As the month of October marks Domestic Violence Awareness Month, it’s important that we advocates are reminded that this issue commonly affects many legal disputes no matter the area of law you are practicing.
Domestic violence is a common element to many legal disputes. Oftentimes, attorneys may not be aware that their client is a victim of domestic violence until facts of the case are revealed. At that point, attorneys may be unsure as to how to proceed with litigation while ensuring the safety of their client. Recognizing that your client has been subjected to domestic violence is a vital part of effective representation. Failing to recognize your client may be in danger not only impacts the case, but will impact your clients’ daily lives until they are free from their batterer. It may also impact the attorney’s life, as some batterers will seek to harm the victim’s attorney as retaliation. In order to effectively represent clients, attorneys must properly screen potential clients to identify when a client may be instigating domestic violence, or is a victim of it.
Domestic abuse may be presented in clients seeking various legal services. It is highly prominent in family law disputes, where a partner may be seeking a divorce or legal separation from their abusive spouse. Domestic abuse may also occur in various immigration proceedings. A client may be seeking legal status through the Violence Against Women Act (VAWA). VAWA allows domestic violence victims to self-petition for a Green Card if they are a victim of battery or extreme cruelty committed by: a United States citizen spouse or former spouse, United States citizen parent, United States citizen son or daughter, a lawful permanent resident (LPR) spouse or former spouse, or a LPR parent. Currently, VAWA is awaiting reauthorization since it expired originally in September 2018 and its temporary extension expired in February 2019. VAWA is still being funded so clients may self-petition for legal status under the Act. Immigration attorneys must remain updated with the reauthorization of the Act, as it may provide for additional protections for victims seeking status.
Due to the traumatic nature of domestic violence, many victims may feel uncomfortable discussing any abuse they have faced. Victims may even hide the domestic violence from their attorney because they feel ashamed or want to avoid complicated litigation. Knowledge of any domestic violence is important for an attorney to be aware of in order to protect their client. Law firms may identify if their client has faced domestic abuse with proper screening methods. Prior to the client’s initial consultation, attorneys should send a potential client an additional questionnaire to screen their client with their intake sheet.
The questionnaire sent to the client should include information that could identify if the client is a victim or a batterer. The questionnaire should be sent separate from the intake form in a method requested by the potential client, as many victims may still be living with their abuser. It is important to separate the intake form from the screening questionnaire so the client will focus solely on the questions being asked, instead of transitioning between inputting their information to being asked personal questions. Any staff who speaks with the potential client should inform them to answer the questions of the questionnaire as honestly as possible, and ensure them that the answers will remain confidential between the attorney and client.
There are many critical questions attorneys can include in a screening for potential clients to determine if the client has instigated domestic violence, or been a victim of it. An important question to include is asking if the client feels safe with the partner they are seeking litigation against. Lack of safety may be the initial indicator that there is an underlying harm occurring between the parties. The screening questionnaire should also ask if the potential client has ever sought a protective order or had one filed against them. It should also inquire about disagreements between the potential client and their partner involved in anticipated litigation, and how each party acts in these disagreements.
The questionnaire should then transition to more personal details between the potential client and their partner. Important information to obtain from the client includes determining how much control the other party has exerted over the client in the past, and how much control they may continue to have. This may include financial control, control over activities outside the home, prevention of contact with family or friends, threats to reveal sensitive information about the client if they leave the abuser, threats to contact US Immigration and Customs Enforcement to have client deported if they leave the abuser, and prohibiting the potential client from eating, sleeping, or taking care of their mental or physical health. Abusers may also engage in activities specifically harmful to the client, such as destroying their clothing or valued possessions, threatening to hurt the client, physically hurting the client, and whether the potential client has ever been forced to do something they are uncomfortable with.
If the screening reveals that the potential client may be in danger, it is important to assess the level of danger the other party will pose to them. While these questions may be uncomfortable for any potential clients, it is highly significant in protecting them and knowing how to take proper legal action. To assess the level of danger the partner may be, attorneys should ask if the partner has access to a gun, has a history of choking, jealousy, sexual abuse, controlling activities, place of employment, has ever threatened suicide/attempted suicide, or stalked the client.
For immigration clients, attorneys should look for signs of abuse if their client is petitioning for citizenship of their spouse or family member. Should an attorney determine that the petitioning client may be subjecting their non-United States Citizen spouse or family member to abuse or extreme cruelty, the attorney should recommend the victim self-petition subject per VAWA. VAWA allows battered spouse, children, or parents to file a petition for themselves without notifying their abuser. Although VAWA specifies women in its title, this act is not specific towards abused women. Men may also self-petition for legal immigration status under VAWA if they have been subjected to abuse. Attorneys should be alert for signs of abuse in male and female clients.
After an attorney has determined that a potential client may be a victim of domestic violence, they must make the decision whether or not to represent the client. In choosing to represent the client, attorneys must have competent knowledge of domestic violence. The American Bar Association has determined that competent knowledge is at minimum, “an understanding of the dynamics of domestic violence”. For domestic assault victims, it is important for an attorney to recognize that the risk of violence increases when the victim attempts to leave the abuser. Initiating litigation in family law disputes or civil protective orders against the abuser could jeopardize the client’s safety.
Attorneys must also have competent knowledge of cultural differences that may exist. The American Bar Association suggests “learning about the individual client’s values, experiences, and priorities through sensitive questioning … careful listening and attention to verbal and nonverbal cues. Attorneys should refrain from making assumptions about a client’s culture and from generalizing based on their own experience. Immigration clients may be from a different background than the attorney, and thus may be uncomfortable sharing trauma they have endured. Attorneys must listen to their client, and note any nonverbal cues indicating violence the client has undergone, or trauma they are struggling with. Clients may be silent during meetings, and attorneys should allow for such a silence to let the client think about their situation and what they are comfortable discussing. It is important to identify when an immigration client may be struggling from abuse, and to schedule a time to speak with them separately from their partner. Due to the nature of family immigration, attorneys often meet with their client and their US Citizen or licensed permanent resident spouse at the same time. Oftentimes, immigrants may not be aware that they are protected by VAWA. They may fear leaving their abuser could prevent them from obtaining lawful immigration status. Attorneys should contact these clients separately and advise them of VAWA to see if the client is eligible for the status. If the client is deemed eligible, the attorney may file a self-petition for a green card without alerting the client’s spouse of the petition.
Representing a client facing domestic abuse means that there may be more than one legal remedy the client can seek. Clients may be able to seek a divorce, pursue a protective order against the abuser, lawful permanent status in the United States, and even pursue criminal charges. An attorney representing a victim must discuss the legal remedies available, and clearly define the scope of representation they will have.
An attorney representing a victim of domestic abuse needs to obtain all the facts relating to the abuse, and compose a timeline of when the abusive incidents began. The timeline may be necessary to understand the progression of the abuse, as well as assessing the client’s safety. Attorneys must also discuss the safety of the client, and any children the parties may share. The client may undergo separation violence for attempting to escape from their abuser. Attorneys may construct a safety plan with their client to determine how to limit harm to the client, keep the children safe from abuse, preserve assets, or create a plan to leave the abuser. The attorney must also be mindful of communication methods, as the abuser may control the mail, and phone routes that the client has access to. The attorney must correspond prior to any legal filings so the client may prepare to leave the abusers house, or find a safe place to prevent escalated violence. Lawyers representing domestic abuse victims should utilize domestic violence advocates, and counselors to help protect their client.
Attorneys may need knowledge of other areas to adequately represent their client. Victims of domestic violence may be LGBTQ, and may have trouble discussing the abuse with others. LGBTQ survivors may not have helpful interactions with law enforcement in protecting themselves from the abuse, and may not think the abuse is necessary to mention to their divorce attorney. Attorneys undertaking family law matters may also have a client who is financially dependent on their abuser. In such an instance, an attorney should discuss the financial impact of representation the client faces or pro-bono representation of the client for future matters. The attorney may also need to discuss any additional family members that may assist the client in finding a new living arrangement.
Attorneys must remain vigilant in their representation of their battered clients. In extreme cases, abusers are known to seek violence against their victim’s attorney upon learning of legal proceedings, or at the conclusion of the proceedings. 22 Attorneys should encourage clients to be truthful about how violent their abuse has been in the past, and if the abuser has access to dangerous weapons. Attorneys should also stay alert upon filing divorce proceedings, or the divorce being finalized. For immigration clients, attorneys should prepare upon their client’s spouse becoming aware that the client is seeking lawful status through VAWA.
At the conclusion of representation, the attorney should inform the client of criminal penalties against the batterer, and what to do if the other party acts in contempt of the civil proceedings. 23 Attorneys representing immigration clients may inform clients on how to naturalize to a United States citizen if they obtain their green card. They may outline what future representation the attorney will retain, if any, and how to deal with future issues with their abusers. Many victims of domestic suffer through the trauma they have sustained, and will need additional resources to fully recover.
A Message from Katherine Mazaheri:
As a lawyer, I often encounter people in the worst moments of their lives. Many times in a consultation, people pour out their pain, their struggles with issues of domestic violence and/or abuse at home or with a significant other. As an advocate, I empathize with them, and I am dismayed by how many of these clients are unaware of their rights under Oklahoma law. My compassion for survivors of domestic abuse and violence led me to become a proud former board member of the YWCA of Oklahoma City. October is National Domestic Violence Awareness month, and as a YWCA former board member, wife, mother, and a family lawyer, I want to take this moment to inform all Oklahoma City Moms: if you are in a situation of domestic abuse or violence, there is assistance, there is hope, and there is a way out to a different life. Mothers, if you have been beaten down physically or emotionally, let me tell you right now that there are ways out and people to reach out to. These attorneys, organizations, and resources are your allies in finding a better life free from abuse.