Both men and women can be victims of domestic violence - and the evidence can be overwhelming sometimes. But when is it best to push your DV case forward in front of a judge? And when does it not serve your best interests in the long run?
In this episode of the Modern Divorce Podcast, your host Billie Tarascio talks with Family Law Attorney Julie LaBenz about when and how to press your case, particularly if you're doing it without an attorney. They'll explain what to expect and how to maneuver the courtroom when a judge may not necessarily think it's in a child's best interest to name one of the parents as abusive. So frustrating, right?
If you're dealing with a DV case, no matter what side you're on, this is a must-listen!
Today's episode is brought to you by our sponsor, Soberlink.com/modern, offering $50 off their device to help litigants prove - or disprove - sobriety, when it really counts. You can also find out more about how to represent yourself in court from Billie and Julie, at WinWithoutLawSchool.com.
Myths and Truths on DV - Topic
[00:00:02] Billie Tarascio: Hi there. Welcome. I'm Billie Tarascio. This is Julie LaBenz. How's everybody doing today?
[00:00:45] Julie LaBenz: We're doing awesome. Billie and I are lawyers in Arizona. With, gosh, nearly two decades of experience now, , we were two of those, you know, went straight from [00:01:00] college to law school and started practicing law. So, yeah. You know, even though we aren't, you know, seniors or anything, we are very experienced in the law and we've been doing this.
We're our, in Arizona, we're
[00:01:13] Billie Tarascio: in our prime . Yeah.
[00:01:17] Julie LaBenz: So Billie, what do you wanna talk about today?
[00:01:19] Billie Tarascio: Well, today we're gonna talk about domestic violence. It's great because I've got, I've got stuff I wanna talk to you about, I wanna get your ideas on. I've got strong feelings and I think it's a complex issue, and so I really wanna talk to you about that.
Wanted to know how's, when without law school going. I know that our members are up, our, our number of subscribers are up. Tell me how it's going.
[00:01:39] Julie LaBenz: It's going really well. We are coming into the end of the 10 week teaching series where I've gone through how to represent yourself in a case from start to p, from start to finish, whether you're in a Divorce custody establishment or a post to career post order case.
And then also along the way we've talked about [00:02:00] more in depth on trial skills as well. So this week we talked on Monday about discovery. And then on Tuesday and Wednesday we talked about your settlement options. You know, your case is pretty far along, you've engaged in disclosure. What can you do now to try to resolve it and save yourself from, you know, facing a trial?
And so we went through that. And then in the final weeks of when without law school, we'll go more in depth in on trial skills and what to expect in pretrial statements. You know, we already have a ton of content on that topic already, so obviously conducting yourself in court is one of the most challenging things for a self-represented party, and we have so much material on that point.
[00:02:46] Billie Tarascio: That's great. I don't think that there can be too much, and I've looked There are, there is a lot of information, but I love the way it's organized in a way that is digestible, consumable, and learnable so that you can actually apply it to your case. And I love hearing from our members about how it's [00:03:00] working.
[00:03:01] Julie LaBenz: Yeah. And Billie, you did a workshop last week, so tell us about that.
[00:03:04] Billie Tarascio: It was great. It was great. So we had three different members from when without law school workshop, their issues. So we talked about their case, we talked about roadblocks. We brainstormed about like where, what they needed to prove, how they would get there.
We talked about different discovery options. We talked about different tactical options. It was really, really good because there's no way that somebody who's representing themselves can be looking at things. The same way as getting your peers involved, getting an experienced attorney involved, just getting other perspectives.
So I think it was super valuable.
[00:03:37] Julie LaBenz: Yeah. I love the group dynamic. Mm-hmm. , because you'll get so many different. Perspectives, not just theoretically, but what people have actually lived through.
[00:03:46] Billie Tarascio: Yes.
[00:03:47] Julie LaBenz: And how they felt when something happened or their experience, or how they solved a certain problem. So the group dynamic is really
Yeah, it is.
[00:03:58] Billie Tarascio: For those of you just joining us, [00:04:00] Julie and I do this every single Thursday. We've got a topic of the day. We talk about that for about half an hour, and then we field your questions so you can leave your questions on TikTok on our Facebook group if you wanna make sure that you can watch the last ones, you need to join the Facebook group that's decode your Divorce and all the usual disclaimers.
We're not your lawyer. This is not legal advice. It's just legal information. Seek out a lawyer in your jurisdiction for actual legal advice if you need it. So today's topic is domestic violence. This has been. I'm, I'm excited to talk about this because usually when I talk about this, we talk about the statute, but I don't wanna talk about the statute.
Mm-hmm. , I wanna talk about practically what I see happening and, and what we can possibly do about it. So let's start with this, and I've gotten permission from my client to discuss this. Earlier in the week, I did a deposition of a doctor who had done a comprehensive family assessment. In this comprehensive family assessment he wrote, [00:05:00] There was overwhelming evidence that my client had suffered domestic violence, sexually financially, coercive control.
We had an expert report. There were witnesses that said, you know what? My client said it was pretty obvious, but this, the finding in the c f E did not say that. The finding said well, There's allegations of DV by both parties during the marriage, cuz dad would say, you know, well, mom did blah, blah, blah, blah, blah.
And so neither one of them. And because they're both loving parents and there's no allegations of child abuse neither of them should be awarded a benefit of the custody presumption. So, and I see this happen in court all the time, all the time when judges will say, Basically do whatever they can do to avoid applying the presumption that exists against giving legal decision, making joint or soul to someone who has committed significant domestic violence.
[00:06:00] So I did this deposition and the evaluator admitted it. He admitted that, yes, he knew mom was telling the truth. Yes, he knew dad was abusive multiple times, but he really thought it was best for the kids to. Have mom and dad involved as much as possible, if not all the time. And he knew that by making a finding of domestic violence, that he was creating that impediment for dad.
And he didn't believe that that was in the best interest of the children. So what has happened is you may have heard of the law, Caden's Law, have you heard of this? Mm-hmm. . Okay. Do you wanna describe what that is? No, go ahead.
ahead. Okay. So you know how sometimes laws get proposed in multiple states that are named after somebody because they're a group gets together and proposes a law.
Caden's law was. Came after a little boy named Caden who was killed by his father in a [00:07:00] post Divorce situation where mom had been sounding the alarms of domestic violence. The court knew about it. They still gave him unsupervised parenting time, and the child died. And, and that's not an unusual story.
And because it happens more than sometimes because it happens with some frequent regularity. That's where you get these custody presumptions. That's where you get the laws, like the one we have in Arizona. So we have already the ideal law that they're trying to get passed in other states that creates presumptions and protections for children.
That law exists. It's a R S 25 4, 0 3, 0 3, but because that law and its presumptions conflict,
Other evidence and cultures and presumptions regarding co-parenting and moms and patriarchy, [00:08:00] like, what I'm seeing play out is I'm seeing judges and evaluators literally work around the law to avoid its consequences. Are you seeing this?
[00:08:10] Julie LaBenz: No, I'm not seeing it on the level you are. You know, obviously things in Maricopa County are different, but I have throughout my career experienced this just true fact that the courts are reactive.
They don't necessarily take proactive steps to protect children. They more react after something bad has happened. . And so I can see where you're, where this is happening in a lot of your cases where the courts are like, well, that happened in the past. Let's start fresh and see how it goes. And that, see how it goes, unfortunately, often puts the children at risk and, and this happens over and over again and I tell my clients it's like, yeah, we likely are gonna have to wait unfortunately until something bad happens to [00:09:00] your child before we have a strong enough case to get the court to change.
[00:09:06] Billie Tarascio: and in the case that I was just talking about with the C F E, my client isn't even trying to restrict dad's parenting time because there is evidence that he is a good dad. She doesn't really have concerns, you know, I said sexual financial, coercive control. She's not even trying to restrict his parenting time, but they had to call her a liar.
in order to avoid the presumption against joint legal decision making. Like that's a problem. That's a problem. And then in another case, I was talking to a client who's been a client at Modern Law for a long time, and she got this ruling where this judge basically accuses her of alienating and making things up for things that have happened over the years.
When she wasn't even the one to call dcs, like other providers call dcs because of actual real concerns. But I think what's happening is you've got studies that show that generally speaking, equal parenting time is best for children.[00:10:00]
That those studies. And so courts and judges and psychologists are trying to incorporate that reality and they're having, I think, a really hard time balancing the other reality, which is how do we, how do we actually assess for risk and how do we apply the child support the domestic violence statute?
Because you could be applied without calling my client a liar. You can still go through the. And find that domestic violence happened between the parties and also follow the steps and, and find that parenting time is not a risk. And here's how we are accounting for that. That's what the statute says, but that isn't happening.
And instead, I see women being called liars
[00:10:46] Julie LaBenz: The statute refers to significant domestic violence, but I don't believe I've ever found a definition of that either in the criminal statutes or in the family statutes. So we're supposed to prove [00:11:00] significant domestic violence, but we have no idea what that actually means.
[00:11:02] Billie Tarascio: Right. And I think in working with. Enough of these cases and enough of these experts, I think what it is, and reading, so I've read a lot of the, like a p a guidelines for child custody evaluations. There's a difference between a pattern of intimate partner violence, which includes coercive control. It includes financial manipulation.
It's a, it's a relationship dynamic of power imbalance. And I think that that. Which continues after the Divorce is a risk to the co-parenting relationship and to the children and to the victim. And so that is where you really need the protection of final legal decision making because of the power dynamic.
But when you have two couples who don't have a power dynamic imbalance and they might have had some heated arguments and pushed one another, there isn't, that's not significant. Domestic violence insofar as it would risk the ability for people to co-parent successfully [00:12:00] after Divorce. That's just my own
[00:12:02] Julie LaBenz: theory.
Yeah, and I think a lot of people don't understand you know, this spectrum of domestic violence because if you get into a fight with your spouse or co-parent and you yell at each other, technically that is domestic violence. That's disorderly conduct per domestic violence. Disturbing the peace.
Of another person.
[00:12:25] Billie Tarascio: Yeah, it could
[00:12:26] Julie LaBenz: be. So, and, and that can happen a lot. And so I think that judges are kind of looking at, okay, was this a yelling fight between mom and dad? And if it was, then they wanna know were the kids present. Mm-hmm. , whether or not the children observe the domestic violence is a big deal for the courts.
I've found that versus just being behind closed doors. And. You know, then there's allegations of, you know, oh, I was injured. But then, okay, is that an accurate picture? Is that really what happened? Is that a bruise from that? Or sometimes there'll be bruises on [00:13:00] the children, which can be really tough because children get bruises all the time.
So is that evidence of violence or is it just evidence of a child being a child? So proving. The domestic violence can be tough, especially if you don't call the police and there's no actual police report or criminal charge. Mm-hmm. , so I, I agree with you Billie, that it needs to be a very strategic decision and even if you have a ton of evidence, you may still wanna come to the negotiating table and find some way to work things out.
[00:13:30] Billie Tarascio: Yeah, and I do think it really comes down to, you know, in litigation, You have to decide if, if are your kids in danger? And if they're not, is it worth it? Even if you were the victim of domestic violence, is it worth it? And that is an individual decision because for some women getting out of these relationships, they're done being silent, they're done.
They're not going to say, no, I wasn't the victim of domestic violence. They know they were. They have [00:14:00] proof they were, and they're just unwilling to. Because it's a required statement. The statement is were, you know, was there domestic violence in your relationship? When you, when you get a Divorce, you have to write it down.
And I've had clients who are like, I'm not gonna write, no, it happened.
[00:14:18] Julie LaBenz: Interestingly, I've probably represented more men falsely accused of domestic violence. That happens too in my career than women who were victims. And I had a case that actually went all the way to the United States Supreme Court that started out with mom.
Going to dad's house, having a little pool party and hitting dad with a beer bottle, and then calling the police and saying that Dad did it to her. Wow. And this unleashed years of litigation. . And ultimately we were successful, but of course my client was arrested. He was charged with domestic violence.
He had to face the criminal case, and then she used all of that to get sole custody of the child on a temporary [00:15:00] basis. Like we had so much stuff we had to undo because everybody believed her initially. and eventually we did undo it and my client ended up getting sole custody and the daughter recently graduated from high school and has an amazing relationship with her dad.
And the mom totally disappeared in the long run. So it, it somewhat worked out, but for a while there it was really tough and tens of thousands of dollars in legal fees undoing everything.
[00:15:27] Billie Tarascio: Because to prove it happened or it didn't happen. You know, either way, if you are proving you've been falsely accused or proving it happened, either way is a massive undertaking.
Massive. You need, you need evidence. Like proving somebody's a liar is hard, but you can do it. How did you end up proving that this, that this mom was a liar?
[00:15:48] Julie LaBenz: So, gosh, this was so many years ago, so I don't remember exactly what we did, but a lot of it, Really taking apart the police report. Mm-hmm. [00:16:00] and finding every little issue with it that wasn't completely accurate.
Bringing in other evidence to show the truth and then really showing how this was just a facade to try to take the child away permanently. Mm-hmm. and So there was a lot to prove it. And it, it took a long time too. It wasn't like we had one hearing and all of a sudden the truth was revealed.
Right. It took a long time and it took mom kind of getting crazier and crazier for people to be like, okay, yeah, something's not right here.
[00:16:29] Billie Tarascio: Yeah. I, I also think one of the most Convincing aspects to me is like, who is this person with? Others? Like if the picture that's being painted of this person is so different in the relationship than it is with the rest of the world, you can kind of tell that they're lying.
Versus does, does, does mom have conflict with everybody? You know, is this the first time mom's been accused of, of this sort of thing? Or is it part of a pattern? Because really these are, these are personality traits that are not [00:17:00] unique to one relationship.
[00:17:03] Julie LaBenz: Yeah. And you know, I always encourage people to.
Get out of the relationship as soon as possible. You know, domestic violence starts somewhere, be it verbal, emotional, sexual, financial pushing. And so this is really a matter of self worth, you know, beyond the court system. Beyond all of that, I think that you know, you really need to find your self worth and decide when enough is enough.
And of course it's not always that easy if you're in financial bondage and you know, all these other reasons. But ultimately expecting the court to solve your problem isn't always gonna be your best bet. Unfortunately, I wish I could say, oh yeah, just go to the court and they'll figure it all out for you.
But you never know you have this, you know, your client who had amazing evidence, so much [00:18:00] proof of domestic violence and it, it didn't end up really changing the outcome. It. Increase the litigation it sounds like. So, you know, obviously arguing in court, presenting your case, protecting your children is all important.
But sometimes you have to really find the inner strength and do what you need to do on your own because the courts may or may not back you up.
[00:18:23] Billie Tarascio: Oh, I completely agree. Another thing that I have learned is the process that takes someone from being, you know, a healthy. Normal individual to someone who is a real victim in a very coercive, controlling, terrible relationship who allows themselves to be treated terribly is the same psychological process as any other grooming process.
Mm-hmm. , it starts with boundary breaking. It starts with embarrassment and shame. It's the same thing. And so if you are in that situ, If you are, if you know that you're in a relationship that's not right, that you [00:19:00] know you're not being treated well, understand this is not going to get better. It is not going to get better.
It is only going to get worse. And ha having children with somebody who treats you that way, sets you up to be connected with them in a toxic, terrible relationship for a long time. And I know it's so much easier for people on the outside to say, mm-hmm , but maybe somebody's listening who needs to hear.
[00:19:24] Julie LaBenz: Yeah, I mean, definitely. And, and I think it, when you're in that situation, you need to be really cognizant of how you are conducting yourself. Because if the other side is super manipulative, they could start a fight, call the police, blame it on you, and now you are in handcuffs. Yeah. So, and especially if the kids are around, you're not gonna wanna engage in a big fight with the kids there.
Because that can be used against you. And so I think you're gonna have to really separate reason from emotion, which is obviously really tough in these situations, [00:20:00] and start creating an exit strategy. Because if you're gonna stay in this place that's highly toxic and highly volatile, it just, it's not gonna go well.
There's going to be friction confrontation. And so what can you do to. Separate yourself or to start getting out of that situation and avoid the domestic violence if possible. I mean, obviously it's like you said, it's easier for an outsider to talk about, but this happens for both genders. I'm not just talking to women because there could be violent women too that prey upon, you know, weaker men.
And it's really a tough dynamic for men because. They're supposed to be the tough guy. They're supposed to not be abused by a woman physically, or I think even emotionally is really the, the societal norm. And so I have so many cases too, where men will be like, oh, it's okay. You know, like they [00:21:00] don't want to push it because it's kind of embarrassing to be like, yeah, my, my wife abused me physically, you know, so.
I really think you've gotta analyze the situation and do what's best for yourself, which likely means separating as soon as possible. And you know, one thing that you, that the court can help with is getting money on your side. If you leave, especially in a a Divorce context, you can petition the court and ask the court to order the other side to give you money for spousal maintenance, for division of liquid assets for attorney's fees.
And so, you know, even if money's an issue, that may be something to consider. Okay, what can I do at least to go to the court to get some money so that I can have more independence?
[00:21:47] Billie Tarascio: Yeah, and the other thing to consider is there are diverse funding agencies that will give you an advance on your community property.
So let's say that you don't have access to. [00:22:00] And in Maricopa County, it's hard to get the courts to give you enough money to actually litigate your case. There are companies that will give you a, an advance on your, you know, let's say you've got $200,000 in equity in your house. They might give you 40 or 50% of that that you can live on, that you could use for litigation, and then they get paid out of the house proceeds.
It's pretty cool.
[00:22:22] Julie LaBenz: Yeah. Those services have popped up in the last, I don't know, 10 years or so, five 10. And they're expanding just because of this problem with one side, grabbing onto the finances and holding on, and it, it becomes a problem until things are finally settled up. Mm-hmm. .
[00:22:40] Billie Tarascio: Mm-hmm. . So we're not gonna go over nuts.
And, oh, actually there's one other thing I wanna talk about. You are in a high conflict abusive situation, but you're still having equal parenting time and maybe this person is not abusive to the children. Let's talk about parallel parenting. [00:23:00]
[00:23:02] Julie LaBenz: So this is all about how you craft your parenting plan.
Are you gonna craft it so that you and your ex need to communicate all the time and that you see each other at every exchange? Or are you gonna set things up so that the exchanges happen through the school or through daycare or through sports and then maybe you're only communicating through My Family Wizard or something like that.
So yeah, there are some other options, and I believe that's what you're referring to as parallel parenting, where you each just have your time, you do your thing, but then you really don't have any face-to-face or any real communication. .
[00:23:40] Billie Tarascio: Yeah. Yeah. You set up the parenting plan so that the two of you can parent as independently and with as little communication and interaction as possible.
So you wanna think about, you know, how are these finances, you know, even things like the, who's paying for what, like you can design that in your parenting plan so that there [00:24:00] are no questions, there's no need to talk. You know, you can, you can get ahead of parenting issues and remove potential. . And so when there is a, a high conflict or, or you know, a very difficult person, that's what you wanna try to do is lock it down and create practical barriers, not legal barriers, because you can't count on people to follow the court order.
You cannot count on people to follow the court order. So you wanna come up with ways that things just automatically happen. Like for instance, the daycare agrees to just bill this credit card for half this credit card for half or whatnot. That's just one example.
[00:24:40] Julie LaBenz: Yeah. And then if you can get counseling for you and your kids, you know, try to start healing from the situation because there is a lot of emotional damage done,
[00:24:52] Billie Tarascio: big time,
[00:24:54] Julie LaBenz: big time, and you don't wanna recreate the same relationship you just got out of.
You need to [00:25:00] heal so that you don't recreate the same thing again. Yeah. I wanted to just briefly touch upon orders of protection, domestic violence and family law because they all, oftentimes domestic violence starts there, or at least in the legal realm. There's an order protection based on a domestic violence incident, and then that is wrapped in to whatever family law case is either pending or is later filed.
So then the court is looking at, okay, now there's a order of protection in place. And that was, you know, they got that issued by a court, which shows they met a standard showing that domestic violence either occurred or is likely to occur. And from there, I mean, when you get that order of protection, you can get exclusive possession of the house.
Yeah. You can get exclusive possession of pets. Mm-hmm. , you can then take that into the family law. And get custody orders based on it. So [00:26:00] oftentimes that's how the or, or that's how domestic violence really gets incorporated into a family law case. And that's also where some of the most shocking things can happen because you can get kicked out of your house , you know, on that order of exclusive possession based on the other side, getting an ex parte order without you even being present saying that domestic violence occurred and now I need sole possession of the house.
Those order protection, the when an order protection is issued, depending on its terms, it can really shake things up.
[00:26:31] Billie Tarascio: Absolutely. And you need to be careful because if the court later thinks that you used this in a manipulative way to, and it wasn't appropriate, that could come back to haunt you. So you really want to make sure that it is app.
[00:26:47] Julie LaBenz: And if you already have an underlying custody order, the order protection can really make things a little nutty because. There's all these rules within the order protection rules about [00:27:00] how a lower court can't change a custody order, and so they can only do certain things in the lower court, and then it needs to get transferred to the higher court to actually make final rulings about how the order protection and the custody on the custody order work together.
And so it can procedurally get pretty complicated. .
[00:27:21] Billie Tarascio: Yeah, absolutely. And I mean, if the, if the Order of protection says that they have to stay away from the school and they have parenting time like that, that can be really hard. It can make exchanges hard, like, but you can have an order of protection that does protect you and that still allows for co-parenting and exchanges and drop offs.
You absolutely can, you can have an order of protection that allows for exchanges at certain times, communication about the kids and those.
[00:27:49] Julie LaBenz: Yeah, they do. Especially to calm things down. Yeah,
[00:27:53] Billie Tarascio: the boundaries. Like if you have somebody that will not respect any of your boundaries and their behavior [00:28:00] constitutes domestic violence, which it might, even if you don't think it might, it might.
You know, for texting you a hundred times, that's harassment. Yeah. That you may have tried to set that boundary. You can get an order of protection that makes that stop. I love that . I mean, it shouldn't take that, but I love that that's there for people who need it.
[00:28:20] Julie LaBenz: And then the person served with the order of protection can request a hearing, and you only get one hearing to either modify or seek to dismiss the order.
And the person who filed the protective order or the petition for protective order, they have the burden of proof. So they go first. They have to explain, you know, why the issuance of the order was justified, how they met their burden. And then the other side gets to, you know, cross-examine, present other evidence, and try to show that it wasn't valid.
Now this can get really hairy if gun rights have been, you know, denial of somebody's gun rights has been [00:29:00] brought up because if you request a hearing and you lose. Then there's additional repercussions on your gun rights, and so you kind of have to be strategic about whether or not you're going to request the hearing and how confident you are in your evidence.
But I've had some people decide to just leave the order in place even though they didn't really want to, because. They didn't want additional repercussions on their gun rights other than them being away for the year. But I, there's something else that can happen if you challenge it and lose. Yeah,
[00:29:30] Billie Tarascio: and I'm not entirely clear on this, so I also practiced in Oregon.
And in Oregon it was automatic. If you had an order of protection against you, you couldn't own guns. Period like that, but it's not that way in Arizona. Mm-hmm. , it's like it only applies sometimes, and I don't know when those
[00:29:43] Julie LaBenz: times are. Yeah. The petitioner has to request it. I will. And if they request, the judge has to ask some additional questions.
Okay. And then the judge can decide whether or not it's prudent to take away the guns, and then they're supposed to be turned over to the local [00:30:00] police or sheriff and held there for the duration of the order. So I know guns are really controversial. And obviously there's good cause to take guns away in certain mm-hmm.
situations, but then you also have a situation where you're a responsible gun o owner. Maybe you do hunting with your kids or something and now you know you're stuck because you got into one yelling match with your wife or something. I think just you have to look at all these different angles. And if you're the one petitioning, I think you need to look at that too.
Like should I check that denial of gun rights box or not?
[00:30:37] Billie Tarascio: There's a professor at asu Jill Messing, I'm trying to get her on my podcast and she's currently doing research on developing proper risk assessments. And I think that that's really what this comes down to is, is we don't know how. At this point, societally, judicially, family court wise to properly assess for risk and then make [00:31:00] orders that that protect kids and other parents.
We don't know how, we don't know how to know always who's telling the truth and who isn't and what the consequences should be for whatever level of domestic violence is present. And I think that with more research and with more education, we will get there. At least that's what I'm hoping.
[00:31:19] Julie LaBenz: Yeah, it's definitely a fine line because the court's looking at due process.
Mm-hmm. and, and the real evidence instead of speculation, and that's where it becomes difficult for the courts.
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