Are you certain the answer is “No?”
A recent article in HuffPo by Fred Silberberg entitled Is That Domestic Violence caught my eye. Silberberg posits that “even those who are not actually being physically abused can be victims of domestic violence.” He points out that the California Family Code states that “abuse is not limited to the actual infliction of physical injury or assault.”
I wholeheartedly agree with Mr. Silberberg’s premise. I have been approached by clients and potential clients countless times with the following scenario: The spouses are going through a divorce. One of the spouses is verbally abusive and acts out with physical destructiveness against property in the home – most often that belonging to the other partner. The spouse may also threaten. Threats might be verbal, warning of physical assault, but I have also had reports of spouses carrying weapons in the home to put the other spouse in terrible fear of assault.
Regardless of this type of alarming behavior, during divorce proceedings in Michigan, and most especially where custody of children is at issue, both spouses will be advised by respective counsel to stay in the marital home – at least until a temporary custody and parenting time order is in place, and that is not always accomplished. In other words, mere words or breaking stuff is not domestic violence under Michigan law.
This has real consequences. The victimized spouse will ask the attorney to seek a personal protection order on the client’s behalf and/or request the filing of a motion for exclusive possession of the marital home pending completion of the divorce proceedings, hoping to have the violent spouse removed. Neither petition is likely to be successful in Michigan family court. A PPO will not issue in Michigan based on the type of conduct I have described. Nor is a family court judge likely to issue an order for exclusive possession of the marital home in the absence of physical violence. Most family law attorneys will counsel a spouse being victimized by the other spouse’s frightening behavior that until and unless there is an actual act of physical violence, the conduct cannot be curbed (other than by appealing to the opposing lawyer to counsel his/her client to reign it in, but that obviously may not be effective. I believe part of the problem is that the judges are jaded by the “he said/she said” phenomenon which requires the judge to figure out what is really happening inside the home. Is someone claiming violence just to get an advantage in a custody battle? It’s so much easier to rule when there is a bruise and the police are called, when there is a trip to the ER and a doctor’s report validating the report of assault. But isn’t that the job our judges are charged with – making the tough calls? The failure to even consider the motion for exclusive possession in the absence of proven physical violence against the moving party represents a serious disconnect from the reality of sharing a home with someone using threats of violence to continue asserting control over the other spouse.
I am addressing only one serious gap between family law jurisprudence and the realities of domestic violence. There are others. I am frankly shocked and dismayed that in the 21st century, a pervasive lack of understanding and effective response to the dynamics of domestic violence persists – at least in the state of Michigan. I wish that both family court judges and family court attorneys were required – or at least had more opportunities – for education on identifying and effectively responding to the victimization of one partner by another in family court cases.