eNewsletter masthead
  • Vicarious Trauma
  • Volume 9 | Winter 2008

case updates

The following are summaries of reported decisions involving domestic violence that we hope will be useful to practitioners. If you know of recent reported decisions that you would like to be included in future eNewsletters please send them to Rebecca Henry at Rebecca.Henry@americanbar.org.

Jodoin v. Billings
44 A.D.3d 1244, 843 N.Y.S.2d 873 (N.Y.A.D. 3 Dept. 2007).

Holding: After the death of a child’s mother, the court awarded custody to the maternal grandmother, citing concerns about the substance abuse and domestic violence of the father.

Summary: A maternal grandmother petitioned the court for custody of her grandchild after the child’s father, who had an acute alcohol problem and used illegal drugs, was involved in a boating accident which resulted in the death of his wife, the child’s mother.

The law states that “a biological parent has a claim of custody of his or her child, superior to that of all others… in the absence of extraordinary circumstances.” The court had to consider the best interests of the child and decide whether the conduct of the father created extraordinary circumstances worthy of overriding the parental presumption.

The court ultimately held that in light of the respondent’s problems with alcohol and drugs, as well as his history of committing acts of domestic violence, it was in the best interest of the child to remain in his grandmother’s custody, finding her to be a loving and caring person with stable employment who had continuous contact with the child since birth and had cared for the child following the accident which resulted in the death of the child’s mother.

Weissenburger v. Iowa Dist. Court for Warren County
740 N.W.2d 431 (Iowa, 2007).

Holding: FThe Iowa Supreme Court held that respondent was prohibited under federal law from possessing firearms once the trial court had determined that a no-contact order should continue in effect, regardless of whether the trial court's order included a prohibition on firearms.

Summary: During a dissolution of marriage action involving Joseph and Jackie Weissenburger, the court entered a domestic abuse no-contact order prohibiting contact by Joseph with Jackie. Joseph subsequently violated that order and pled guilty to harassment in the third degree. The district court imposed a fine and entered a no-contact order to remain in effect for five years. Pursuant to 18 U.S.C. § 922 (g)(8) persons subject to “qualifying orders of protection” are prohibited from possessing a firearm or ammunition in or affecting commerce. Violation of the law is punishable by up to ten years in prison.

Joseph thereafter sought to amend the criminal no-contact order so that he could possess firearms for hunting, which the District Court approved. By petition for writ of certiorari, Jackie challenged the legality the amended order entered by the District Court.

The Iowa Supreme court determined, after analysis, that the district court’s order was a “qualifying order” under federal law, and therefore, that the trial court had no power to authorize Joseph to possess any firearms in violation of federal law.

State v. Ohlson
168 P.3d 1273 (Wash., 2007)

Holding: The Supreme Court of Washington held that statements made by a victim to a police officer were admissible as excited utterances and were non-testimonial, and therefore their admission did not violate defendant's right to confrontation.

Summary: James Ohlsen was convicted of second degree assault of two minors with his car following a trial in which one of the victims testified in court and the other victim, D.L. did not. However, D.L. had made statements to a police officer immediately following the assault, which were admitted into evidence.

Ohlsen appealed his conviction on the grounds that out-of-court statements made by D.L. had been improperly admitted as excited utterances and that admitting them had violated his 6th Amendment right to confrontation, pursuant to the U.S. Supreme Court rulings in Crawford v. Washington (541 U.S. 36 (2004)) and Davis v. Washington, (26 S.Ct. 2266 (2006)).

The court first held that D.L.’s statements satisfied the state requirements established by caselaw to be considered an “excited utterance.” Turning its attention to the constitutional issue, the court then held (citing Davis) that statements are non-testimonial when made in the course of a police interrogation when the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.

Long v. United States,
--- A.2d ----, 2007 WL 3374941 (D.C., 2007)

Holding: The Court held that statements made by the victim at a crime scene in response to police officer's questions were non-testimonial, and, thus the admission of statements through officer's testimony did not violate defendant's confrontation rights.

Summary: Pamela Long was convicted, following a bench trial, of assaulting Jeffery Dunn, based in large part upon Dunn’s statements to police at the scene. Long appealed on the grounds that the out-of-court statements made by Dunn had been improperly admitted as excited utterances and that admitting them had violated Long’s 6th Amendment right to confrontation, pursuant to the U.S. Supreme Court rulings in Crawford v. Washington (541 U.S. 36 (2004)) and Davis v. Washington, (26 S.Ct. 2266 (2006)).

After reviewing the reasoning in Crawford and Davis, the court held “that the primary purpose of [the police officer’s] questions was to enable the police to respond to an ongoing emergency and not ‘to establish or prove past events potentially relevant to later criminal prosecution.’” (citing Davis). The court concluded that Dunn's statements were non-testimonial.

S.L. v. Steven L.,
742 N.W.2d 734 (Neb. 2007)

Holding: The court held that a parent who removed a minor child from Nebraska under the guise of exercising a visitation right in another jurisdiction, and then intentionally subjected the child to harm before returning her to the state, could reasonably expect to be haled into a Nebraska court to answer for such conduct in a civil action brought on behalf of the child.

Summary: Father was a resident and citizen of Canada, and mother and child resided in Nebraska. Canadian courts had exclusive continuing jurisdiction over the custody dispute between the parties. Mother alleged that on multiple occasions, father transported the child from Nebraska to Canada for court-ordered visitation, during which visitation he intentionally abused the child. The district court determined that it did not have personal jurisdiction over the father and granted his motion to dismiss.

The Supreme Court found that the record supported an inference that the father's undisputed travels to Nebraska for the purpose of transporting the child to and from Canada were an integral part of the intentional abuse alleged by the mother to have occurred there. “The father's presence in Nebraska would not be random, fortuitous, or attenuated, but rather, would constitute a means to facilitate intentional harm inflicted upon a Nebraska resident after she was physically removed from the State and before she was returned.”

Based upon the court’s independent review of the complaint and affidavits, viewed in a light most favorable to mother in her representative capacity as the next friend, guardian, and mother of S.L., the court concluded that the district court had specific personal jurisdiction over Steven and that it erred in granting his motion to dismiss. Accordingly, the court reversed the order of dismissal and remanded the cause for further proceedings.

Baxendale v. Raich,
---N.E. 2d----, 2008 WL 151306 (Ind. 2008)

Holding: As a matter of first impression, pursuant to Indiana’s new child custody statutory chapter addressing relocation, the trial court may, but is not required to, order a change in custody upon relocation.

Summary: Baxendale and Raich, both of Valparaiso, had joint legal custody of A.R., with Baxendale retaining physical custody. Baxendale accepted a job in Minneapolis and filed a notice of intent to relocate with A.R., who was 11 at the time; Raich responded with a petition for modification of custody. The trial court entered an order denying Baxendale's request to relocate A.R. The trial court also ordered continued joint legal custody of the child and provided that Raich would be the physical custodial parent if Baxendale lived in Minnesota, but upon her return to Indiana, she would become the custodial parent.

Baxendale appealed, arguing that the trial court abused its discretion by modifying physical custody and by excluding unspecified evidence claimed to bear on Raich's use of drugs and alcohol, and arguing that the order violated her federal constitutional right to travel. The Court of Appeals reversed the trial court regarding the modification of physical custody.

The Supreme Court of Indiana affirmed the trial court's order granting physical custody to Raich. The Court found that A.R.'s interests in continuity of education and contact with other family members, and Raich’s interest in parenting A.R., were significant and justified the trial court's modification of custody order. The court found Baxendale's reason for relocating legitimate, but rejected her claim that she was now unable to take employment out of state "for fear that the state will take her child." The Court noted that under the terms of the final custody order, Baxendale retains significant involvement with A.R.