Sooner or later the abuser will come back to court and ask for the court restrictions to be lifted so they have unsupervised parenting time. They might submit a certificate and a narrative about how much they have changed and how much they missed their kids.
But a certificate is not enough to convince the court to remove the parenting time restrictions. Under the Alec and Lydia Act, the abuser has to rebut the presumption and the statute tells the court exactly what to consider.
The Court Must Weigh the Severity and Frequency of the Domestic Violence
The court has to weigh the severity and the frequency of the domestic violence. It will be important for the court to be made aware of any domestic violence that occurred since the last court orders. It is hard for an abuser to stop abusing. In our experience, they continue long after the last court order. The court will need to know what other behaviors have been going on. The domestic violence at this stage is usually coercive control. The abuser will play games with the allowed phone time, missing their call time with the child and then demanding time 30 minutes later. They will say inappropriate remarks about you or your family to the child during a phone call. They will interrogate the child for your whereabouts during a phone call. You need to make a record of this behavior so if the abuser ever does get back to court you have it documented.
If the prior domestic violence was severe such as physical injury or emotional trauma, use of a weapon (or brandishing a weapon), strangulation, and forms of coercive control used over time or in a pattern of abuse, the court must make note of it and it is presumed contrary to changing any restrictions.
Strangulation is singled out for a reason. The research on lethality in domestic violence consistently identifies strangulation as one of the strongest predictors of future serious harm or death. A person who has strangled you puts your life in danger as it is a major precursor to homicide. If strangulation is part of your history, please understand that you are at high risk. Get help now.
Did the Abuser Deny, Minimize, or Blame the Victim for the Abuse?
The court has to consider whether the abuser has denied, deflected, or minimized the abuse. The court will look at the behavior in the courtroom, in treatment, in assessments, in disclosure and discovery answers and in their deposition. This list also gives you the outline of how to go about obtaining this evidence. Take the deposition, send discovery, get a HIPAA release and ask the questions in court.
For instance, did the abuser tell their counselor it was just a communication problem instead of domestic violence? Did they call it mutual? Did they blame you? Did they admit any of it? All of these answers show a pattern and will be critical for you to review and summarize for the court. An abuser who minimizes what they did has not been rehabilitated. Nothing has changed in their mind and they are likely to commit domestic violence again.
Has Enough Time Passed to Diminish the Domestic Violence?
That should be very hard to do. The abuser will argue that it was years ago and should no longer count against them. In certain circumstances, the court may consider the passage of time as a factor favoring the abuser’s rehabilitation. But it must be remembered that the abuser might just seem reformed because they have not had the opportunity to abuse the other parent because of the court’s restrictions.
The statute draws a line when the violence involved strangulation, serious injury, weapons, or a long pattern of coercive control. The legislature has told the courts they cannot simply treat the passage of time as proof of change. Some actions are so severe that they are never lessened no matter how much time has passed.
Did the Abuser Actually Complete a Valid Domestic Violence Program?
This is easy enough to verify and there are strict requirements. The court considers the attendance at a domestic violence treatment program but the statute is explicit that a certificate of completion by itself is not proof of rehabilitation. The certificate is insufficient if any of these four components are missing.
The certificate has to be accompanied by all four of these:
- The abuser has to waive confidentiality so the actual treatment records go to the court and to the abused victim.
- The abuser has to show the program was relevant and proportionate to the domestic violence at issue in the case.
- The abuser has to demonstrate that they understand how their abuse harmed your child and harmed you.
- The abuser has to prove the program actually reduced or eliminated their tendency to minimize the damage they caused or rationalize the trauma that they inflicted.
What This Means for the Abused Victim Parent
The burden is on them now to show they are safe. It is no longer your burden to show that domestic violence makes joint legal decision making impossible. It is no longer your burden to show that domestic violence puts your child at risk for their safety. Your task is to hold the abuser to the standard the law has set. It is important to understand how the burden has now shifted and how to help make the record that you will need for court.
The law has now determined that your child’s safety is the paramount factor more important than the abuser parent’s access to the child. The court will not automatically know all of the facts of your case so it will be up to you to help gather the evidence and make the record. That is what we can help you with. Presenting your case to the court so it is clear, organized and documented is important so the court knows the facts and can make the correct decisions for keeping you and your child safe by applying the Alec and Lydia Act.
