LAFLA Viewpoint
February 13, 2009
A Response from LAFLA’s Senior Attorneys, Paula Cohen, Kate Marr, Susan Millmann, and Ana M. Storey, Managing Attorney of the Family and Consumer Law Units.
As attorneys with the Legal Aid Foundation of Los Angeles, we run family law/domestic violence clinics in the Long Beach, Central, and Santa Monica Courthouses, which function as legal emergency rooms for domestic violence victims. Almost all of our cases comprise of high-conflict family law matters involving domestic violence, child abduction, child concealment, and sexual assault. Collectively, we have advised thousands of domestic violence victims in their family law matters. With this background, we take issue with Mr. Silberberg’s Forum.
Mr. Silberberg takes the position that most domestic violence arises as a consequence of a divorce or breakup. He writes about domestic violence in the context of a “family law dispute . . . [where] even people who would not otherwise be violent engage in threatening behavior as a result of the feeling that they have lost control over their assets, their children or even their futures.” This is not usually the experience of our clients, who represent a significant majority of the litigants seeking restraining orders. They come to us seeking protection from ongoing abuse. The National Council of Juvenile and Family Court Judges notes that an abuser’s “pattern of behavior is neither impulsive nor ‘out of control,’ but is purposeful and instrumental in order to gain compliance from or control over the victim.” Navigating Custody and Visitation Evaluations in Cases with Domestic Violence: A Judge’s Guide, National Council of Juvenile and Family Court Judges, (2006).
Courts serve a crucial role in preventing violence and helping to level the playing field in abusive situations. The National Council’s Family Violence Project states: “The courts offer the last and sometimes only protection available to vast numbers of people who suffer, and hope to end the violence in their lives. Failure to deal effectively with perpetrators and victims of family violence contributes to further victimization and certain repetition of violent behavior in the next generation.” Moreover, “[]udges have a mandate to assert leadership to ensure that their courts respond swiftly and fairly to victims of family violence.” Family Violence: Improving Court Practice Recommendations from the National Council of Juvenile and Family Court Judges Family Violence Project (1990).
Mr. Silberberg argues that “family law judges need to be significantly more diligent” when assessing whether or not to grant restraining orders, claiming that orders are “improvidently granted for the sake of expediency.” Family law bench officers regularly see cases involving domestic violence and most understand the serious potential dangers involved in denying a necessary order. In our experience, judges generally take these cases extremely seriously. While our clients can also be victims of a malicious and unwarranted allegation of violence, we urge the court to lean in favor of granting restraining orders when they find it a close call, because the negative consequences of violence are much greater than the negative consequences of imposed restraint. Mr. Silberberg’s concern about the accessibility of restraining orders as public record and the potential damage to a person’s reputation and career pales in comparison to the dire consequences of domestic violence. The courts must not revert to the unjust and dangerous, “it’s just a family matter” mentality of years ago. Police officers who respond to domestic violence calls treat them among the highest risk of all callouts because of the danger involved not only for family members, but also for neighbors and the officers themselves. Only relatively recently, since the 1980s, have the legislature and our courts taken domestic violence seriously. Frankly, a person who beats up their spouse should suffer diminished reputation and abusers need to know that courts will not tolerate their behavior.
Mr. Silberberg claims that the party seeking the order has “oftentimes had weeks, and in some cases months, to prepare.” Perhaps this happens between wealthy litigants involved in a “tempest tossed . . . family law dispute.” But in our daily experience, we do not see this. We see otherwise powerless, low-income victims seeking a modicum of protection and empowerment from the court through restraining orders. Usually, victims come to one of our clinics the morning after a particularly harrowing incident, often with visible bruises. We keep a digital camera in the clinic and use it regularly. We may prepare restraining orders for several victims in a day and rarely have what we consider adequate time to prepare. Though the victim may have suffered for weeks, months or years, the restraining order preparation time is usually less than one hour.
Victims struggle to obtain the necessary orders. “Victims of domestic violence, sexual assault and stalking do not seek protection orders readily, often concerned that the court will not believe them and fearing that the abuse will continue even after the protection order is obtained.” ABA Commission on Domestic Violence, Standards of Practice for Lawyers Representing Victims of Domestic Violence, Sexual Assault and Stalking in Civil Protection Order Cases. Though some victims arrive at the courthouse imagining that the clerk will simply hand them the protection they need, they soon learn otherwise. There are long lines everywhere in the courthouse and many pages to complete to obtain a restraining order. Our instruction sheet, advising clients about the process of preparing forms, filing, serving, appearing at the hearing etc. runs two pages long. Clients who want to pursue a restraining order must overcome many impediments along the way: language barriers, educational limitations, missing time from work, and needing to pick up children, to name just a few. These impediments add to the complexity facing domestic violence victims, chiefly fear (of the abuser, of leaving, of revenge, of supporting children alone) and hope (that the abuser will change, or seek counseling or stop drinking or using.) So, victims who actually appear at the designated time and place for the restraining order hearing have already overcome significant obstacles.
Legal Aid and other groups working with domestic violence victims applaud those bench officers who truly treat domestic violence with appropriate concern, and who take the time to understand the dynamics of domestic violence and the severity of the potential injuries. We urge them not to be swayed by Mr. Silberberg’s appeal to grant fewer orders restraining the perpetrators of domestic violence.
© 2009 Legal Aid Foundation of Los Angeles
