A CONUNDRUM FOR FAMILY COURTS: WHAT TOOL FOR WHAT PROBLEMS? #1

A CONUNDRUM FOR FAMILY COURTS: WHAT TOOL FOR WHAT PROBLEMS? # 1

( A discussion of some tools that can protect WV litigants and children, streamline justice, improve access to justice, and help WV small firm lawyers survive in a challenging economic and social climate.)
Today I am ending a hiatus in serious blogging. The problems tackled below are worthy of serious thought, so there is a #1 and # 2. I would love to see WV Family Law, and WV family law practice, turn in this direction
A few months ago, I became discouraged with my efforts to change and improve our profession. And, in spite of liking all of my committee chairs, save one, and all of my fellow committee members, some of whom confided that they felt just as I did, frustrated at the apparent stalemate, I resigned from the four WV State Bar Committees.
My research tells me that I am not a “bomb thrower”, as one committee chair called me. By nationwide standards, I am pretty much middle of the road among those who are studying “accelerating change”.
And, as much as I like and respect my fellow committee members and the committee chairs, I recognize that our profession has organized itself in a way to protect our privileged position and to protect its wealthiest and most powerful members. Thus, there is little the committees can accomplish.
Just as in life, the “little guy” gets “thrown under the bus”. Yet it is us “little guys” who should be the most innovative in finding a way to meet the needs of the working middle class and poor. With a little help from our State Bar, there are ways small firm and rural lawyers can “make an honest buck” and double the availability of services to low and middle income family law litigants.
Other areas of the law can benefit too, but today’s blog will stay with family issues.

I
The “Family Court Jurisdiction To Restrict Contact Between Parties Act”.

Last week I encountered a question that I can help answer, regarding a statute, WV Code Sec. 51-2A-2a, The “Family Court Jurisdiction To Restrict Contact Between Parties.” Act.
The issue was presented by a family court judge who knew of the statute but felt she cannot use in in a domestic violence case unless there is also before her a related family law case, divorce, allocation, modification, or contempt.                                                                                                                                 Here I make the case that she can enter the order even where the litigants are not married, never have been, and have no children together.
On Dec. 13, 2014, I posted, “The Supreme Court Rules People May Not Agree to Leave Each Other Alone”. https://hunterlawfirm.net/wv-supreme-court-rules-people-may-not-agree-to-leave-each-other-alone/
In it, I discussed a bizarre ruling that had just been issued in a “Memorandum Opinion” by West Virginia Supreme Court of Appeals, Riffle v. Miller, Sup. Ct. No. 14-0042. Inexplicably, the Court had sustained a Circuit Court judge’s ruling that the only type of restraining order a Family Court Judge could issue was one based upon a clear finding of “domestic violence”.
That meant no order preventing a person from posting naked pictures of their spouse, no order preventing Daddy from calling Mom “the C word” in front of the children, and, in Riffle v. Miller, no order prohibiting an ex-wife from calling and texting her former spouse incessantly , even though he was dying of leukemia! It also meant that Family Courts could not prohibit behavior they had prohibited in thousands of orders over decades!
As a reaction to my rant on Facebook, my friend and colleague Tom O’Neill, whose name I list here with permission, reached out and said, “Why don’t we write a bill?” That was not an idle suggestion since Tom was counsel for Sen. Charles Trump’s West Virginia Senate Judiciary Committee.
My blog article above describes how we drafted the bill and shepherded it through approximately six revisions all the way to the Governor’s desk without one nay vote. It is an effort I am proud of. I posted the story of its passage in, https://hunterlawfirm.net/the-wv-senate-bill-430-now-a-law-that-no-one-heard-of/ .
Since that day, I have been involved in at least 50 cases in which a “no unwanted contact” order was entered. That translates to thousands statewide. It seems not to have attracted much attention, because the day that Riffle v. Miller came down as a final decision, Justice Loughry recognized that “our law” existed and, in effect, said, “Never mind.”! So it became, “The Case No One Heard of.”
The honorable family court judge that I mentioned at the beginning of this post expressed her belief that the moment she dismisses a domestic violence petition, she loses all power over it, and a “no unwanted contact order disappears.”
She explained that where there is a companion case (divorce, paternity, etc.), with the same parties, she believes that she can enter such an order because the case is still pending in her court.
I understand the logic completely but respectfully disagree and quote paragraph (a) of the statute:
“A family court in its discretion may at any time during the pendency of any action prosecuted under Chapter 48 of this Code, restrict contact between the parties thereto without a finding of domestic violence under article 27 of said chapter. This order shall not be considered a protective order for purposes of section 507 article 27, Chapter 48 of this code. A court may enter a standing order regarding the conduct expected of the parties during the proceedings. Any standing order may restrict the parties from…” (emphasis added)
The statute goes on to list many examples such as prohibiting entering the complainant’s home or business, contacting (her), etc.
I submit, “at any time during the pendency of any action prosecuted under Chapter 48″ is clear and unambiguous.
The domestic violence statute is Article 27 of Chapter 48.
There is one important caveat to my opinion. I understand and share the concern of those engaged in attempting to prevent domestic violence. The last thing anyone wants is to give a power to the Family Court that would endanger funding through the Federal “Violence To Women Act” or other domestic violence funding or increase vulnerability of domestic violence victims. Our law was designed to protect people from harassment, violence, and death!
Thus, I have no quarrel, and do not know but assume, that most family court judges will not enter such an order if the complaining witness is demanding a trial on the merits of their domestic violence allegations. Otherwise, a person who inflicted a severe beating could simply accept an order without the finding. (Set aside for this article discussions of criminal domestic battery or assault or other crimes.)
I have written on other occasions that the passage of the domestic violence statute many years ago appears to have resulted in an increase in domestic violence of 1000%. That is an exaggeration of course, but, in fact, once this tool became available, as essentially the only tool magistrates had, to grant emergency relief, magistrates began handing them out like hotcakes, and people began filing them even when there was no domestic violence. (Note, without an accusation of domestic violence, magistrates may not determine temporary custody, possession of a house, or a car, or a pet. But with the violence accusation, they may order any of that relief, temporarily, without a hearing!) That makes it a powerful weapon that many people use.
Do not get me wrong. Domestic violence is a very serious problem in West Virginia. From my experience 10% to 25% of domestic violence filings are completely legitimate, potentially life-threatening, and the reason that the law exists. At least 25% more meat minimum objective standards for filing, but half should be dealt with differently. (These are just my opinions, based on experience representiving women and men.)
Perhaps 50% of the cases has some element of violence, a bruise, shoving, threatening, loud voices, or standing in a person’s way so they cannot leave the room. That is why the granting of a “no unwanted contact order usder Sec. 51-2A-2a is discretionary. The court must apply its experience and knowledge of the law to the allege facts, must make careful inquiry of the parties, if the court is considering a “no unwanted contact order”, should not enter such an order if the “victim” objects, but should feel free to enter it regardless of whether there is a companion case, and here is why.
Since the legislature unambiguously said the court may issue such an order “at any time” and “in any action” under Chapter 48, it is clear to me that the court can enter a no unwanted contact order and then enter a dismissal order with a specific conclusion, “All prior orders entered in the case remain in effect.” That would completely dismiss the domestic violence matter, relieving the respondent of the stigma of a domestic violence filing, but leave in place a permanent, lifetime, no unwanted contact order, against the respondent but only if they both ask for it, even a mutual order.
20 years ago, the idea of a “mutual no unwanted contact order” was anathema. Why would a “victim” agree to such a thing? Because there are times that the Respondent to such an action is complaining that an order is protecting the petitioner against the respondent but freeing the petitioner to harass the respondent. If both agree, why not enter an order prohibiting any “unwanted contact”. I have seen it work dozens of times, and….
“O.J.” was under a domestic violence order when he cut off Nicole’s head. It is a piece of paper. It won’t protect a person from a sociopath, or a bullet. In many cases, tempers can cool, rationality can return, persons looking over the brink can step back, and, as in the case we recently resolved, a complaining petitioner can accept an apparently sincere promise from her “ex” that he understands the relationship is over, that he understands that she has expressed fear of him, that he respects her privacy and space, that he is not going to persist in pursuing the relationship, that if he sees her in Wal-Mart or Kroger’s he will turn on his heel and leave and will, if necessary, even leave a plate of food in a restaurant rather than occupy her space.
However, in those cases where promises aren’t enough and she wants the protection of a “no unwanted contact order”, which can be enforced through a contempt action, but not immediate arrest, she should have that right. In my humble opinion, that is what I think the law says.

This post was written by Burton Hunter