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NJ Supreme Court Agrees to Hear Important DV Restraining Order/Evidence Standard Case
Attorney David Heleniak just made an important advance against a terrible problem—restraining orders based on false domestic violence charges being used as custody maneuvers in divorce. First some background from my Newark Star-Ledger column Restraining Orders Can Be Straitjackets On Justice (7/28/08):
Women's advocates and the state Attorney General's office are criticizing a new court ruling which will make it harder for women to get restraining orders against their male partners. Star-Ledger columnist Fran Wood, in her recent op-ed "Don't soften protection for women," called New Jersey's Domestic Violence Prevention Act "one of the best statutes in the country," and said the new ruling could "diminish the ability of domestic violence victims to get the protection they need."
Certainly abused women need protection and support, but there are many troubling aspects of the DVPA's restraining order provisions that merit judicial and/or legislative redress.
Under the DVPA, it is very easy for a woman to allege domestic violence and get a restraining order (aka "protection order"). New Jersey issues 30,000 restraining orders annually, and men are targeted in 4/5ths of them. The standard is "preponderance of the evidence" (often conceptualized as 51%-49%), and judges almost always side with the accusing plaintiff.
Under the DVPA, the accuser need not even claim actual abuse. Alleged verbal threats of violence are sufficient, even though it's almost impossible for the accused to provide substantive contradictory evidence.
The restraining order boots the man out of his own home and generally prohibits him from contacting his own children. Men are cut off from their possessions and property, and some end up in homeless shelters. Yet most have never even had a chance to defend themselves in court.
In recognition of the gravity of these orders, the Hudson County judge, Francis B. Schultz, found the current standard of proof unconstitutional, however, and required the stricter "clear and convincing evidence" standard in the case before him. His ruling was not binding on other judges, but will likely be appealed, which could lead to a decision with a broader impact...
Jane Hanson, executive director of Partners for Women and Justice in Montclair, argues that Superior Court Judge Francis B. Schultz is wrong in ruling that the DVPA violates parents' "fundamental" right to "be with or maintain their relationship with their children." Yet when a restraining order is issued, fathers can be (and sometimes are) arrested for calling their own children on the phone or going to their Little League games.
Moreover, by removing the father from the home, a custody precedent is set with mom as primary caregiver and dad as occasional visitor—a precedent which harms fathers' ability to gain joint custody of their children in divorce proceedings.
Wood calls the current law on restraining orders "an efficient system." We disagree. Yes, the system is efficient in separating men from their children and their homes. However, it is hardly efficient in delivering justice.
The New Jersey Appellate Division overturned the decision earlier this year. At the time Heleniak wrote, "Because the case involves significant Constitutional issues, there is a good chance the New Jersey Supreme Court will take it."
Heleniak got it right—the New Jersey Supreme Court will hear it. We congratulate him, wish him luck, and will keep readers informed of his progress.
West Virginia Court Voids DV Rules as Gender-Biased
A West Virginia Circuit court struck down three administrative rules governing the licensing and operation of domestic violence shelters in that state Friday. It did so in part because the rules and their application were explicitly gender-biased, contrary to the "crystal clear" gender-neutral language and intent of the statute.
The full opinion is here and is well worth reading. It draws a clear and detailed picture of a state agency utterly in thrall to a concept of domestic violence that is well established as false. To men's advocates, it strongly suggests effective litigation tactics for attacking the blatantly discriminatory statutes and administrative rules that so distort our response to the problem of domestic violence.
Here, as I understand it from the court's opinion, is what happened in West Virginia. The legislature passed a law that established an administrative agency, the Family Protection Services Board (FPSB), whose mission it is to license and oversee DV shelters, and programs to assist DV perpetrators in changing their behavior. The FPSB was empowered to set standards for these programs and shelters, and did. But the intent of the legislature was clear - all West Virginians, irrespective of sex, were to have access to services.
But when the FPSB swung into action, it directly contradicted the "crystal clear" intent of the legislature. First, it relied exclusively on the feminist DV group, the West Virginia Coalition Against Domestic Violence. It promulgated a rule that required at least one-third of the staff of a DV shelter to have been trained by the Coalition. Into the bargain, the Coalition refused to train anyone who was not a member of the Coalition. In short, members of the general public who wanted to be trained in domestic violence response or advocacy, were barred from doing so. Only those with the "correct" ideology were permitted licensure.
And, given the political slant of the Coalition, it should come as no surprise that the court found that this rule "excludes any person who does not adhere to the gender-biased fundamental beliefs of the Coalition." Those "gender-biased fundamental beliefs" meant that men and adolescent boys were excluded from all DV shelters in the state based solely on their sex (and age). That of course is standard Duluth Model practice, but it is not gender-neutral as required by West Virginia state law.
The same held true for perpetrator intervention programs. Again, in strict compliance with the political doctrine that holds that only men commit DV and only women are victims of it, the Board, through its hand-picked agent, the Coalition, directly contradicted the clear terms of the law. In doing so, it deprived female abusers of the benefits of intervention programs, while simultaneously depriving their adult male and child victims of the benefits of intervening in the perpetrator's behavior. The court struck down that rule too...
Fathers & Families Hosts Debate Between 2 Leading Domestic Violence Authorities (Part V)
 Domestic violence and the DV policies of family courts and law enforcement is a multi-faceted issue that has an enormous impact on American families. Fathers & Families is hosting a debate between two of North America's leading domestic violence authorities, feminist DV expert Professor Evan Stark, Ph.D, MSW, and dissident DV expert Dr. Donald G. Dutton (pictured).
Below is an excerpt from Dr. Dutton's latest response to Professor Stark:
One important factor [in domestic violence] is that chronic, repeat assault occurs most frequently and with the most severe impact in multi-problem families, plagued by unemployment or underemployment, financial stress, substance abuse problems, and mental health issues including severe depression.
A large scale study by Felliti et al underscores this point. Fellitti and his colleagues found that long term negative psychological and health effects occurred in families that had four or more "adverse experiences as children," including family drug abuse, alcoholism, sexual abuse and mental illness.
The American Bar Association Website (that John Hamel and Ken Corvo and I criticized) abstracted "violence against mother" as the chief cause of the children's problems, although it was just one problem among many. This "violence against women" focus (that I call the gender paradigm) swamps the field and diminishes attention paid to other social determinants of family problems. Arresting the male in these multi-problem families does not seem like anything more than a band-aid solution, focused on one symptom in an abusogenic family (Felitti et al, by the way, in keeping with the current political correctness, asked no questions about mother assaulting father.)
Here's the case for shelving the gender paradigm and taking a more systemic, data driven approach: large sample studies on the developmental trajectories of people who become abusive show the following: that girls and boys who grow up to become spouse abusers, show many warning signs along the developmental path. The girls are already more aggressive by early public school, both boys and girls have more ‘delinquency" arrests including drug abuse and arrests for conduct problems. These issues produce women who are both more likely to assault their male partner and to choose a male partner who is himself assaultive. This is called "assortative mating" – it means that people with a constellation of abusogenic problems seek each other out–for a host of reasons–and then produce the type of multi-problem family that Felitti et al describe.
It's important to note that both Lisa Serbin and Terrie Moffitt, who performed some major contributions to this research, controlled statistically for male violence when assessing the relationship between early adolescent female violence and her use of violence toward her spouse. It was not defensive violence by the women, it was a continuation of aggressive traits they had demonstrated since childhood...
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Kids & Dads |
‘There was no soldier stern enough to pry little Paige from her father as he prepared to leave for Iraq'
From Tom Henderson's Little Girl Can't Let go as Sergeant Daddy Leaves For Iraq:
Some things are just not allowed when soldiers are standing in formation. One of them is 4-year-old girls.
However, there was no soldier stern enough to pry Paige Bennethum of Laureldale, Pa. from her father as he prepared to leave last July for a year-long deployment in Iraq...
Army Reserve Staff Sgt. Brett Bennethum was preparing to depart from Fort Dix, N.J., for Iraq, leaving behind his pregnant wife and two little girls. His family was there to see him off. His commanding officer didn't have the heart to tell Paige she had to let go of her daddy.
"I didn't want to let go of him," she told NBC Philadelphia...
Staff Sgt. Bennethum got a four-day pass so he could spend some quality time with his family and they could make the two-hour trip to Fort Dix to see him off. Almost immediately upon arrival, his commanding officer ordered the soldiers to fall in.
"Gotta go," he told his family. But Paige walked up behind him in formation, grabbed his right hand and would not let go.
"I called her a couple of times, but she wouldn't budge," her mother said. She still wishes she was holding her father's hand.
"I just miss my dad right now," Paige told NBC.
Thanks to Alonzo, a reader and a Navy sailor, for the story.
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| I didn't want to let go of him. |
| —4-year-old Paige Bennethum, as her father prepared to leave for deployment in Iraq |
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