The Family Law News Blog

German judge says Koran justifies wife-beating by Moroccan living in Germany

Justifying Marital Violence: A German Judge Cites Koran in Divorce Case - SPIEGEL ONLINE

Supreme Court Draws Line on Domestic Violence Evidence

The U.S. Supreme Court rarely gets involved in family law, but on June 19 it issued a single opinion  in two cases where women told the police about domestic violence but did not testify in court. It says statements in a 911 call while the violence was happening are admissible, but an affidavit given to police immediately after the crime is not.

In DAVIS v. WASHINGTON, the court allowed a tape of her 911 call to be used as evidence, saying the rule against hearsay did not apply because her statements in the call were not intended, at the time, as "testimony." She was calling the police in order to get protection in an emergency, and was describing a current danger she was in,  not  past actions that she was seeking to have her ex-boyfriend punished for. The almost unanimous opinion also points out, though not in so many words, that the statements were "excited utterances" and "present-sense impressions", both of which are exceptions to the general rule against hearsay testimony. [The summary says the assailant  "had just fled the scene", but the actual opinion quotes the transcript, making clear that the assault was in progress at the start of the call. The Court says that only the initial statements, made during the assault, are admissible. Statements later in the call, after the assailant was gone, were allowed into evidence only because he did not ask the court to keep them out. ]

But in the other case, Hammon v. Indiana, police were called to a house and when they got there, were told that nothing was wrong. The officers questioned each spouse in separate rooms and had the wife sign a battery affidavit. The affidavit, corroborated by injuries and broken items the officers saw,  convincingly describes a serious assault. The wife did not testify at the trial. The Court says the affidavit cannot be used at the trial because it was completely the product of an investigation into past conduct -- there was no emergency still going on.

Overall, the court drew a sound, commonsensical distinction. 

But the decision is also a very public, painful reminder that domestic violence happens every day, and that often, justice is not done, sometimes BECAUSE OF rules that overall do us much more good than harm.

The "hearsay rule" is very important -- it is based on the Constitution's Sixth Amendment guarantee that "the accused shall enjoy the right ... to be confronted with the witnesses against him", which implies a right to cross-examine them, and to receive their testimony first-hand instead of relying on what someone else says they said.

Family law judge shot

Reno, Nevada family law judge Chuck Weller was shot in his office on June 12, 2006, allegedly  by a man angered by a ruling in his divorce action.    The shooting of Judge Weller points to an alarming phenomenon in which those involved in emotional and acrimonious cases are taking their frustrations out on the judges. Similar shootings of judges and parties to divorce actions, as well as divorce lawyers, have taken place in California courts.

The suspect, Darren Mack, is a multmillionaire father of three whose relatives say he was deeply upset over Weller's rulings in his divorce case.  He is accused of murdering his wife, on the same day.  He is presently a fugitive.

This event gives new weight and meaning to the oft-quoted remark of retired family law judge and appellate justice Donald King, that "family law court is where they shoot the survivors." 

Collaborative lawyers emphasize that it is the nature of court proceedings to have winners and losers, and the nature of trial advocacy to pit litigants against one another using extreme arguments and extreme requests for relief.  Few couples begin a divorce wanting the kind of irreversible collateral damage that typically results from contested court proceedings.

Read more about the shooting of Judge Weller at:

http://abcnews.go.com/WNT/story?id=2086555.

Find out more about collaborative divorce, a peaceful and respectful way to reach resolution in divorce entirely outside the court system, at  www.lawtsf.com and www.collaborativedivorcebook.com.

"Letterman Case Shows Problems with Restraining Orders"

This column by Jeffrey Leving, a family lawyer who primarily represents fathers, and Glenn Sacks, makes some pretty serious allegations that domestic violence restraining orders are often handed out in cases where there is not even a real accusation of domestic violence, as in the case of a New Mexico woman who got a TRO against David Letterman for allegedly wooing and harassing her through coded messages on his show. I would always want to  see more indepent documentation of this kind of claim when it comes from an advocacy-movement source like this. Some of his claims and the support for them are:
-- "According to the Justice Department, two million restraining orders are issued each year in the United States."
-- "Research shows that these orders often do not even involve an allegation of violence. Usually all that’s needed is a claim that the person to be restrained “acted in a way that scared me” or was “verbally abusive” 
-- The authors cite articles in the California and Illinois family law bar publications that say restraining orders are handed out based on little evidence and have become routine weapons in custody cases. (Of course, those statements should be attributed to the lawyers who wrote those articles, not the state bar journals.)
-- The authors cite several extrreme, ridiculous cases where people were found guilty of violating restraining orders for doing things that sound innocuous or unavoidable. However, any family lawyer knows that events like these are routine, and not surprising, because restraining orders are generally enforced literally and absolutely, and we tell our clients that when the orders are first issued. The examples are: (1) Man arrested for getting out of car to pet kids' dog, and is fined $600 for returning son's call. (2) Dad convicted of crime for opening door of Mom's apartment building lobby when returning son. Refuses to go to batterer's counseling for this, and thus jailed for 6 months. (3) Father jailed 3 days for taking son to hospital at mother's request. (4) Man jailed for 3 months for returning calls from wife, which he thought might be about their son.