Defending Against False Allegations of Abuse - Defending Fathers

Law Of Diminishing Returns Definition - Defending Against False Allegations of Abuse - Defending Fathers

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October is "Domestic Violence" month. The goal of this proclamation is to raise awareness about the high level of violence in families. However, it is also be a time to reflect on our laws, the inequities that they originate and how you safe yourself against false allegations of abuse in a flawed legal system.

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Law Of Diminishing Returns Definition

Gender Issues of Domestic Abuse

Today, a war rages over the issue of domestic abuse.

Women's groups declare that they are the original victims of domestic abuse and have responded by orchestrating campaigns seeking sympathy for their position. These efforts have been amplified by high profile cases of alleged abuse by celebrities such as Ike Turner, O.J. Simpson, Mike Tyson, James Brown, and Tommy Lee. These cases and the campaigns the spawn are often the focus of media outlets nearby the United States. This attention over the past few decades has resulted in increased awareness of domestic abuse against women, and new laws to prevent domestic abuse - some that focus on women specifically. One of today's most graphic examples is the Violence Against Women Act (Vawa), which came up for reauthorization in Congress this year. This gender exact legislation is one sided but appeals to sentiment and original public mores.

By contrast, until recently, men's groups have been significantly less vocal. More modern efforts, however, resulted in the House Judiciary Committee adding gender neutral language to the Violence Against Women Act in July 2005. Nonetheless, abuse against men by women is significantly under-reported for a amount of reasons Moreover, men making such claims face a legal system that is significantly less sympathetic in its rehabilitation of men. One thing is certain, compared to women, there are very few public programs or non-profit organizations to furnish assistance to male victims of abuse or male victims of false allegations of abuse. Instead, every month seems to spawn new programs, clinics, shelters, advocacy groups, and counseling centers, dedicated to abuse of women issues.

Part of the question is with statistics. It was once said that there are "lies, damn lies and statistics." Vast resources on domestic abuse exist with improbable disparities in the statistics that they cite. Statistics are, by their nature, manipulable and dependent on proper methodology and a vast myriad of societal variables. Some of the reasons cited for under-reported incidents of domestic abuse by women against men comprise the public stigma attached to it and the systematic bias against such claims by law compulsion personnel and the court system itself that has a chilling result on reporting.

Regardless of "who did what to whom more often" arguments, the way in which the legal system addresses such claims paves the way for exploitation by participants making false claims of abuse.

False Allegations of Abuse

One of most principal criticisms of the legal system that addresses domestic abuse, includes the factory and regularity in which false allegations of abuse are made and believed by courts with the original intent to seek an advantage in divorce and custody proceedings.

One of the major catalysts for this abuse of the system is the broad definition that exists for domestic abuse. Under most statutory schemes, domestic abuse means the intentional and unlawful infliction of physical harm, physical injury, assault, or the intentional and unlawful infliction of the fear of imminent physical harm, physical injury, or strike between family or household members, or a criminal sexual act, committed against a family or household member by another family or household member. "Fear of harm" is an extraordinarily subjective thorough and one that may be very difficult to combat. A raised voice or a raised had or any gesture that is interpreted as threatening may be used to claim that domestic abuse has occurred. This is question is compounded for men who are often larger than women and perceived as more aggressive or stronger based on broad societal generalizations that may be reflected in the perceptions of law compulsion officer who make police reports and court room judges who render rulings.

Consequences of Domestic Abuse Claims

Allegations of domestic abuse may have both civil and criminal consequences. In the civil context, an allegation of abuse may result in domestic abuse restraining orders, often called "Protective Orders." They may also have a criminal context related to strike or battery.

The importance of a judicial seeing that domestic abuse has occurred is profound. In the context of criminal cases, incarceration or fines may be imposed and "no contact" orders entered which may comprise requiring the perpetrator to vacate the family residence or to have no experience between a parent and their children. In the civil context, including divorce and custody proceedings, the consequences are equally severe:

Presumption for Custody. Most states carry a statutory presumption that in the event domestic abuse has occurred, the perpetrator of that abuse should not be awarded physical placement or physical custody. No Mediation of Disputes. It is also often presumed that where domestic abuse has occurred, mediation for family law disputes should not be required. Restraints on Abusive Behavior. A domestic abuse restraining order will comprise a restraint precluding the defendant from committing any acts of domestic abuse against the victim. No experience & Criminal Violation. Where domestic abuse has been found to occur, the Court will enter a restraining order prohibiting that person from contacting the victim directly or indirectly, whether through letters, e-mail, phone calls or messages through third parties. Any violation of those restraining provisions, regardless of whether the experience is initiated by the victim or not, is a criminal violation which may result in incarceration; Exclusive Use of Home. As a result to the no experience provisions of a domestic abuse restraining order, the defendant is also often excluded from the family residence including any property within that residence regardless of whether the residence or household is jointly or solely owned or leased by the parties. Often the order will make allowances for law compulsion officer to accompany a party to the residence to supervise the extraction of wee personal belongings. Parenting Issues. A domestic abuse restraining order will often also restrict the defendant's experience with children who may have been exposed to the domestic abuse. This may result in no parenting time or supervised parenting time. Anger administration and Treatment. The Court may also want a defendant to participate in an anger administration program, chemical dependency rehabilitation and other therapies as a health of normalizing experience with his children. Restriction of Civil Liberties. Additionally, the entry of a domestic abuse restraining order may work on other civil liberties. For example, under the federal "Brady Bill" a perpetrator of domestic abuse is precluded from owning or possessing a firearm for any purpose. Deportation. A person who has only conditional residency in the United States or who has no legal status in the United States, may be precluded from seeking legal immigration status based on a seeing of abuse.

Clearly, when false allegations of abuse are made, the stakes are very high. Ironically, this is contrasted by the low burden of proof principal for those seeking civil restraining orders tantalizing domestic abuse and the abbreviated manner in which such hearings are generally held.

Protective Orders, Burdens of Proof, and Court Procedure

In most jurisdictions, the proponent that domestic abuse has occurred carries the burden of proving the claim by only a "preponderance of the evidence." A "preponderance" simply means that the party must prove that it is more likely than not that the abuse occurred. This is the bottom legal thorough of proof in the court system and a great deal of discretion is left to a trial court in determining whether that thorough has been met. All too often, Courts will issue a restraining order on extraordinarily weak evidence in order to err on the side of caution. After all, no Judge seeking reelection wants their picture splashed across the pages of the daily news trumpeting their failure to safe an abused person who is then later assaulted.

It is equally confounding that civil domestic abuse hearings are conducted with wee time to prepare, particularly for a defendant, as well as in an abbreviated fashion to accommodate the court's crowded docket. Whereas a person alleging domestic abuse may plan their case ahead, compiling documentation or manufacturing other evidence to reserve their claims, a defendant is often required to put in order a response to allegations of abuse in one or two weeks or less. When an evidentiary hearing is held, the Court may often limit testimony and evidence to fit the case into its busy schedule, often affording the parties less than an hour or two to present the case. Since procedurally the defendant presents their case second, his time is often extraordinarily limited.

In most jurisdictions, an application for a domestic abuse restraining order will comprise seeking an ex parte accident order followed later by more permanent order issued after a return hearing in court. In order for an ex parte restraining order to enter, a person (often assisted by a battered woman's shelter, advocate or domestic abuse office) may file a request for retrial and Affidavit seeking ex parte relief. Ex parte relief is accident relief and the allegations determined by the court are one sided without and rebuttal by the person accused. Based on this one sided submission, the Court may issue a temporary restraining order that removes the defendant from the family home, precludes experience between the defendant and the victim and, often the children, and sets the matter for a court hearing in the near future, but often weeks away.

At the return hearing, the parties are advised to bring their witnesses and evidence to address the issues of abuse raised by the ex parte petition. At this hearing, the Court in many jurisdictions will offer a defendant the following options:

Agree to the Restraining Order with no findings that abuse has occurred; Proceed to an evidentiary hearing to Contest the Allegations.

The first choice is often tantalizing given the low standards of proof that apply at domestic abuse hearings and the principal impact of a seeing that abuse has occurred. Remember a seeing that domestic abuse has occurred may originate a presumption that the person should not be awarded custody of children. According to a restraining order without any findings of abuse may be a way for the defendant to live to fight another day in family court where there are custody issues involved. The downside of such a concession is that:

a restraining order will enter for as long as a year, unless modified by a subsequent court order, that may restrict experience with the family home and children involved; any violation of the order results in criminal action, this providing fodder for hereafter false allegations that the order was violated; the victim may later try to increase the order beyond its current time period and may often do so on flimsy evidence.

The second option, contesting the allegations in court, requires an aggressive defense. All too often crowded domestic abuse calendars result in foreshortened hearings in which a court enters an order that can significantly work on the hereafter possession of a defendant. You should all the time reconsider hiring an attorney is such settings to ensure that your possession are protected, that evidence is properly presented and so that inconsistencies in false allegations of abuse may be exposed.

Protecting Yourself Against Allegations of Abuse

Avoid Conflict. In the context of domestic abuse it can be truly said that an ounce of arresting is worth a pound of cure. When there is marital conflict, particularly when a divorce is threatened, it is foremost to de-escalate any conflict. Remember, what constitutes a "threat of harm" as it relates to domestic abuse is subjective. Something as innocent as blocking a person's egress from a room so that you can "talk about things" may be interpreted as domestic abuse. Hanging up the telephone on a person for the same purpose, may be sufficient to reserve a domestic abuse order.

Use Witnesses. When a divorce is threatened, it is all the time a good idea to have independent witnesses ready when events are planned that could possibly result in conflict. Even after a conflict a discover may play a role by observing the environmental condition, whether any distinct injuries were suffered or the demeanor of parties involved.

File for a Reciprocal Order. If the allegations of abuse stem from a particular domestic conflict, you may wish to file for a restraining order first. Even if that does not occur, many jurisdictions may allow you to seek an order after the fact resulting in a possible for reciprocal orders. In some jurisdictions the allegations of each request for retrial may be addressed in the same hearing. In others cut off hearings are held.

Address the Legal Standard. All too often affidavits are filed seeking a restraining order where the allegation, if proven true, do not meet the legal thorough for the entry of a restraining order. As a result, knowing the legal thorough in your state can be important. Where insufficiencies in the pleadings are exposed, the case can be dismissed without an evidentiary hearing. For example, allegations that a defendant told a third party that he would harm the victim may be insufficient because it is based on hearsay or other unreliable evidence, and that the threat was not directly made or made with the intent that it would originate a fear of harm in the victim. Incidents of abuse that occurred long ago are also often insufficient to reserve a case for domestic abuse if there are not allegations of current harm or instilling a fear of harm.

Expose Factual Inconsistencies. Once domestic abuse has been alleged, a original goal would be to expose inconsistencies in the allegations made. The strongest inconsistency would be having a strong alibi for the time in question. Is there any independent evidence to refute the allegations? Did you make a phone call while the time in inquire that can be borne out by telephone records or independent witnesses? Do you have any store receipts, cash motor receipts, work time sheet or records that can demonstrate your unavailability at the time of the alleged abuse? Are there any possible witnesses who may have seen bruises or injuries assertedly sustained in a domestic incident, dating to times before the incidents alleged?

Expose Documentary Inconsistencies. The more statements a person makes about their allegations of abuse, the greater opportunity there may be that inconsistencies in their statements will exist. determined assess affidavits against police reports or other records that may exist including statements appearing in child security records or curative rehabilitation reports.

Expose Behavioral Inconsistencies. After domestic abuse has been alleged, it may be principal to point out that the victim acted inconsistently from the way a victim would have reacted. How much time elapsed between the alleged incidents of abuse and the complaint filed? Did the victim begin amiable experience after the abusive incidents that are alleged? Did the victim allow parenting time after the abusive incidents alleged? Did the victim experience the police, parents, friends or any other individuals at the time or shortly after the alleged incident of abuse occurred? Who did the person call after the alleged incidents of abuse occurred?

Expose Motivation to Fabricate. Any evidence that an alleged victim had a motive to lie is valuable. The most relevant evidence is independent evidence such as letters, e-mails or other documentation from the victim threatening a custody battle or implying that they may declare abuse has occurred.

Challenge general Allegations. Allegations of abuse can often be rambling and generalized so that no exact dates or times are included. Such allegations may be challenges as too general in nature and insufficient to meet the burden of proving that abuse occurred with a preponderance of the evidence.

Object to New Allegations. Many Court will not allow a victim to supplement her first pleadings with new allegations at the time of the hearing. This often occurs where the victim's first allegations were generalized or where she feels that the case is not going well. An objection may be made that the testimony being presented is outside the scope of the original pleadings and, as a result, prejudices the defendant's quality to respond. In many jurisdictions, such testimony may be excluded.

Presenting Your Case

At a return hearing, the court will hear evidence related to the allegations of abuse. Before that occurs, the Court may ask the defendant if he objects to the entry of the protective order or if he will agree to its entry without any findings that abuse occurred. After establishing that a hearing must be held, the Court may instruct the parties that they have a wee amount of time to present their case.

The petitioner or plaintiff is the person making the allegations of abuse. That person would present their case first by calling their witnesses to testify and presenting any supporting evidence through those witnesses.

The respondent or defendant is the person defending against the allegations of abuse. He will have the opportunity to make objections to testimony or evidence that is improperly offered and to cross discover any witnesses that testify including the petitioner. while direct examination, listen for testimony that is not based on personal experience. Such testimony should be objected to as inadmissible hearsay. Key phrases to listen for to identify hearsay statements include: "she said"; "I was told"; "I learned"; "it said."

When documents are presented as evidence, listen to the testimony to decide whether there has been any foundation laid for the document presented. "Foundation" means that the discover has testified to produce facts demonstrating that there is a sufficient basis to believe the document is authentic and reliable. If not, you may object to the exhibit as "lacking foundation." A discover may also not testify to the content of a document unless and until it has been offered and thorough by the court as an exhibit.

With regard to your cross examination, it is foremost to put in order an form of questions for each discover that you will cross discover including the testimony that you intend to illicit. In cross examination, you should focus on exposing inconsistencies in the petitioner's claims including the timing of the events alleged, location where they occurred, persons present, inconsistent behaviors of the victim after the alleged incident, motives for the discover or victim to lie, and inconsistencies with other statements made by the victim. In cross examination, you do not argue with the witness. You will have the opportunity to present your own version of facts as part of your case in chief. Instead, cross exam questions should be foremost and state a particular fact. Or example, instead of asking the open ended questions of "what happened." You should tell the discover what happened. Some examples include:

"Isn't it true that you spoke with the victim in preparing for your testimony today?"

"In fact, you spoke to her more than once?"

"You reconsider her a friend of yours?"

"You would like to see her prevail today, isn't that right?"

"Isn't it true that you weren't present at the time the abuse alleged occurred?"

"Isn't it true that the only facts that you have comes from what the victim told you?"

After the petitioner has presented all of her witnesses, the court will afford you the opportunity to present your case. At that time you would call any witnesses testifying on your behalf. You would inquire those witnesses first. After your questioning is completed, the other party has an opportunity to cross discover them. It is generally not a good idea to call a discover who may be hostile to your position or who have do not know what they will say. You should put in order your witnesses in enlarge by discussing the possible questions that you will ask each of them and what you believe may be asked by the opposing party on cross examination.

Direct exam of your own witnesses is vastly different from cross examination. On direct examination, your discover is the star. You should ask them open ended questions and allow them to elaborate to the court what occurred in report fashion. You cannot lead them. A good inquire may be as uncomplicated as "what happened next?"

When presenting evidence such as a photo or a document, you must produce foundation for that report through your witness. Having good documentary evidence is entirely useless, if you cannot have it admitted into evidence. Foundation may be established by demonstrating how and when the report or photo was created and that it is a true and strict depiction of the statements or images it represents. For example, foundation questions may result a pattern similar to the example below:

"Your honor, may I approach the witness?" (You may have to have the exhibit marked by the clerk if that was not done in enlarge of the hearing. That means a sticker is located on the report with a amount or letter on it identifying it as "exhibit 1" or "exhibit A").

"Mr. Jones, I am showing you what has been marked as Exhibit 1. Do you identify this photograph?"

"Who took the photograph?"

"When was it taken?"

"Were you present at that time."

"Is it a fair and strict depiction of the home on that day?"

(After foundation has been laid, you release the picture by showing it to the opposing party or counsel and move the court for its admission into evidence.) "Your honor, defendant offers Exhibit 1."
(Once the exhibit has been thorough into evidence, only then may you inquire the discover about its contents).

After the defendant has called their last witness, they would rest. At that time, the Court may allow the parties to make short closing arguments why they believe the court should or should not enter the protective order. This is a time to summarize the weaknesses in the evidence and to argue that the plaintiff has not met her burden of proof under the statute.

After these brief arguments, the Court will issue its ruling.

Conclusion.

There is no silver bullet to prevent you from being a victim of false allegations of abuse. The threat will continue to exist so long as the present definitions of abuse and legal standards of proof remain in place without supplementary procedural protections. As a result, it is very foremost to be vigilant for the warning signs that allegations of abuse may be made and, if they are made, being aggressively proactive in contesting them.

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