GPSolo Magazine - September 2006

Domestic Relations Law
Domestic Violence: The Tipping Point

Victims of domestic and sexual violence often find themselves struggling to achieve a life independent of an abusive partner, particularly when there are children in common. Some obstacles commonly faced may include: lack of employment opportunities that would provide self-sufficiency for victims of abuse and their children; lack of confidential resources necessary for healing, such as supportive relatives or counseling programs in a community where the victim can feel less visible about using them; the impact of relatives and social contacts who may be stigmatizing the victim and/or the children at the behest of the abuser; and the dangers of ongoing abuse and harassment at the hands of the abuser.

Beyond establishing a life separate from the abusive partner, the victim of domestic and/or sexual violence may see the opportunity to leave the jurisdiction in which the violence has been taking place to be a crucial security measure. The difficulty for judges is reconciling the unique safety and financial needs that victims and their children face while working within the statutory and constitutional requirements of family law custody decision making.

Tools for handling requests. Many aspects of relocation are burdensome, and sometimes dangerous, to victims of domestic or sexual violence. Perpetrators in domestic violence cases often use physical violence and threats to control the nonabusing parent. A request for relocation may represent a direct threat to the perpetrator’s sense of control and entitlement in such cases. Merely requesting relocation can put the nonabusing parent and children at risk of escalating threats and actual violence. If the relocation request is openly litigated, the new location of the nonabusing parent is likely to be revealed, providing the perpetrator with a road map to the new location of the victim, thus possibly enabling the abuse to continue.

If domestic or sexual violence issues are raised in a relocation case, the court should consider carefully any evidence indicating lethality risk factors in determining whether special protections are needed for the victim and the children. When confronted with allegations regarding their behavior, many abusers may escalate attempts to control and further harm their victims.

In many jurisdictions, the statutory framework governing custody cases provides guidance on handling relocation request where domestic violence occurs. Check local statutes, which may provide that domestic violence is a factor for courts to consider or may change notice requirements. The most widespread and helpful provisions are those that require or strongly encourage courts to assess the dangers posed by domestic or sexual violence and weigh them against the need to preserve the parental rights of the abusive parent.

A few jurisdictions, including those that have fully adopted the Uniform Child Custody Jurisdiction and Enforcement Act, waive notice requirements that might alert an abuser to the victim’s new location. Judicial tools that preserve the confidentiality of the new location can be critical where the other party’s locating the victim has been found to pose a significant safety risk. Many abusers are tenacious and may follow victims across state lines without hesitation if they know where the victim is located. Where allowed by law, courts should consider sealing portions of the case file that provide clues to the victim’s whereabouts.

Tailor the terms. Another important tool that may be useful in helping victims to relocate is the protection order. Courts handling these cases may want to tailor the terms to the specific relocation needs of the victim. If a protection order has already been issued, then modifying that order pursuant to state authority to provide relief specific to relocation may be appropriate. If the victim is moving to another state, the terms of the protection order should be given full faith and credit under federal law.

Relief specific to relocation to a confidential address may include:

  • awarding temporary physical and legal custody (duration relating to the life of the protection order) to the relocating non-abusing parent;
  • providing child support to the relocating nonabusing parent to enhance a capacity to relocate and build an independent economic life separate from the abuser;
  • enjoining the abusive parent from following the relocating parent, including provisions prohibiting contact or communications with relatives or schools in the refuge jurisdiction; and
  • protecting the nonabusing parent’s access to the family’s financial resources and property to ensure that the victim has money, a form of transportation, and essential items, such as clothing and medicines, to permit successful relocation.

If the relocation is not confidential, additional provisions may include:

  • postponing visitation until the abused parent and children have had an opportunity to establish their safety and heal from any trauma associated with violence or abuse;
  • postponing visitation until the abusive parent has successfully completed appropriate treatment, including a batterer’s intervention program;
  • exchanging children through an intermediary or in a protected setting; and
  • securing each child’s passport and requiring the abusive parent to post a bond to secure the return of children after a visit, or to secure any other performance on which visitation is conditioned.

Some community-based resources may be of significant help to relocating parents. These include: shelter and counseling services, job training and placement agencies, housing agencies, legal services, and community affinity groups, such as immigrant assistance and faith-based programs. Many states have confidentiality programs, which allow victims of domestic or sexual violence to register and obtain a legal address that is maintained confidentially by the state.

The role of the court. Especially when children are involved in a relocation case, the court can take a number of steps to protect the victimized parent and children. It can monitor the abuser’s compliance with court orders and strictly enforce terms of the order or sanction the abuser when violations are found according to controlling law. It can communicate and cooperate with courts in the refuge jurisdiction, in accordance with state law and in a manner that protects the safety of the parties and procedural due process, should litigation continue. To ensure consistent enforcement of the order across state lines, the court can enter a protection order issued on behalf of the victimized parent in the National Crime Information Center. Should continuing litigation in the issuing state be appropriate on custody, visitation, or support, the court should protect the safety of the relocated victim by utilizing mechanisms that do not require the victim to return to the original state, such as using depositions instead of in-court testimony, allowing the refuge state court to collect and forward evidence to the original state, and allowing the victim to make appearances in court through an attorney or by telephone.

Final thoughts. In relocation cases where abuse is an issue, courts have a responsibility to consider and address the safety of victimized family members and to evaluate whether the relocation request is driven by non-cooperative parental attitudes or, instead, by a genuine interest in protecting the party desiring to move or protecting the children. Courts have a primary role to play in organizing the resources and tools that can facilitate a safe, successful relocation when that move is appropriate.

 

Maureen McKnight is a circuit court judge in Multnomah County, Oregon. Rob (Roberta) Valente is assistant director of the Family Violence Department of the National Council of Juvenile and Family Court Judges in Washington, D.C. Ms. Valente can be reached at rvalente@ncjfcj.org.

For More Information about About the Section of Family Law

- This article is an abridged and edited version of one that originally appeared on page 16 of Family Advocate, Spring 2006 (28:4).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

- Website: www.abanet.org/family.

- Periodicals: Family Advocate, 64-page quarterly magazine; Family Law Quarterly, quarterly journal.

- Books and other recent publications: The Military Divorce Handbook; The Complete QDRO Handbook; The Divorce Trial Manual; 101+ Practical Solutions for the Family Lawyer; Assisted Reproductive Technology; Frequently Asked Questions About Divorce: A Client Manual.

 

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