Biden’s Misguided S1515 Will Exacerbate Domestic Violence System’s Problems

By Michael McCormick and Glenn Sacks

When it comes to domestic violence legislation, the road to hell is paved with good intentions and Senator Joe Biden (D–Del) owns an asphalt company. Biden’s latest domestic violence bill is the National Domestic Violence Volunteer Attorney Network Act, which amends Biden’s Violence Against Women Act to create an extensive network of volunteer attorneys to help abused women. The attorneys would provide free legal help in forging divorce or separation agreements and in winning child custody.

According to Biden, S.1515, which will soon be heard by the Senate Judiciary Committee and is co–sponsored by Pennsylvania Senator Arlen Specter, will enlist 100,000 volunteer attorneys. The bill is supported by the American Bar Association, the Family Violence Prevention Fund, and the National Organization for Women, which is currently running a campaign in support of the bill.

S.1515 will do some good in aiding abused low–income women. The problem is that the bill will also greatly exacerbate the already widespread problem of false domestic violence claims being used to strip decent, loving fathers of custody of their children. There is no mechanism within the bill to distinguish between false accusations and legitimate ones.

Currently, domestic violence service providers assist women who claim to be abused. Let’s say Bob and Jane are married and have two kids. If Bob abuses Jane, Jane can go to a local shelter and receive legal assistance in obtaining a personal protection order (aka restraining order) against Bob. Bob is forced to vacate his house immediately. A couple weeks later there is a hearing to determine if the protection order will be made permanent, and the domestic violence service provider again furnishes assistance for this hearing. At these hearings, the protection orders are usually extended.

All this is as it should be—provided Bob is guilty. The problem is that the same process and laws which protect a battered Jane from an abusive Bob also allow an unhappy but not abused Jane to boot an innocent Bob out of their home and set a child custody precedent with herself as sole caregiver. This aids Jane greatly during the divorce process.

Many prominent family law professionals are cautioning that this system is being widely misused, and that there are scant protections for the falsely accused. The Family Law News, the official publication of the State Bar of California Family Law Section, recently explained:

“Protective orders are increasingly being used in family law cases to help one side jockey for an advantage in child custody…[the orders are] almost routinely issued by the court in family law proceedings even when there is relatively meager evidence and usually without notice to the restrained person.”

An article in the November, 2007 issue of the Illinois Bar Journal article explains:

“If a parent is willing to abuse the system, it is unlikely the trial court could discover (his or her) improper motives in an Order of Protection hearing.”

The hearings to make the orders permanent are often just a formality for which no more than 15 minutes are generally allotted. In fact, the State of California’s website gives the following advice for men who are contesting restraining orders:

“Practice saying why you disagree with the charges. Do not take more than three minutes to say what you disagree with. You can bring witnesses or documents that support your case, but the judge may not have enough time to talk to the witnesses.”

This process is already damaging and unfair to fathers, but S1515 will make it far worse. Once the National Domestic Violence Volunteer Attorney Network is in place, false accusers who have obtained initial assistance through domestic violence service providers will be provided free attorneys to litigate their divorces. This legal assistance will give the mothers a huge advantage over low–income fathers, one which will cause many innocent dads to lose custody and even access to their kids.

What’s needed instead is an overhaul of the domestic violence system to emphasize serving and protecting only those who are legitimately abused. Until there is meaningful judicial oversight of domestic violence claims, Biden’s bill will do much more harm than good.