Dear Family Lawyer
Dear Family Lawyer:
I have only been practicing family law for a short time. I was recently retained by a client who had been served in a dissolution of marriage involving three small children. At our initial meeting, the client appeared visibly shaken by the fact that his wife had served him with no apparent indication of any problem in the marriage. After meeting with this client a few times, I was greatly impressed by his compassion and obvious affection for his family. Yesterday, my client called in tears to inform me that he had just been served with a temporary protection order based on allegations of domestic violence lodged by his estranged wife. The order temporarily prohibits contact with his wife and his children. I know that allegations of domestic violence can have a long term impact on whether, and to what extent, a parent will be allowed to have contact with the children. I want to give my client effective advice and representation, but I don’t have much experience in these types of cases. Can you give me some pointers on what I should be doing?
Signed,
What to Do Now
Dear WTDN:
Many experienced family law attorneys will tell you that it is, unfortunately, not uncommon to see allegations of domestic violence arise during a dissolution action. In fact, a recent column in this publication addressed that issue from the perspective of a victim’s lawyer. What is not so openly discussed, however, is what to do if your client is either the perpetrator or if he has been wrongfully accused or is, in fact, a male victim.
Although leading sociologists have repeatedly found that men and women commit intimate violence at similar rates, the commonly held belief of many remains grounded in the concept that domestic violence is the use of physical power by men against women in an effort to gain and maintain control over women. Unfortunately this does not help your male clients who are victims of either domestic violence perpetrated by their female partner or who are victims of false allegations of domestic violence brought by their female partner.
As a lawyer, even if you have a firm grasp of the legal relevance of domestic violence in family law proceedings, there is a great deal more that you need to know and to consider when representing a client in the situation you have described.
Do I need to know if my client did the deed?
The first question that often comes to an attorney’s mind in such cases may be “Do I need to know if my client did what he has been accused of doing?” There are two schools of thought on this type of question: one is that you should find out, and the other is that you should not. Regardless of how you personally feel about the answer, if you are going to represent this client, your duty as an advocate remains the same regardless of whether the allegations are true. You need to develop the evidence and present your case in an ethical manner. Now would probably be a good time to review the newly revised Rules of Professional Conduct as to what your duties are and what they are not.
If your client is, in fact, a perpetrator, you will need to guide him into appropriate counseling and treatment in order to be able to demonstrate to the court whether he poses any risk to the children. If he is a victim of a false allegation, you will need to work hard to prove a negative – something that is difficult to do.
Is there a criminal charge pending?
The next, and in my view more important, question is to ascertain whether criminal charges have been filed against your client. Depending on the allegations, there may be either misdemeanor or felony charges pending. This is important for you to know as your client has constitutional protections at stake in either case.
If there are criminal charges pending and if you do not handle criminal matters, then you should be advising your client to retain an experienced criminal defense attorney. If you know of no such attorneys to whom you could refer your client, there are a number of possible resources that may be of help. For example, you could check out the Criminal Law Section site on the WSBA website, contact your local bar association to see if there is a local criminal bar, or contact the Washington Association of Criminal Defense Lawyers or visit their website.
You should also explain to your client that you and the criminal defense attorney need to be able to communicate in order to best represent the client’s interests. This will probably require that your client execute a written authorization for counsel to communicate freely.
You should also instruct your client not to discuss the allegations with anyone other than his attorneys – not family members or friends or even counselors – until he is fully advised in his rights and has a complete understanding of the consequences of such communications.
Temporary Protective Orders vs. Temporary Restraining Orders
A temporary order for protection is governed by RCW 26.50 and can be obtained by any person claiming to be a victim of domestic violence or who fears violence by a “family or household member.” It can be obtained in district, municipal, or superior court and can be effective for up to fourteen days. The other party is served with the petition, notice of hearing and temporary order with a hearing scheduled within fourteen days, at which time the court may deny or grant an order effective for up to one year or more. There is no cost to the petitioner in such matters.
A temporary restraining order is governed by RCW 26.09 and 26.26. Married persons or persons with a child in common who are filing for divorce, legal separation, custody, or to determine parentage may obtain such an order and need not have experienced an assault or threat of violence. This type of order can do all that an order for protection does as well as ordering child support, maintenance, use of property, and can address child custody. It can only be obtained in superior court as a part of a family law action and can be filed at the time of a civil petition and signed by the judge ex parte until the preliminary hearing – often within fourteen days of entry. A filing fee of $200 plus possible local surcharges may apply, but may also be waived for indigent persons. Additionally, the petitioner may have to bear the costs of service for such orders.
In both cases, a respondent violating the order can be arrested with possible criminal or contempt charges also being brought upon violations. In neither case can a petitioner authorize a respondent to violate the order. This is very important for your client to understand that even if the complaining party contacts him and says “I forgive you – come home,” your client must understand that until a judge signs an order of dismissal, the protective or restraining order is still in effect and it is no defense that the complaining party authorized his return. He will still go to jail!
If your client is charged criminally, the court may also enter a no contact order pursuant to RCW 10.99 with or without the protected party requesting such an order.
It may also be valuable to know that a third violation of a protective order may result in the respondent being charged with a felony!
Understand Domestic Violence
Do your research and learn as much as you can about domestic violence, the statutes in effect in the state of Washington, and learn from the experience of your local colleagues with regard to how the courts in your jurisdiction handles such allegations. Join the Family Law Section and take advantage of the wisdom of your peers through active list serve conversations, connection with experts in such matters, and read the valuable articles posted on the section website. The “Dear Family Lawyer” column in the June 2006 edition of De Novo gives you a good definition of what constitutes domestic violence in this state as well as how certain social science professionals define the phenomena.
In addition to the myths cited in that column, here is another to be aware of:
• Myth: Only women are victims of domestic violence and only men are perpetrators. Numerous studies have been conducted in the last twenty-five to thirty years that have repeatedly pointed out the fact that men and women commit violence at similar rates. These studies are not an attempt to minimize or question the magnitude or seriousness of violence inflicted on women by men. Instead, they look candidly at the possibility (and the empirical evidence) that men and women are roughly equal in their use of any form of physical violence. Abuse is abuse and, unfortunately, is not limited to one gender.
Services Available and Planning for Court
It is unlikely that you have sufficient training and experience to assess whether the allegations made against your client are true – nor is that necessarily your role as his or her attorney. However, you can take some important precautions to protect not only your client but also yourself. In dealing with a domestic violence case, victim safety must be paramount. The victim here may be your client, but it may also be the complaining spouse.
• Refer Client to Appropriate Programs and Services. If, in fact, your client is a victim, he may face great difficulty in locating services in your community as victim advocacy programs geared toward male victims are few and far between. Contact the Washington State Domestic Violence Hotline (1-800-562-6025 V/TTY) to find out if there is such a program in or near your community to which you could refer your client. If the client is a perpetrator and no criminal charges have been filed, start getting the client into counseling and evaluations/treatment to address the client’s behaviors so that the behaviors will not be repeated.
• Work in Concert with the Criminal Defense Attorney. If there are criminal charges pending, before making any referrals for your client to counseling or to evaluations of any kind, discuss such options with the criminal defense attorney to determine what programs might be helpful rather than harmful to the issues in the criminal action. If he or she agrees that it would be beneficial to the client, than seek out various types of professional therapeutic assistance including counseling, anger management or domestic violence evaluations, and similar programs. Then, make your referrals in concert with the criminal attorney and encourage the client to follow through. It is also important for the criminal attorney and your client to understand the ramifications of taking a plea bargain in criminal court on the family law matter, such as loss of custody or visitation with the children.
• Read the Affidavit in Support of the Protective Order Carefully. It is extremely important that you know the statutory requirements to sustain a request for a protective order. Look to see if the information provided in the affidavit is legally sufficient. You may want to consider filing a CR 65(b) motion to quash the order right away.
• Explain the Protective Order in Detail. Go through the protective order with your client, line by line. Make sure to emphasize to him or her that no matter how much he or she misses the children, violating the order will only make things worse. Explain the consequences including further criminal charges, jail, fines, treatment, loss of contact with the children for extended periods of time, and other relevant items. Explain that your client cannot drive by the house to check up on what is going on while the client is away.
• Develop a Safety Plan. Help your client plan for court appearances as well as daily life. Encourage your client to always come to court with an escort of some kind and to develop a similar pattern of not going places alone where the client could be accused of violating the protective order. Encourage the client to use an answering system on the telephone to avoid being trapped into contact by the alleged victim – a not uncommon practice. Consider your own safety as well. If your client is a perpetrator, he or she could turn on you. Make sure your office is a safe place for everyone. Schedule appointments at a time when there is staff nearby to either intervene or to call for help. Never, ever give out your home telephone number to the client.
• Get a copy of the police report(s) and 911 call if they exist. Usually these items can only be obtained by the client or by his criminal defense attorney. They can reveal important information about the allegations and the timing of the allegations which may be crucial to your case as well as that of the criminal attorney.
• Request a Guardian Ad Litem. Children are always the victim of cases involving domestic violence regardless of whether the victim is mom or dad. Children learn from their parents’ behavior including how to become a victim as well as a perpetrator. They need an advocate. If your client is truly the victim in this case, the children are going to need an advocate and a dutiful guardian ad litem can help. But be careful, know the pool of guardians ad litem in your jurisdiction and know how to assure that the one appointed is fair-minded rather than having a preconceived perception of domestic violence.
• Overcome the Allegations with Evidence and Facts to the Contrary. Know the history of each party: whether there have been similar allegations brought by either party in prior relationships and the outcome of them, whether there have been similar allegations brought against your client by prior partners and the outcome of them, whether your client has an alibi or witnesses that can help, and the parties’ criminal histories. You should also know whether a polygraph would be useful, decide whether the victim’s story rings true or false and why, and analyze whether the victim’s story credible or filled with inconsistencies. Be prepared with answers to all of these questions and more when you walk into the courtroom.
Final Word
Unfortunately, while there are many agencies to which female victims of domestic violence can turn, there are very few from which male victims can likewise seek assistance. Most shelters do not offer space for males. Most advocacy programs do not offer groups for male victims. In fact, several domestic violence programs do not even recognize the possibility that a man could be a victim. If you are correct in your assessment that your client is the victim in this case, you may have a difficult time proving it. If you feel you are in over your head, you can always seek assistance from your peers.
