Domestic Violence: A Guide for Court
A family lawyer's perspective on domestic violence and pitfalls to avoid in the Courtroom.
Initial Steps After Domestic Violence Has Been CommittedIn December 2014 during the holiday season, a prospective client "Cindy*" walked in my office requesting a consultation. During our half hour meeting, she revealed to me that her husband had earlier in the month slammed her arm repeatedly in the door of an automobile, threw her laptop computer to the ground and pushed her across the garage of their home. The parties' teenage son witnessed the entire incident. The husband voluntarily left the home after the incident. Cindy thought her husband had broken her arm but waited for three days to go the hospital because she was scared that he would retaliate against her. Since California requires all hospitals to report to local law enforcement evidence of abuse when examining patients, the hospital contacted the police. As soon as Cindy walked in her home from the hospital, her phone was ringing and it was the sheriff. Cindy was extremely hesitant to have police vehicles circle around her house, and she requested that they meet at a local restaurant. After preparing a report, the sheriff asked Cindy if she wanted an emergency protective order to remain in effect in for 72 hours. Once it was granted, the sheriff handed Cindy an order and advised her to get a Domestic Violence Prevention Act temporary restraining order from the family court before the expiration of the emergency order. Cindy had already obtained a temporary restraining order from the family court when I first met her. She had used the local domestic violence clinic to obtain assistance in filling out papers to obtain the temporary restraining order. The local domestic violence clinic later proved to be a helpful resource for Cindy even years after the original incident. It assisted Cindy with counseling and medical reimbursement related to her injuries caused by the domestic violence. It could have provided her with much more help if she needed it, such as temporary housing, locating a pro bono attorney to assist her with her divorce, and family support. Cindy had a hearing date set in mid-January 2015 for the Court to decide whether or not to grant a permanent restraining order against her husband. During the consultation, I advised Cindy to get a lawyer to represent her at the hearing. The conversation went like this, "Why do I need an attorney. I WAS THE VICTIM!" Cindy was told that she did not need an attorney and that the hearing was just a routine matter. Cindy had no money since her husband depleted their joint bank account, and cancelled all of the credit cards. She cried telling me that she had no money to buy her children and grandchild Christmas gifts. I felt devastated at the end of our meeting, since our 30 minute initial consultation was not enough to prepare Cindy for a court hearing with the formalities of being in a courtroom, examining witnesses, presentation of evidence, making objections and arguments. There was absolutely no possibility for me to prepare her for what happened next.
*The true identity of Cindy has been altered.
Domestic Violence Victims Should Know How to Introduce EvidenceThe next time Cindy came into my office she told me that the permanent restraining order was denied. Cindy thought she could walk into the Court room and tell the judge that she did not feel safe. Instead she froze up in front of the Judge and her husband's attorney and did not know how to present her case. While her husband was on the stand, he lied under oath and denied ever hurting Cindy including slamming her arm in the door or pushing her. At that point, Cindy lost it and began crying hysterically in Court. The judge did not stop the proceedings and told Cindy she was acting like a child. Cindy was not prepared. Cindy had x-rays and a copy of her doctor's report with her. The judge told Cindy that she failed to bring her son who had witnessed the accident to court to testify or to obtain a copy of the police report. Cindy felt that she was being tormented in court rather than protected.
In actuality, a hearing for a permanent restraining order is considered by the Courts to be an evidentiary hearing. Evidentiary hearings are like mini trials on the issues presented. In Cindy's case all of the rules of evidence applied to her case. Even with the xrays and doctor's reports, this may not have been good enough since the technician who took the xray and doctor who wrote the report were not present in court to authenticate them and overcome a potential hearsay objection. Likewise, Cindy would have had to subpoena the sheriff who wrote the police report to authenticate the police report had she wanted the contents of the police report to be considered by the Court. There was no match for Cindy, a self-represented party against her wealthy husband's attorney with the necessary training and court experience to prevent the permanent restraining order from getting issued.
Be Prepared for Your Domestic Violence HearingYou must be prepared before you attend your domestic violence trial. You must have all of your witnesses subpoenaed, to ensure their presence in Court. If a witness does not appear and you have filed a proper proof of service of the subpoena, then the Court can issue a bench warrant ordering him or her to appear at a subsequent hearing. This is critical especially if you are relying on that witness' testimony to prevail. You must gather all of your evidence, including police reports.
If you cannot afford an attorney to attend Court, I strongly suggest that you sit in the Court room where your restraining order request will be heard during times when there are hearings for other domestic violence matters and trials. You will gain valuable knowledge regarding what to expect and get an insight regarding the judge's preferences.
Often when I prepare for a domestic violence trial, I ask my clients to print for me all of the text messages and email communications between my client and the aggressor. It is important to know how to authenticate the writings and texts before introducing them in court as evidence. The reason I review everything before entering the court room is to be prepared for all allegations made and all potential allegations. During testimony if someone opens the subject door to a text or email sent I have the absolute right to open the door wider and read the full text or full email into the record for clarification. More often than not a person's recollection on the stand is not the same as what was in writing. Often there are contradictions contained in the writings which refute claims.
Cindy did eventually hire me as her divorce attorney. As an aside, the Riverside District Attorney eventually did file spousal battery charges against Cindy's husband, and it took 1 and a half years for the State to win a conviction after a jury trial. The court appointed a special advocate to keep Cindy informed as to what was going on in the criminal case.
The public (laypeople outside the legal system) has no clue that a criminal case involving domestic violence could go on for 18 months. Had Cindy been granted a restraining order in the family court initially as she had requested, she would have felt validated and been able to move forward in her life. Throughout these 18 months I was representing Cindy in the family Court, Cindy was constantly waiting for her divorce to be over and for the criminal trial to be over. Often she was so depressed that she could not get out of bed yet alone talk with me on the phone. She needed to see a domestic violence counselor on a weekly basis to help her cope.
Once the divorce and criminal trial were over a veil was lifted and she began to heal. When all is said and done, Cindy feels to this day that the restraining order should not have been that difficult.
Domestic Violence and ChildrenDuring the 24 and one-half years I have been practicing family law, I have gained a tremendous amount of first hand experience. I have also gained some experience through observation. This section involves what I have observed in Court. Fifteen years ago, I was inside the courtroom at the Orange County family court waiting for my client's case to be heard on a particular date. On calendar was a domestic violence restraining order hearing. Since domestic violence receives priority in family court, this matter preceded all other matters in Court on that date. The parties were a man and a woman, and both were self represented. The judge addressed the woman who was the alleged victim first. He told her that he had read all of the papers she had filed in support of her request for a temporary restraining order and asked if she had anything else she wanted to add to the record in support of her request for a permanent restraining order. Her response was that she wanted the temporary restraining order dissolved immediately. The Judge then proceeded to ask her why. She responded and pointed to the other party who was the father of her children on the other side of the table, "I rely upon him to provide child care." The judge said something like this, "I understand, Mam. The Court finds that you are unable to protect yourself or your children from harm. I am therefore making an immediate order for your children to be removed from your custody and put into foster care." After my hearing had concluded, the couple was still standing outside the courtroom in the hallway. Both were sobbing hysterically and comforting each other.
The lesson I learned from this encounter was you cannot play Russian Roulette with domestic violence. You must protect yourself AND your children from any abuser who has the potential to harm or who has harmed you and your children. If you are seeking domestic violence, you need to be prepared for the consequences. This includes having a professional supervisor be present when your abuser has visitation with your child, or an order that the abuser has no contact with your child. Although this seems like the desired consequence of a domestic violence restraining order, many times people are not prepared to deal with the consequences.
You need a support system to get you out of the trenches when are trying to escape or overcome domestic violence. This can be a best friend a family member or a co-worker. The California courts allow you to bring your support person to court with you, and to even sit with you as you address the Judge. You can also seek assistance from public agencies like Cindy did. There a number of free after school programs and activities so that you do not have to rely upon an abuser to watch your children.
When You are Accused of Domestic ViolenceWhile you would never want to be in a situation where you are considered the "accused" you need to be prepared if allegations of domestic violence are made against you. What I usually advise my clients is to gather any and all information surrounding the allegations made. Be prepared for additional allegations to be made as well. This means someone may bring in evidence consisting of video, oral testimony, voice mail recordings, emails or text messages. It is imperative for you be prepared to argue all surrounding circumstances of any potential allegations to be made in Court. Known as the rule of completeness, if one party brings in a portion of a text message, you are permitted to bring into evidence the text messages that preceded and succeeded the text message. The more organized and prepared you are for hearing, the better defense you can put on before the Court. Your goal is for the Court to find that you did not commit domestic violence.
Know that you will have to live with the decisions you make in either launching or defending claims of domestic violence. If you are going to be telling lies, then be prepared for the Judge to rule against you if he finds your testimony not credible. If your judge is also the judge sitting in your family court matter, such a ruling may tarnish your credibility for the remainder of your case. The Judge may later give the other side the benefit of the doubt if he has already found you a liar in his court. You have to be honest and not hide from the truth.
Giving testimony to the Court is critical. It may permit you to explain yourself or exculpate yourself. On the other hand, if the evidence introduced is so clearly not in your favor, you need to be prepared to accept that it is going into the record.
When You are Accused of Domestic Violence: A Case in PointIn 1999 in Los Angeles, I was defending a 6'2" man in court against his 5' wife on a domestic violence allegation. During the morning, the wife's attorney had presented her case in chief to the Court and taken testimony of both the wife and my client. I had an opportunity to cross examine my client prior to the morning recess. During my cross examination, I focused on all of the claims raised by the wife regarding abuse and my client did an excellent job at explaining the circumstances of the events and informing the Court of the truth of what actually occurred. The impression left by my client was that he had not perpetrated any acts of aggression or conducted himself in any reckless manner which could be attributed to domestic violence against his wife. I was able to rehabilitate my client from any misconceptions launched by the wife in her case in chief. During the morning recess, the wife's attorney approached me outside the court room and played an audio tape for me and my client intended to be used to impeach my client's morning testimony. It sounded like my client's voice and it was clearly a recording of a voice mail message. The person who left the message used several vulgarities toward the recipient of the message, however there were no threats of any kind made in the recording. I took my client aside and told him to admit to the recording when his testimony resumed on the stand. After the break, my client went on the stand. Opposing counsel presented a transcript of the audio recording, which is required in California for all audio recordings presented to the Court. She also played the tape which we had just heard. She then asked my client if he recognized the voice on the audio to which my client replied "no." The attorney asked the same question in a multitude of ways hoping to get my client to admit to having left that voice recording on her client's voice mail. My client denied each and every question and even said he did not recognize the voice on the tape as being his own. The remainder of this hearing was inconsequential. When the Judge made her ruling on the record, she said that she had not believed initially that the wife had met her burden of proof to prove that my client had committed domestic violence. However, upon hearing my client's denial of his own voice recorded on an audio tape, she changed her mind. The Judge said specifically that the content of the recording itself did not render him culpable of domestic violence. Instead, the denial made him a non-credible witness and therefore his entire testimony throughout the morning was deemed by her to be non-credible.
The lesson learned which I have stressed to all of my clients potentially facing domestic violence is to be honest and tell the truth and not to be fake. Had my client genuinely admitted to his voice on the recording, the Court likely would have understood that he was angry and clearly upset with his wife when he left the recording. The introduction of the recording did not mean that he exhibited a pattern of abuse or made any threats to hurt wife. A domestic violence restraining order was issued n that date against my client.
Settling Domestic ViolenceDomestic violence laws are in place to protect the victims and their families if needed from domestic violence. Once there is a domestic violence case, you are giving power to the presiding judge to handle your case. The family judge maintains the authority at all times to deny, grant or extend any restraining order issued. It is not good enough to say in front of the Judge, "Your Honor I don't want this anymore."
Unless you have a parentage or divorce case actually pending, you do not get any opportunity to settle out of Court. Settling restraining orders to extract monetary gain is highly ill advised. If the parent of a child has hurt the child, the other parent should not accept money to dismiss a restraining order and then allow the child to be with the aggressor parent without adequate safeguards in place. If there is another pending action, you may consider adopting safeguards into a family court stipulated order to be filed with the Court, such as parenting classes, anger management classes, counseling, supervised visitation and clear language that any violation of the order can result in civil or criminal penalties or both.
On the other hand, settling domestic violence cases sometimes occur when there are dueling claims of domestic violence against two parties and both parties have filed temporary restraining orders against each other. Often parties stipulate to mutual stay away orders that do not get registered into the National Domestic Violence Registry.
The restraining orders which derive from the State Criminal systems can never be negotiated. Once domestic violence charges are filed by the State, it is no longer between the victim and the defendant. The case is between the prosecutor and the defendant who is alleged to be the perpetrator of domestic violence against the victim. If you do proceed with your domestic violence case, do not expect the Judge to step in and provide assistance to you as the victim or defendant if you do not know the law.