domestic violence statutes. In some states, it is a criminal offense and in others, such as in New Jersey, it is considered to be “quasi criminal” which is a civil action in Family Court with criminal penalties for violations.  In New Jersey, where I practice, as in other States, there are several acts that may constitute domestic violence.  For example (not an exhaustive list), domestic violence can be (and often is) an actual assault on a spouse, or can be threatening behavior (e.g. “terroristic threats”, such as death threats), or harassment with the intention to annoy and to alarm the other party. This can come in the form of (for example) sending 30 text messages to the other party, leaving ominous notes at the door, showing up at her workplace, for example, but there are many more possible instances.  Domestic violence can be against a spouse, family member, a former partner in a dating relationship, to name a few. 

This blog post is not attempting to review the entire area of domestic violence, but rather is an attempt to briefly discuss strategies and procedures when a domestic violence (DV) complaint is filed.  Interestingly, in New Jersey, a violent act of domestic violence in front of a child can be considered to be child abuse or neglect, which can result in the removal of the child, or a parent from the home.  The theory is that an act of domestic violence in front of a child may be psychologically damaging to the child.  When that can be assessed and proven, the child or the offending parent will often be removed or treatment ordered.  There have been instances where the victim of domestic violence has been accused of neglect or abuse because she allowed it to happen repeatedly in the presence of a child.  If the child is injured in the confrontation between the parents, the CPS agency will remove the child until the abusive spouse is out of the house.  Courts in New Jersey have sometimes refused to make a finding of child abuse against an abused mother because she too is a victim of abuse.  It depends on the circumstances and facts of a particular case.  It is obvious that fighting and arguing in front of children is emotionally damaging to them and that they must be sheltered and protected from exposure to abusive parental conflict.

            The Courts do not just hand out restraining orders (also called Orders of Protection in some States) casually.  In the past, it may have been easier, but it has become more difficult because the Courts know that many allegations of domestic violence are false and used to gain an advantage in a divorce.  Although the majority of domestic violence allegations have merit, the allegations, like all others in Court, must be proven.  Initially, however, a temporary restraining order may be granted if the Judge thinks there is a good reason to believe that an act of domestic violence may have indeed occurred.  It is obviously easy for the court to determine this initially by a spouse who shows up in Court with a black eye, or with witnesses.  In any event, however, a final hearing is soon held with witnesses, testimony, photos, medical records, etc.  In New Jersey, once the trial is held, the Judge will decide whether there is adequate proof to justify a Final Restraining Order (FRO) which will stand in place until withdrawn either on request of the victim, or after a court petition by the defendant is successfully heard by a Judge, usually the same one who issued the FRO.

            When a Temporary Restraining Order (TRO) is first issued, the defendant must immediately vacate the residence (if they are both living together) and the TRO becomes a no contact order.  Usually there is no contact at all, of any kind, allowed once a restraining order is issued.  If there is a violation of the order, the plaintiff can make an application for a domestic violence contempt proceeding which is criminal in nature and which can result in jail and fines.  The defendant with a TRO is usually given the opportunity to return to the plaintiff’s residence, accompanied by Police, to retrieve clothing and other necessary personal belongings.   The defendant has to figure out where to live (assuming he/she is not in jail), and has to scramble to get an attorney, gather evidence and witnesses, and prepare for a trial.  After a restraining order is issued, it may be subsequently amended by the Court to allow for non-harassing communication (for example by email or text only) pertaining to the visitation arrangements for the child, or other similar issues related to the child’s health and welfare.
            As in most other allegations, it will be a matter of degree.  In some States, like New Jersey, the Police are obligated to arrest an accused abuser if the victim has any injuries or marks (such as black and blue marks, swelling, etc.).  In some cases, there will be a Family Court proceeding as well as a parallel criminal proceeding in Municipal Court (or criminal court, depending on the circumstances and the State).  An assault—for example, on a spouse--is both a DV offense as well as a crime.  Some defendants get brought to Family Court in handcuffs, from jail.  There are often parallel Family Court and criminal court proceedings, as in other matters such as child abuse, etc., depending on the severity or type of offense.  A defendant will need a criminal defense attorney to represent him/her in municipal or criminal court, and a Family Law attorney to represent him/her in Family Court.
            In the event that the Court finds the defendant not guilty (e.g. that an act of domestic violence did not occur, or whatever happened did not rise to the level of DV, then the entire complaint is vacated and the temporary restraining order is dropped—never becomes final.  That means that the defendant can now legally return to the former joint residence (e.g. marital residence), if he or she wants to.  The question remains why someone would want to go back to a situation where the falsely accusing spouse can make another allegation later on, maybe this time making it stick.  The person being falsely accused puts themselves in jeopardy by returning to an angry spouse who is more educated in the criteria for ensuring that a restraining order becomes final.  Often it is the husband returning home, but even though he can say “It’s my place, I’m going home”, he should seriously consider whether it is a safe environment for him to return to.  A phone call to the police, a bruise (attributed to the husband, but really from another source), can result in an arrest and another DV complaint being filed.  Being put out of the house on a domestic violence charge, whether meritorious or false, is a tremendous disadvantage when it comes to child custody and parenting time issues.  It will isolate the defendant from the children and news of this event will spread throughout the community.  It is very damaging and even if later proven to be false, there are always lingering questions that others will have about whether it really happened or not.

            Conversely, an accusing spouse in a real domestic violence scenario (let’s assume for this chapter, it’s a woman) who cannot prove her case, may be disappointed to find that her abusing husband is allowed to move back in to the house, and is free to sleep in the marital bed and continue to intimidate and control her until something worse happens, or until she can move out if she has the resources to do so, or until the divorce goes through.  Often, abusive husbands (and sometimes abusive wives) will keep a tape recorder going while in the house, will provoke and argument with the spouse and then tape her raging tirade against him.  I have seen this happen and it was used against the wife who was made to look like an out of control and malicious nut by her abusive husband.  She really was just triggered to explode verbally after having been put through years of serious physical abuse (including broken bones and black eyes) by her husband.  Unfortunately past incidents will not result in a final restraining order being issued if the wife withdraws the complaint or asks for it to be dismissed (over and over again) after it is granted.  This is another discussion for another time.  But suffice it to say that at some point, a victim of chronic domestic violence will explode and you can almost predict that the abuser will be there with tape recorders and videocams when that happens.  You can also expect that these tapes will be presented to a judge some day and at that time, the Judge may be tempted to issue joint restraining orders against each of the parties if the Judge cannot figure out who is the more dangerous or out of control spouse.  So my best advice is to seek professional help if you are being subjected to domestic violence that you cannot bring yourself to complain about.  Be careful about how you react.  Document everything.  Don’t post things on FaceBook or text your spouse or email him about your failings.  Don’t rant and rave.  It is not effective and can be self defeating.  You need professional help to stand up for yourself and to protect yourself against an abuser who is good at being manipulative.  Don’t let him get you into a position where he can document your emotional fragility and instability, because it will be used against you someday when you show up in Court thinking that you will get the protection of the Court against an abuser.  Often, this kind of person shows up in Court looking clean cut, is soft spoken and gets teary-eyed to the Judge as he will testify as to the years of his having to tolerate your emotional instability and out of control behavior with him and with the children. He’ll have the tape recording of you freaking out, calling him names and cursing at him in front of the kids.  It can all be turned around against you if you are not careful to prevent this. Important to mention is that there are many men who are victims of domestic violence.  There are social normative pressures against a man filing for a restraining order against his wife and usually he does not do so.  There are numerous instances when such a person finds himself wrongfully accused of domestic violence against his wife and the restraining order is placed against him.  By that time, it's usually too late to protest that he is the victim, not her.  The bottom line is that no one should have to tolerate being subject to domestic violence regardless of gender.  Tolerating it over and over during the relationship just makes things worse, destroys whatever is left of one's self esteem, and puts the victim and the children in jeopardy.  There are mechanisms in place to protect true victims and more should be done to educate people about what they can do to protect themselves from domestic violence.

In Part Two Next Week!  
     Accused of Sexual Abuse and Child Abuse or Neglect, as well as How to Prepare
     for and Act in Court to Obtain Best Results (or to avoid Bad Outcomes)

Please note, this blog is for information purposes only. It is not legal or psychological advice and it does not create an attorney/client or psychologist/patient relationship. If you have a question about a specific matter you should seek out an attorney or mental health expert to assist you.
Copyright © Jonathan D. Gordon, Esq. 2012

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