Posts Tagged ‘domestic violence’

Divorce Dilemma: Stay or Leave

Friday, October 25th, 2019

There is little question that many divorcing couples are faced with a tough choice…whether to leave the marital home.  Oftentimes in domestic violence scenarios, one has little choice.  What impact does this have on the outcome in a divorce?  Does the spouse who leaves forfeit marital equity as a matter of fact?  We will also consider not only domestic violence, but other related issues that commonly prompt one spouse to head for the door…adultery. 

One very common mistake we see is a spouse who alleges physical abuse but stays in the home anyway.  Usually this scenario occurs when someone has a small child and no real options on the table other than maintaining the status quo.  Verbal abuse and emotional damage that ensues are also commonly alleged.  They must be extreme and continuing or they are not legally actionable.  So, let’s take a look at two hypothetical scenarios regarding 1. Physical abuse, and 2. Verbal abuse.

Physical Abuse

Although men can certainly be victims of physical abuse, I am going to present the more common scenario in this hypothetical wherein a woman is the victim.  Too often, women are harmed by their spouse in moments of anger.  Although the #metoo movement certainly has some valid detractors, it also demonstrates that abuse, be it sexual or violent, is far too common.  There is also no question that some women will cry wolf in order to leave their husband for other reasons (found another lover for instance). 

As a society, the popularization of abuse claims is both a blessing and a curse.  As has been said, if it’s not paradoxical, it isn’t true.  Any woman who is being abused needs to have documented every instance, and that usually means doing the simple things first…calling the police.  When she fails to do so and then walks into chancery court and claims she was abused but stayed anyway, she has a tough hill to climb.  Photographic evidence is always helpful, but in the cases where she has close friends nearby, family who live close, the likelihood of her being impeached and found not credible increase significantly.  If she had no option but taking the young ones to the nearest Motel 6, she is on much stronger ground.  

In short, wives must always consider the totality of circumstances when alleging habitual cruelty when they remain silent.  If she was physically harmed multiple times in the marriage and failed to contact the police, she can often deflect any attempt to impeach by arguing that she suffers from Battered Wife Syndrome.  It is the only method that will have an effect on the court for the women that remained silent for too long and failed to leave their abusive spouse. 

Verbal Abuse

Accusations of verbal abuse occur in almost every divorce we have ever handled.  While yelling, screaming, and cursing can be a ground for divorce for habitual cruel and inhuman treatment (not inhumane, which is a slightly different term in the context).  Let’s look briefly at what would and would not constitute cruel and inhuman treatment.  It must also be noted that the word habitual is particularly important in divorce claims that allege solely verbal assaults. 

First, make no mistake that the verbal abuse must be extreme.  Getting into a couple of shouting matches will not suffice as a ground for divorce.  The tongue lashings must have persisted for a period of time that convinces the court you have been treated in a way that is inhuman.  In other words, you must have been treated with so little respect that no reasonable person could possibly endure the abuse.  This is what lawyers refer to as a subjective, rather than objective standard. 

It boils down to having to show the court that no reasonable person would be able to perform their marital duties under the circumstances.  If you can demonstrate that the hail of your spouse’s verbal bullets were both extreme AND pervasive, you have likely earned your way out of an unhappy marriage.  If you are seeing someone else (romantically of course) and simply want out, got into a few screaming contests, be forewarned:  you will not get a good result in court.

For anyone seeking a divorce, always remember that courts of equity are judging your every action and inaction of marital duties.  Even though only God can judge you in the end, make no mistake that you will be judged by a Chancellor in this lifetime.  At the end of the day, never forget that the person who is granted the divorce (and gets a better result) is the one who is less at fault. 

Although it is true that there is almost always blame to share, if you were decent and kind in marriage, the court will reward you.  The little things you were taught as a child can make a world of difference.  After all, what you really need to know most in life, and in divorce, you probably learned in kindergarten.

Domestic Violence as a Bar to Custody/Visitation Rights – or Not?

Thursday, May 31st, 2018

According to the National Coalition Against Domestic Violence, there are approximately 10 million people physically abused by an intimate partner in the United States every year. Unfortunately, 1 in 15 children are exposed to this violence and 90% of these children personally witness the incidents. It is no secret that the effects of domestic violence extend far beyond physical injury to trigger mental illness, substance abuse, and even suicide. With this in mind, courts typically find that it is not in the best interest of a child to be placed in the physical custody of a parent who has a history of committing domestic violence.

A “history” of domestic violence includes not only a pattern of abusive behavior, but also any isolated incident that caused “serious bodily injury” to a partner or another family member. However, it is not impossible for people with this kind of past to get physical custody of their children. In fact, a court may find that parental custody would be in the best interest of the child even if both parents have a history of domestic violence. According to Mississippi Code § 93-5-24(9)(a)(iii), the court may consider the following factors when determining whether or not physical custody will be awarded to a parent with a history of domestic violence:

(1) Whether the perpetrator of family violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child because of the other parent’s absence, mental illness, substance abuse or such other circumstances which affect the best interest of the child or children;

(2) Whether the perpetrator has successfully completed a batterer’s treatment program;

(3) Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate;

(4) Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate;

(5) If the perpetrator is on probation or parole, whether he or she is restrained by a protective order granted after a hearing, and whether he or she has complied with its terms and conditions; and

(6) Whether the perpetrator of domestic violence has committed any further acts of domestic violence

If custody is not awarded to the parent with a history of domestic violence then visitation may be allowed instead. Generally, the court can mandate any condition that it deems necessary in order to ensure the safety of a child during visitations. Conditions may include, but are not limited to, supervision of the visitation, parent’s restraint from drug and alcohol use during and for twenty-four hours prior to the visitation, or prohibited overnight visitation with the parent.

Another rather interesting option the court has regarding visitations is to require payment of a bond for the return and safety of the child. In other words, the parent would pay a fee to take the child and then receive the money back once the child was returned without harm… Compared to the alternatives, this option often seems a bit out of place. For example, one may ask whether the safety and welfare of a child is really guaranteed by the leverage of a monetary payment. However controversial this option may seem, it is rarely used and is usually a last-resort measure. We must trust the chancellors of Mississippi to use the highest discretion to apply this option appropriately.

“Ne Exeat” (Latin for “do not leave”) security bonds are used to ensure the safe return of a child by preventing another party from leaving, or removing the child from, the jurisdiction of the court or state. Although Mississippi lacks a statutory provision for these bonds, they could still be required through the use of a chancellor’s broad equitable powers.

Ultimately, parents may still be granted physical custody or visitations with their children despite a history of domestic violence. If you or someone you know has a question about the custody or visitation rights of a parent with a history of domestic violence, please don’t hesitate to call us. The Law Office of Matthew S. Poole is highly experienced in these types of situations and we would be happy to help.

Written by Jessica Jasper, J.D. Candidate, Class of 2020, Mississippi College School of Law