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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
