Briefs & Court Opinions

Domestic Violence Legal Empowerment and Appeals Project

RIGHTS LITIGATION PROJECT

 
Listed below are links to PDF documents related to a number of our cases:
 

Ohio v. Clark

United States Supreme Court - 2014 

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 out of court statements made to “mandatory reporters” because their status makes the child’s statements “testimonial” under the Court’s new confrontation rights jurisprudence.  DV LEAP filed an amicus brief supporting the State’s request for Supreme Court review, arguing (1) that many civil courts apply the Court’s confrontation doctrine even though it technically only governs criminal courts, and (2) that it is already very difficult to protect child victims of abuse in family courts due to those courts’ tendency to protect an accused father rather than an at-risk child.  If the Court grants review, DV LEAP will file another brief in support of the State’s position on the merits, with more focus on the problems in family courts.  

 

Lozano v. Alvarez

United States Supreme Court - 2013

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”. 

 

F v. Board of Freeholders

U.S. Supreme Court-2011

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. 

 

Robertson v. Watson

U.S. Supreme Court - 2010

This Supreme Court case deals with the issue of private prosecutions in domestic violence cases.

 

U.S. v. H

U.S. Supreme Court-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. 

 

Abbott v. Abbott

U.S. Supreme Court - 2009

This case concerns the problem of international parental abduction and the scope of the Hague Convention on Civil International Abduction.

 

Giles v. California

U.S. Supreme Court - 2008

This Supreme Court case involves the issue of whether a defendant can "forfeit" his right to cross-examination by causing the unavailablity of his victim.

 

Hammon v. Indiana; Davis v. Washington

U.S. Supreme Court - 2006 

This Supreme Court case involves the constitutionality of the admission of 911 calls and statements to police in domestic violence prosecutions.

 

City of Castle Rock, CO v. Jessica Gonzales

U.S. Supreme Court - 2005 

This Supreme Court case involves the constitutionality of police failure to enforce a protection order.

 


 

DC LEAP

D.C. Court of Appeals

 

Cromeartie v. RCM of Washington

D.C. Court of Appeals – 2013/14 

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.  

 

Jesus Ortega v. Ossama Elsharabassi 

D.C. Court of Appeals – 2013.  

This appeal challenges a trial judge’s refusal to enter a protection order on behalf of a male victim of male-on-male sexual assault, on grounds that the respondent convincingly denied being gay.  In addition to recruiting appellate representation for the petitioner, DV LEAP submitted an amicus brief explaining the profound error in the judge’s belief that the respondent’s denial of being gay was dispositive of the truth of the sexual assault.  The case is pending.

 

In re K

D.C. Court of Appeals-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 R

D.C. Court of Appeals-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.  This case is currently pending.

 

In re T

D.C. Court of Appeals-2012

This case involves 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' recent final decision in Robertson (discussed below).  This case is currently pending. 

 

In re J

D.C. Court of Appeals-2012

This case also involves enforcement of CPOs through criminal contempt actions.  However, this case raises a new issue concerning whether a judge may himself initiate a criminal contempt proceeding even when the victim is not seeking the contempt finding.  This case is currently pending. 

 

In re K

D.C. Court of Appeals-2011

This case also involves the victim's right to bring a criminal contempt enforcement action to enforce a Civil Protection Order (CPO).  This case is currently pending. 

 

Clark v. United States

DC Court of Appeals - 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 issue revisits the "consent defense" argument raised in the case that launched DV LEAP, Ba v. U.S.  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." The case is pending.

 

MR v JT

D.C. Court of Appeals - 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 - 2010

 In this case DV LEAP filed an amicus brief on behalf of a mother who had been ordered to pay thousands of dollars to the respondant, who had represented himself pro se.  The court took this opportunity to adopt a blanket rule that attorneys who represent themselves may not recieve attorneys' fees as a sanction against the other party.

 

E.J. v. D.J.

D.C. Court of Appeals - 2010

 This case provides an opportunity for the D.C. Court of Appeals to further strengthen its pronouncements that trial judges must apply the child safety provisions of D.C. Code Section 16-914 (a-1) to all custody and visitation cases.

 

In re Robertson 

D.C. Court of Appeals - 2008

This case involves the right of victims of domestic violence to privately enforce their civil protection orders.

 

Y v V

D.C. Court of Appeals-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 - 2008

This custody appeal challenges the court’s penalizing a battered mother’s decision to flee to another state by denying her custody and granting custody to the batterer.

 

Murphy v. Okeke

D.C. Court of Appeals - 2008

This case involves the re-victimization of the victim by the trial court, which issued a protection order against the victim to “protect her from herself” and repeatedly chastised the victim for “provoking” her abuser’s assault.

 

C.W. v. E.F.

D.C. Court of Appeals - 2007

This custody case involved the sexual abuse of a child by the father and established a powerful precedent requiring courts to place safety first and to give due weight to a history of battering when considering child abuse allegations in the context of custody and visitation.

 

Ba v. United States

D.C. Court of Appeals - 2002

This case involved whether a victim can “consent” to her civil protection order being violated.

 


 

CUSTODY & ABUSE PROJECT

 

Anthony Charles v. Anna Charles and Child Support Enforcement Agency

Hawaii Court of Appeals – 2013

DV LEAP’s pro bono attorneys represent the mother who suffered an extensive history of severe abuse by her husband, and whose children were awarded solely to the ex-husband who was also permitted to permanently relocate the children out of state.  The appeal was based on the trial court’s refusal to allow the mother to put on essential evidence bearing on the children’s safety, including the history of abuse.  Unfortunately, the intermediate appellate court did not reverse the trial court’s decision.  (Though DV LEAP is no longer involved, a petition for a writ of certiorari was submitted to the Hawaii Supreme Court).

 

O’Malley v. O’Malley

8th District Court of Appeals of Ohio – 2012

This is 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 has 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.  An appeal to the Ohio Supreme Court is pending.

 

Harris v. Harris

California Court of Appeal – 2012

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 – 2012

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 1st, 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.

CA 2011

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.  This case is currently pending. 

 

Ms. G v. Mr. G

VA 2011

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 historyof 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-2010

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. 

 

J.A. v. P.G.

MD 2009

This MD Court of Special Appeals case addresses a critically important avenue towards safety and empowerment for domestic violence victims: the ability to enforce civil protection orders through the criminal justice system without suffering retaliation from their abusers.  This appeal arises from a malicious prosecution case filed by a perpetrator of domestic violence against his victim's daughter after he was prosecuted unsuccessfully by the Maryland State Attorney for a protection order violation which the then-18-year old daughter reported to the police.

 

Mrs. O v. Mr. O

AR Court of Appeals 2009

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.

 

 

  • Court decision on custody
  • Court decision on protection order

 

Mrs. R v. Mr. R

TN Court of Appeals 2009

This Tennessee appeal represents the all-too-common phenomenon of battered women losing custody of their children to their abusers.  DV LEAP 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 teh Tennessee Code provisions that were enacted to protect victims of domestic violence and their children.

 

L.H. v. I.M.

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.

 

Debek v. Bhatia

Connecticut Court of Appeals - 2008

This case concerns the misuse of the tort of “malicious prosecution” against a mother who sought to protect her daughter from the father’s sexual abuse.

 

Licata v. Licata

New Jersey Supreme Court - 2002

This case involved the court’s reliance on the pseudo-scientific theory “parental alienation syndrome” and exclusion of an expert on domestic violence.

 

See also

P.F. v. N.C. and C.W. v. E.F.

under DC LEAP above.


 

ALL STATES LITIGATION PROJECT

 

Chelle v. Ghazzaoui

Maryland Court of Special Appeals – 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- 2013

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 court.

 

Ms. H v. Mr. H

California Court of Appeals-2012

This appeal challenges 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 accept the brief for filing, but it has been widely praised in the domestic violence community, many of whom signed on. 

 

Ms. X v. Mr. Y

Virginia Court of Appeals - 2011

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-2011

This appeal challenged a Maryland court's vacating of a 10-day temporary protective order which had been issued on behlaf of a yuong 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 percieved 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 certioari, thereby leaving the decision standing, without any decision. 

 

C v. W

Colorado Court of Appeals-2011

This appeal challenged a Colorado ciurt'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 behlaf 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 demand, custody unfortunately remained with the father. 

 

In re Muhammed v. Gilbert

Washington Supreme Court - 2005

This case involved a decision by the trial court to deny a victim any share of her husband’s pension, which was marital property, on the ground that her protection order caused him to lose his job as a police officer.

 

Triggs v Triggs

Maryland Supreme Court - 2003

This case concerned the appropriateness of a sentence of 18 years in jail for 18 separate violations of a protection order against an abuser who had held the children hostage for days while tormenting the mother by phone; the brief discusses major risk factors of lethality

 

See also

Debek v Batia

under CUSTODY & ABUSE above.