Domestic Violence is one of the 12 factors of the best interests test set forth at MCLA 722.23.
A physical assault by a person in an intimate relationship (or dating relationship) with you is clearly a form of domestic violence. Domestic violence, however, can sometimes involve only verbal or emotional abuse. Counselors in domestic violence settings often describe economic abuse or power as a predictable component along with efforts to isolate the victim from friends and family, to criticize the victim (often in front of others), and to question any contact or opportunity for contact with members of the opposite sex.
Because domestic violence is such a factor in contemporary society and important to custody matters where minor children are involved, people often refer to altercations or violent behavior in pleadings filed with the court. Some seek personal protection orders (PPO's) from the court.
You do not need a personal protection order to make an issue of domestic violence in a court proceeding. Family law matters are heard in the family court division of the circuit court. Personal protection orders are granted by the general circuit court.
Different judges may have different standards for deciding whether to grant a personal protection order. They consider the seriousness of the violence alleged, amount of time that has elapsed from the last incident to the present, the number of alleged incidents, the injuries sustained (if any), and the involvement of the police. Just as a PPO is not a prerequisite to raising the issue of domestic violence in a custody proceeding, police involvement is also not a prerequisite.
Some attorneys always raise the issue of domestic violence in pleadings if any of it occurred-no matter how remote in time. Other attorneys feel that it may be a mistake to make an issue out of something that happened a long time ago and is unlikely to recur, especially if it did not result in major injury to the victim. This is a matter of judgment. The attorneys who are reluctant to raise the issue often fear that the issue itself may poison the waters for any mediation and may re-open old wounds.
A therapist asked to evaluate a case for the court may have a completely different point of view. He/she may be troubled by the fact that a person remained in a relationship after repeated abuse and did not see a way out. He/she may worry that an abused parent does not (or did not) have the capacity to protect children from this environment and may therefore expose children to risk in the future. Additionally, some people's relationship histories reveal a tendency to continuously engage with abusive partners. Further, research shows that people who are exposed to domestic violence in their childhoods may come to view it as "normal" and therefore abuse partners themselves as adults or tolerate abuse from others. This outcome is the reason many therapists urge parents in an abusive relationship to view their participation in that relationship from their children's point of view.
During a divorce action or a contested custody action, the courts often consider a referral to mediation-or may actually order the parties to participate in mediation. Mediators do not want to use mediation in cases where there is an imbalance of power or where one person is seriously worried about his/her safety around the other person. As a result, victims of domestic violence are generally not candidates for mediation with their abusers. There are exceptions to this. For example, it may be possible to mediate a case without requiring the parties to be in the same room together. The mediator in those cases can shuttle between two rooms, and the parties may never actually lay eyes on one another. Further, the parties may be invited to bring counsel with them so that each has an advisor available. Finally, some forms of domestic violence may not result in an imbalance of power-either because the victim has the ability to defend himself/herself or because the domestic violence is actually mutual. A trained mediator is able to distinguish the cases where mediation is an option and where it is not.
One of the worst things a litigant can do is to invent a domestic violence claim, resurrect a weak one, or embellish any of this. The value of third party witnesses and police reports is that a third party can do some or all of the reporting. Further, if a victim never tells anyone about the abuse or seeks help, a court may later conclude that a reasonable explanation for the lack of a witness or a record is that the incident never occurred.
On the other hand, some victims of serious abuse never report that abuse to others. This often happens with small children. In these instances, a therapist may conclude that abuse did, in fact, occur because the patient appears depressed, afraid, and defeated. Abuse can also be suspected as a result of watching children at play (sometimes in a therapist's office) and as a result of psychological testing.
In reporting incidents to an attorney, you should do your best to include the following information if possible:
a. what happened, when, and where
b. whether the incident had ever occurred before
c. whether you or anyone else called the police
d. whether anyone was taken into police custody or charged with a crime
e. whether you requested or obtained a PPO
f. whether you wrote anything about this in a journal, told anyone at that time, or took pictures
g. whether you sought medical help
h. whether anyone witnessed the incident or noticed injuries
i. whether you received any injuries and whether scars or permanent injury resulted
j. whether you (or the abuser) sought any counseling as a result (including anger management classes)
k. whether you separated from the abuser at the time, even if only temporarily
l. whether other domestic violence occurred subsequently
m. whether drugs or alcohol played a role in the incident and whether the abuser is still using drugs or alcohol
n. whether you were threatened by the abuser if you told anyone about the abuse
o. whether a weapon was used or threatened during the incident
p. whether you lied to a person investigating the abuse or asking you about it (and if so, what you said)
q. whether you are aware of other victims of this abuser
Domestic violence is serious business. The legislature has now added it as a factor to the best interests test. Personal protection orders are available for victims. Many prosecutors are applying a zero tolerance policy to prosecution of domestic assaults. If you believe this is an issue in your case, you must discuss the matter with your attorney so that you can decide together what to do. You must be sure to tell the truth when it comes to domestic violence. If a court concludes that you are asserting a false claim, it can have serious consequences on your case. False claims also marginalize other claims, not only for you but for others.
You must also remember that domestic violence is one of 12 factors. It is not the only one. Under the law, the judge decides what weight to give each factor. If domestic violence has been serious and sustained, it might be given more weight than any of the other factors. On the other hand, if the domestic violence occurred years ago and the abuser did not repeat the offense and/or received counseling, the court may not assign much weight to the issue at all. Most experienced attorneys can have a meaningful discussion of this matter with you and together you can decide what course of action to take in your case.
