The Effects of the Psychological Impact on Victims of Domestic Violence on Pending and Post-Resolution Marital Cases


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THE EFFECT OF THE PSYCHOLOGICAL IMPACT ON VICTIMS OF DOMESTIC VIOLENCE ON PENDING AND POST-RESOLUTION MARITAL CASES by Hatixhe B. Grbeshi Lincoln Law School of San Jose October 4, 2006

  

Introduction

Domestic Violence it is not a simple marital conflict, a lover's
quarrel, or just a private family matter. It is a serious social problem
which has an impact on issues which  arise regarding Community Property
and other marital rights. Domestic violence is an escalating pattern of
abuse where one partner in an intimate relationship controls the other
through physical force, psychological manipulation, intimidation, or the
threat of violence. Abusive relationships are based on the mistaken
belief that one person has the right to control another by any means. 
The relationship is based on the exercise of power to gain and maintain
control. The dignity, confidence and even the identity of the victim
partner is stripped away.

Approximately 1.5 million women and 834,700 men are raped and/or
physically assaulted by an intimate partner each year. Nearly two-thirds
of women who reported being raped, physically assaulted, or stalked
since age 18 were victimized by a current or former husband, cohabiting
partner,  boyfriend, or date.  Among women who are  physically assaulted
or raped by an intimate partner, one in three is injured. Each year,
more than 500,000 women injured as a result of abuse require medical
treatments. Firearms were the major weapon type used in intimate partner
homicides from 1981 to 1998.

California is no different than any other state in terms of the common
occurrence of acts of domestic violence. Every year, almost 6% of
California's women suffer physical injuries from domestic violence. In
2002, the California Department of Justice reported 153 murders were the
result of intimate partner violence in California. They also reported
that, in 2002, 128 women in California were killed by their husbands,
ex-husbands or boyfriends, and 25 men were killed by their wives,
ex-wives or girlfriends. California law enforcement received 196,569
domestic violence calls in 2002; 119,850 involved weapons, including
firearms and knives.  The Department of Health Services' California
Women's Health Survey of 1998-99 reveals even more shocking
statistics. About 916,000 children were exposed to domestic violence at
home in 1998. Nearly one in five women who went hungry because they did
not have enough money to buy food was also a victim of domestic
violence. As the above statistical information clearly illustrates,
domestic violence is prevalent in the United States and, of course,
specifically in California, as well. Obviously, these patterns of
violence take a great toll on the victims of such abuse during marriage.
However, the effects of domestic violence last beyond the dissolution of
marriage. The perpetrators of domestic abuse go on to abuse their
victims and the family court system during and following dissolution of
their marriages.

The Abuse of the Family Court System by Perpetrators of Domestic
Abuse

Among others, there are two ways perpetrators of domestic violence abuse
the court system which will be explored in this paper:

(1) During the divorce proceedings, the perpetrator spouse intimidates
the victim spouse (or, as a result of years of abuse, the victim spouse
is already intimidated) so that the victim spouse gives up his or her
rights in their Community Property or other rights;  and

(2) After the divorce proceedings, the perpetrator spouse brings
frivolous custody modification claims as a way to continue to abuse and
harass the victim spouse.

The Psychological Impact on Victims of Domestic Violence with Respect
to Renouncing their Rights to the Community Property and Other
Rights

There has been no published documentation of a fact that can be presumed
as true, which is that victims of domestic violence are unable,
psychologically and financially, to fight for themselves in divorce
court and, as a result, give up their rights to an equal share in the
Community Property. In order to explore this issue, this writer sought
the opinion of a licensed child Psychotherapist, Karita  M. Hummer,
LSCW, who deals on a daily basis with what are termed "High Conflict
Divorces". Ms. Hummer specifically addressed the issues of fear,
anxiety and intimidation in the context of providing her opinion on
this issue.

According to Ms. Hummer, due to PTSD (Post Traumatic Stress Disorder)
and other anxiety reactions, especially with severe abuse, in a divorce
scenario, during negotiation, mediation or court proceedings, a victim
of abuse would likely want to avoid any exposure to reminders of the
abuse and would want to avoid any confrontation with the abuser due to
fear and memories of intimidation and fear of repetition of abuse. For
the victim, the court, rather than being viewed as a forum for relief,
could be viewed as if it were the scene of the incident  where there the
trauma is replayed. Many victims in such circumstances would want to
avoid the confrontation, even with the protection ofthe court.

Once victims are finally ready to leave the marriage, they want to
escape and dread replaying the trauma.  Such victims need substantial
support and perhaps psychotherapy to gain the strength to assert their
property rights, but, unfortunately, may not have access to such support
and psychotherapy soon enough to allow them to assert their rights in
court.  They also may dread losing the case, and being victimized and
defeated again, reliving the powerlessness that dominated their
marriages. Ms. Hummer also addressed the role that PTSD plays in this
scenario. After years of abuse, some victims suffer from PTSD. PTSD can
affect their judgment because the state of alarm is so great that
ordinary thought processes can be disrupted and it may be hard for them
to analyze their financial situation well.  There is a lack of trust as
a result and new situations are not seen as opportunities but as threats
for repetition of abuse. A condition which can result from PTSD or stand
alone is depression. A depressed victim spouse lacks the energy and
ability to attend to areas of self-interest  or self-benefit.
Depression also leads to pessimism, negative thinking and
hopelessness so that they would view the potential for a positive
outcome with skepticism. They have great difficulty mobilizing resources
to solve problems.

One final, yet critical, component in the renouncing of Community
Property rights by a victim spouse, according to Ms. Hummer, is what is
called the Domestic Violence Couple Dynamic of Traumatic Bonding.
Traumatic bonding has two components: learned helplessness and 
powerlessness. Learned helplessness refers to the fact that the victim
spouse is used to submission and feels weak and defeated, not believing
it is possible to succeed, and, therefore, it is not worth trying.
Powerlessness refers to the fact that the victim spouse frequently feels
a loss of power which can be never be regained. This leads to a belief
that the court action is a waste of time. The support and education
needed to counter this dynamic often comes too late or not at all,
affecting the victim spouse's abilities to fight for his or her
rights.

As stated above, there is no published documentation of the frequency of
the renunciation on Community Property rights by victim spouses.
However, it is clear to those who work in the family courts that victim
spouses do indeed renounce their Community Property rights and other
rights, such as custody and visitation rights. At this point, there
appear to be no concrete solutions in the works. Perhaps domestic
violence cases could be treated with more attention by the court so that
more effective support people could be provided to victim spouses to
help them learn about and assert their rights.

The Continuation of Abuse of the Victim Spouse by the Perpetrator
Spouse via the Filing of Frivolous Custody Modification Claims

During dissolution proceedings, custody orders are made by the judge
regarding the couple's children. Basic custody rule 3040 states that
custody should be granted in the following order of preference according
to the best interest of the child as provided in Sections 3011 and 3020:

Question: In making an order granting custody to either parent, the court shall
consider, among other factors, which parent is more likely to allow the
child frequent and continuing contact with the noncustodial parent, and
shall not prefer a parent as custodian because of that parent's sex. 
This section establishes neither a preference nor a presumption for or
against joint legal custody, joint physical custody, or sole custody,
but allows the court  and the family the widest discretion to choose a
parenting plan that is in the best interest of the child.

According to section 3041, before making an order granting custody to a
person or persons other than a parent,  without the consent of the
parents, the court shall make a finding that granting custody to  a
parent would be detrimental to the child and that granting custody to
the nonparent is required to serve the best interest of the child.
According to section (a), upon a finding by the court that a party
seeking custody of a child has perpetrated domestic violence against the
other party seeking custody of the child or against the child or the
child's siblings within the previous five years, there is a rebuttable
presumption that an award of sole or joint physical or legal custody of
a child to a person who has perpetrated domestic violence is detrimental
to the best interest of the child, pursuant to Section 3011.  This
presumption may only be rebutted by a preponderance of the evidence. In
determining whether the presumption set forth in subdivision (a) has
been overcome, the court shall consider all of the following factors:

(1) Whether the perpetrator of domestic violence has demonstrated  that
giving sole or joint physical or legal custody of a child to the
perpetrator is in the best interest of the child.  (2) Whether the
perpetrator has successfully completed a batterer's treatment program
that meets the criteria outlined in subdivision (c) of Section 1203.097
of the Penal Code.  (3) Whether the perpetrator has successfully
completed a program of alcohol or drug abuse counseling if the court
determines that counseling is appropriate. (4) Whether the perpetrator
has successfully completed a parenting class if the court determines the
class to be appropriate. (5) If the perpetrator is on probation or
parole, whether he or she is restrained by a protective order granted
after a hearing, and whether he or she has  complied with its terms and
conditions.(6) Whether the perpetrator of domestic violence has
committed any  further acts of domestic violence.

(c) In cases in which both parents are perpetrators of domestic
violence, this presumption shall not be applicable. 

Obviously, the intent of the above code sections is to make sure the best interest of
the child is served by eliminating any possible threat posed by the
perpetrator parent. The court, applying the law, determines when the
rights to custody or visitation of the perpetrator spouse should be
limited. However, the legislature has acknowledged that after custody
orders have been put in place in the final dissolution order,
perpetrator spouses may bring frivolous claims requesting modification
of custody or visitation rights (i.e., claims in which there has been no
real change of circumstance to justify modification.)

Section 2030 of the Family Code is intended to discourage perpetrator
spouses from bringing these claims, which, in essence, allow the
perpetrator to continue, post-divorce, to victimize the former victim
spouse. Section 2030 of the Family Law code was amended to achieve this
goal. This amendment began as AB2148, sponsored by Representative Diaz.
It authorized the court, in specified custody, support or marriage
dissolution  proceedings to order a party to pay the attorney's
fees for the other party. The bill also provides that each party's
income and needs, as well as other factors, will be considered in the
decision of whether one party will be ordered to pay reasonable
attorney's fees.  AB2148 became the law in 2004. It reads as follows:

Section 2030.(a) (1) In a proceeding for dissolution of marriage,
nullity of marriage, or legal separation of the parties, and in any
proceeding subsequent to entry of a related judgment, the court shall
ensure that each party has access to legal representation to preserve
each party's rights by ordering, if necessary based on the income and
needs assessments, one party, except a governmental entity, to pay to
the other party, or to the other party's attorney, whatever amount is
reasonably necessary for attorney's fees and for the cost of maintaining
or defending the proceeding during the pendency of the proceeding.

Whether one party shall be ordered to pay attorney's fees and costs for
another party, and what amount shall be paid, shall be determined based
upon, (A) the respective incomes and needs of the parties, and (B) any
factors affecting the parties' respective abilities to pay.  A party who
lacks the financial ability to hire an attorney may request, as an in
pro per litigant, that the court order the other party, if that other
party has the financial ability, to pay a reasonable amount to allow the
unrepresented party to retain an attorney in a timely manner before
proceedings in the matter go forward. (b) Attorney's fees and costs
within this section may be awarded for legal services rendered or costs
incurred before or after the commencement of the proceeding. (c) The
court shall augment or modify the original award for attorney's fees and
costs as may be reasonably necessary for the prosecution or defense of
the proceeding, or any proceeding related thereto, including after any
appeal has been concluded. (d) Any order requiring a party who is not
the spouse of another party to the proceeding to pay attorney's fees or
costs shall be limited to an amount reasonably necessary to maintain or
defend the action on the issues relating to that party.

Answer: The passage of the Bill AB2148-Diaz into Family Code 2030, is an
important attempt to revamp the Family Law system to discourage
perpetrators of domestic violence from attempting to unreasonably tamper
with the decisions made in divorce court. It is clearly a step in the
right direction. There can still be more done to address this problem.
Perhaps the laws can be changed to require the perpetrator spouse to
provide stronger evidence than normally required. Perhaps, in order to
re-open custody, in addition to simply filing a form which causes a
clerk to assign a court date to the case, a judge could be required to
preview reasons for the re-opening of the  case before allowing it to be
re-opened. This way, perhaps only the perpetrator spouse would be in
court, initially, so that, if the case were not re-opened, the victim
spouse might never have had to appear.

Conclusion

As stated at the outset, the two problems explored above are only two of
many others, which also need to be addressed. Obviously, these problems
stem from the greater problem, which is the existence of domestic
violence. It is at least encouraging that social workers,
psychotherapists and legislators are attempting to explore these
problems.



BIBLIOGRAPHY

California Alliance Against  Domestic Violence, Know the Facts, 30
August 2006, http ://www.caadv.org/know_the_facts.html

Attorney Laura Gitlin-Petlak, Los Angeles Certified Family Law
Specialist (Credits, charges and reimbursements), www.gitlinpetlak.com

Department of Health Services, California Women's Health Survey,
1998-99  www.suttercoast.org/health/domestic_violence.html

Guide to Family Law ,American Bar Association

California Family Law Act,
http://www.e-laws.gov.on.ca/DBLaws/Statute/English 2005 California
Assembly Bill No. 2148, California 2005-06, www.assembly.ca.gov

Criminal Division Home Page, DOJ Criminal Justice Statistics Center
www.usdoj.gov/criminal

Health Cares About Domestic Violence,
www.suttertracy.org/news.domviolence.htm About Domestic Violence, Find
Law for the Public
http://family.findlaw.com/marriage/marriage-more/domestic-violence-laws.
html , SocPublicPortalHome, Law and Justice, Domestic and Family
Violence http://www.sccgov.org/portal/site/scc/menuitem.

California Alliance Against Domestic Violence
http://www.caadv.org/links.html#california

Find Law for the Public
http://family.findlaw.com/marriage/marriage-property/marital-finance

California Alliance Against  Domestic Violence, Know the Facts, 30
August 2006, http://www.caadv.org/know_the_facts.html

Department of Health Services, California Women's Health Survey,
1998-99, http://www.suttercoast.org

California Alliance Against  Domestic Violence, Know the Facts, 24
September 2006, http://www.docs/equalitywheel.pdf

California Alliance Against  Domestic Violence, Know the Facts, 30
August 2006, http://www.caadv.org/know_the_facts.html

Criminal Division Home Page, DOJ Criminal Justice Statistics Center
,www.usdoj.gov/criminal

Health Cares About Domestic Violence,
www.suttertracy.org/news.domviolence.htm 2005 California Assembly Bill
No. 2148, California 2005-06 August 24, 2006, www.assembly.ca.gov