Domestic Violence is one of the 12 factors of the best interests test set forth at MCLA 722.23. The best interest factors were modified in 1993 to include domestic violence as factor (k). Factor (k) includes “[d]omestic violence, regardless of whether the violence was directed against or witnessed by the child.”
Prior to 1993, the courts wrestled with whether to consider domestic violence as a factor in a custody case if the alleged violence was not witnessed by the child. In the end, the Legislature recognized that being a victim of domestic violence compromises a person’s ability to parent because of the depression, fear, and anxiety that normally results.
In 1994, the Legislature adopted the current personal protection order statutes. There statute regarding PPO’s that is set forth in MCLA 600.2950 is intended for people presently or formerly in a romantic relationship, and MCLA 600.2950a is intended for people who need protection but never had a romantic relationship to each other.
MCLA 600.2950 provides, in part, as follows:
(1) Except as provided in subsections (27) and (28), by commencing an independent action to obtain relief under this section, by joining a claim to an action, or by filing a motion in an action in which the petitioner and the individual to be restrained or enjoined are parties, an individual may petition the family division of circuit court to enter a personal protection order to restrain or enjoin a spouse, a former spouse, an individual with whom he or she has had a child in common, an individual with whom he or she has or has had a dating relationship, or an individual residing or having resided in the same household as the petitioner from doing 1 or more of the following:
(a) Entering onto premises.
(b) Assaulting, attacking, beating, molesting, or wounding a named individual.
(c) Threatening to kill or physically injure a named individual.
(d) Removing minor children from the individual having legal custody of the children, except as otherwise authorized by a custody or parenting time order issued by a court of competent jurisdiction.
(e) Purchasing or possessing a firearm.
(f) Interfering with petitioner's efforts to remove petitioner's children or personal property from premises that are solely owned or leased by the individual to be restrained or enjoined.
(g) Interfering with petitioner at petitioner's place of employment or education or engaging in conduct that impairs petitioner's employment or educational relationship or environment.
(h) Having access to information in records concerning a minor child of both petitioner and respondent that will inform respondent about the address or telephone number of petitioner and petitioner's minor child or about petitioner's employment address.
(i) Engaging in conduct that is prohibited under section 411h or 411i of the Michigan penal code, 1931 PA 328, MCL 750.411h and750.411i.
(j) Any other specific act or conduct that imposes upon or interferes with personal liberty or that causes a reasonable apprehension of violence.
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. Notably, family law matters are heard in the family court division of the circuit court. Personal protection orders are granted by the general circuit court. While these are technically separate courts, there is a statute in Michigan requiring one judge to hear all matters relating to one family. As a result, if a part petitions for a PPO and then later files for divorce, there is a high likelihood that the judge assigned to the PPO action will also hear the divorce case.
Different judges may have different standards for deciding whether to grant a personal protection order. Judges normally consider the seriousness of the violence alleged, the 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 for obtaining a PPO.
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 engage with abusive partners repeatedly. 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. In addition, the court rule regarding mediation
MCR 3.216(C) and (D) address mediation in cases of domestic violence:
(C) Referral to Mediation.
(1) On written stipulation of the parties, on written motion of a party, or on the court's initiative, the court may submit to mediation by written order any contested issue in a domestic relations case, including postjudgment matters.
(2) The court may not submit contested issues to evaluative mediation unless all parties so request.
(3) Parties who are subject to a personal protection order or who are involved in a child abuse and neglect proceeding may not be referred to mediation without a hearing to determine whether mediation is appropriate.
(D) Objections to Referral to Mediation.
(1) To object to mediation, a party must file a written motion to remove the case from mediation and a notice of hearing of the motion, and serve a copy on the attorneys of record within 14 days after receiving notice of the order assigning the action to mediation. The motion must be set for hearing within 14 days after it is filed, unless the hearing is adjourned by agreement of counsel or
unless the court orders otherwise.
(2) A timely motion must be heard before the case is mediated.
(3) Cases may be exempt from mediation on the basis of the following:
(a) child abuse or neglect;
(b) domestic abuse, unless attorneys for both parties will be present at the mediation session;
(c) inability of one or both parties to negotiate for themselves at the mediation, unless attorneys for both parties will be present at the mediation session;
(d) reason to believe that one or both parties' health or safety would be endangered by mediation; or
(e) for other good cause shown.
Binding arbitration can also be used in divorce or custody cases; however, effective 2001, the Legislature amended the domestic arbitration statute to address cases involving domestic violence. Now, MCLA 600.5072 provides as follows at sections 2-4:
(2) If either party is subject to a personal protection order involving domestic violence or if, in the pending domestic relations matter, there are allegations of domestic violence or child abuse, the court shall not refer the case to arbitration unless each party to the domestic relations matter waives this exclusion. A party cannot waive this exclusion from arbitration unless the party is represented by an attorney throughout the action, including the arbitration process, and the party is informed on the record concerning all of the following:
(a) The arbitration process.
(b) The suspension of the formal rules of evidence.
(c) The binding nature of arbitration.
(3) If, after receiving the information required under subsection (2), a party decides to waive the domestic violence exclusion from arbitration, the court and the party's attorney shall ensure that the party's waiver is informed and voluntary. If the court finds a party's waiver is informed and voluntary, the court shall place those findings and the waiver on the record.
(4) A child abuse or neglect matter is specifically excluded from arbitration under this act.
Because of the imbalance of power, victims of domestic violence are generally not candidates for mediation or arbitration 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. Parties in cases of domestic violence should have attorneys with them and/or other people to provide protection and comfort. 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. Many prosecutors apply a zero tolerance policy to prosecution of domestic assaults. Many judges will not accept plea agreements. If you believe you have a domestic violence issue in a custody 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 only 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.