NEW Mediation Laws for Domestic Violence Cases

Enrolled House Bill No. 4476 has been signed into law by Governor Snyder, and has been assigned Public Act 93 of 2016. 

The Act does several things.  First, it reiterates a current court rule provision [MCR 3.216(C)] stating that a case in which a personal protection order has been issued may not be ordered to mediation absent a hearing, or unless mediation is requested by the protected person.

Second, the Act creates an affirmative duty on the part of domestic relations mediators to “make a reasonable inquiry as to whether either party has a history of a coercive or violent relationship with the other party.”  A reasonable inquiry “includes the use of the domestic violence screening protocol for mediation provided by the state court administrative office....”

Finally, the Act requires that mediators “make reasonable efforts throughout the domestic relations mediation process to screen for the presence of coercion or violence that would make mediation physically or emotionally unsafe for any participant, or that would impede the achievement of a voluntary and safe resolution of issues.”

 

 

You can read the law here: http://www.legislature.mi.gov/(S(ekxiy0lwmnhvu4kgtuy04ms2))/mileg.aspx?page=GetObject&objectname=2015-HB-4476

 

WHAT IS THE STANDARD FOR GETTING A PPO AGAINST MY SPOUSE?

          As a matter of law, the family court must issue a PPO if it finds reasonable cause to believe that the respondent might commit one of the prohibited acts. MCL 600.2950(4). Reasonable cause is shown by facts that “would justify a fair-minded person of average intelligence to believe” that an incident has occurred. People v Richardson, 204 Mach App 71, 79, 514 NW2d 503 (1994) (construing reasonable cause for purposes of warrantless arrest under MCL 764.15). In ruling on the motion, the court must consider testimony, documents, and other evidence and whether the respondent previously committed or threatened to commit acts of violence. Id.

            Moreover, a petitioner should ask for entry of the order ex parte if notice to the respondent might precipitate additional harm. To justify a request for an ex parte PPO, the petitioner must clearly allege facts that support the conclusion that “immediate and irreparable injury, loss, or damage will result from the delay required to effectuate notice or that the notice will itself precipitate adverse action before the PPO can be issued.” MCL 600.2950(12).

            The PPO may prohibit a spouse from doing one or all of the following:

 (a) Entering onto premises, including the marital home and family members’ homes.

 (b) Assaulting, attacking, beating, molesting, or wounding a named individual.

(c) Threatening to kill or physically injure a named individual.

(d) Removing minor children from the individual having legal custody of the children.

(e) Purchasing or possessing a firearm.

(f) Interfering with petitioner’s efforts to remove petitioner’s children or personal property from premises that are solely owned or leased by respondent.

(g) Interfering with petitioner at petitioner’s place of employment or education or engaging in conduct that impairs petitioner’s employment or educational relationship or environment.

(h) Having access to information in records concerning a minor child of both petitioner and respondent that will inform respondent about the address or telephone number of petitioner and petitioner’s minor child or about petitioner’s employment address.

(i) Engaging in conduct that is prohibited under section Michigan’s penal code for stalking.

(j) Any other specific act or conduct that imposes upon or interferes with personal liberty or that causes a reasonable apprehension of violence.

MCL 600.2950(1). A PPO is an order intended to address an emergency and may include minor children without implicating the Child Custody Act. MCL 722.21 et seq. In Brandt v Brandt, 250 Mach App 68, 645 NW2d 327 (2002), the court of appeals held that under the “catchall” provision of the PPO statute, MCL 600.2950(1)(j), the family court had statutory authority to issue a PPO restricting respondent’s contact with his minor children. See also, Hanford v Hanford, 279 Mach App 324, 760 NW2d 503 (2008) (holding that a PPO need not comply with the Child Custody Act under certain circumstances and that a PPO is an emergency order, not a custody determination).

TO LEARN MORE, AND TO DOWNLOAD FORMS TO APPLY FOR A PPO, VISIT YOUR COUNTY CIRCUIT COURT OR CHECK ONLINE AT WWW.COURTS.MICHIGAN.GOV.

THE POWER AND CONTROL WHEEL: THE MANY FACETS OF DOMESTIC VIOLENCE

NOTE: Although the National Center on Domestic and Sexual Violence provides this chart in gendered terms, women are just as capable of inflicting abuse in these manners. Whether the abuse is man to woman, woman to man, man to man or woman to woman, it is never OK.

DOMESTIC VIOLENCE - FINDING HELP IN MICHIGAN

Domestic violence is an epidemic affecting individuals in every community, regardless of age, economic status, sexual orientation, gender, race, religion, or nationality. It is often accompanied by emotionally abusive and controlling behavior that is only a fraction of a systematic pattern of dominance and control. Domestic violence can result in physical injury, psychological trauma, and in severe cases, even death. The devastating physical, emotional, and psychological consequences of domestic violence can cross generations and last a lifetime.

Domestic violence is the willful intimidation, physical assault, battery, sexual assault, and/or other abusive behavior as part of a systematic pattern of power and control.  Violence is not just physical and need not be physical at all. It includes verbal abuse, financial manipulation and control, psychological violence, and emotional abuse.

The form, frequency and severity of domestic violence can vary dramatically; however, the one constant component of domestic violence is one partner’s consistent efforts to maintain power and control over the other.

There are many laws in Michigan designed to protect victims. These include exclusion from mediation requirements in family court cases, "safe havens" for seeking custody in another state on an emergency basis (think: fleeing from the abuser) and personal protection orders.

However, the most important and first thing to do is SEEK HELP. Here are resources available to you or the victim you know from the Michigan Coalition to End Domestic & Sexual Violence:

http://www.mcedsv.org/help/find-help-in-michigan/directory/search.html

DOMESTIC VIOLENCE AWARENESS MONTH ISN’T JUST FOR WOMEN

October is National Domestic Violence Awareness Month. The often quoted statistics would suggest this month is devoted, primarily if not entirely, to drawing attention to domestic violence against women: According to the National Coalition Against Domestic Violence, one in every four women will be a victim of domestic violence in her lifetime; 85% of reported domestic violence entails a woman as the victim; and, ever year, at least 1.3 million women are assaulted by their significant other. Certainly, this violence, or any for that matter, against women is unacceptable.

However, just a few years ago, the National Center for Disease Control also reported that 40% of the victims of severe physical domestic violence were actually men, and that statistic is climbing. Moreover, more than one-half of the assaults involving deadline weapons were against men.

Unfortunately, other than these few statistics, very little is known about the prevalence of domestic violence against men, for several reasons. First, men are, traditionally, less likely to report domestic violence, whether out of fear of ridicule or a lack of support or the need to feel like and present oneself as “being a man.” Second, as a result, agencies lack the data needed to point in the direction of additional research and spend less of their already limited resources investigating the more widely reported incidents of domestic violence against women. Third, for domestic relations litigators, in the courtroom the claim that the husband is the victim is often received, by court and jury, as an overstatement designed to garner sympathy for the man and/or place blame on the woman. And the lack of statistics and studies only frustrates are argument in the courtroom that neither is true.

What are you to do if you are a victim of domestic violence, then? At the outset, get to a place of safety. Now is not the time for pride. If you have children, consider taking them with you. Talk to friends and family about temporary lodging before going to a shelter, if one will take you. Also consider requesting an order for exclusive use of your home, if you have a case pending, or filing a lawsuit in which you can do so. This may be a divorce, a protection order lawsuit or some combination of the two. Then, talk with the police, as well as your attorney and your counselor, if you have one, about resources available to you and your family. These may include short-term housing, food and other financial assistance, free or low cost counseling and free or low cost legal services. Then, consider the following musts:

Must #1: Police Reports – Report the violence to the police. Do not wait for things to get physical; assaults include threats intended to put you in fear of imminent harm, and domestic violence includes the verbal, emotional and financial as much as the physical. In your report to the police, be specific about dates, occurrences and how they make you and your children, if you have children, feel. Follow the officers’ advice for aftercare. Do not tell the officers that you do not want your significant other to go to jail – like many men do – because that will relieve her of facing the consequences for her action, and allow her to continue.

Must #2: Psychological Evaluations – If you have a case pending or are enrolled in a program that requires your significant other to participate, then request that she undergo a psychological evaluation. Often, perpetrators of domestic violence have other mental health issues that perpetuate the tendency to be violence. You may also find that she has grown up in a household in which violence was acceptable, or at least tolerated. Understand the mental health dynamics may help both of you seek out and utilize the best resources to repair your relationship, if it is reparable.

Must #3: Custody Evaluations – Similarly, if child custody is at issue in your case, do not hesitate to ask that your family undergo a custody evaluation. Request an evaluator who is trained in domestic violence treatment – someone who will not conclude that your claims are overstatements  - and that the evaluation focus on each parent as well as each child’s relationship with each parent and how domestic violence does or does not impact that relationship. Sadly, even when children are not the direct victims of domestic violence, they are the indirect victims, lacking self-confidence and feelings of security in their household.

Must #4: Separate Counseling – Do not engage in “family counseling” or “joint counseling” until both you and your significant other have engaged in separate counseling and some form of treatment to identify her issues and methods for resolving them. Family counseling and joint counseling are not helpful, as they allow the perpetrator of domestic violence to blame the victim and require the victim to participate in and take some responsibility for the problems the perpetrator causes.

Must #5: Courage to Speak Up – Men who suffer domestic violence can only receive help if they break the silence. Not reporting domestic violence because of the stigma attached is the main reason that men currently receive few services, and one of the reasons that studies on the issue are so few.  Speak to your family, your friends, your attorney, your counselor, your church leader, whomever will listen to you and not judge. There is also a Domestic Abuse Helpline for Men and Women (1-888-7HELPLINE) operated by a nonprofit in Harmony Maine that may be of some assistance as you seek out these other, local confidants.

Whatever you do, please do not stay silent. Your life, as well as your children’s, is on the line.