Unfortunately, domestic violence is very much a reality in today’s society. In some cases, one instance of domestic violence is enough to end the marriage. For others, it takes repeated instances, but still often ends up in family court. In addition to the divorce, these proceeding will often also involve some type of protection order. If this is the case, it will obviously affect child visitation and custody.
Protect Yourself in a Violent Home
What can you do when you are in a violent household? What if you are unable to leave right away? How can you make sure you not only get out of the home, but also keep the abusive spouse away from the children, and you for that matter?
Document Everything – the more documentation you have to support your case, the better off you will be. If incidents have already happened, do your best to record the date, time, circumstances, etc… of every incident that has already occurred. Moving forward, keep track of every scream, push, and anything else that happens in the home to both you and your children.
Prepare to Safely Leave the Home – in these types of cases, you need to get out of the house as soon as possible, but you want to do it safely. In other words, make sure you have a safe place to go where you will be protected against your abusive spouse and that he or she will ideally not be able to find you. Also make sure you have enough funds, clothing, etc… so you do not have to return to the home for anything once you leave.
File for Legal Custody – if you have to leave suddenly, your first phone call after you get settled should be to your attorney to file for legal custody. Hopefully, you have already been in touch with your attorney and he or she is aware of what is going on and is ready to file the moment you leave. One of the main concerns of the court in any custody hearing is the welfare of the children, so the more documentation you have (as discussed above) the more likelihood you have of keeping your children away from your abusive spouse.
Spouse Visitation Rights – this may be a touchy subject, but you may not be able to keep your spouse away from the children if he or she has not abused them. However, since you were abused, the visitation will more than likely be observed, if it is granted at all. Your attorney will better be able to fill you in on the legalities and possible outcomes for your particular case.
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Good morning,
I have an attorney who did not consider the domestic violence, including rape, in the case of custody of the children. Is this considered malpractice?
Whether it is considered legal malpractice is not something that we could offer an opinion on because legal malpractice cases and what goes into them are extremely different depending on each state. A very general, generic explanation of what is normally legal malpractice would be something that is likely unreasonable under the circumstances. Example: missing a specific deadline that makes your case get dismissed.
Many times, a lawyer is basing his/her strategy in a case like yours on their own experience in prior cases and knowing how certain judges tend to rule on key aspects of a child custody case.
When there are allegations of certain things like you mentioned but proof and evidence is lacking, it might not be the best route to pursue certain attacks like this in court. In family law court, many people (both men and women) have caused harm to victims of actual domestic abuse because the rate of lying in a divorce to get custody is quite high. This is not to say that many times, abuse does not even get exposed (the majority of abuse victims keep their lips sealed, unfortunately), but simply to point out that judges in divorce cases have seen people lie, get caught lying, and then confess to the lie on hundreds and hundreds of occasions. So without concrete evidence that can be shown to the court, the possibility that a he-said / she-said backfires (because the alleged abuser is better on the witness stand and comes off as believable) could hurt your case. This can be as devastating to a case as anything because it may call into question (in the judges eyes) the honesty of the people involved. It sounds like your lawyer, whether pursuing the case on this or not, should have definitely had more communication and discussions with you on why they would handle things the way they did – that is essential in quality representation.
The sad fact of the matter is that domestic abuse cases don’t always get the respect that they deserve and because of that, people suffer. This is an indictment on the court system and something that needs to be corrected because peoples lives are in danger. With all that said, a lawyers job is to use their experience, the law, and the facts and evidence they have for each individual case to present the best possible case to the judge to decide what is in the best interests of children (the standard for deciding custody, decision making, allocation of parental responsibilities, and parenting time issues). The best thing you can do is to speak with another local child custody attorney and find out what he or she would have done or can do to remedy this situation. And you should do so immediately – do not waste time! It may be that another lawyer sees the evidence and agrees with prior counsel, or they may see the evidence and decide to pursue and charge ahead to show the court that a grave error was made and that justice needs to be served. Put the malpractice issue on the side burner and focus on getting your child custody rights secured first. Best of luck and please don’t stop fighting to reveal the truth and see that justice is pursued.