The Domestic Violence Parallel Track

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“Your typical divorce plaintiff wants four things: (1) the house, (2) the kids, (3) the husband’s paycheck, and (4) freedom to spend time in the house with her boyfriend,” said one attorney. “It might take her two years to get to that point in the family court with accompanying legal fees. She can get there in a day through the domestic abuse system, probably without spending a dime. All that she needs to learn is to say ‘I’m afraid of him.’ She gets a house, the kids, and money every month without ever having to give evidence, be cross-examined, or bring any additional witnesses to corroborate.”

Jeannie Suk, a Harvard Law School professor, is quoted in Alec Baldwin’s A Promise to Ourselves (2008):

“The domestic violence protection orders I mentioned can be obtained without a criminal charge ever being filed. A woman can ask a court to issue an order excluding her husband from the home based on her claim that he has harmed or threatened her, often without the husband having the opportunity to present his side. Of course, in principle, this process could be a good thing if the woman is in danger. But inevitably, some divorce lawyers advise women clients to apply for domestic violence protection orders because it can be used as a powerful tool in the divorce proceeding . Given the expansion of the definition of violence that I mentioned, it really doesn’t take that much to show that a threat of violence exists and that a woman needs a protection order. It is not uncommon for domestic violence issues to come into a divorce case in this way. … As I mentioned it can be advantageous for the mother to allege conduct that suggests that the father seeking custody might be abusive. In the last fifteen years our courts have come to see domestic violence as a crucial issue in child custody decisions. Many states rightly have a presumption against awarding custody to parents who have engaged in domestic violence. The problem is the relative ease with which legal actors today seem able to view husbands as violent or potentially violent, since the definition of violence has expanded so much. Given that ease , it would be quite surprising if child custody disputes didn’t often involve some allegation of violence.”

In virtually every state that we studied, litigators told us about benefits offered by legislators to people who can testify credibly that the person they are seeking to divorce is abusing them or abusing their joint children. At the same time, litigators told us that the costs of making a false accusation, even when a family court judge believes that it was false, are non-existent or minimal. According to our interviewees, repeated false allegations can be harmful when seeking sole custody of a child, but a rational custody-seeking parent would generally make at least one abuse allegation.

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