RIGHTS LITIGATION PROJECT
Listed below are links to PDF documents related to a number of our cases:
Voisine and Armstrong v. United States
United States Supreme Court - 136 S. Ct. 2276 (2016)
This Supreme Court case presents another challenge (see Hayes, Castleman, infra) to the federal firearms ban for individuals convicted of a "misdemeanor crime of domestic violence." The Petitioners (two men convicted of domestic abuse) argued that Congress incorporated a common law definition of battery in its definition of "misdemeanor crime of domestic violence" and that common law precluded battery based on recklessness. They also argued that legal mandates result in many domestic violence convictions for conduct that is "minor." DV LEAP's brief was filed with the excellent assistance of Pillsbury Winthrop Shaw Pittman, as well as AEquitas, and Futures without Violence. The brief (1) argued that the common law does not control interpretation of this 1996 statute (2) provided practical details demonstrating how, if reckless convictions were excluded, the vast majority of state prosecutions of batterers would be removed from the federal firearms ban; and (3) contradicted Petitioners’ claims that too many minor domestic abuse cases are prosecuted. In a resounding victory for victims of domestic violence, the Court agreed that early common law was not as clear as the Petitioners argued, and that in any event, it should not constrict the statute's scope, and that the Petitioner's position would lead to undermining the ban in 34 states and the District of Columbia. This ruling ensures that federal law continues to ban possession of firearms by most convicted batterers.
Elonis v. United States
United States Suprem Court – 135 S. Ct. 2001 (2015)
The issue in this case was the definition of a “true threat” for purposes of determining whether the First Amendment protects the speech. Here Elonis posted on Facebook multiple disturbing threats against his co-workers, his estranged wife, the FBI agent who interviewed him and an undetermined kindergarten. He then argued that without proof that he subjectively intended to threaten his estranged wife and several others, the state may not prosecute him because the First Amendment protects his threatening words. DV LEAP’s amicus brief argued that neither the First Amendment nor criminal law requires proof of a specific intent to threaten, that requiring subjective intent would make protection of victims far harder than it already is, and that the ruling in this case will reach not only criminal prosecutions but civil protection orders, which look to criminal law standards. The Court's decision carved a middle path: In a 7-2 decision the majority held that some kind of intent (greater than negligence) is required under the federal threats law as a matter of general criminal jurisprudence. The Court declined to specify the standard other than to say that proof of a defendant's "purpose" or "knowledge" is sufficient. By declining to reach the First Amendment altogether, the Court helped to limit the impact of its ruling and avoided treating threatening language as “free speech.”
Ohio v. Clark
United States Supreme Court -135 S. Ct. 2173 (2015)
This is the third confrontation rights case DV LEAP has participated in. Here the Ohio Supreme Court held that a man accused of abusing a child could exclude the child’s disclosures to “mandatory reporters” (i.e., teachers) because their status makes the child’s statements “testimonial” (ie given in anticipation of use at trial) and inadmissible, under the Court’s new confrontation rights jurisprudence. DV LEAP filed two amicus briefs arguing that (1) many civil courts apply the Court’s confrontation doctrine even though it technically only governs criminal courts, and (2) it is already difficult to protect child victims of abuse in family courts and this kind of disclosure is essential. DV LEAP’s brief on the merits added a third argument that before and after the Constitution’s adoption, children’s hearsay “outcries” of sexual assault were admitted in criminal courts despite general hearsay exclusions. The Supreme Court issued a unanimous decision that protects abused children, ruling that a child’s statements to his teacher about who it was that hurt him could be used in court against the defendant, even though the child did not testify. Six of the Justices signed an opinion that portends increasing flexibility toward out of court statements in the future.
Lozano v. Alvarez
United States Supreme Court - 134 S. Ct. 1224 (2014)
This was our second Hague Convention on Civil International Abduction case; here the “abducting” parent was known to be fleeing an abusive husband and father. The issue before the Court was whether the “now settled” protection from automatic return of a child after a year in the new place should be lifted when the removing parent concealed the location of the child. DV LEAP’s amicus brief argued that “equitable tolling” would violate the clear intent of the Convention, but that courts should look to the facts that motivated any concealment in determining whether or not the child is “well settled.” The Court agreed that equitable tolling cannot be applied to the “now settled” defense, even if the removing parent conceals the location of the child. However, a 3-judge concurrence emphasized that the court still has discretion to order the child returned even if the child is “well settled”.
Florence v. Board of Freeholders
United States Supreme Court- 132 S.Ct. 2001 (2012)
DV LEAP's amicus brief, prepared by a superb team at Hogan Lovells, argued against a New Jersey law that allows police to conduct suspicion-less strip searches. While this practice may be disturbing for anyone, the amicus brief argued that it is particularly harmful to victims of domestic violence; as such an invasive search often re-traumatizes a victim. The Supreme Court recently issued a decision upholding the strip search in this case, while reserving possible limits in other contexts. DV LEAP’s brief was referenced in the four Justice dissent.
Robertson v. Watson
United States Supreme Court - 130 S. Ct. 2184 (2010); 560 U.S. 272 (2010)
The Supreme Court issued a favorable decision in In re Robertson, a case that originated in D.C., involving the right of victims of domestic violence to privately prosecute violations of civil protection orders through contempt. After oral argument, the Supreme Court dismissed the case because certiorari was “improvidently granted,” thereby leaving in place the favorable DC Court of Appeals decision. DV LEAP's amicus brief argued that private enforcement of CPOs is critical to the transformative potential of the CPO remedy, that the government cannot enforce all violations of CPOs, that even "minor" violations are sometimes preludes to lethal violence, and that private criminal contempt litigation still affords the accused all due process protections. DV LEAP also recruited two additional amicus briefs from the family law and victims rights fields.
Abbott v. Abbott
United States Supreme Court - 130 S. Ct. 1983 (2010); 560 U.S. 1 (2010)
This is a Hague Convention on Civil International Abduction case, in which the Court ruled that the "return" remedy (which normally is only available to parents with "rights of custody") is also available to noncustodial parents, when the abduction violates a legal order restricting both parents’ travel with the child. At argument the Court indicated significant concerns about the issues raised in DV LEAP’s brief – which was filed on behalf of itself and several other national domestic violence organizations, and argued that the majority of international "abducting" parents are custodial mothers fleeing abuse with their children, and that expanding the return remedy will subject more children and mothers to further abuse.
U.S. v. Hayes
United States Supreme Court - 129 S. Ct. 1079 (2009); 555 U.S. 415 (2009)
DV LEAP co-counseled a brief with the National Network to End Domestic Violence and others, arguing that the federal gun ban on batterers convicted of a misdemeanor should not be construed to apply only when the state misdemeanor statute is specifically aimed at domestic abusers. In Febraury 2009, the Court reversed the Fourth Circuit's unfavorable decision, with a vote of 7-2 in favor of rational interpretation of the federal gun ban. This is a very important victory for constraining possession of guns by batterers. The opinion cited DV LEAP's brief among other things.
Giles v. California
United States Supreme Court - 128 S. Ct. 2678 (2008); 554 U.S. 353 (2008)
DV LEAP spearheaded and co-authored the leading domestic violence amicus brief in this case, concerning whether a batterer who kills his victim forfeits his right to confront that victim at trial or whether forfeiture only attaches if he killed her for the purpose of silencing her testimony. The high Court concluded that such a defendant retains a right to confront the victim he killed, but a majority of the justices agreed that a history of domestic violence is a meaningful indication of the defendant’s “intent to silence” the victim when he killed her. The multiple opinions demonstrated a remarkable understanding of domestic violence as a form of silencing of the victim.
Hammon v. Indiana; Davis v. Washington
United States Supreme Court - 126 S. Ct. 2266 (2006); 547 U.S. 813 (2006)
DV LEAP spearheaded and co-authored the sole domestic violence amicus brief in, the Supreme Court case which addresses what out of court statements may be admitted in the absence of the victim’s testimony in court (our brief had a significant impact on the decision).
City of Castle Rock, CO v. Gonzales
United States Supreme Court - 125 S. Ct. 2796 (2005); 545 U.S. 748 (2005)
DV LEAP co-authored a leading amicus brief on behalf of 5 police organizations (siding with the victim) in the Supreme Court case, which concerned the failure of the Castle Rock police to enforce Ms. Gonzales’ protection order, resulting in the murders of the three children.
D.C. Court of Appeals
Carrell v. U.S.
D.C. Court of Appeals - 80 A.3d 163 (D.C. 2013) reh'g en banc granted, 2015 D.C. App. LEXIS 513
This issue in this case is the intent standard required to be proven for misdemeanor threats in DC in light of the U.S. Supreme Court's decision in Elonis v. U.S., which rejected an objective (negligence) standard for the federal felony threats statute. DV LEAP filed an amicus brief on behalf of the local and national DV communities arguing that the DC Court of Appeals should uphold its current standard (an objective approach) or adopt, at most, a requirement that the government prove that the government prove the defendant acted recklessly.
DV LEAP's amicus brief argues that in determining the mens rea for misdemeanor threats, the DC Court of Appeals should not replace its traditional focus on context and other objective factors with a focus on the subjective intent of the speaker. DV LEAP also points out that while the District's felony threats statute mirrors the federal law construed in Elonis, the misdemeanor statute does not at all-- rending Elonis largely irrelevant. Finally, the brief emphasizes the impact requiring proof of the speaker's subjective intent would have on DV victims, for whom threats by their abusers often cause extreme harm.
Y.T. & J.W. v. C.C.
D.C. Court of Appeals - 2015
This case involves the application of DC's Intrafamily Offenses Act's "mutual residence" provision to a landlord and tenants in a two-family house with separate kitchens, bathrooms, and living spaces. The trial court awarded the landlord a civil protection order and ordered them out of the home, based on the landlord’s testimony about threats by the tenants. They became homeless. The tenants are represented by Legal Aid Society on appeal and DV LEAP filed an amicus brief in support of the Appellants' Emergency Motion to allow the tenants to return to their room pending appeal. DV LEAP's brief argued that CPOs are not intended to help landlords evict tenants, and that expanding the statute in this way would undermine the statute's effective protections for victims of domestic violence, stalking, and sexual assault. The day the amicus brief was filed, the DC Court of Appeals granted the Emergency Motion pending appeal. DV LEAP anticipates filing a brief on the merits in support of the tenants’ appeal in the near future.
Salvaterra v. Ramirez
D.C. Court of Appeals - 105 A.3d 1003 (D.C. 2014)
This appeal affirmed the use of DC’s CPO statute to provide equal protections to victims of unrelated sexual assault as are provided to victims of domestic violence. Here the CPO judge ordered a perpetrator of sexual abuse to vacate his own home which he did not share with the victim, a remedy could not be ordered under the vacate provision which is limited to parties sharing a home. The victim and perpetrator both lived in a small rental building; she had to walk by his apartment where he victimized her every time she went in and out. DV LEAP’s amicus brief described the trend toward expansion of protection orders to sexual assault victims, the massive failures of the justice system to adequately protect such victims, and the longstanding legal rule that the CPO statute should be liberally construed for the benefit of victims. The DCCA’s decision resoundingly affirms this rule and establishes that a perpetrator may be ordered out of his own home under the statute’s “catch-all” provision, when that is necessary to effectuate a stay-away order.
EC v. RCM of Washington
D.C. Court of Appeals – 92 A.3d 305 (D.C. 2014)
This case of first impression raised the question of how broadly DC’s new unemployment and domestic violence statute should be applied. Ms. Cromeartie lost her job as the result of an extended campaign of stalking and harassment by her abusive ex-boyfriend. Although her firing was triggered by the abuser’s fabricated accusations to her boss, the Administrative Law Judge found that, since her actions in letting the abuser onto the premises were rational and intentional, she was not fired “due to domestic violence.” DV LEAP filed an amicus brief in support of the appeal brought by Legal Aid Society and represented amici at oral argument. In June 2014 the Court issued a decision that vindicated DV LEAP’s and LAS’s position in all respects, adopting a generous reading of the statute that will protect many future employees who lose their jobs as a result of domestic violence.
J.O. v. O.E.
D.C. Court of Appeals – 100 A.3d 478 (D.C. 2014)
In this case, a man sought protection from the sexual assaults of his male housemate. The respondent denied the assaults primarily based on his repeated and passionate assertions that he is “not a gay.” The judge found both parties credible, and concluded that he could not find a “preponderance of the evidence” to prove the assaults, given the respondent’s convincing denial that he was homosexual. He denied the Civil Protection Order. The petitioner’s dedicated counsel, AYUDA, sought consultation with DV LEAP. We advised them to file a motion to reconsider, explaining that sexual orientation has no bearing on sexual assault. When the judge denied that motion, DV LEAP accepted the case for appeal and placed it with Bingham LLP to represent the petitioner, and Skadden Arps to represent DV LEAP as a friend of the court (amicus). The amicus brief thoroughly described the research literature and federal policy statements supporting the above argument.
In re K
D.C. Court of Appeals - 75 A.3d 915 (D.C. 2013)
This case also involved the victim’s right to bring a criminal contempt enforcement action to enforce a Civil Protection Order (CPO). The decision follows the decisions in Taylor and Jackson below, outlawing private criminal contempt enforcement where a CPO has been violated.
In re Jackson
D.C. Court of Appeals - 51 A.3d 529 (D.C. 2012)
In this case, the trial court held sua sponte a “show cause” (or “contempt”) hearing for violations of a Civil Protection Order (CPO) without appointing an independent prosecutor. DV LEAP submitted an amicus brief suggesting that the court’s procedure in this case was problematic, but asking the Court of Appeals to ensure that future judges can still use such proceedings for simpler technical violations of CPO cases, such as failure to under drug testing or batterer’s counseling. The DCCA agreed with appellant and reversed the court’s procedure while remanding for a new trial.
In re Taylor
D.C. Court of Appeals - 73 A.3d 85 (D.C. 2013)
This case involved the victim’s right to bring a criminal contempt action to enforce a Civil Protection Order (CPO), in light of the D.C. Court of Appeals’ final decision in Robertson II (discussed below). DV LEAP filed its brief arguing that private enforcement of CPOs is essential and perfectly constitutionally proper. The Court held that a private beneficiary of a CPO may not prosecute a criminal contempt hearing.
In re Rogers
D.C. Court of Appeals - 51 A.3d 529 (D.C. 2012)
This case also involves enforcement of CPOs through criminal contempt actions. However, this case raised the question of whether a judge may himself initiate a criminal contempt proceeding for violations of a batterer’s counseling order, even when the victim is not seeking the contempt finding. DV LEAP took neither party’s side and argued that judges could hold evidentiary hearings in limited types of cases. The DCCA agreed with appellant, reversed for improper procedure, and vacated the remaining contempt charge. The decision holds that a judge may trigger a criminal contempt hearing, but only a separate disinterested prosecutor may prosecute it.
Clark v. United States
D.C. Court of Appeals - 28 A.3d 514 (D.C. 2011)
In this case the defendant argued that his violent violations of the victim's protection order were waived because she had previously consented to prior (non-violent) violations. This case revisits the "consent defense" argument raised in the case that launched DV LEAP, Ba v. U.S. (see below). DV LEAP filed (in-house) an amicus brief arguing (again) that a consent defense should not be recognized as it would cede the validity and enforceability of court orders to private litigants. DV LEAP also urged the Court not to rule (as it previously did in Ba) that any consent had been "revoked" by the time of the violence, because the revocation theory is predicated on the idea of a viable consent defense, and because the proper analysis should be one of "waiver" rather than "revoked consent." In its ruling, the Court of Appeals finally and definitively rejected the consent defense. This is a wonderful improvement in the legal landscape for victims seeking to enforce their protection orders in DC.
MR v JT
D.C. Court of Appeals - 9 A.3d 804 (D.C. 2010)
In this successful appeal, DV LEAP represented a victim of domestic violence whose request for a civil protection order was denied because the abuser falsely but successfully claimed that his violence was an act of self-defense in response to the victim's actions. This case was especially troubling because the trial court's decision was based on representations the abuser made in his closing argument, not during his testimony and the victim was not afforded the opportunity to cross-examine the abuser's factual assertions about the violence. In reversing the trial court's decision, the D.C. Court of Appeals held the trial court abused its discretion by relying on "testimony" that did not exist.
Upson v. Wallace
D.C. Court of Appeals - 3 A.3d 1148 (D.C. 2010)
DV LEAP submitted an amicus brief in support of a pro se mother seeking a protection order, asking the court of appeals to reverse the trial court’s imposition of thousands of dollars of attorneys’ fees against her, on grounds that the sanctions were unwarranted, fees are not available to lawyers who represent themselves, and the lawyer’s corporate rate of over $800 / hour was far beyond a reasonable family law rate. DV LEAP is delighted that the Court of Appeals agreed with us, reversed the fee award, and adopted a ruling for the future that attorneys who represent themselves may not be awarded attorney’s fees.
E.J. v. D.J.
D.C. Court of Appeals - 92 A.3d 305 (D.C. 2014)
DV LEAP represented a mother appealing an award of joint legal and physical custody to her batterer. DV LEAP also recruited and assisted an amicus brief filed by the NY Legal Assistance Group on behalf of several DC and NY organizations. The appeal argued that the trial judge failed to apply the protective provisions of the custody statute that restrict custody and visitation to batterers. We also argued that the court's finding that the presumption against joint custody to a batterer was rebutted because one child was "alienated" from her father violates the intent of the statute, since that alienation was in part due to the abusive conduct of the father. The DCCA affirmed the trial court’s ruling.
In re Robertson
D.C. Court of Appeals -940 A.2d 1050 (D.C. 2008), 19 A.3d 751 (D.C. 2011)
This case, in which DV LEAP submitted three separate amicus briefs to the DCCA, involved the important right of victims to enforce their own civil protection orders. The DCCA affirmed that right in its first two decisions. In its third decision, following the Supreme Court’s dismissal of certiorari, it revised its decision to affirm the private right to enforce CPOs by criminal contempt, but held that such actions can only be brought “in the name of the sovereign.” While the decision was a partial victory, in that it affirmed the private victim’s right to bring the action, it is arguably being subsumed by subsequent decisions in Jackson, Rogers, Taylor and Kimbrough cases.
Y v. V
D.C. Court of Appeals-944 A.2d 1113 (D.C. 2008)
This case involved the issue of whether the trial court erred in granting a civil protection order ("CPO") against DV LEAP's client without considering the history of the parties' relationship, without finding any risk of future harm, and after finding that the petitioner's testimony was unreliable. The court upheld the CPO.
P.F. v. N.C.
D.C. Court of Appeals - 953 A.2d 1107 (D.C. 2008)
This case addressed the trial court’s failure to consider domestic violence in awarding custody to an abuser and the court’s penalizing the mother for fleeing abuse. DV LEAP submitted an amicus brief, partnering with the Legal Aid Society, who represented the victim. The D.C. Court of Appeals reversed and remanded, holding that the trial judge failed to expressly address the violence in his analysis of the factors favoring custody to the father and that DC's custody statute requires that domestic violence be given "significant" weight in determining custody.
Murphy v. Okeke
D.C. Court of Appeals - 951 A.2d 783 (D.C. 2008)
This case is a poster child for DV LEAP. DV LEAP placed the appeal with pro bono lawyers for the appellant and co-counseled a powerful amicus brief, resulting in a fabulous appellate decision reversing a trial court’s re-victimization of the victim. The lower court had issued a protection order against her on grounds she needed to be “protected from herself” because she “provoked” the abuser’s violence.
Brown v. Hines
D.C. Court of Appeals - 944 A.2d 1113 (D.C. 2008)
DV LEAP successfully represented a victim of domestic in a custody case against her abuser who was using the appellate court system as a means of harassing her after she won in family court.
C.W. v. E.F.
D.C. Court of Appeals - 928 A.2d 655 (D.C. 2007)
In this resounding reversal of the trial court, the D.C. Court of Appeals held clearly that children’s safety is always the priority in cases concerning abuse. The Court also expressly affirmed that the burden is on the abuser to demonstrate the child's safety in visitation, and affirmed that a history of adult domestic violence is always relevant to child safety. DV LEAP co-counseled the party’s appellate brief and also worked closely with the amicus brief-writer.
Claggett v. Claggett
D.C. Court of Appeals - Unpubished Opinion 2007
This successful appeal involved the issue of whether the trial court erred in summarily denying DV LEAP’s client’s pro se Motion to Seal All Records of Arrest without first holding an evidentiary hearing. (The criminal case against DV LEAP’s client was nolle prosequi’d). The DCCA reversed and affirmed the right to a hearing.
Rogers v. Johnson-Norman
D.C. Court of Appeals - 2005 D.C. App. LEXIS 517
DV LEAP successfully represented a woman who had suffered extended stalking and threats from a former dating partner, had successfully taken criminal and civil legal actions against him, and was now being harassed through his litigation appeals.
Ba v. United States
D.C. Court of Appeals - 800 A.2d 692 (D.C. 2002) vacated, rehearing granted 809 A.2d 1178 (D.C. 2002)
The case that “launched” DV LEAP concerned an abuser who argued that, since he had lived for a few months with the victim after she received her protection order, he could not subsequently be prosecuted for violating that order after they broke up. The DCCA withdrew its initial unfavorable opinion and, after DV LEAP’s amicus brief was submitted and the case re-argued by the U.S. Attorney’s Office, issued a more favorable opinion which left open the question of whether consent is a valid defense to a violation of a CPO.
CUSTODY & ABUSE PROJECT
DG v. SV
Appellate Court of the State of Connecticut - 2015 Conn. Super. LEXIS 2274; 2015 WL 5806031
This case involves a trial court's ex parte order that terminated all of a mother's contact with her teenage son, based solely on an argument between the two of them. The court declined to hear from the mother before stripping her of her right to communicate with her son, and then failed to complete the hearing for four months. DV LEAP and McCarter English, LLP's brief on behalf of the mother argued that the trial court's procedure for entry of this order violated the mother's constitutional parental rights and right to due process. The brief also argued the trial court failed to require adequate evidence to support the legally required finding of " an immediate and present risk" of "psychological harm" to the child. This pattern of removing children from their mothers in ex parte (one-sided) hearings based on alleged "emergencies" is sadly widespread. The case is pending.
SL v. JR
New York Court of Appeals - 56 N.E.3d 193 (N.Y. 2016)
SL v. JR, NY Court of Appeals, 2015. DV LEAP filed two amicus briefs in support of the Petitioner's petition for review to the NY Court of Appeals (NY's highest court) in this critically important custody case which challenged a NY court's denial of a parent's due process right to a hearing before a custody decision. Here the trial court ordered sole legal and physical custody of the parties' children to the father and stripped the mother of all unsupervised contact without ever formally taking evidence or receiving live testimony from the parties. The trial court also relied on a custody evaluator's report, without allowing the parties the opportunity to cross-examine the evaluator or rebut her conclusions. In a resounding reversal, the NY Court of Appeals reaffirmed the constitutional principle that custody decisions should generally be rendered only after a full and plenary hearing and based only on admissible evidence. The Court of Appeals also noted that the "adequate relevant information" standard applied by the courts below failed to protect a parent's fundamental right "to control the upbringing of a child" and tolerated "an unacceptably-high risk of yielding custody determinations that do not conform to the best interests of the child."
KD v. MD
Georgia Supreme Court and Georgia Court of Appeals - 780 S.E. 2d 129 (Ga. App. 2015) cert. denied 2016 Ga. LEXIS 487
This case involves an appeal of an award of custody to a sexually abusive father, despite substantial undisputed evidence of the abuse. The child, ED, repeatedly disclosed sexual abuse by her Father to therapists and forensic evaluators over the course of 4 years. These disclosures included direct verbal disclosures, indirect written disclosures, and abnormal behaviors such as bed-wetting, dissociation, and sexualized behaviors towards her peers. The trial court ignored or excluded virtually all the evidence of child sexual abuse. In fact, its opinion failed to even mention the substantial evidence of sexual abuse in the case or to wrestle with the issue. Instead, the court relied, among others, on the guardian ad litem and custody evaluator who both lacked the experience, knowledge, or willingness to address the sexual abuse.
DV LEAP represented several DV and child abuse organizations in an amicus brief in support of the Mother's Motion for Reconsideration by the GA court of appeals. The brief argued that the trial court’s rejection of the evidence of abuse and its reliance on individuals with no sexual abuse expertise was an abdication of its responsibility to protect ED's best interests and an abuse of discretion. The brief also argued that rejection of the only expert with knowledge of dissociation, a key aspect of the case, solely because her opinion was based on a record review was another abuse of discretion. The appeal was denied. A petition for certiorari was filed in the GA Supreme Court and DV LEAP submitted another amicus brief in support of certiorari, explaining the statewide importance of the issues in the case. The GA Supreme Court denied the petition for certiorari.
Anthony Charles v. Anna Charles and Child Support Enforcement Agency
Hawaii Court of Appeals – 339 P.3d 719 (Haw. 2014)
Pro bono counsel originally recruited by DVLEAP appealed the case in the Hawaii Supreme Court, which reversed both lower courts in a superb and important decision castigating unreasonable trial limits which impair a court's ability to hear all evidence relevant to a child's best interests, particularly when abuse is alleged.
O’Malley v. O’Malley
8th District Court of Appeals of Ohio – 2013 Ohio App. LEXIS 5451
This was an appeal of a custody award and complete cut-off of the mother from two children who were so terrified of their father that they barricaded themselves in the house and threatened to slit their own throats when they learned of the custody order. The father had also pleaded guilty to possession of child pornography. DV LEAP filed an amicus brief describing the empirically proven links between possession and enjoyment of child pornography and child sexual abuse, as well as analyzing the history of abuse and the record in the case to demonstrate that the children’s fears should be taken seriously. The first level of appeal failed; further appeal to the Ohio Supreme Court was rejected without opinion.
Pro bono counsel
Harris v. Harris
California Court of Appeal – 2013 Cal. App. Unpub. LEXIS 4190; 2013 WL 2940952
This is a highly publicized case in which the mother appealed the court’s requirement of immediate “reunification” between the children and their father, after he finishes serving his prison time for his felony rape of their mother. This case also appeals the order for the victim to pay spousal support to her rapist and abuser. In addition to recruiting pro bono counsel to represent the mother on appeal, DV LEAP also recruited an amicus brief. In a strongly favorable decision, the appeals court reversed, finding that the trial court abused its discretion in ruling that reunification would be in the best interests of the children, and that the court minimized the magnitude and effect of the husband’s abuse. The trial court must reconsider the children’s’ best interests closer to the father’s release date.
M.R. v. L.C.
California Supreme Court – 2011 Cal. App. LEXIS 1519 rev. denied 2012 Cal. LEXIS 2952
LC sought review by the California Supreme Court in her case involving the Hague Convention on Civil Aspects of International Abduction. While living abroad, both L.C. and her son were abused by M.R. and fled to the United States. The trial court refused to return the child without certain conditions required to mitigate the “grave risk” the child faced if returned to the father. The California Court of Appeal overturned the trial court and ordered the child returned. DV LEAP, Merle Weiner and Jeffery Edelson submitted a joint amicus letter urging the California Supreme Court to review the case. Unfortunately, the Court declined review, and as of June 1, the mother and child have returned to Italy, where the mother faces criminal charges for fleeing, and the child has already been ordered into the custody of his abusive father.
M. v. L.
California Court of Appeal - 2012 Cal. App. Unpub. LEXIS 4562; 2012 WL 2317714
DV LEAP submitted an amicus brief in this case where a trial court had switched temporary custody of three children from their mother, the primary caretaker, to their father, who was physically and sexually abusive to the mother and sexually abusive to at least one of the children. Our brief challenges the validity of parental alienation theory, a problematic theory used in family courts around the country. DV LEAP is also thrilled that our pro bono counsel were permitted to participate in the oral argument on behalf of amici. Unfortunately, the Court of Appeal rejected the appeal.
Ms. G v. Mr. G.
Virginia Court of Appeals - 2011 Va. App. LEXIS 817; 2009 WL 4642582
DV LEAP co-counseled an amicus brief in this case in which the trial court removed custody from the Mother and awarded it to the abusive Father who lives in Japan, ultimately reducing the Mother’s visits with the children to 3-4 times a year. Despite a significant corroborated history of physical abuse by the Father in this case, the court concluded that it “could not” determine the truth of the abuse, while expressing skepticism of the Mother’s claims. Further, the court appears to have adopted the custody evaluator's view that the mother was a less adequate parent because she could not control the children and the father could - without regard to the fact that the father's abuse caused both phenomena. DV LEAP’s amicus brief argued that the trial court’s finding of no abuse was plainly wrong, and that the trial court’s decision rewarded a batterer for the effects of his abuse on his family and was contrary to the best interests of the children. DV LEAP also recruited pro bono representation for the Mother. Unfortunately, the Virginia Court of Appeals affirmed the trial court’s ruling.
H v. M. (2)
Maine Supreme Court - 12 A.3d 79 (Me. 2011)
DV LEAP co-counseled this appeal on behalf of the mother and child, appealing the court's refusal to find that visits should be supervised or a protection order issued on behalf of the three-year old. The child had reported sexual abuse by her father, and the state's leading child abuse agency had validated the disclosures and strongly recommended only supervised visitation. The Maine Supreme Court affirmed the trial court's order.
Mr O v. Mrs. O
Arkansas Court of Appeals - 2010 Ark. App. LEXIS 350
DV LEAP submitted two amicus briefs and worked with the pro bono lawyers representing the mother in this case, in which the trial court awarded sole custody to an abusive father on the grounds that the mother had committed "Parental Alienation Syndrome" (PAS). The court also denied a protection order on this ground. The amicus briefs argue that PAS is scientifically invalid and inadmissible, and that the court ignored a long history of abuse, as well as evidence of abuse of the children. In 2010, the court of appeals affirmed the decision on grounds that the PAS issue had been waived.
Mrs. R v. Mr. R
Tennessee Court of Appeals - 2009 Tenn. App. LEXIS 817; 2009 WL 4642582
This Tennessee appeal represents the all-too common phenomenon of battered women losing custody of their children to their abusers. DVLEAP and their pro bono counsel Crowell and Moring filed an amicus brief on behalf of several domestic violence organizations in support of the mother's appeal and argued that the trial court's decision to award full custody to the father, despite an admitted history of physical abuse against the mother, reflected a profound misunderstanding of domestic violence and its consequences to children, as well as an alarming misinterpretation of the Tennessee Code provisions that were enacted to protect victims of domestic violence and their children. Unfortunately, the appellate court affirmed the trial court’s decision.
H v. M (1)
Maine Supreme Court - 979 A.2d 1269 (Me. 2009)
DV LEAP co-counseled the appeal on behalf of the mother and also placed the case for an amicus brief on behalf of Justice for Children et al. In this case the trial court granted joint custody to a father who had abused the mother and refused to admit testimony from several expert witnesses including a lethality assessment which found the mother to be in the highest level of risk from the father. The amicus brief described this court decision as mirroring the problems in family courts across the country which refuse to hear evidence of abuse, rely on flawed psychological evaluations, and trivialize abuse concerns. The Maine Supreme Court affirmed.
Bhatia v. Debek
Connecticut Court of Appeals - 948 A.2d 1009 (Conn. 2008)
This case concerns an abuser's misuse of the tort of malicious prosecution to win a massive damages award against a mother who had sought to protect her daughter from his abuse. To DV LEAP’s dismay, the Connecticut Supreme Court affirmed the trial judge’s decision and held that the evidence supported the finding that the mother had acted maliciously. The Court ignored the key facts which refute this conclusion.
Licata v. Licata
New Jersey Supreme Court - 859 A.2d 691 (N.J. 2004)
This case concerned the misuse of parental alienation syndrome, a fraudulent scientific theory widely used to negate allegations of abuse. Unfortunately, the New Jersey Court of Appeals and Supreme Court refused to reverse the trial court on its exclusion of a domestic violence expert and its reliance on parental alienation syndrome.
P.F. v. N.C. and C.W. v. E.F.
under DC LEAP above.
ALL STATES LITIGATION PROJECT
EB v. GM
Appellate Court of the State of Connecticut - 2016
This case involves an abuse survivor's tort action against her husband for his assault and battery which inflicted extensive and permanent physical injuries. Despite the jury's finding that the husband committed intentional battery and assault, the survivor collected no damages because the jury also accepted his defenses that his assault was necessary because (1) she was trespassing and (2) he was "defending others" (visitors in the house). DV LEAP's and Gibson Dunn's brief on behalf of the wife argued that as a matter of law, the wife could not have been "trespassing" on marital property. The brief also argued that the "defense of others" was invalid because the evidence did not support the need for any "defense" and the force he used was excessive and unnecessary to stop any perceived threat. The case is pending.
Ms. J v. Mr. J
Washington Court of Appeals - 2016 Wash. App. LEXIS 2150
In this case the trial court refused to issue a full-term protection order for a survivor who had suffered a long history of domestic violence by her husband. Instead, the court issued a short-term protection order for 65 days to keep things "status quo" and directed the parties to seek relief in a divorce proceeding that the abuser had initiated. DV LEAP, along with pro bono law firms K & L Gates and Baker McKenzie filed an amicus brief arguing that short-term protection orders are unsafe, disempowering to survivors, contrary to the national trend toward to increase the duration of protection orders, and undermine the constitutional rights to parent one’s children and to access to justice. The appellate court reversed, holding that the trial court’s ruling contradicted WA’s protection order statute. The appellate court’s opinion also recognized (1) the dangers victims experience when they have to come to court multiple times to face their abusers and (2) that denying victims full hearings is not necessary or appropriate.
Elisa Sanchez v. Juan Jose Ramirez Torres
Appellate Court of Illinois, First Judicial District - 48 N.E.3d 271 (Ill. App. 2016)
This case involves the critically important issue of whether trial courts in IL may replace a protection order with a "restraining" order W, despite the IL Domestic Violence Act's mandate to issue a protection order if the abuse is proven. After the DV survivor ended her relationship with the abuser he embarked on an escalated campaign of psychological and physical abuse, including shoving her head against a door and throwing objects at their family television. The judge found the abuse allegations credible, yet denied her an order of protection. Instead, he ordered a "restraining order to be put in place to manage the relationship between mom and dad" and stated that he was "hopeful that in the future there could be a friendship [between Ms. Sanchez and Mr. Torres]." Mr. Torres continued to abuse Ms. Sanchez, in violation of the restraining order, which, because it was not a protection order, was not subject to the prompt enforcement mechanisms reserved for domestic violence protection orders. DV LEAP and co-counsel Morgan, Lewis Bockius LLP represented several Amici, including DV organizations, legal services organizations and Chicago law school clinics. DV LEAP's Amicus brief argues that the trial court lacked the discretionary authority to deny ES a plenary order of protection and enter a restraining order instead. The amicus brief also explains that protection orders are specifically designed to combat the unique danger and complexity of domestic violence.
The Illinois Appellate Court issued a powerful decision affirming an individual’s right to a protection order (when she meets the statutory requirements) rather than a less severe remedy (a restraining order). Moreover, the appellate court stated: "Domestic violence is always alien to love; it humiliates, isolates, emotionally scars, demeans, and dehumanizes the victim, and frequently, children of the victim as well…Sanchez asked for an order of protection; she proved her entitlement to an order of protection; and the trial court should have entered an order of protection. The Illinois Domestic Violence Act deals explicitly and boldly with an issue that, sadly, will never be cured, but can be addressed through advocacy, awareness, and activism."
BT v. Chicago Housing Authority
Appellate Court of Illinois - 2015 Ill. App. Unpub. LEXIS 2213
The issue in this case was whether the Chicago Housing Authority’s decision to terminate a survivor’s participation in its Chicago Housing Voucher Choice program violated the Violence Against Women Act. In this case, the survivor tenant had a child with her abuser and allowed the abuser to visit the child at her home because he would become violent if she did not. After an anonymous tip, the abuser was arrested at the survivor’s home when she was not there and the police found an AK-47 in the back seat of his car. The survivor was accused of violations re: criminal activity of a “guest” and an unauthorized occupant. The hearing officer failed to apply VAWA protections for DV survivors. DV LEAP’s amicus brief (partnering with the Shriver Institute) argues that CHA’s decision to terminate the survivor’s Housing Choice Section 8 Voucher violates the purpose and intent of VAWA, the federal Fair Housing Act, and the sound body of literature on domestic violence dynamics. The amicus brief also demonstrates how the abuser was not a “guest” of the survivor under law, because she had no control over – and therefore did not consent to- his actions. The case has settled, in part, due to the strength of our amicus brief.
L. v. L.
Washington Court of Appeals – Unpublished
In this case the trial court refused to issue a full-term protection order and issued one for 57 days instead, in order to force the survivor to pursue divorce and custody in the domestic relations court. DV LEAP was asked to provide a national amicus brief to complement two state amicus briefs. We argued that short-term POs are unsafe, dis-empowering to survivors, and undermine the constitutional rights to parent one’s children and to access to justice. The case is pending.
Ms. C v. Mr. G
Maryland Court of Special Appeals – 437 Md. 67 (Md. 2014)
DV LEAP assisted this mother in finding pro bono representation for her appeal, as well as working with a different law firm on an amicus brief in support. The case concerns a damages award given to an abuser who sued the victim for “malicious prosecution” and other torts, alleging that her actions to obtain legal protection for herself and her child were malicious and illegitimate. The Court excluded her explanations about why she feared him and also adopted prior negative findings by a custody judge which ignored third party corroboration for her claims and her fears. DV LEAP’s amicus brief argues that the record makes clear the appellee was an adjudicated abuser and that her protective actions were presumptively legitimate, and that the custody court fit a pattern among family courts of demonizing mothers who allege a father is dangerous – which is not evidence-based.
Virginia v. Felecia Amos
Virginia Supreme Court- 754 S.E.2d 304 (Va. 2014)
In this case, the mother, whose ex-husband was abusive, was wrongfully jailed without due process, including any opportunity to object, to present evidence, or explain - by a trial judge who believed (erroneously) that she had perjured herself when she reported and testified to his harassment as a violation of his conditions of probation. While the VA Court of Appeals reversed, the VA Supreme Court granted review. DV LEAP's Amicus brief amplifies on the court's misuse of summary contempt in this case, and explains both the frequency with which abusers fabricate evidence against their victims, and how the tape recording he used in this case could easily have been altered. It also argues that this decision, if upheld, would set a dangerous precedent, which could subject future abuse survivors to untenable risks when they return to either criminal or civil court for violations of court orders.
Anthony v. Garrity
Maryland Court of Special Appeals - 65 A.3d 690 (Md. 2013); 54 A.3d 759 (Md. 2012)
This appeal arose from a malicious prosecution case filed by perpetrator of domestic violence against his victim’s daughter after he was prosecuted unsuccessfully by the Maryland State Attorney’s for a protection order violation, which the then 18-year old daughter reported to the police. DV LEAP filed an amicus brief on behalf of several MD domestic violence organizations arguing that if victims and witnesses become subject to malicious prosecution lawsuits simply by calling (in good faith) the police to enforce their protection orders, they will be chilled from enforcing these orders. Further, the amicus brief argued that upholding the malicious prosecution judgment invites abusers to engage in litigation abuse. Unfortunately, the Court of Special Appeals upheld the malicious prosecution judgment. The case was petitioned to the state’s highest court (COA); DV LEAP filed a second amicus brief in support of review; and a third amicus brief on the merits. To our dismay, the COA dismissed the appeal altogether (on grounds the issue had not been preserved at trial) after a vigorous oral argument.
Ms. H v. Mr. H
California Court of Appeals - 2012 Cal. App. Unpub. LEXIS 5884; 2012 WL 3289376
This appeal challenged a California court’s ruling permitting the father to sue the mother for the tort of malicious prosecution - after she had called 911, an arrest was made and charges filed over the objection of the victim, but the charges were ultimately dropped by the State. DV LEAP’s amicus brief argued that permitting malicious prosecution litigation against alleged abuse victims is an open invitation to sue their victims whenever they call for help. The brief urged the Court to explicitly extend the ban on malicious prosecution claims in family litigation to domestic violence 911 calls and reports to the police. The Appellate Division did not allow the brief, which was widely praised in the domestic violence community, to be filed. Unfortunately the Court of Appeal affirmed the trial court.
Ms. X v. Mr. Y
Virginia Court of Appeals - 2012 Va. App. LEXIS 15; 2012 WL 187916
This appeal challenged a Virginia court’s order requiring a protective mother to pay over $10,000 in attorney’s fees for seeking a protection order to protect her young daughter from her father’s abuse. This case was especially troubling because of the trial judge’s lack of legal analysis in imposing the attorney’s fees award upon the victim, the chilling effects these kinds of decisions can have on victims seeking to protect their children, and the fact that a different trial court had originally granted her a protection order on behalf of her daughter against the father. Her appellate brief argued that the trial court failed to articulate a factual basis regarding the reasonableness of the conduct of the parties, it erred in failing to comply with the attorney’s fees statute, and that imposing fees on a protection order applicant is contrary to the purpose of VA’s protection order statute.
K v. P
Maryland court of Appeals - 20 A.3d 112 (Md. 2011)
This appeal challenged a Maryland court’s vacating of a 10-day temporary protective order which had been issued on behalf of a young child based on evidence she was being abused by her father. The court vacated this order at the father’s request, without the victim present, and dismissed the pending long term protective order proceeding, based on the accused’s counter-accusations against the victim and an incomplete investigation/evaluation by the child welfare agency, which perceived the protective mother as unstable. DV LEAP filed an amicus brief arguing that the protective order statutory scheme which carefully balances the rights of the accused abuser and the alleged victim, is irreparably undermined if accused abusers can return to court before the contested hearing and throw out a duly issued TPO. The state Supreme Court granted review, but after oral argument dismissed the certiorari, thereby leaving the decision standing, without any decision.
W v. W
Colorado Court of Appeals - 2011 Colo. App. LEXIS 293; 2011 WL 883211
This appeal challenged a Colorado court’s transfer of custody of a young daughter from her mother to her father, who had committed domestic violence against her mother, and also engaged in troubling conduct with another child. DV LEAP’s brief on behalf of the mother argued that the lawyer appointed as the “Child’s Factual Investigator” violated the statute by providing legal opinions and recommendations, which were adopted verbatim by the court. The court of appeals reversed, but on different grounds. On remand, custody unfortunately remained with the father.
In re Muhammad v. Gilbert
Washington Supreme Court - 108 P.3d 779 (Wash. 2005)
This case, in which DV LEAP filed an amicus brief, concerned a trial court's penalizing a woman for obtaining a protection order by denying her a share of the marital property at divorce. The divorce judge denied the woman any share of the husband’s pension (marital property) on the ground that her protection order caused him to lose his job as a police officer and left him unemployed. The state Supreme Court correctly held that an order of protection could not be treated as grounds for denying a wife a share of the marital property.
Triggs v. State
Maryland Supreme Court - 852 A.2d 114 (Md. App. 2004)
This case, in which DV LEAP filed an amicus brief, concerned the severity of penalties available to an egregious violator of a protection order. The defendant here committed numerous violations of a protective order by repeatedly calling and threatening the victim while holding the children as hostages. The court found that the defendant properly received 18 consecutive sentences for his violations as opposed to merging them into one violation.
Debek v Batia
under CUSTODY & ABUSE above.