Mediation and Domestic Abuse

In Wisconsin, mediation is required in all family law cases where there is a dispute regarding placement and/or custody of minor children. The definition of mediation is when the two parties meet outside of the courtroom, with a neutral third party, to work out the contested issues in their case rather than litigate them.

The problem with mediation for a couple where domestic violence is present is that mediation implies that the parties are on a level playing field. When there has been domestic violence in a relationship, the abuser and the victim are not equal, and mediation can be more harmful than helpful. Victim advocates have weighed in on this issue and do not recommend mediation in cases when there has been domestic violence present, because there is a power relationship between the parties which may go unnoticed by the mediator.

Take, for example, a wife (victim) who goes to mediation with her husband (abuser). The husband speaks to the wife calmly and cooperatively in front of the mediator. He asks the wife to please be reasonable and to work with him. In fact, he suggests that they stop using court avenues altogether and meet once a week around the kitchen table to discuss the children’s placement schedule. To the mediator, the husband seems agreeable and reasonable. However, to the wife, the kitchen table brings up the memory of the last time she was at the kitchen table with her husband, when he threw her on top of it and abused her. Silenced by fear, the wife simply sits there or, out of fear, gets up and leaves the mediation. In this example, it is likely that the mediator’s notes would categorize the wife as disagreeable or unable to work on the issues reasonably while the husband is found to be agreeable and cooperative. Knowing the domestic violence present in this example, we know that the mediator’s notes are incorrect but there is nothing to do after the mediation is concluded to change the mediator’s conclusion.

The court is allowed to make an exception for mediation if it would endanger the health or safety of one of the parties. Therefore, it is important for an abuse victim to raise this issue before the court. The court may, either with or without a hearing, agree to then waive mediation.

Definitive evidence of potential harm is the existence of a domestic abuse injunction. If a victim files an injunction against the abuser, this is compelling evidence upon which the court can waive mediation. The reality, though, is that many victims do not file injunctions for a number of reasons. An injunction is not required to waive mediation, however. If you do not have an injunction but still are fearful for your safety, you should inform the court so as to avoid this situation entirely.

Therefore, if you are a victim of domestic violence, either with or without an injunction legally protecting you, we recommend that you inform the people who can best help you going forward in your court case. This includes, but is not limited to: your attorney, the Guardian ad Litem, the mediator and the social worker.

-Madeleine Thompson-Davies

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

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?

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

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! 

Wisconsin’s Harassment Restraining Order Explained

When an ex or other person has intentionally hurt you, caused you physical injury and pain, or has damaged your property, there is hardly a question that court involvement is appropriate, and often necessary. But what if that person is not an ex or a significant other? Or has not actually touched you? Are there any legal protections are available from the court in those instances? The short answer is yes.

In Wisconsin, this type of restraining order to file is called a harassment restraining order. Harassment restraining orders are one of the types of restraining orders available to individuals in Wisconsin. In addition, there are restraining orders for domestic abuse and child abuse.

Individuals are often hesitant to file harassment restraining orders, because the threshold is seemingly unclear. Take a situation where a person continually calls you simply to bother you; when is the threshold met? The legal basis for a harassment injunction in Wisconsin is a pattern of harassing conduct with no legitimate purpose.  What does this mean exactly?  For example, if a person is calling repeatedly or is attempting to harass or intimidate you and doing so serves no legitimate reason, a harassment restraining order may be granted by the court. The individual who files the harassment restraining order must specify (in a petition to the court) each kind of harassing behavior that the offending person has done.

Aside from the above listed conduct, other conduct that constitutes harassment is: (1) striking, showing, kicking, or otherwise subjective another person to physical contact or attempting or threatening to do the same, (2) engaging in an act that would constitute abuse, (3) sexual assault, or (4) stalking. Only one of the five types of conduct must be met to file a harassment restraining order.

The process to obtain a harassment restraining order is typically two-fold: first, the individual will file a petition seeking a temporary restraining order. If the individual filing the restraining order has no money (or is “indigent”), he or she may ask the court to be excused for paying any filing fees. If the individual filing is not indigent, he or she still may ask the court in the initial petition to the court to order the offending person to pay the court and legal fees. Usually you will talk to a court commissioner about your petition.  The court commissioner can either grant you a temporary restraining order, which takes effect immediately, or can simply schedule your petition for a hearing.  Either way, you move on to step two, where the court issues a date for an injunction hearing.   The defending party must then be served notice with this date, usually by the sheriff’s department.

At the hearing, you must testify about your allegations.  You may call other witnesses as well.  Your accuser has the right to respond by testifying or calling witnesses as well.  If the court finds that there are grounds for a permanent restraining order, the standard relief awarded by the court is that the offending person be prohibited from engaging in the specific conduct that constituted harassment, including being prohibited from contacting, or even coming near, the petitioner.

Please note, Wisconsin harassment laws are intended to protect individuals who are being harassed by people outside of their home. If you are experiencing abuse within your home from a spouse or otherwise, the more appropriate order is domestic abuse restraining order. Domestic restraining orders, unlike harassment restraining orders, may carry the punishment of removing the offending person from the home.

For more information about how to obtain restraining orders, please see our website.

 

 

New Protections in Wisconsin for Domestic Violence Victims

Governor Scott Walker signed several new bills into law this week which grant greater protection for domestic violence victims.

One law- called the TraJa Act- was named after Tracy Judd and her daughter Deja who were murdered in a domestic violence incident in Madison in 2009.   This law makes a third domestic violence conviction within 10 years a felony and gives judges the ability to impose harsher penalties on repeat domestic violence offenders.  It also expands the definition of a repeat offender as someone who commits domestic violence within 72 hours of a prior domestic violence arrest.  Another bill which was signed also allows judges to treat committing an act of domestic violence in front of a child as an aggravating factor during sentencing.

Gov. Walker also signed into law a measure which allows victims of domestic violence and stalking to keep a name change confidential.  Current law requires that public notice be published prior to a name change.

For more information about how to obtain restraining orders to protect against domestic violence, please see our website.