Month: November 2012

How to Obtain and Enforce a Domestic Abuse Restraining Order in Wisconsin

nelsonda Domestic Abuse, Restraining Orders , , , , , , , ,

The effectiveness of domestic abuse restraining orders is now being questioned after the tragic shooting of Zina Haughton and her co-workers in Brookfield, WI.  Zina, we now know, had obtained a restraining order against her husband several days prior to the incident.  So, what is a restraining order, how do you obtain one and how does it protect you?

In Wisconsin, you may seek two types of restraining orders which are also referred to as injunctions:  harassment or domestic abuse.  Harassment injunctions, which are explained in more detail in another post on this blog, are typically used between parties who are not in a domestic relationship although can be used in those situations as well.  Domestic abuse injunctions are reserved for domestic violence which is defined as physical harm or the threat of physical harm.

The procedure for obtaining an injunction is fairly simple.  You go to the clerk of courts office in the county in which you reside and request an injunction or restraining order.  In Milwaukee County, you will need to go to room 711.  You will be given a fill-in-the-blank form to complete which includes space for the reasons why you want the restraining order.  Although different counties may use different forms, this is an example of a typical Petition for a Temporary Restraining Order.  Make sure you write down every incident you can remember which is consistent with harm or the threat of harm. It doesn’t matter how long ago the incident occurred although a recent “trigger” is usually required.  It may help if you spend some time at home typing or writing up these incidents while you have more time.  You can then simply say “See attached” on the form.

Once you complete your form, you will be taken to see a family court commissioner or judge.  The commissioner or judge will listen to your story.  If he or she feels that there is a reasonable basis to grant you a restraining order, they will award you a temporary restraining order and give you a court date to return for a hearing for a permanent restraining order.  You will then need to serve the person against whom you are seeking the restraining order.  The clerk will direct you to the county sheriff’s office who will do this usually at low or no cost depending on your circumstances.  There is no fee to obtain a domestic abuse restraining order.

The temporary restraining order will remain in effect until the hearing date.  The sheriff who serves the papers will remove the other person from your home.  At the hearing, the other party can show up and contest the granting of the injunction.  In that event, there will need to be a formal hearing and you will need to testify and/or prove your allegations.  If the court commissioner or judge believes your testimony and finds that there are sufficient grounds to grant the injunction, you will be granted a restraining order for up to 4 years.  If the other person doesn’t show up on the hearing date and you have proof that he/she was served, the court will automatically grant you the restraining order.  This is an example of  what the final injunction will look like.

The restraining order is only as good as your enforcement of the restraining order.  You will need to make multiple copies and take them to the police departments of where you live and work.  You may also want to provide a copy to your employer and keep a copy with you at all times!  If the other party violates it, this is a criminal offense and they can be arrested and charged for the violation.  However, if you allow contact or allow the person to come to your home, it may be difficult to prosecute violations later on.  This also sends the wrong message to the abuser.  They may not believe that you are serious or they may believe that they can intimidate or influence you to not enforce the injunction.  It may be difficult to cut ties so abruptly with this person.  Victims also tend to “feel bad” for their abusers by taking such a drastic action.  However, at some point, you need to worry about yourself and/or your children, not the person who has caused you harm.  It is very important to establish from the beginning that you are serious and you will enforce the injunction.

Most people will abide by the injunction and realize the seriousness of the situation.  However, there are some people who will ignore it or attempt to contact you to discuss your “issues”.  Be firm and enforce your restraining order by reporting the contact to the police Doing so once or twice is usually an effective deterrent against future contact or violations.

Unfortunately, there are also individuals who don’t care and will attempt to do you harm anyway, such as in the Zina Haughton case.  If you suspect you are or will be in that situation, it is imperative that you take extra precautions!  For example, stay somewhere safe and unknown to the other party for a period of time.  Or, if you are in the home, change your locks immediately.  Arrange for an escort between your home, work and school, if possible.  Notify your local police to the issues or potential issues.  Make sure you stay alert to your abuser’s presence at all times and if you see him/her, call the police immediately!  This should result in an arrest but, even if they don’t arrest him/her, the police will speak to that person which alerts them to the fact that you do intend to enforce the injunction.

The American Bar Association has published a list of additional things you can do to protect yourself from domestic violence.  Following these tips and suggestions may save your life!

Ultimately, you will need to get on with your life.  However, emotions do tend to cool down after a while and eventually, that person will also want to get on with their life.  You just need to get through that initial period.  If you take every precaution, seek help and enforce your injunction, your chances of staying safe will be much higher.

What is the Mandatory Arrest Law in Wisconsin?

nelsonda Domestic Abuse, Restraining Orders , ,

The tragic shooting of Zina Haughton and her co-workers in Brookfield has highlighted the issue of domestic violence in Wisconsin.  Many people believe that this incident could have been prevented if only the Brown Deer Police Department had complied with the mandatory arrest law in Wisconsin.

What is the mandatory arrest law?  To summarize: in Wisconsin, if an officer has a reasonable basis to believe that domestic violence has occurred or will continue to occur, they MUST arrest the aggressor.  Domestic violence is defined as intentional infliction of physical pain, injury or illness or an act that may cause another person to fear imminent danger of those things.  To obtain a more detailed description of this law, see this checklist which was drafted by the Wisconsin Coalition Against Domestic Violence (WCADV).  The WCADV also publishes a fairly complete overview of state and federal domestic violence law.  To view, click here. 

What happened, then, with Zina Haughton and why was her husband never arrested?  It seems fairly obvious from the news reports that the statutory requirement for a mandatory arrest was met on at least 2 or 3 occasions.  The police department attempts to blame the victim by stating she refused to prosecute or recanted her story later.  This is a common response after reporting domestic violence, many times due to intimidation by the aggressor.  Therefore, the laws are written with this in mind and the decision to arrest is left to the police and prosecution, not the victims.

In our experience with domestic violence, local police departments vary greatly in their response and compliance with the mandatory arrest law.  There are instances, such as with this recent Wisconsin case, where clearly an arrest should be made which is not.  There are also instances where the police department strictly and foolishly enforces the law.  This detracts from the overall effectiveness of the law.  An even hand with some common sense should be the rule.  If there is evidence, such as a mark, bruise or scratch, there is no doubt that an arrest should be made regardless of the circumstances, cooperation of the victim or gender of the aggressor.  If there is no mark but the situation is clearly volatile, the police should, at a minimum, ask one party to leave the home for a period of time which they have the authority to do.  This very well may prevent the situation from escalating and/or domestic violence from occurring.

However, sometimes people use the police to try to gain an advantage in an upcoming or pending divorce or to punish their spouse or significant other for wrongdoing.  Police must be wary of this and if there is no evidence of any aggression or domestic violence, then an arrest is not warranted and should not be made.

The Journal Sentinel cites a lack of oversight and enforcement as the primary issue with Wisconsin’s mandatory arrest law.     They correctly point to the fact that police departments are not required to report to any central agency as to whether they are following the law and there is no remedy or consequences to the department if they fail to do so.  Perhaps the solution is to correct this loophole in the law.  Perhaps if the Brown Deer police department had to justify its actions, or lack thereof, Zina Haughton would still be alive.

Contact your legislator to voice your opinion on this issue or contact the WCADV to find out what you can do to help.

If you are a victim of domestic violence, seek help immediately before it is too late!  Contact the WCADV, a shelter, or other help agency. The WCADV publishes a directory of many of the resources available to abuse victims.

You can also seek the advice of an attorney or seek the protection of a restraining order.   To find out how to do this, see our other posting on this topic.

 

Protections against Domestic Violence in Wisconsin

nelsonda Domestic Abuse, Restraining Orders , , , ,

Recent events have highlighted the issue of domestic violence in Wisconsin.   First, Zina Haughton and her co-workers at the Azana Spa in Brookfield were shot and killed by her estranged husband.  Then, shortly afterwards, a man took his ex-wife hostage and shot at responding police in Waukesha.

Although severe, these are by no means isolated incidents.  Domestic violence is rampant and prevalent everywhere.  The Wisconsin Coalition Against Domestic Violence (WCADV) released a report showing that, in 2010, 58 people were killed in 39 incidents of domestic abuse. These totals were down from 2009, which saw 67 deaths and 57 incidents and marked the highest number of domestic violence homicides a ten years. In 2010, seven individuals killed themselves after taking the life of a current or former intimate partner.

Domestic abuse isn’t just necessarily physical violence, either.  The statutes defines domestic violence as any of the following engaged in by an adult person against his or her spouse or former spouse, against an adult with whom the person resides or formerly resided or against an adult with whom the person has a child in common:

1. Intentional infliction of physical pain, physical injury or illness.

2. Intentional impairment of physical condition.

3. A violation of s. 940.225 (1), (2) or (3) (Sexual abuse)

4. A physical act that may cause the other person reasonably to fear imminent engagement in the conduct described under subd. 1., 2. or 3.

Even though you may not want to believe that your partner or former partner will harm you or your children, the statistics show otherwise.  You must assume the worse when you are a victim of domestic abuse and take all appropriate precautions, including seeking help from the legal system.

There are two main ways to protect yourself against domestic violence through the legal system:  call the police and obtain a domestic abuse restraining order.  In the following blog posts, we discuss each of those options separately.

The American Bar Association has put out a checklist of additional things you can do to protect yourself from domestic violence.  Following these tips and suggestions may save your life! 

How Facebook and Other Social Media Sites Can Negatively Affect Divorce

nelsonda General Divorce , , , , , , ,

Social media makes it extremely easy to find information about other people’s lives. For example, Facebook allows its members to access other peoples’ photos, daily updates, and favorite hobbies, among other things. This is great when you want to see the pictures that your mother put on Facebook of your grandmother’s 70th birthday party, but be wary; people can also see the pictures from those uninhibited nights out that you do not want anyone to see.

While it is true that Wisconsin is a no-fault divorce state, meaning neither party needs to show wrongdoing to get a divorce, there are still consequences for wrongdoings, if there are children involved in the divorce proceedings.  If custody and placement are at issue, reckless photos and “updates” on these sites can be compelling pieces of evidence for the court.  Updates about expensive new purchases or vacations might add fuel to an argument that one party has the ability to pay more in support.

More and more clients are asking us if we can use inappropriate Facebook or Twitter postings and pictures against the opposing party in court. The answer is yes. For example, if we represent a client who has a picture printed from a social media site that the child’s mother does drugs in her home, this can be used as evidence to help show that court that she is unable to provide a safe environment for your child. Pictures and documentation exposing reckless (and illegal) behavior like this can be used in custody and placement arguments.  Even less egregious posts can show bad decision making by a parent or demonstrate a lack of credibility in Court.

All online posts, emails, tweets, texts, etc. can be used as evidence in Court!

It has been said numerous times before, and will be reiterated here: what you post on the internet and on social media sites is NOT private; no matter how strict your privacy settings are. If you choose to post something to a public forum, you forgo the argument about what you intended.

So when it comes to social media sites, remember what your parents used to tell you: if you cannot say anything nice, don’t say anything at all. And also remember the slightly modified lawyers version: If you cannot say anything nice, do NOT put it in writing, and certainly do not put it on a social media site.