On Friday, March 11, 2005, I attended a meeting of the Association of Multidisciplinary Professionals Serving Families and the Parenting through Divorce Committee of the Fourth Judicial District, Colorado, as a stand in, and at the expense of, a local attorney. About 70-80 individuals were present with about two thirds of them attorneys. Others present included special advocates, court appointed special advocates (CASA), child protective services, and mental health professionals.
The afternoon session was a panel presentation chaired by Magistrate Jann DuBois. The panel discussion was centered on the following scenario that Magistrate DuBois stated was something she saw virtually every day in her court.
On Friday, January 7, 2005, Mary and Scott got into an argument after Mary was out late at the bar with friends. After hearing loud voices, one of the neighbors ended up calling the police. After meeting with the parties separately, the police removed Scott from the house with an emergency protective order. This was after Mary advised the one officer that she feared for her life and the lives of the children. Note: The parties have a history of arguing around the children and the police have been called on many occasions.
On Monday, Scott filed a dissolution and an ex parte motion for parental responsibility of Allison and Scotty, alleging alcohol abuse and erratic behavior by Mary, their mom. Also on Monday, Mary filed for a Temporary Protective Order in County Court alleging a history of domestic violence against both her and the children and requested supervised parenting time for Scott through CASA.
Questions for panelists (panel included special advocates, children's legal representatives (CLR formerly GAL), child abuse special advocate (CASA), local shelter executive (TESSA), divorce attorney, and child psychologist):
4. Does the current legal system serve to protect the best interest of the children? If not, what suggestions do you have for improving the process? Keep in mind the new 16.2 requirements (court rule that deals with responsible attorney).
Each panelist then was given 5 minutes in turn for each of the questions based on the above scenario. I will leave it to the imagination of the reader as to the litany of feminist rhetoric on domestic violence and how each group could do so much to "help" this family and the children. Of course Scott was the problem and Mary was driven to drink by his abusive behavior in the minds of most of the panelists.
It was not surprising that no panelist considered the civil liberties issues of the above scenario. Before going to that topic let me put forth some suppositions from what the EJF so often hears about in these cases:
(2) This is not the first time by a long shot that Mary has been out drinking with "friends" and came home drunk.
(3) The police found no evidence of actual violence as no arrest was made on this, or previous occasions. Note that marital arguments have now become domestic violence and justification for taking a man's children from him.
There is no more fundamental liberty for a man than the right to be safe and secure in his home, free from intrusion of police or other unwanted intruders. The midnight knock on the door by police, who enter unbidden, is the hallmark of tyranny.
The Fourth Amendment and other parts of the Constitution are based on the ancient doctrine of "A man's home is his castle," where no agent of the State may enter uninvited without a warrant from a duly empowered court that is only issued "upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Yet here we have a man taken forcibly from his home in the dark of night by police acting on no more than hearsay from an anonymous informer and unsubstantiated statements made in anger by a drunken woman.
Some 50% of DV arrests are made on no better basis than this. While one might grant that domestic violence and abuse is a social problem deserving of remedy and relief, should we abandon a basic liberty stretching back to the Magna Carta to address this problem?
The magistrate also described walking down the halls of the courthouse and overhearing attorneys telling their clients to get restraining orders and how to do that. An ethics presentation was part of a working lunch that preceded the panel discussion, and the attorneys obviously needed a refresher course on that subject as subornation of perjury cannot be tolerated in an officer of the court.
Despite all evidence, however, the panel felt that false allegations were uncommon and rarely made. However, statistics from the Colorado State Court Administrator show that the 4 th Judicial District (includes El Paso County) issues restraining orders two times as frequently as comparable jurisdictions (1 st , 18 th , 20 th Judicial Districts). The inference is that at least half the restraining orders here are false allegations.
As the home was apparently peaceful and quiet until Mary came home drunk, she is clearly the root cause of the disturbance. Thus, if to establish peace and order the police are to be empowered to remove a party from their hearth and home, should it not be the party causing the disturbance who is removed? Yet we know of no case, though they must exist, of an emergency protection order being served upon a man in such circumstances.
There can be little doubt that a man's most cherished possessions are his children. Yet here, and in thousands of other cases we have used the unbridled power of the State to drive a man from his children and home into the freezing cold in the middle of a winter night because his wife came home drunk and disorderly. Such actions hardly amount to equal justice for all.
As Scott rushes to file for divorce after the restraining order there is little doubt that the legal system destroyed whatever chance this family had for survival. While roughly 80% of couples attempt to stay together after DV and abuse allegations are made, the long term (2 years) survival rate is virtually zero once allegations of domestic violence or abuse are leveled. In 2004 there were 2,035 civil restraining orders and 3,265 criminal DV restraining orders issued in El Paso County. This is 1% of the intimate relationships in the county destroyed in a single year by these draconian actions. Obviously, some of these relationships should end but is the above scenario the best we can do? If left alone, most couples sort out their problems quite well.
The effects on the children of high-conflict divorce spurred on by the greed of the legal system are undisputed: Allison will likely become a teenage single mother, Scotty may well end up in prison. Both children are likely to have problems with substance abuse. Both will perform poorly in school and likely drop out, and both will almost certainly be dysfunctional citizens unable to ever establish a long-term relationship and family of their own.
Remember, these cases are typical of what the magistrate says she sees every day at the rate of about 10 per day. How much could such carnage be reduced by due process and restoring civil liberties? And would this really be a high-conflict situation if kept out of the adversarial arena of a courtroom?
While the panel went on about mental health issues, child abuse, the negative impact of marital discord on children, and the complexities of domestic violence, not one looked at the obvious possibility of medical and biological problems that commonly underlie relationship problems.
As the panel was finishing I did manage to ask why no one had considered the possibility that a woman with a 1 1/2-year-old son who was working full time might be suffering from post-partum depression, and the alcohol problem a form of self medication for that? Restraining orders are not proper treatment for post-partum depression and quite likely make the condition worse.
I also pointed out that, although we aren't given Mary's age, after 15 years of marriage she could well be entering the change of life with resultant emotional problems. Hormone replacement therapy (HRT) would then be a much better treatment plan than a high-conflict divorce.
Treating Mary's medial conditions first might well save the marriage and the children without court intervention. The problem is how can individuals and couples be introduced to needed medical treatment without dragging them into court and destroying the family in the process? Education would seem to be a much better answer than labeling every marital quarrel "domestic violence."
But Mary's possible health problems may not be the only issue. At the Equal Justice Foundation we commonly hear from men who have been disabled by accident, war, or disease, and marital relations suffer as a result. Suppose Scott is in a wheelchair, or impotent as a result of being wounded in Iraq? Mary is then taking out her frustration by drinking and carousing. Yet under current law Scott is the one thrown from his home, and often jailed without vital medications, because Mary drinks to quell her frustration.
Also, channeling all available resources into adversarial court proceedings makes it virtually impossible to provide medical treatment that might easily and more cheaply save families and children than the present draconian system of blame and shame.
Last, but far from least, is the cost to Scott and Mary of these actions. Assume they both get lawyers, a likely and wise move in the circumstances. They will then pay individual retainers up front of $1,500-$2,500 each, or an initial cost out of family funds of $3,000-$5,000. And that is just the bare beginning, spare change in these games. One, or both, of the attorneys is virtually certain to fan the flames of conflict to increase billable hours.
The restraining order prevents Scott and Mary from talking directly to each other and everything has to pass through the attorneys (more billable hours). Even in the unlikely event both attorneys are honest and trying to resolve issues at minimum cost, like a game of telephone the communications are confused and misunderstandings abound. Vengeance and vindictiveness supersede any interest in the welfare of Allison and Scotty, Jr.
Before this began Mary and Scott took turns taking care of the kids but now Scotty Jr. must have full time day care while Mary works. The same for Allison when school is out. That takes up most, or all of her income. So the court orders Scott to pay most of his income in child support in addition to the fact he now has to pay for a second residence in addition to making house payments on the marital home.
Lost time at work, health problems, anger, and frustration mount until Scott loses his job. Or maybe his job is lost because of the restraining order. About 80% of the men we hear about in these situations lose their jobs within two years after the legal conflict begins. No job, no child support.
Without child support Mary can't make house payments. Foreclosure. Maybe her car is repossessed as well. Maybe she is lucky and has parents or other relatives nearby who can tend the kids while she works, but probably not.
So her boyfriend moves in. Now the games really begin. Most real domestic violence and child abuse occurs in "shack up" situations. But if she calls the cops any support for rent or food that he is providing will be lost. She learned the first time with Scott what a nightmare the legal system is. So she puts up with his drinking and abuse as long as she can. Her good times on Friday nights, that started all this, are but vague memories. But one thing she has learned is don't call 911.
Allison and Scotty, Jr. are by now totally out-of-control and there sure isn't any money for a child psychologist now that one might really help. And these kids sure aren't going to college as all that money went for legal expenses. Allison becomes pregnant at 13 or 14 and then there is another fatherless child in the apartment.
But this isn't the situation the courts, lawyers, special advocates, CASA, DV shelter workers, and state legislators see. In their fantasy world they are "helping the parents to resolve their problems" and working "in the best interests of the children." But a nuclear bomb wouldn't be anymore destructive of the family than the scenario above that plays out thousands of times every day in these United States (about 2 million restraining orders are now issued every year in the US).