Safe‐Haven Reopening: Lowering the Custody Modification Standard to Reopen an Initial Agreement in Cases of Domestic Violence

• DOI: http://doi.org/10.1111/fcre.12385
• Date: 01 October 2018
• Published date: 01 October 2018
• Author: Brittany E. DeVries

FAMILY LAW WRITING COMPETITION WINNERS

SAFE-HAVEN REOPENING: LOWERING THE CUSTODY

MODIFICATION STANDARD TO REOPEN AN INITIALAGREEMENT

IN CASES OF DOMESTIC VIOLENCE

Brittany E. DeVries*

This article argues for a safe-haven reopening, which would consequently lower the custody modification standard that is cur-

rently required to reopen an initial custody order when evidence of domestic violence that was not before the court in the initial

hearing phase, is plausibly alleged and corroborated. Further, in most jurisdictions in this country, the legal definition of domestic

violence is too limited. The article argues that domestic violence definitions in this courtroom should be broadened to their non-

physical and/or unreported forms of violence, which some psychologists and researchers have labeled "coercive control."

Key Points for the Family Court Community:

•To expand the current legal definition of domestic violence, which is too limited in most jurisdictions. Instead, the

court should apply the broadened definitions—nonphysical, unreported, psychological, and economic forms—which

are widely accepted in the social science community and general public.

•To increase awareness in the courtroom and among legal practitioners that this kind of coercive control and domestic

violence is adversely affecting custody outcomes to the detriment of the children, particularly in those negotiations and

outcomes arising from out-of-court custody agreements.

•To interpret states’criminal duress and coercion statutes to include domestic violence which would permit judges to

address and expand the legal definition of domestic violence without having to seek tediousand arduous legislative

reform.

•To increase awareness that custody agreements made in cases of domestic violence may not have been in the best inter-

ests of the child because not all of the facts were before the court at the time of the initial order. Safe-haven reopening

remedies this bypermitting judges to take a second lookonce all of the facts have been safely brought before the court.

Keywords: Best Interests of Child; Coercive Control; Custody Modification; Domestic Violence; Economic Domestic

Violence; Initial Custody Orders; Nonphysical Domestic Violence; Out-of-Court Settlements; Safe-Haven

Reopening; Substantial Change in Circumstances; and Material Change in Circumstances.

I. INTRODUCTION

Consider this scenario: A married woman

1

has been a family homemaker for thirty years. She

and her husband have three children together. They emigrated from India to the United States. Her

husband is a wealthy man with a high-powered job in the business world—but she does not know

anything about his work. He will not tell her. He has control of the credit cards, the checking

accounts, the investments, the vehicles, the house, and the phone accounts. He does not want her to

work and intervenes in her work so much that she cannot keep her job. She does not see her family

or friends anymore because he accuses her of cheating on him when she is out. Once, after a repair-

man came by to fix the dishwasher, he became so angry that he punched a hole in the wall, added a

tracking device to her phone, and told her that men could no longer be in the house when he was

gone. He swears at her and demeans her, often in front of the children. Maybe he has hit her before,

and maybe he has not. Maybe he just threatens her, or threatens her relationship with the children.

Corresponding: bdevries@law.gwu.edu

FAMILY COURT REVIEW, Vol. 56 No. 4, October 2018679–694

© 2018 Association of Family and Conciliation Courts

She, trying to make the marriage work and avoid making matters worse, acquiesces to this control

and tries to avoid his anger.

This scenario describes domestic violence. Though it does not describe a husband that beats his

wife, it depicts abusive and controlling behaviors that are known collectively as “coercive control.”

2

Nonphysical intimate partner violence, like this example, is prevalent and hidden in our society.

In far too many situations, domestic violence tragically underpins divorce, particularly out-of-court

divorces and custody settlements. Additionally, most of the time it is notseen, it is not heard, and it

is not brought to the attention of the courts. Why? First, out-of-court custody arrangements are an

efficient use of court resources. Such arrangements encourage courts to quickly push uncontested

divorces through the legal system. Second, when domestic abuse occurs, the resulting trauma of the

experiences, the likely overwhelming skepticism from courts, the financial dependency

3

on the part-

ner, and the realistic fear of what abusers might still do, in combination, prevent women from mak-

ing it known to the courts or anyone else, both during the divorce process and after it is over.

4

Often it is because they do not see the situation clearly for what it is until they have been out of the

relationship (and have been relatively safe) fora while.

This dynamic contains the seeds of a long-term problem: An initial settlement is often negotiated

at a time when the victim is still traumatized and afraid, and the abuser’s manipulations can allow

him to use the legal system—and the lawyers—against her. But once an initial child custody agree-

ment is put into effect, modification is an uphill battle due to the applicable, burdensome legal stan-

dard necessary to change its terms.

5

Frequently, divorced women do not consult withan attorney

until a year or two after entry of a decree and custody arrangement.

6

This is often her first actual

opportunity to speak to an attorney—her husband, finally, is not tracking her or stalking her. As the

law stands today though, she is too late. The agreement is already in place. Custody modification,

an attorney will explain to her, is too difficult to obtain because most states require proof of “sub-

stantially changed circumstances”in the primary custodian’s household to modify the agreement.

7

This article proposes that courts evaluate modifications of custody in cases with domestic vio-

lence under a different lens, that is: criminal coercive control.

8

Then, when petitioners who wishto

modify a custody agreement make plausible claims that the prior agreement was signed under

duress and coercion, courts will be able to reopen the order without requiringpetitioners to meet a

substantially changed circumstances standard. This is what I refer to as a“safe-haven reopening.”

9

Though a safe-haven reopening is not yet the norm in most states, there is recent jurisprudence in a

handful of jurisdictions that supports the reform efforts proposed in this article. Certain states, such

as New Jersey and New York, have revised their criminal statutes to acknowledge potential duress

and coercion in domestic violence situations. As for case law, a recent appellate court decision in

Hawaii

10

overturned the lower court’s refusal to reopen thecustody agreement in accordance with

the safe-haven reopening standard that I urge courtrooms across the United States to adopt.

This article also addresses other imperative family law concerns that inevitably arise from

domestic violence situations, as well as those issues that potentially arise as a result of this

recommended safe-haven reopening approach. First, this proposed lower standard does not lose

sight of the best interests of the child standard. The lowered standard is for the sole purpose of

reopening the custody order and any incorporated agreement. Once reopened, a judge can review

all of the facts under a best interests lens, as he did before. Second, this article acknowledges and

is written to address a major safety concern. Due to trauma, fear, and pushback fromthe legal

system as to the legitimacy of their experiences, often these victims are unable to bring all of the

facts of the case to light in the initial proceeding.

11

My approach in lowering the standard to

reopen an agreement permits women in such situations to bring a claim later, when they may feel

more able to do so. A safe-haven reopening would also require that a modification petition would

include both plausible claims and corroborating evidence, to avoid potentially frivolous suits and

wasted court resources.

Third, this proposal is effective either through legislative reform or within the family courts’

inherent authority to enact remedies; judges are in an excellent position to address domestic vio-

lence situations promptly and effectively

12

because courts are the venue at which individuals enter

680FAMILY COURT REVIEW