To be an effective advocate in a case involving domestic violence, it is important for the family law practitioner to have at least a basic understanding of domestic violence. The National Coalition Against Domestic Violence (NCADV) has described domestic violence as “the willful intimidation, physical assault, battery, sexual assault, and/or other abusive behavior as part of a systemic pattern of power and control perpetrated by one intimate partner against another. It includes physical violence, sexual violence, psychological violence, and emotional abuse.” The National Intimate Partner and Violence Survey found that in the United States, more than 12 million people per year are affected by intimate partner violence, with 1 in 4 women and 1 in 7 men being the victim of severe physical violence by an intimate partner in their lifetime. Some studies show that in 30 to 60 percent of homes where domestic violence occurs, child maltreatment also occurs.
It is important to recognize that NCADV’s definition of domestic violence may be broader than any statutory definition existing for purposes of obtaining a protection order, charging a crime, or invoking or overcoming a presumption related to custody. Typically, for those purposes, physical or sexual violence or threat of physical or sexual violence is required. Yet, domestic violence should not be ignored simply because it does not rise to the level that allows a protection order or criminal prosecution. Psychological violence or emotional abuse, while possibly not giving rise to criminal charges or a protection order, may be important for other aspects of a family court case.
When domestic violence is alleged, it is important for a practitioner to think strategically about how to discover evidence to support (or rebut) the claims and how to prove (or disprove) them with or without corroborating evidence.
Testimonial evidence is the most likely type of evidence that will be offered in support of or in opposition to a claim of domestic violence. To adequately prepare the witness for testimony and to identify evidence of domestic violence, a practitioner can use tools like the Power and Control Wheel and lethality assessments. For example, a domestic violence victim may not recognize name calling, financial restrictions, intimidation tactics, jealous and isolating tendencies, and comments about and actions towards the children as part of the abuse they endured. The Power and Control Wheel can help the victim identify these kinds of behaviors and see them as part of the larger picture of the abuse inflicted on them. Lethality assessments can help convince courts of the potential for future danger. However, it is important that practitioners recognize that these tools were not designed for evidence collection purposes. They were designed to help educate domestic violence victims and assess danger to them. A practitioner utilizing these tools may have moral and ethical obligations to make service referrals for the safety of a client who is a domestic victim or a client who is identified as a high-risk domestic violence perpetrator.
A practitioner should not stop with the domestic violence victim’s testimony. There are often other witnesses who can provide useful testimony. Practitioners should be sure to ask about people who were present and could see or hear acts of domestic violence; people who witnessed the aftermath of a violent episode such as broken items, disarray in a room, or visible injuries; people who were confided in during the abusive relationship; and people who witnessed changes in the victim or perpetrator’s behavior during the abusive relationship. Though the Power and Control Wheel and lethality assessments are designed for use with the domestic violence victim, the practitioner can also use them with other individuals to help uncover evidence (or lack of evidence) to support the client’s case.
Identifying witnesses and uncovering useful evidence is only effective if the practitioner understands the rules of evidence well enough to know whether the witnesses’ testimony will be admissible. For example, is it inadmissible hearsay that the victim told her mother that the perpetrator assaulted her? Are there any possible applicable hearsay exceptions? Was the statement an excited utterance? Did it describe a relevant, present-sense impression? Is it offered for some reason besides the truth of the matter asserted?
What about acts of abuse against a previous partner or prior accusations of abuse against a former partner? Are they relevant and admissible? Are they inadmissible propensity evidence or evidence that is likely to cause undue prejudice or confusion? Do they show motive, opportunity, intent, knowledge, absence of mistake, or lack of accident as it relates to abuse of or by the current partner? To effectively utilize as much testimonial evidence as possible, practitioners must know and strategically use the rules of evidence to admit the evidence.
Of course, witness testimony is more compelling when it is accompanied by demonstrative or physical evidence like photographs, videos, text messages, voicemails, social media posts, damaged property, soiled clothing, diagrams, models, or reenactments. Authentication is vital to successfully admitting any of these items. Authentication requirements may vary slightly depending on the type of evidence offered, but, at minimum, authentication is the presentation of evidence sufficient to establish that the item offered is what it is purported to be or shows what it is purported to show. Conclusive proof of authenticity is not required, and the rules generally favor admission of evidence. The burden for authentication has been described as “slight,” “low,” and only “a prima facie showing.”
The most basic and familiar type of authentication is testimony by a witness with knowledge about the evidence sought to be introduced. This is the familiar authentication process used with photographs:
“What is this?”“A photo of me.”
“When was it taken?”“The day I was assaulted.
“What does it show?”“My black eye.”
“Does it fairly and accurately show that thing as it appeared on that day?”“Yes.”
It is important to know that photographs need not be admitted through the person who took the photograph. They can be authenticated by anyone who is familiar with the object or person depicted in the photograph who can assert that the photograph fairly and accurately shows it. Videos are similarly authenticated.
Authentication can be a bit more anxiety-provoking with other types of evidence, such as voicemails, phone calls, text messages, and social media posts. In general, these items are as easy to authenticate as other types of evidence. There is no “mystical, magical quality” that makes the standard for authentication higher. For a voicemail or call, the witness need only have heard the speaker’s voice at another time to identify the speaker’s voice on the voicemail or call. For text messages, phone calls, and social media posts, any party to the communication can provide testimony authenticating the evidence. Identification of a caller’s phone number or social media handle as the one regularly and previously used to communicate with the alleged sender will often be sufficient. Circumstantial evidence, such as the content of the messages, can also be used to authenticate evidence.
A suggestion of tampering or spoofing or that someone else may have sent the message while posing as the sender is frustrating but will rarely prevent admission of the evidence. While a number of courts across the country have specifically acknowledged the increased risk that electronic messages can be tampered with and that spoofing can occur, they have declined to reject this evidence outright or to significantly alter the standard for authentication. Most electronic communications are exactly what they appear to be, and courts generally think that the possibility of tampering goes to the weight to be given to the evidence by the factfinder, rather than to the admissibility of the evidence.
Other sources of evidence include documentary evidence like hospital records, police reports, and employment or school attendance records. Before these records can be utilized, they must be obtained. The practitioner must know what avenues are available in their jurisdiction for obtaining these records. For example, in some jurisdictions, discovery is not automatic in protective order cases; rather, the court’s permission must be sought to engage in discovery.
Medical records can be a useful source of proof of physical injury and timing of injuries. Even if the client has never sought treatment for a domestic violence-related injury, it may be worth exploring medical records. Many medical facilities currently screen for domestic violence. Answers on a domestic violence screening questionnaire might be admissible to rebut a claim of recent fabrication or to help a client craft a better timeline of events.
Most state evidence codes have exceptions to hearsay for statements made for purposes of medical diagnosis and treatment. Practitioners should be aware whether their state permits identification of the perpetrator as an exception to hearsay. Some states do and some do not. A client can obtain a copy of their own medical records or sign a release for the practitioner to obtain them. Otherwise under federal law, medical records typically will not be released to a third-party absent a court order.
Police reports can also be a useful tool in crafting an accurate timeline of events. They often document escalating behavior and can lead to identification of third-party witnesses, such as a neighbor who called police when fighting was heard. Often police may have documented prior injuries in reports, through photographs, or on body camera footage. These items may be available through an open records request to a local police department. While the report itself may be inadmissible hearsay, it can be used to identify other potential witnesses and to help refresh the recollection of other witnesses, including the client.
Employment and school attendance records can be useful for establishing timelines. They can show how exposure to and victimization by domestic violence influences an adult victim or a child’s daily life. A client may be able to secure employment or school records. Otherwise obtaining third-party records may require the practitioner to utilize the court’s subpoena power. Practitioners should know the limits of and requirements for using this power in their own jurisdictions.
Practitioners should know local experts about domestic violence and when expert testimony about the dynamics of domestic violence is admissible and useful to the fact finder. Experts might be victim advocates in the local domestic violence shelter, mental health professionals in the community, police investigators, or others. Experts can be useful in explaining delay in reporting domestic violence, the reasons a parent has had difficulty escaping a relationship involving abuse, the impact that it can have on children, or prior recantations or dishonesty about domestic violence. Expert testimony can be persuasive in convincing a judge to grant a protection order, deny unsupervised visitation, modify custody, or award support. Expert testimony may be less necessary in jurisdictions, like Kentucky, where judges are permitted to rely on their own knowledge of domestic violence. Expert witness or not, it can be useful for a practitioner to know and emphasize certain facts about domestic violence. For example, in attempting to get a firearm prohibition order, it could be useful to remind the judge that a woman is five times more likely to be murdered when her abuser has access to a gun.
Children are not immune from court involvement in cases with domestic violence. Often children are witnesses who have heard or seen it. Sometimes children are physically injured by and very often suffer emotional trauma when they are personally victimized by or see or hear acts of domestic violence. In assessing whether a child witness should be used, it is important to evaluate the competency of the witness. The standard for competence to testify is low and witnesses are presumed to be competent. Competency requires minimal ability to recount events and an understanding of the difference between truth and lies. There is no minimum age for competency; but, as a practical matter, children under four may not be competent to testify. With any child witness, competency can be assessed easily by answering a series of basic questions about the child and the child’s family and some basic questions to challenge the ability to differentiate between truth and lies.
Aside from a child’s competence, there may also be other factors to consider in determining whether to call a child witness in a case involving domestic violence. It can be devastating for a child to testify against a parent. A practitioner should consider whether other admissible evidence can be offered in place of the child’s live testimony or in supplement to the child’s testimony. For example, in some jurisdictions, recorded forensic interviews may be admissible. A practitioner should also consider the setting in which the child must testify. Does the child have to testify in front of the parents? Can the child testify in chambers or remotely?
Besides routine evidentiary questions, there are specific evidence challenges that can present in cases involving domestic violence, and it is worthwhile for a practitioner to work through these issues in advance of court. Domestic violence often goes unreported for periods of time. It is entirely possible that a client will deny domestic violence when proceedings begin but then, as proceedings drag on without the swift, agreeable resolution anticipated, the client may claim domestic violence occurred. While it is not unreasonable to question a sudden presentation of a claim of domestic violence when it was previously denied, the unexpected disclosure of previously denied abuse may indeed be true. Utilizing the evidence collection methods discussed in this article may help in proving that truth and in explaining the delay in reporting.
Cases involving domestic violence are frequently the types of cases where parental alienation is argued, and a practitioner should be familiar with and prepared to address claims of PA. These claims most often occur when a child has developed a strong sense of rejection of one parent. The other parent is usually accused of influencing that rejection. It is important to recognize that parental alienation only exists if there is no legitimate justification for the child’s rejection of a parent. If there is a history of abuse or neglect by the rejected parent towards the child or the other parent, the child’s rejection is likely legitimate. Proving domestic violence could be vital in defeating a claim of parental alienation; but it could also support of claim of parental alienation. Where the abusive parent encourages the rejection of the domestic violence victim, the abusive parent’s behavior may be a continuation of efforts to control, abuse, and alienate the victim.
A practitioner asserting or defending a claim of parental alienation is best served by exploring the nature and type of relationship that preceded separation to determine whether the child is justified in rejecting the estranged parent. Using the Power and Control Wheel, identifying others with information about the relationship between the parents, and discovering other types of evidence described in this article can help a practitioner in litigating parental alienation claims.
Finally, it is not unusual that a domestic violence victim is accused of neglect or abuse for allowing a child to stay in the home where the victim is being abused. These are often termed “failure to protect” cases. Practitioners involved in these cases should strive to ensure that courts do not punish domestic violence victims for being victimized. Practitioners must also be careful to ensure that the child is protected from the perpetrator. Practitioners handling these cases may feel at a crossroads. Should they emphasize the severity of the domestic violence inflicted upon the victim or should they avoid emphasizing it at all since that is the cause of risk to the child? Undoubtedly these are tough cases, but a practitioner familiar with the Power and Control Wheel and lethality risk factors is better equipped to emphasize the seriousness and severity of domestic violence and the perpetrator as the true source of the risk to the child. The practitioner is better equipped to point out that it is often the perpetrator’s control, including threats that the children will be taken away if the victim reports, that make escape with the child a dangerous alternative. The practitioner should adamantly resist letting the system be complicit in the perpetrator’s threats to take the children. The practitioner should emphasize the domestic violence survivor’s strengths as a parent (i.e., being the primary caregiver, taking care of the child’s medical and educational needs, forming an appropriate emotional bond with the child) and the need services that will make it safe and financially feasible to leave the perpetrator (i.e., affordable housing and childcare, a protective custody and visitation arrangement from the court that does not leave the child alone with the perpetrator or require the domestic violence victim to interact with the perpetrator).
In conclusion, while domestic violence is typically an act committed behind closed doors in the secrecy of a home, the evidence available to prove it is not always limited to merely he said–she said. There can be much more. It is important that practitioners know how to identify evidence to support or refute domestic violence. As well, they must know how to admit such evidence once it is located. This begins with a basic understanding of domestic violence and a basic understanding of the rules of evidence and procedures applicable in court. A knowledgeable practitioner can transform the he said-she said case into a he said-she said plus case.
