California Divorce and Family Law

Know the traits common to abusers

Dear Readers:  Yesterday I printed the feedback I received regarding a letter from "Smothered in Michigan," a recently divorced mother of two. Her ex-husband had been an alcoholic. She's now dating his "polar opposite" who "treats her like a queen" and is "loving, affectionate, generous and caring."

She went on to say he stops by her job "only a few" times a day, and the minute she's home he shows up at her door. All her dinners are with him – he pays for everything – and he doesn't leave until her kids go to bed. He spends every waking hour with her and accompanies her wherever she goes. She said she knows she should feel grateful, but instead feels "indebted, stalked, controlled and burdened." Her question: "Am I just being selfish, and can I train myself to like being spoiled?"

I told her she and the man were overdue for a frank talk about personal space, that she's still healing from her divorce, and he seems so smitten or insecure that he's preventing her from figuring out where she ends and he begins.

Many readers felt she should listen to her intuition, that the man is a potential abuser, and the traits she listed are red flags.

Today I'll share the classic warning signs of an abuser. Read on:

• PUSHES FOR QUICK INVOLVEMENT: Comes on strong, claiming, "I've never felt loved like this by anyone." An abuser presses for an exclusive commitment almost immediately.
• JEALOUS: Excessively possessive; calls constantly or visits unexpectedly; prevents you from going to work because "you might meet someone"; checks the mileage on your car.
• CONTROLLING: Interrogates you intensely (especially if you're late) about whom you talked to and where you were; keeps all the money; insists you ask permission to go anywhere or do anything.
• UNREALISTIC EXPECTATIONS: Expects you to be the perfect mate and meet his or her every need.
• ISOLATION: Tries to cut you off from family and friends; accuses people who are your supporters of "causing trouble." The abuser may deprive you of a phone or car, or try to prevent you from holding a job.
• BLAMES OTHERS FOR PROBLEMS OR MISTAKES: It's always someone else's fault if something goes wrong.
• MAKES OTHERS RESPONSIBLE FOR HIS OR HER FEELINGS: The abuser says, "You make me angry," or "You're hurting me by not doing what I tell you."
• HYPERSENSITIVITY: Is easily insulted, claiming hurt feelings when he or she is really mad. Rants about the injustice of things that are just a part of life.
• CRUELTY TO ANIMALS OR CHILDREN: Kills or punishes animals brutally. Also may expect children to do things far beyond their ability (whips a 3-year-old for wetting a diaper) or may tease them until they cry. Sixty-five percent of abusers who beat their partner will also abuse children.
• "PLAYFUL" USE OF FORCE DURING SEX: Enjoys throwing you down or holding you against your will during sex; finds the idea of rape exciting.
• VERBAL ABUSE: Constantly criticizes or says blatantly cruel things; degrades, curses, calls you ugly names. This may also involve sleep deprivation, waking you with relentless verbal abuse.
• RIGID GENDER ROLES: Expects you to serve, obey and remain at home.
• SUDDEN MOOD SWINGS: Switches from sweet to violent in minutes.
• PAST BATTERING: Admits to hitting a mate in the past, but says the person "made" him (or her) do it.
• THREATS OF VIOLENCE: Says things like, "I'll break your neck," or "I'll kill you," then dismisses them with "Everybody talks that way" or "I didn't really mean it."

From Dear Abby in the Orange County Register.

Case Law Development: Continuing Tort Doctrine Applies in Measuring Statute of Limitations for Domestic Violence Torts

The statute of limitations on a domestic violence claim does not begin to run until the last alleged act of violence has occurred, the California Court of Appeal has held. The court concluded that domestic violence is a continuing tort, not comprised of distinct torts that trigger a variety of limitations periods upon their occurrence. The plaintiff had sued her estranged husband for assault, battery, intentional infliction of emotional distress and violation of civil rights, alleging that he engaged in a pattern of domestic violence that started a few months after they married in 1989. The complaint included allegations of kicking, hitting, choking, sexual abuse and death threats. The plaintiff claimed the physical abuse ended in April 2001, while the emotional abuse continued until April 2004, two years after she filed for a divorce. The defendant in the action had sought to exclude all references to acts he allegedly committed against his estranged wife more than three years before she filed her complaint.

The court noted that “While we recognize the difficulty a spouse or ex-spouse may have in defending against domestic violence cases, the continuing tort doctrine seems especially applicable in such cases.” The court reasoned that “Most domestic violence victims are subjected to ‘an ongoing strategy of intimidation, isolation, and control that extends to all areas of a woman’s life, including sexuality; material necessities; relations with family, children, and friends; and work,’” Moreover the court noted that the California code of civil procedure states that domestic violence lawsuits must be commenced within three years from the date of the “last act” of alleged violence. The court concluded that “The words ‘last act’ are superfluous if they have no meaning .... By adding these words, we believe the Legislature adopted by statute the continuing tort theory, thus allowing domestic violence victims to recover damages for all acts of domestic violence occurring during the marriage, provided the victim proves a continuing course of abusive conduct and files suit within three years of the ‘last act of domestic violence.'"

Pugliese v. Superior Court, (January 23, 2007)

From the great Family Law Prof Blog.

Court: Woman Alleging Abuse in Divorce Case Entitled To Seek Personnel Files of Ex-Officer Husband

A deputy sheriff€™s wife, who alleged in divorce proceedings that she was the victim of domestic violence, is entitled to an in camera review of her estranged husband€™s personnel records, the Third District Court of Appeal ruled yesterday.

The panel granted a writ of mandate sought by Elena C. Slayton pertaining to a Pitchess motion she brought in marital dissolution proceedings against former Sutter County Sheriffs Deputy Michael Slayton. At trial, Elena Slayton claimed she was a victim of domestic violence during the marriage, which lasted from 1992 to 2005, when the couple separated.

In her August 2006 motion, Slayton sought discovery of Michael Slayton€™'s complete personnel file from the Sutter County Sheriff€™s Department, including information about his compensation, disciplinary history, complaints made against him, the department's investigation of those complaints, and statements made about him by department personnel.

In support of her motion, she alleged the former deputy was arrested for stalking her after a July 2005 order was entered barring communications with her for purposes other than peaceful contact involving the exchange of their three children for visitation.  Additionally, her attorney asserted in a declaration that as of June 2005, before his ultimate termination from the sheriff's department, Michael Slayton said he was on administrative leave due to third-party allegations about his conduct toward various women in the community.

Finding the former deputy's privacy rights trumped Elena Slayton's need for information, the trial judge concluded she made an insufficient showing to permit access to his personnel files, except as to his vacation, sick and retirement records. In her petition for writ of mandate, Slayton argued that because she was seeking her estranged husband'€™s records in the context of divorce proceedings, she did not actually have to follow the Pitchess procedure to access his personnel files.

The Court of Appeal agreed with her only with respect to salary and benefits records, which the trial court had already ordered disclosed. As far as information not directly related to the former officer's compensation, the justices ruled, Pitchess procedural requirements applied to determine whether disclosure was warranted.

Under the state Supreme Court case of Pitchess v. Superior Court (1974) 11 Cal.3d 531, trial judges can order that officials produce police personnel records in camera upon a showing of good cause by a moving party.  In deciding whether good cause exists, the court conducts a hearing for the purpose of balancing the moving party’s rights against the officer'€™s interest in maintaining privacy in his or her records. The judge then must review the files to determine whether the information is relevant to the case and must therefore be disclosed to the moving party's attorneys.

The Court of Appeal said Elena Slayton made an adequate showing that the personnel records were potentially relevant to her divorce case, because they supported her claim of domestic violence. Writing for the court, Justice Rick Sims explained: “Considering petitioner's allegations, Michael's conduct, and the fact that other women, in particular, may have filed complaints against him, there is reason to believe his personnel records could include evidence of violence or brutality that could bolster petitioner'€™s claims of domestic violence or otherwise reflect on his fitness as a parent.  Such evidence would be relevant to determine the appropriate custody arrangement for his and petitioner's children.€

Read the case at Slayton v. Superior Court.

Case Law Development: Parent of Child Who Has Been Abused May Not be the Monitor for Child's Supervised Visitation with the Abusive Parent.

The trial court allowed a father, who sexually abused his adopted son,  to return to the family home on weekends and designated the non-offending second parent as the monitor after finding that both parents had been participating in counseling and parenting classes.  The non-offending parent was employed full time and the offending parent had been a stay-at-home parent.

The court of appeals reversed, because it found that the offending parent's return to the family home under these circumstances could not meet the needs of monitored visitation.  It reasoned that even if the non-offending parent were able to arrange for another adult to monitor the visit while he was at work, "living together in the family residence will necessarily mean periods exist, even if somewhat brief (for example, when [non-offending parent] is asleep or showering), when the designated monitor will be unavailable. At least when the threat to the dependent child is the likely recurrence of sexual abuse, the concept of monitored visitation is fundamentally incompatible with around-the-clock in-home contact."

In re Ethan G., 2006 Cal. App. LEXIS 1922 (December 6, 2006)
From the Family Law Prof Blog.

VAWA: America's Most Anti-Family States

Here is an interesting and controversial editorial in The American Daily regarding the Violence Against Women Act (VAWA):

The latest report by RADAR (Respecting Accuracy In Abuse Reporting), titled “An Epidemic of Civil Rights Abuses: Ranking of States’ Domestic Violence Laws” provides us with a new perspective on VAWA: we treat the average terrorist better than we treat the average husband facing a false allegation of spousal abuse.

It is now well-known (but often ignored by beltway candy-men) that VAWA (the Violence Against Women Act) is used more commonly as a tactical divorce weapon than for its intended purpose. We also know that physical family altercations are initiated slightly more often by women than men, but almost zero federal funds are used to help men facing a violent spouse.

Some states have lowered the bar of law so low that anything is considered “domestic violence”, such as a simple statement of fear with no supporting narrative or even one whit of evidence. A 1995 study in Massachusetts found that less than half of all issued restraining orders contained even an allegation of violence.

This convenient weapon of mass destruction powers the feminist divorce industry. It has lead to massive violations of the fundamental civil right for good men to be in the family and to parent their own children, and placed cities-full of innocent children at risk for serious child abuse (about 66% of which is committed by natural mothers who have serious chemical abuse or mental disorders).

RADAR estimates that approximately two to three persons are outrageously evicted from their families every year, without so much as a reasonable evidence-based trial. Half of these do not even include an allegation of violence.

The latest RADAR report makes an astonishing finding: there are no states where domestic violence laws have a “low risk” of being abused.

Seven states have laws placing them at “extremely high risk” of abuse: Alaska, California, Missouri, New Hampshire, New Jersey, New York, and Virginia.

Twenty-six states fall into the “high risk” category: Alabama, Arizona, Colorado, District of Columbia, Iowa, Louisiana, Maine, Massachusetts, Michigan, Mississippi, Montana, Nevada, New Mexico, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Washington, Wisconsin, and West Virginia.

High risk states enacted statutory elements replacing well-settled standard of probable cause (which refers to a specific action) with vague or subjective psychological idioms such as “fear”, “harassment” or “stalking”. The world tiptoes on eggshells around uncontestable “feelings” of even the nuttiest alleger. Anectode, allegory, and appearance operate the levers of law such that virtually anything can be construed to fall under the purview of VAWA.

Moderate-risk states include Arkansas, Delaware, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Maryland, Minnesota, Oklahoma, and Texas RADAR’s report does not incorporate factors that increase the risk of statutory abuses, such as the implementation of police and court training programs by women’s abuse centers. One example is in Largo, Florida, where the Chief of Police installed a billboard presenting the illusion that men are the cause of domestic violence. Chief Widera bases this law enforcement approach by on the false claim that 73% of victims are women, while ignoring the fact that women initiate slightly over half of all serious domestic altercations.

Restraining orders are commonly issued on an ex-parte basis without any evidentiary hearing, in some jurisdictions on the basis of nothing more than an application faxed to the courthouse. VAWA abuses may be driving child poverty by unnecessarily destroying marriages. Child poverty is most strongly associated with family structure.

When RADAR risk rankings are paired with Children’s Defense Fund “Kids Count” child poverty rates , a notable correlation between the two is immediately obvious.

In summary, VAWA is the framework providing substantial incentives that empower nuts and feminists to manipulate the legal system for every prurient purpose imaginable, deeply violating the civil and social rights of their targets: Judge Rucker Smith of Sumter County, Georgia, had a 17-month romantic relationship with Rachel Oliver. During a visit to her home on July 31, 2005, he learned of her relationship with another man, at which point he announced, “I’m outta here.” But as he tried to leave her home, an angered Oliver blocked him and bit his leg. When he managed to escape, the now-vindictive woman called the police.

Judge Smith was charged with three counts of battery. Following a short trial in May 2006, Judge Smith was acquitted. Speaking to the news media afterwards, he explained, “For someone to falsely accuse another out of anger and vengeance silences the voices of the many real victims.”

However, most restraining orders are issued within the context of a divorce or child custody proceeding, in which large sums of money are are literally “up for grabs”. In my nineteen years of experience as a student of the divorce industry, I have found that the vast majority of these allegations are applied as ad motem litem tactical weapons (a term which holds the legal action as suspect due to the timing of the filing), rather than as cause for dissolution or because of a real action on the part of the alleged abuser.

VAWA is not a well-crafted mechanism geared towards achieving its stated purpose. It is truly a drive-by bomb, most often misused to irresponsibly destroy marriage according to anti-family feminist dicta. The downstream costs of this senseless destruction of marriage are much greater than often recognized.

Our extremely high social entitlement expenditures are weakening our ability to fight the war on terror (feminists strongly oppose war because it immediately brings focus to massive fraud and waste of their very large entitlements). Congress must recognize this fact and place a high priority on replacing VAWA with narrowly-tailored gender-neutral legislation crafted to intervene quickly and effectively where real spousal violence exists or is imminent. And, the American Bar Association has an explicit duty to change its positions on family violence law to meet long-settled standards of proof and evidence. Until VAWA is reformed, men should wisely avoid settling in states and cities where their civil rights are likely to be abused.

$20 million judgment for woman who spotted rapist on TV

A rape victim who spotted her attacker on the television show "Blind Date" got a $20 million ( civil court judgment, although she will likely never see a dime from her imprisoned attacker.

Ulrick Kevin "Ashwah" White, 32, of Santa Barbara was convicted by a jury of forcible rape and false imprisonment. Noting White didn't show any remorse for the 2003 crime, Superior Court Judge Kevin McGee sentenced him in February to eight years in prison.

White allegedly approached the then-35-year-old woman in a parking lot outside a Ventura bar as she waited for a cab and she reluctantly agreed to a ride home in his van, police Detective Russ Robinson said. She was taken to a remote area and attacked.

The Ventura mother of a now-12-year-old girl later told police she recognized her attacker on TV and videotaped the "Blind Date" appearance and turned it over to detectives. Her attacker had been sought since Sept. 6, 2003.

In a civil suit claiming emotional distress, among other things, Superior Court Judge Vincent O'Neill this month awarded her $20 million in damages. White initially responded to the lawsuit but later failed to participate in any of the legal proceedings, her lawyer David Shain said.

The woman concedes she will probably never see any money from White, but she and her attorney said it was helpful in the healing process. "It is hoped that a significant verdict, though likely uncollected, will assist the plaintiff in finally moving forward with her life," Shain wrote in court documents. "There is no amount of money to compensate for what my client has had to go through. It is important to her recovery," he said.

The high amount of the award also sends a message about the dramatic effect such crimes have on victims and lets criminals know society won't tolerate this kind of conduct, Shain said. White initially responded to the lawsuit but later failed to participate in any of the legal proceedings, the lawyer said.

The article from Findlaw.

Supreme Court rules police search is not allowed when only one spouse consents to search

The Supreme Court narrowed police search powers yesterday, ruling that officers must have a warrant to look for evidence in a couple's home unless both of the partners present agree to let them in.

The 5-to-3 decision sparked a sharp exchange among the justices. The majority portrayed the decision as striking a blow for privacy rights and gender equality; dissenters said it could undermine police efforts against domestic violence, the victims of which are often women.

The ruling upholds a 2004 decision of the Georgia Supreme Court, but still makes a significant change in the law nationwide, because most other lower federal and state courts had said police could search with the consent of one of two adults living together.

Now, officers must first ask a judicial officer for a warrant in such cases. Quarrels between husbands and wives or boyfriends and girlfriends keep police nationwide busy; in Washington, for example, almost half of the 39,000 violent crime calls officers answered in 2000 involved allegations of domestic violence.

Chief Justice John G. Roberts Jr., writing his first dissent since joining the court, said the ruling's ''cost" would be ''great."

Roberts wrote that the ruling made no sense, given that the court had previously said it is constitutional for police to enter a house with the permission of one partner when the other is asleep or absent. Those rulings were unchanged by yesterday's decision.

Just by agreeing to live with someone else, a co-tenant surrenders a good deal of the privacy that the Constitution's Fourth Amendment was designed to protect, Roberts said. ''The majority's rule apparently forbids police from entering to assist with a domestic dispute if the abuser whose behavior prompted the request for police assistance objects," he wrote.

The case arose out of a 2001 quarrel over child custody at the home of Janet and Scott Randolph in Americus, Ga. When officers arrived, she told them where they could find cocaine.

For more about the ruling, go to the Boston Globe.