Domestic Violence and Family Court

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By on August 20, 2012 8:48 pm Leave your thoughts

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First let me (humbly) say I am a really good personal injury lawyer. I will code this with some references to that, and I have many good articles on personal injury, insurance, trial preparation, mediation, and trials. God may reward me for writing the stuff below by sending me a good personal injury matter.

In the meantime, someone has to pay the electric bill, and I am just as good in family law, which often involves violence and the threat of violence. In small town America, there is much less money in family law, and cases involving domestic violence often lead to the lawyer’s losing money. They can be very time consuming, and people tend not to have a lot of money to throw at such problems.

Anyone who has read my stuff knows that my family law practice has been touched by at least a dozen deaths; 8-9 suicides and 3-4 homicides. I defended one of those cases in a two week trial, and my partner and I invested 1000 hours (1/2 man year) into the monster. The client got out after a dozen years and has returned to farming. Two families were devastated. And I decided to give up felony criminal defense work.

If a parent comes to the magistrates office, or calls the sheriff, or perhaps goes to an emergency room with a bruise, they are more likely than not sent to “Women’s Aid in Crisis”, WVAIC. I love the folks over there. They are good and compassionate. Often they help my clients. But they are part of a system with very serious flaws.

If that same parent goes to the WV Dept of Health and Human Services, Child Protective Services, WVDHHR, CPS, 90% of the time they will be turned away. In order to keep from being overwhelmed, the child abuse and neglect standards for review  have been standardized and computerized. It is a strange, strange world. Try reading a CPS report and you will see what I mean.

Believe it or not, and you had better believe it if you want to negotiate this murky world, if the person seeking assistance says, “My lawyer said to come here.”, their chance of getting help drops precipitously.

One would think the magistrate or social worker would think, “An experienced lawyer has looked this over and decided we can help this person. I had better get to it!” Instead, they say, “Here’s that SOB Hunter trying to gain petty advantage in his lawsuit. How can I get rid of that person?”

I am not guilty of these charges. While I represent my clients zealously, I am an officer of the Court, and I send only people who I feel qualify for help. Since CPS workers are regularly cross examined and criticized by lawyers, they perceive otherwise, so better to help the client organize their facts and thoughts and send them as if they just came off the street than taint their chances by showing myself.

Either way, the parent is likely to find her way to WVAIC. These folks have one “tool”, the domestic violence petition. As they say, “If your only tool is a hammer, every problem looks like a nail.”

The WVAIC staff explains the “rules” to the complaining party and, sure enough, the allegations that form on the application the party is given almost magically meet the minimum standards of the law. At one point in a recently year, the magistrate court number and family court number were each 47, meaning 47 women had applied for AND received temporary protective orders that year, and none had been turned down for insufficient pleadings.

That means the Magistrate issues the temporary protective order without a hearing, and another respondent’s life is turned upside down.

From the minute that person gets the order, he (it is usually a “he” but not always) usually is allowed no contact with his children. Usually the complaining party gets sole temporary custody, and the respondent must either be ready to put his reputation and life on the line in a contested hearing within 72 hours or move to continue and face weeks away from his family.

Let’s take some side trips now:

The juveniles of WV tend to get into the system be getting in trouble themselves or having the state file something against their parents for abuse and neglect. They do not go to the family court. They are in juvenile court, which is the circuit court of their county. No one over there can afford a lawyer, so they are appointed a lawyer. The fee structure until recently was $45/hour out of court and $65/hour in court, or half my hourly overhead.

The folks who can afford to take these cases, or, more accurately, cannot afford NOT to take them, often have no staff or very small staff. Once in one of these cases, the counsel and parties are in it for months, if not years. The state has imposed time standards, and “permanency” is now a strong goal, but if you do this work, you really cannot be in family court, because every hearing and multi-disciplinary team meeting trumps every family law matter. You can imagine how happy that makes the family court judge.

The lawyer in these cases take lots of them, so they can spend a morning or day in juvenile court or MDT meetings and charge enough per case to survive. The families caught up in this system at least have free access to social workers, in home services, counselors, psychologists, etc. The people  in family court had better have good medical insurance or they pick up the whole tab!

Our innovative Family Court Judge for Braxton, Lewis, and Upshur Counties, Robert Reed Sowa, and members of the local bar, and citizen volunteers, were motivating factors in creating the Tri-County Visitation Center. Somehow it stays funded, and offers an hour of supervised time per week, and attentive note takers tracking the events surrounding the visits. It is a resource many other counties do not have.

And, if the family court appoints the children a lawyer, the parents, or the one who brings home a pay check, has to pay for that lawyer. She/he is called a “guardian ad litem”.

The assumption in juvenile court abuse and neglect is that almost everyone abuses. The assumption in family court is usually parents are fit. The assumption in DV court, presided over by the family court is if you have certain things such as bruises, a trip to the emergency room, or witnesses, there was abuse. If not, there probably wasn’t.

The long suffering abuse victim, the one who was afraid or to humiliated to come forward is at a great disadvantage. The court just can’t handle one person’s word against the other. I don’t envy them.

Someone noticed that the family court, domestic violence court, and juvenile court do not work together, so they passed a law. Now there are “overlap rules” so when the family court sees evidence of abuse, he/she sends a secret report to the circuit court who can order CPS to do its job.

There were a flurry of these in the beginning, but I haven’t seen one in a couple of years.

I know you think you know where I am going here, but you do not. Domestic violence is a very serious problem, even here in Upshur County, especially with the tsunami of meth and prescription pains meds,and good old fashioned alcohol and marijuana. Ten per cent of these cases are very ominous and involve serious violence and threat of serious injury and death.

Half the cases involve significant, if not severe, abuse, even physical abuse.

The less severe one half  of these cases still involve conflict, control, and they have dire need for a court to be involved. It was a wonderful development when DV courts were allowed to dismiss cases but keep in place a “no unwanted contact” mutual restraining order. It is a frequently used tool.

And, the man who says, “The system sucks. It always favors the woman.” is not correct. True, if he is a typical full time blue collar worker who get overtime, hunts, fishes, and drinks with the boys, and leave the cleaning, food preparation, trips to the doctor, parent teacher conferences, etc. to the mother, the law says the court should apportion time roughly in that ratio.

It is when the fact that the DV court gives the huge boost to the complaining party that disparity injustice can happen. That finding triggers “limiting factors” which give the complaining parent great leverage and control. One court went so far as to say that limiting factors allowed the complaining parent to determine what the visits will be.

I can help a parent climb out of the “limiting factors” but it is a tough process.

I believe an effective lawyer can really help the system work. When I appear for a DV hearing, I politely introduce myself to the complaining parent, in the presence of the WVAIC worker. I encourage the party to get a lawyer. I express my client’s regret that it got to that point. Often, I offer to accept on behalf of my client a very limited and structured visitation plan at first. Often, I file a divorce before that hearing is even held. I suggest a no unwanted order in the divorce cases, or in the DV, or conflict or marriage counseling.

Occasionally, rather than roll the dice, we will continue the DV for weeks or months, while the lawyers schedule mediation, send the parties to counseling, and negotiate. Often the DV petition can be dismissed and the respondent’s job or reputation preserved.

Of course, if the police decide to charge a domestic battery or assault, the prosecutor may not be willing to dismiss the case. Sometimes sending Mom to her own lawyer who can send a well-worded letter to the prosecutor is the only way to get that matter dismissed. That lawyer must be mindful not to say Mom told a lie in the first place.

The lawyer who gets called into these cases should be experienced and understand human nature, the judges, the workers, the police, and the system. Each case is a puzzle to be solved, and real flesh and blood children’s, and their parents’, lives are at stake.

Working in family court on cases involving abuse and cruelty does not earn lots of praise or profit, but the best clients truly appreciate the effort. It is not for the faint hearted or for someone who is looking to “get rich quick”, but it has its rewards.

This post was written by Burton Hunter

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