Family Law Prof Blog

Special Issue of Family Court Review Featuring Domestic Violence and Family Courts Available Online

"The July 2008 issue of Family Court Review featuring outcomes from the AFCC and NCJFCJ Domestic Violence and Family Courts Project is available for free online for a limited period of time at Link. 

The highly anticipated special issue features articles co-authored by interdisciplinary experts from the domestic violence advocacy and family courts community.  The issue addresses topics including terminology, differentiated approaches to parenting plans, screening and cultural issues.  Guest edited by Professors Nancy Ver Steegh and Kelly Browe Olson, the issue also includes the Report on Wingspread Conference on Domestic Violence and Family Courts.  The Report addresses critical tensions raised by the growing awareness that not all uses of violence in intimate relations are the same. 

AFCC will host a several conference sessions on domestic violence and differentiation at its Eighth International Symposium on Child Custody Evaluations, September 25-27, 2008 and Eighth International Congress on Parent Education and Access Programs, September 26-27, 2008 in Albuquerque, New Mexico.  For more information, please view link.

The Family Court Review is the academic and research journal of the Association of Family and Conciliation Courts, published by Wiley-Blackwell in cooperation with Hofstra Law School’s Center for Children, Families and the Law.  For more information on AFCC, please view AFCC website or contact AFCC at afcc@afccnet.org or (608) 664-3750."

By AFCC (NVS 7-17-08).

Report on AFCC & NCJFCJ Wingspread Conference on Domestic Violence and Family Courts

"The Report from the Association of Family and Conciliation Courts (AFCC) and National Council of Juvenile and Family Court Judges (NCJFCJ) Wingspread Conference on Domestic Violence and Family Courts is now available online. Written by conference reporters, Professors Nancy Ver Steegh and Clare Dalton, the Report addresses critical tensions raised by the growing awareness that not all uses of violence in intimate relationships are the same. 

The Wingspread Conference featured nearly 40 participants from different backgrounds including family court judges, lawyers, domestic violence advocates, social science and legal scholars, court administrators and psychologists.  Until this conference, there had been no large-scale gathering of the disparate views of many relevant professions, and no attempt to resolve differences in ways that will improve system outcomes for families afflicted by these problems.

The Report will be the centerpiece of a special issue of AFCC’s research and education journal, Family Court Review in July 2008.  Presentations on the Report and work developed by conference participants will be featured at the AFCC 45th Annual Conference, May 28-31, 2008 in Vancouver, BC.  The Report can be accessed on the AFCC Web site at AFCC Website.  For more information, please contact AFCC at AFCC e-mail or (608) 664-3750." By AFCC

Domestic Violence Offender Website?

"Web sites that promise to give the dirt on prospective dates abound. A guy has a roving eye? Look him up on DontDateHimGirl.com.

But a California lawmaker says the background checks can be far more serious. The lawmaker, Assemblywoman Fiona Ma, the San Francisco Democrat who is the majority whip, introduced a bill last week to create an online database of men and women convicted of domestic violence in California.

Other states like Florida have databases used by law enforcement officials. Her proposal, Ms. Ma said, would be the first available to the public.

“If you’re online, Googling and looking for information on someone you met in a bar or on MySpace, this would provide a tool for people to go and look to see if someone who is suspicious and a little creepy has a history of violence,” Ms. Ma said.

The database would log the names of domestic violence offenders convicted of a felony or two misdemeanors, dates of birth, locations of convictions and other information. Unlike public registers of sex offenders, the database would not list addresses. It would, however, indicate how to obtain a restraining order."

By Rebecca Cathcart, N.Y. Times Link to Article (last visited 2-18-08 NVS)

Culturally Sensitive Shelters

"After enduring seven years of beatings from her husband, a young Yemeni-American woman recently fled to a local shelter, only to find that the heavy black head scarf she wore as an observant Muslim provoked disapproval.

The shelter brought in a hairdresser, whose services she accepted without any misgivings. But once her hair was styled, administrators urged her to throw off her veil, saying it symbolized the male oppression native to Islam that she wanted to escape.

Instead the woman, who asked for anonymity because she feared further violence from her relatives, decamped to the Hamdard Center for Health and Human Services in suburban Chicago, a shelter that caters mainly to Muslim women by not serving pork and keeping prayer rugs handy. Such shelters are extremely rare nationwide, activists say, because Muslim Americans only recently began confronting the issue of spousal abuse."

By Neil MacFarquihar, N. Y. Times Link to Article (last visited 1-18-08 NVS)

Teaching Resources: Domestic Violence & Poverty

For those of you who aren't familiar with the In Her Shoes exercise produced by the Washington State Coalition Against Domestic Violence, it is a fabulous resource for teaching how multiple systems affect the ability of victims of domestic violence to escape.  The coalition also produces an "Economic Justice" edition that helps students understand why low-income victims are at much higher risk of continued severe abuse. 

The WSCADV Website provides more information about this resource and an order form for the materials.

(last visited November 27, 2007 bgf)

Standards of Practice in Civil Protection Order Cases

The American Bar Association has recently published its new Standards of Practice for Lawyers Representing Victims of Domestic Violence, Sexual Assault and Stalking in Civil Protection Order Cases. The standards recommend that lawyers become knowledgeable about the dynamics of domestic violence and its intersection with sexual assault and stalking before undertaking representation of a victim in a protection order case. Texas Rio Grande Legal Aid participated in the development of the standards.

The standards are available online at the ABA  (last visited November 9, 2007 bgf)

Case Law Development: Inter-American Commission on Human Rights Finds Domestic Violence Police Response Case Admissible

The Inter-American Commission on Human Rights, in the case of Jessica Gonzales v. United States has declared Jessica Lenahan's (formerly Gonzales) case admissible. In Castle Rock v. Gonzales, the United States Supreme Court held that Jessica did not have a property interest in prompt police response to enforce the provisions of her domestic violence restraining order.  The court thus reversed the 10th circuit's decision finding a constitutional violation when the police ignored repeated calls from Jessica that her estranged husband had violated a protective order and taken her children. 

Ms. Lenahan (Gonzales) has since then pursued this action before the Inter-American Commission on Human Rights.  The Commission's recent decision says that Ms. Lenahan (Gonzales) exhausted all domestic remedies and indicates that countries in the Americas, including the United States, are responsible under the American Declaration on the Rights and Duties of Man for protecting victims of domestic violence from private acts of violence. This is the first time that the Commission has ever made such a pronouncement.

In the merits phase of this process, the  Commission will decide whether the US and the Castle Rock Police Department/Colorado violated Ms. Lenahan (Gonzales') and her children's human rights.  Ms. Lenahan (Gonzales) has alleged that the United States has violated her rights to life, non-discrimination, family life/unity, due process, petition the government, and the rights of domestic violence victims and their children to special protections.
The Commission's admissibility decision is available online at the Commission's website;  Columbia Law Schools Human Rights website, or the ACLU website.

Ms. Gonzales' testimony before the Inter-American Commission in March 2007, can be viewed at the Organization of American State's website

(Last visited October 10, 2007 bgf)

The Feminist War on Crime

Professor Aya Gruber's article "The Feminist War on Crime" appears in the most recent issue of the Iowa Law Review.  Professor Gruber, of Florida International University - College of Law, argues that domestic violence reform has become far removed from its progressive roots and now supports rather than supplants patriarchal ideology.

The Article traces the history of domestic violence reform and explains how it transformed from a grassroots populist movement to a politically powerful lobby deeply allied with law enforcement. One of the reasons for this transformation was the influence of the powerful victims' rights movement. This movement originated as a conservative counter to Warren Court civil liberties and employs essentialist discourse objectifying victims and characterizing defendants as purely autonomous agents to unmoor crime from its social roots. The Article argues that in recent times, victims' rights reformers and the government have appropriated the domestic violence issue, not to change the patriarchal institutions that support battering, but rather to further a pro-criminalization agenda. In addition, feminists, whose original program was to vindicate women's autonomy, have begun to adopt the essentialist discourse of objectifying battered women by characterizing abused women as helpless, scared, irrational, and sick. The Article suggests that feminists simply stop advocating criminal law reforms as the solution to the problem of domestic abuse and proposes some pedagogical methodologies for teaching domestic violence without characterizing abused women in an essentialist manner.

Read the article at SSRN  (Last visited August 21, 2007 bgf)

Judges Orders Man not to have a Girlfriend

The Associated Press reports that a judge has ruled that a 24-year-old Canadian man is not allowed to have a girlfriend for the next three years. The ruling came after Steven Cranley pleaded guilty on Tuesday to several charges stemming from an assault on a former girlfriend. Cranley, who has been diagnosed with a dependent personality disorder, attacked his girlfriend in an argument after their breakup.

Read the New York Times story  (last visited June 14, 2007 bgf)

Case Law Development: Governor's Clemency for Women who Murder Their Batterers Must Be Respected By Board of Probation and Parole

In the culmination of a nine-year process involving a statewide coalition of law schools and advocates for battered women, two women in MIssouri were released from prison recently.  Shirley Lute, 76, has been imprisoned since 1981.  She was the oldest female inmate in a missouri prison. She was convicted of aiding her son in killing her husband, Melvin, who physically tortured and mentally tormented her. Lynda Branch, 54, was convicted of shooting her husband, Raymond, in 1986; she contends she got control of the gun only after her husband threatened to shoot her and her daughter.  Both women were sentenced to life without the possibility of parole for at least 50 years, but Gov. Bob Holden commuted their terms in late 2004, just before he left office, making them immediately eligible for parole. However, the Board of Probation and Parole refused to grant them release, saying that "would depreciate the seriousness" of their crimes.

The Supreme Court ordered the board to reconsider, stating that:

The board erred in reconsidering the circumstances surrounding the women's offenses in denying them parole, as the governor already had considered these factors in deciding to commute their sentences. Because article IV, section 7 of the Missouri Constitution grants to the governor the sole authority to commute criminal sentences at his discretion, the board must follow the governor's orders. In interpreting the governor's commutations, this Court must give effect to his intent; because the governor is the sole author, only his intent is relevant. Further, the courts long have held that the governor's power to grant commutation is a mere matter of grace that the governor can exercise on the conditions and with the limitations he thinks proper. Here, both commutations explicitly stated the governor had examined the women's applications and the relevant facts in deciding to make them eligible for parole.

Read the court opinion (last visited May 11, 2007 bgf)

A group of law students from the four MIssouri law schools involved in this process wrote an article about the process.  See, Bridget B. Romero, Jennifer Collins, Carrie Johnson, Jennifer Merrigan, Lynn Perkins, Judith Sznyter, and Lisa Dale, Deconstructing The "Image" Of The Battered Woman: The Missouri Battered Women's Clemency Coalition: A Collaborative Effort In Justice For Eleven Missouri Women, 23 St. Louis U. Pub. L. Rev. 193 (2004). 

Woman Imprisoned By In-Laws

"Police in India have rescued a 40-year-old woman who was imprisoned by her in-laws in a dingy room for 15 years because she could not pay enough dowry. Police said the woman, Madhavi Das, was naked and locked in the room when policemen broke in with help from neighbors on Saturday.

"She was admitted in a mental asylum as years of solitary confinement has taken a toll on her sanity," Siddhi Nath Gupta, a senior police officer, said on Sunday. Three members of the family, including her husband, were arrested." Reuters, Washingtonpost.com Link to Article (last visited 5-1-07 NVS)

Criminal Intimate Abuse Declining?

"Criminal violence against intimate partners has dropped nearly two-thirds in recent years and has reached a record low, preliminary government figures show. Current and former spouses, as well as unmarried couples, have reported falling victim to criminal abuse far less than they did in the 1990s, according to the federal Bureau of Justice Statistics.

Domestic violence experts are quick to point out that the trend has not lessened the demand for shelters for victims, but they credit new laws, expanded services and better enforcement for a shift in public awareness. They say continued efforts to educate people are needed for more improvement." By Frank Greve and Anthony Lonetree, StarTribune.com Link to Article (last visited 3-19-07 NVS)

Domestic Violence as Human Rights Violation Alleged

In a matter described as "the first individual complaint brought by a victim of domestic violence against the United States for human rights violations," the Inter-American Commission on Human Rights held a hearing on March 2, 2007 in the case of Jessica Gonzales v. United States.  The case, brought by the unsuccessful appellee in Castle Rock v. Gonzales, 545 U.S. 748 (2005), was summarized in a public announcement issued prior to the hearing by one of Gonzales' lawyers, Caroline Bettinger-Lopez of Columbia Law School:

In June 1999, Jessica Gonzales' estranged husband abducted her three daughters, in violation of a domestic violence restraining order. Ms. Gonzales called and met with the police repeatedly to report the abduction and restraining order violation. Unfortunately, her calls went unheeded.  Ten hours after her first call to the police, Ms. Gonzales' estranged husband arrived at the police station and opened fire. The police immediately shot and killed Mr. Gonzales, and then discovered the murdered bodies of the Gonzales children – Leslie, 7, Katheryn, 8, and Rebecca, 10 – in the back of his pickup truck.  Ms. Gonzales filed a lawsuit against the police, but in June 2005, the Supreme Court found that she had no constitutional right to police enforcement of her restraining order.  In December 2005, Ms. Gonzales filed a petition with the Inter-American Commission on Human Rights, alleging that the police’s actions and the Supreme Court’s decision violated her human rights.

A webcast of the March 2, 2007 hearing is available at www.oas.org (video) or www.cidh.org (audio).  Documents related to Ms. Gonzales' case before the Inter-American Commission can be found at: http://www.law.columbia.edu/focusareas/clinics/humanrights#97614 and http://www.aclu.org/womensrights/violence/23287res20051230.html.

Ms. Gonzales is represented by the Columbia Law School Human Rights Clinic and the American Civil Liberties Union (ACLU) Human Rights Program (HRP) and Women’s Rights Project (WRP).

Thanks to Professor Matthew Fraidin for this post.  (BGF)

Case Law Development: Joint Physical Custody in Domestic Abuse Cases

The Iowa Supreme Court's analyzed the effect of domestic abuse on child custody decision-making, noting that "Because domestic abuse reflects the ability of the parties to listen to one another and respect one another’s opinions and feelings, the existence of domestic abuse is a significant factor in determining whether joint physical care is appropriate."  The court then went on to explain the legal status of the parents when it rejects a joint physical care arrangement:

When joint physical care is not warranted, the court must choose one parent to be the primary caretaker, awarding the other parent visitation rights.... Under this arrangement, the parent with primary physical care has the responsibility to maintain a residence for the child and has the sole right to make decisions concerning the child’s routine care.... The noncaretaker parent is relegated to the role of hosting the child for visits on a schedule determined by the court to be in the best interest of the child. Visitation time varies widely and can even approach an amount almost equal to the time spent with the caretaker parent. .... Thus, the main distinction between joint physical care and primary physical care with liberal visitation rights is the joint decision making on routine matters required when parents share physical care.

The case is interesting for the court's recognition that conduct need not result in broken bones, noting that in this case Father's "personal disagreements with [Mother's] decisions soon led him to behave in a way that not only alienated [her], but ultimately caused her to fear for her safety....  While his desperate efforts to learn why his wife had left him are understandable, we cannot ignore the fact that eventually his actions reflected not the attempts of a husband trying to save his marriage, but the bitterness of a man who had been rejected and who resented his former partner."  Finding this, the court concluded that the trial court had not erred in find that the father would be unable to cooperate in joint physical case.

In re Marriage of Hynick, February 16, 2007
Opinion on the web (last visited February 26, 2007 bgf)

Read the commentary of Iowa Attorney Alexander Rhoads at Iowa Family Law Blog

Case Law Development: Ohio Courts Continue to Split on Constitutionality of Applying Domestic Violence Statute to Cohabitants

The Ohio Courts of Appeals continue to disagree regarding the impact of Ohio's Defense of Marriage Amendment on criminal domestic violence statutes.  See prior Family Law Prof Blog posts of June 13, 2006, and March 28, 2006.

This past week, the third appellate district joined the second district in holding that the criminal domestic violence statute is unconstitutional as applied to unmarried couples because the statute creates classifications based on the status of
a person as married or unmarried, and then protects the unmarried but cohabiting
persons as if they had the same legal status as a married couple. 

State v. McKinney,  2007 Ohio 587; 2007 Ohio App. LEXIS 541 (February 12, 2007).   
Opinion on the web (last visited February 14, 2007 bgf)

Just days earlier, the seventh appellate district came to the opposite conclusion, holding that "the criminal domestic violence statute, is predicated upon the factual determination of cohabitation, not the legal determination of marriage, and ... is not in conflict with the “Defense of Marriage” Amendment.  The majority of appellate districts have come to this same conclusion.

State v. Carnes, 2007 Ohio 604; 2007 Ohio App. LEXIS 562 (February 8, 2007)
Opinion on the web (last visited February 14, 2007)

Clemency Rare for Women Who Kill Abusive Men

The Dallas Morning News reports on efforts to obtain clemency on behalf of women who have killed their abusive spouses.  The article reviews the past history of the clemency movement throughout the United States and in Texas in particular, noting that the movement has had little success and appears currently to be stalled.

Read article (last visited February 12, 2007 bgf)

Domestic Violence among Wealthy Attorney Couple Highlighted on Primetime

If you teach domestic violence, you may be interested in viewing the video and transcripts of ABC News Primetime story of a domestic case in California.  The attorney husband in the case was convicted of torture after his wife had gone to authorities to confess that she was plotting to kill him and that she had molested their four children.  The detectives found the story incredible and investigated further, leading to the arrest of the husband for domestic violence.   

Go to the ABC News Website to view the program transcript and video excerpt
(last visited February 7, 2006 bgf)

Case Law Development: Continuing Tort Doctrine Applies in Measuring Statute of Limitations for Domestic Violence Torts

The statute of limitations on a domestic violence claim does not begin to run until the last alleged act of violence has occurred, the California Court of Appeal has held. The court concluded that domestic violence is a continuing tort, not comprised of distinct torts that trigger a variety of limitations periods upon their occurrence. The plaintiff had sued her estranged husband for assault, battery, intentional infliction of emotional distress and violation of civil rights, alleging that he engaged in a pattern of domestic violence that started a few months after they married in 1989. The complaint included allegations of kicking, hitting, choking, sexual abuse and death threats. The plaintiff claimed the physical abuse ended in April 2001, while the emotional abuse continued until April 2004, two years after she filed for a divorce. The defendant in the action had sought to exclude all references to acts he allegedly committed against his estranged wife more than three years before she filed her complaint.

The court noted that “While we recognize the difficulty a spouse or ex-spouse may have in defending against domestic violence cases, the continuing tort doctrine seems especially applicable in such cases.” The court reasoned that “Most domestic violence victims are subjected to ‘an ongoing strategy of intimidation, isolation, and control that extends to all areas of a woman’s life, including sexuality; material necessities; relations with family, children, and friends; and work,’” Moreover the court noted that the California code of civil procedure states that domestic violence lawsuits must be commenced within three years from the date of the “last act” of alleged violence. The court concluded that “The words ‘last act’ are superfluous if they have no meaning .... By adding these words, we believe the Legislature adopted by statute the continuing tort theory, thus allowing domestic violence victims to recover damages for all acts of domestic violence occurring during the marriage, provided the victim proves a continuing course of abusive conduct and files suit within three years of the ‘last act of domestic violence.’”

Pugliese v. Superior Court, (January 23, 2007)
Opinion on the web (last visited January 24, 2007 bgf)

Teaching Resources: Teaching Empathy for Victims of Domestic Violence

Many family law profs consider teaching Domestic Violence 101 in the basic family law course a necessity, but find the subject difficult to convey in the limit number of class hours one can devote to the course.  Legal doctrines and trends protecting victims of intimate violence often fall on ears deafened by the insistent question "Why doesn't she just leave?"

Here's a fabulous resource for an experience that students can work through in one hour's class time that will help them to appreciate the barriers victims face in leaving abusive situations.  The simulation requires the students to walk "In Her Shoes" recounting the choices and barriers faced by women in a variety of circumstances.  Students assume and experience the roles of diverse battered women as they seek assistance from a variety of resources (set up as "stations"). Each represents an institution or service that women encounter when they attempt to escape, such as courts, doctors and shelters. Each station may be a resource, or a barrier.

The simulation, which includes instructions for setting up the program and debriefing the students after the experience, can be obtained from the Washington State Coalition Against Domestic VIolence.

bgf

Domestic Violence Among Refugee and Immigrant Women

"An Ethiopian-born physician works to prevent domestic violence among refugee and immigrant women in Boston. If you want to help these women escape abusive relationships, she says, you need to understand the old country's ways, as well as the new." By Meqdes Mesfin, National Public Radio Link to Listen (last visited 1-15-07 NVS)

Girl Removed from DV Shelter to Effectuate Change of Custody

A 9-year-old Virginia girl who claimed her father had abused her was removed from the domestic violence shelter where her mother had taken her after a court awarded custody to father based on parental alienation syndrome. 

See the Times-Richmond Dispatch story on the family and views on PAS

Case Law Development: Reckless Domestic Violence Assault not a Categorical Crime of Violence for Purposes of Immigration Law

The United States Court of Appeals for the Ninth Circuit had to decide whether a misdemeanor domestic violence conviction under Arizona statutes constituted a "crime of domestic violence" under federal law subjecting a legally admitted resident alien to removal under 8 U.S.C.S. § 1227(a)(2)(E)(i). The court noted a recent inconsistency in its precedents regarding whether crimes of recklessness constituted categorical crimes of violence under immigration law.  The court reviewed its own decisions and determined that it should join the other circuits that have restricted the category of crimes for which removal applies to crimes of violence involving specific intent.  In this case, since the Arizona statute allowed conviction upon proof of reckless assault, the conviction was not a categorical crime of violence.

When a state statute of conviction does not define a categorical crime of violence, the court goes on ot apply a "modified categorical approach" in which it considers "whether any of a limited, specified set of documents--including "the state charging document, a signed plea agreement, jury instructions, guilty pleas, transcripts of a plea proceeding and the judgment" (sometimes termed "documents of conviction")--show the petitioner's conviction entailed an admission to, or proof of, the necessary elements of a crime of violence." In this case,

none of the documents ... demonstrated that [the alien's] conviction was based upon an admission, or any other proof, that he used force "intentionally" or "knowingly," as opposed to "recklessly." Accordingly, on the record now before us, we cannot conclude under the modified categorical approach that Fernandez-Ruiz committed a crime of violence or, by extension, a crime of domestic violence as defined by federal law.

The dissent took issue strongly with the rejection of recklessness as falling within the standards of categorical crimes of violence, arguing that:

Men do not beat their wives by accident. Blind to this truth, the majority ignores the realities of domestic violence and disregards congressional intent to hold that an Arizona domestic violence conviction is not a "crime of domestic violence" for purposes of a federal immigration law.  The majority's hypertechnical analysis stretches the Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990), categorical approach to absurdity and misreads Leocal v. Ashcroft, 543 U.S. 1, 125 S. Ct. 377, 160 L. Ed. 2d 271 (2004), as barring all crimes involving the reckless use of force from qualifying as "crimes of violence" under 18 U.S.C. § 16.

Fernandez-Ruiz v. Gonzales, 2006 U.S. App. LEXIS 26668  (9th Cir. October 26, 2006)
Opinion on web (last visited October 30, 2006 bgf)

India Passes Domestic Violence Legislation

A landmark new law seeking to protect women from domestic violence has come into effect in India.  The law also bans harassment by way of dowry demands and gives sweeping powers to a magistrate to issue protection orders where needed.  Punishment could range from a jail term of up to one year and/or a fine of up to 20,000 rupees ($450). 

Every six hours, a young married woman is burned, beaten to death or driven to commit suicide, officials say.  Overall, a crime against women is committed every three minutes in India, according to India's National Crime Records Bureau.  Despite the scale of the problem, there had been no specific legislation to deal with actual abuse or the threat of abuse at home. Domestic violence, under the new law, includes "actual abuse or the threat of abuse whether physical, sexual, emotional or economic," a statement from the federal ministry of women and child development said.

Read the BBC News Report (last visited October 28, 2006 bgf)

Married Man On Trial for Killing Pregnant Mistress

"Less than a week after Lisa Eatmon's family threw a baby shower for the son she was going to name Jayden, her lifeless body was found floating in the Hudson River. The person who put her there, according to a Manhattan prosecutor, was the married man who got her pregnant and then resisted her requests for $30 a week in child support. "There will be no obituary for the baby boy who was never born," Manhattan Assistant District Attorney Joan Illuzzi-Orbon told jurors in her closing argument Monday morning. "There can only be a smidgen of justice in knowing that Lisa Eatmon's voice has been heard, with a guilty verdict against the defendant." Eatmon's on-and-off lover, Roscoe Glinton, faces up to 25 years in prison if convicted of second-degree murder for shooting the 33-year-old in the head and dumping her body in the river the morning of April 3, 2005." By Emanuella Grinberg, Court TV Link to Article (last visited 10-25-06 NVS)

Report Urges United Nations Member States to Take Domestic Violence More Seriously

"More than half the 192 member states of the United Nations have no laws to punish men who are violent against women, a U.N. report showed on Tuesday. The report, issued by Secretary-General Kofi Annan's office, found violence against women and girls was a global phenomenon that affects at least one in three females in rich and poor countries alike. It also said the United Nations itself had too many programs that overlapped and were uncoordinated and for years had no specific gender-oriented programs at all. "The curtain has finally been drawn from violence against women," U.N. Assistant Secretary-General Rachel Mayanja told a news conference. "It is a public issue, it is all our issue and therefore we have an obligation to act."

The 139-page report said only 89 countries have some legislation on domestic violence, but that in many cases the implementation of those laws was weak. "The study has laid out for us a number of actions that have to be taken to try and eliminate this scourge," Mayanja said, adding that the aim of the study was to spark action and not to "gather dust on a shelf."" By Michelle Nichols Reuters, Yahoo News Link to Article (last visited 10-18-06 NVS)

Domestic Violence Awareness Month - History

"Domestic Violence Awareness Month evolved from the first Day of Unity observed in October, 1981 by the National Coalition Against Domestic Violence. The intent was to connect battered women’s advocates across the nation who were working to end violence against women and their children. The Day of Unity soon became a special week when a range of activities were conducted at the local, state, and national levels. These activities were as varied and diverse as the program sponsors but had common themes: mourning those who have died because of domestic violence, celebrating those who have survived, and connecting those who work to end violence. In October 1987, the first Domestic Violence Awareness Month was observed. That same year the first national toll-free hotline was begun. In 1989 the first Domestic Violence Awareness Month Commemorative Legislation was passed by the U.S. Congress. Such legislation has passed every year since with NCADV providing key leadership in this effort." National Coalition Against Dometic Violence Link to Webpage (last visited 10-18-06 NVS)

Case Law Development: Stopping Vexatious Litigation After Divorce

An attorney husband repeatedly brought suit in both state and federal court against his ex-wife, her family members (including his own son) and various attorneys and judges, all claiming wrongful motives or actions underlying wife's calling the police to report domestic violence, obtaining an order of protection against him and then testifying against him in their divorce.  In this particular action, the US District Court for the Southern District of New York not only dismissed all the claims for failure to state a claim or on the basis of res judicata, but also sanctioned the attorney.  Under the court's inherent authority and the authority of 28 U.S.C. § 1927, the Court ordered husband to pay the reasonable costs, expenses, and attorneys' fees incurred by the defendants in responding to the action and permanently enjoined him from "(1) pursuing further federal litigation that in any way relates to any matter arising out of his matrimonial dispute without first obtaining the authorization of the District Court, and (2) pursuing further state litigation that in any way relates to any matter arising out of his matrimonial dispute without appending this Court's opinion and order of injunction to his first filings."

Davey v. Dolan, 2006 U.S. Dist. LEXIS 68960  (September 26, 2006 bgf)

Forensic Techniques Used on Behalf of Abused Elderly

"The elderly man in the emergency room was covered with bruises, some purple and others fading to yellow. Despite signs of dementia, he told the same story over and over: His wifes burly home health aide had beaten him. But the health aide and the wife insisted he had fallen. Now it was up to the members of Orange Countys Elder Abuse Forensic Center to decide which story was true.

As the man lay on a gurney, he was interviewed by a team from the center: a geriatrician, a social worker and an investigator from the sheriffs office. The bruises on the mans chest, they determined, were the result of being punched. There were bloody outlines of a shoe on the mans leg. His clear, consistent story, and cognitive tests, persuaded the prosecutor to charge the aide with a felony.

At the center here, public health and law enforcement officials are learning to speak the same language and using the same forensic techniques as those popularized on the three C.S.I. television series to diagnose elder abuse and neglect. For decades, the techniques have been the state-of-the-art approach for investigating child abuse and domestic violence. But elder abuse has lagged far behind, suffering from a lack of financing, research and data." By Jane Gross, N.Y. Times, Herald Tribune Link to Article (last visited 9-27-06 NVS)

Domestic Violence Homicide

"Teri Lee feared her ex-boyfriend would kill her. After he was arrested in July and charged with attacking her with two butcher knives, she predicted it.

"Ms. Lee stated she was afraid for her life and was very afraid that the defendant would make bail and come to her house and kill her," an investigator reported in July.That was two months ago, before Friday morning when, police say, Steven Van Keuren broke into Lee's Washington County home and killed her and a friend. Police shot and wounded him. Lee's four children, ranging in age from 6 to 12, were home at the time of the shooting about 4:30 a.m., but there are no indications that the suspect went after them." By Howie Padilla and Tom Ford, Star Tribune Link to Article (last visited 9-23-06 NVS)

Case Law Development: Sufficiency of Grounds for Domestic Violence Restraining Order

Husband went to the business he jointly owned with Wife in the evening and, in the course of an ensuing argument, yelled, "Would you like to hurt me? Would you like to kill and hit me? Would that make you feel better?", banged a stapler on the counter, threw a water bottle in her direction, and refused to leave the jointly-owned business during the late night hours. Wife called the police who refused to make Husband leave because it was a jointly-owned business.  When she returned to the business the next day to find Husband there, she sought a protective order, testifying that she was afraid of Husband, that there had been prior explosive episodes and that she thought Husband was "out of control." The North Carolina Court of Appeals upheld the trial court's decision to enter an order based on its finding that Wife "was placed in fear of continued harassment that rose to such a level as to inflict substantial emotional distress" and that Husband's actions amounted to domestic violence.

A dissent argued that the trial court had failed to make sufficient findings of fact on the record.

Wornstaff v. Wornstaff, 2006 N.C. App. LEXIS 1975 (September 19, 2006)
Opinion on the web (last visited September 21, 2006 bgf)

Nashville Attorney Convicted of Murdering Wife

"A former Nashville attorney was convicted Thursday of murdering his wife, who disappeared 10 years ago without a trace. After about 13 hours of deliberations over two days, the jury found Perry March, 45, guilty of second-degree murder for killing his wife, Janet, whose body has never been found."It looked on the outside like he had the perfect life," prosecutor Tom Thurman said after the verdict. "He had it all."" Court TV, Link to Article (last visited 9-4-06 NVS)

Case Law Development: Duress & Undue Influence in Post-Nuptial Agreements

The California Court of Appeals addresses the burdens of proof and standards for establishing the defenses of undue influence and duress when seeking to make a marital agreement regarding property unenforceable.  The case involved a couple who had executed a premarital agreement giving Husband all his business property.  Eleven years later, while Husband and Wife were staying at an inn, he executed a document transferring to Wife as her separate property 20% of the stock in his business and the family home.  The couple separated a few months later and Husband soon thereafter filed for divorce.  The trial court found that this document was unenforceable due to undue influence and duress, as Husband had provided credible evidence that he had signed the document after Wife had screamed at him, struck him, and threatened to divorce him and alienate him from their children if he did not provide her with this security.  The court of appeals affirmed.

In regards to the undue influence argument, the court began with the presumption that, because married couples are in a confidential relationship with one another, "if one spouse secures an advantage from [an interspousal] transaction, a statutory presumption arises under section 721 that the advantaged spouse exercised undue influence and the transaction will be set aside."   Since Wife gained an advantage from the transaction, she then had the burden of rebutting the presumption of undue influence by proving that Husband's signature was "freely and voluntarily made, with full knowledge of all the facts, and with a complete understanding of its effect."  The court found that the trial court's decision that Wife had not met this burden was supported by the evidence.  The court agreed Husband had "executed the document as a reaction to [Wife's] continued yelling and screaming and out of fear that she would otherwise block him from having a continued relationship with his children" and therefore the agreement was not freely and voluntarily made.

The court also found that the alternative grounds of duress was supported by the evidence. 

The court of appeals, found that duress does not require proof of illegal acts but rather "includes whatever destroys one's free agency" and may be proven by "threats, importunity or any species of mental coercion"'

In this case, Ralph's free will was constrained by Kathleen's threats to deny him access to his children. Kathleen disagrees, saying that any threat to deny Ralph access to the children could hardly constitute duress, inasmuch as child custody and visitation matters are resolved by the courts. She emphasizes that Ralph, as a successful businessman, had access to lawyers and should have known better than to be frightened at the suggestion that she somehow could have thwarted his rights to see his children. However, as Ralph testified, he did not discuss Kathleen's threats with legal counsel until after the date he was constrained to execute the October 1999 writing. Moreover, it is not unheard of for one parent to fail to comply with court custody or visitation orders or to engage in efforts to scuttle the relationship between the children and the other parent. As a practical matter, the courts are ill-equipped to undo the damage done by infighting parents....

It is also true, as Kathleen states, that Ralph admitted he was not actually afraid for his physical safety on account of Kathleen's physical abuse of him. The fact that he did not expect to wind up in the hospital the next time she struck him does not, however, mean that her abuse did not have a cumulative and real effect on his mental state.

In re Marriage of Balcof, 2006 Cal. App. LEXIS 1252 (August 15, 2006)
Opinion on the web (last visited August 15, 2006 bgf)

Use of Violence Could Become Grounds for Divorce in Greece

"A bill submitted to Parliament yesterday proposes the toughest set of measures ever seen in Greece against domestic violence and asks for the first time that smacking children be outlawed and that the use of violence by one partner against another be grounds for divorce.

“The purpose of the bill is to protect relationships based on individual dignity, self-determination and self-respect within Greek families and therefore Greek society,” said Justice Minister Anastassis Papaligouras, who presented the draft law to the Inner Cabinet before it was submitted to Parliament." Kathimernini Link to Article (last visited 8-9-06 NVS)

South African Women Protest Domestic Violence

"Thousands of women re-enacted a famous anti-apartheid march through Pretoria, South Africa, Wednesday, protesting violence against women and child abuse. Supported by politicians and women who participated in the 1956 march, the re-enactment pointed out South Africa has the world`s highest number of reported rapes and other forms of domestic violence, with a South African woman killed every six hours by an intimate partner." M & C News Link to Article (last visited 8-9-06 NVS)

Domestic Violence Increases in Hong Kong

"Ah Lin boarded a train from mainland China to Hong Kong six years ago with her four-year-old son to begin a new life with her Hong Kong husband. But instead of joy and prosperity, her life became filled with near-daily physical abuse. . . . Cases of abuse within families have tripled between 1998 and 2005. Police figures for the first half of this year show a 31 per cent jump compared with last year. Of the 719 cases reported, more than 500 involved serious assaults on women and children." Reuters, DNA World  Link to Article (last visited 8-9-06 NVS)   

Woman on Trial for Drowning Quadriplegic Ex-Husband

"A few hours after Gloria Guzman called 911 to report that her quadriplegic ex-husband had drowned in a bathtub, she told police he had accidentally died as a result of her neglect. But Las Vegas prosecutors claim that an angry and embittered Guzman intentionally drowned Mark Richards over his decision to end their six-year relationship. Beginning Tuesday, a Las Vegas jury will be charged with deciding which version they believe at Guzman's first-degree murder trial." By Emanuella Grinberg, Court TV Link to Article (last visited 8-9-06 NVS)

Case Law Development: Cell Phoone and Text Messages Insufficient to Establish Minimum Contacts for Personal Jurisdiction in Protection Order Case

In a case in which Husband's only contacts with Wife while she was in Florida were voice and text messages left on her cellular telephone while she was present in Florida, the Florida Court of Appeals held that these contacts were insufficient to establish personal jurisdiction over Husband in order to enter a protective order against him.  The court found that there was no evidence that Husband knew that Wife was present in Florida at the time he left the messages on her cellular phone (the phone number was a Maryland number).  Thus the order of protection was reversed for lack of jurisdiction.  The court went on to explain that Wife was not without protection, because if she obtained a protective order against Husband in Maryland (where he resided), under VAWA and Florida statutes, Florida would be required to give the order full faith and credit and to enforce the order whether or not it was registered in Florida.

Becker v. Johnson, 2006 Fla. App. LEXIS 13194 (August 8, 2006)
Opinion on the web (last visited August 9, 2006 bgf)

Case Law Development: Father's Attempted Murder of Mother in Presence of Children Sufficient Basis for Dependency Action Against Father

The Florida Court of Appeals has reversed a trial court's dismissal of a dependency petition in an action based on Father's attempted murder of Mother, which the children witnessed.  The case presents yet another context for asking what degree of decision-making should be allocated to victims of domestic violence in protecting themselves and their children?

Mother had  obtained an ex parte protection order against Father, after which he attacked her in the home with a hammer.  Mother was hospitalized and the children were taken into custody of the Department of Children and Families.  Mother thereafter obtained a permanent injunction against Father's contact with either her or the children and custody was returned to her.  DCF filed a dependency petition against Father.  Mother had requested that the action be dismissed.  The trial court dismissed the petition on the basis that there had been no expert testimony regarding the emotional harm to the children from witnessing the attack and no expert testimony regarding a cycle of violence to support a threat of future harm.  The trial court reasoned that a dependency action would provide no greater protectionf or the children than was already provided by the permanent injunction in place.

The Court of Appeals reversed, holding that "It is unnecessary to present evidence of a "cycle" of domestic violence committed in front of the children in every case to sustain a finding of dependency.... a single act of domestic violence in front of the children, if it is sufficiently horrific, as here, is adequate."  Further the court found that the permanent injunction did not provide as much protection as would a dependency action:

Ample grounds exist to base a finding of dependency regarding the father as to these children based on both abuse and prospective abuse. A dependency adjudication against the father would presumably bar him from contact with the children, as does the permanent injunction, but it could also require him to attend domestic violence and anger management programs and address the basic causes of the problems which have brought him to this point in his life and that of his children.

One judge dissented, stating:

I  do not see that oversight by the Department can afford the mother any realistic protection from her homicidal husband beyond that which she has already procured from the court, i.e., a permanent injunction. The prospect of additional protection via "anger management" counseling strikes me as naive. There is no reason to impose the intrusions of the Department upon the mother's life against her wishes. Based upon the record before us, she is blameless, and the lower court has so determined.

Morcroft v. J.H., 2006 Fla. App. LEXIS 13040 (August 4, 2006)
Opinion on the web (last visited August 6, 2006 bgf)

Preacher's Wife Pulls Gun on Husband

"A preacher's wife was arrested after police say she pulled a gun on her husband because she allegedly was upset over text messages he had sent to a member of a church youth group. Tammy Estes surrendered to law officers at the Pentecostal Church of God in Newport after a brief standoff at the church Sunday evening. No one was injured. She was taken to the Jackson County Detention Center. She was expected to be arraigned Monday. Police say a church service had just begun when Estes pulled a gun on her husband, preacher Larry Estes, about 7 p.m. According to congregation members, she was upset over messages Larry Estes allegedly exchanged with a youth group member and she demanded he admit infidelity." Yahoo News Link to Article (last visited 7-31-06 NVS)

Man Convicted of Killing Family Seventeen Years Ago

"A jury convicted a man Friday of killing his father, stepmother and two stepsisters 17 years ago inside their church parsonage home so he could attend some high school prom events. The St. Joseph County jury found Jeffrey Pelley, now 34, guilty on four counts of murder after deliberating more than 25 hours since Wednesday. Pelley faces up to 260 years in prison when he is sentenced September 15." CNN.com Link to Article (last visited 7-24-06 NVS)