When Perpetrators of Domestic Violence Use Civil Court System to Re-Victimize Survivors

By Madeline Finnegan, J.D. ’23
Via LSC Blog

While domestic violence is sometimes dealt with in the criminal justice system, more frequently it is handled as a civil matter disputed in Probate and Family Court.  This enables perpetrators of domestic violence to use the court system as a tool of abuse, a situation I saw play out regularly while representing clients in the Domestic Violence and Family Law Clinic in Fall 2021.

While the state handles domestic violence cases in criminal proceedings, if survivors want to obtain relief from their abusers through restraining orders or changes in child custody or support arrangements for their shared children, they must appear in court for a civil proceeding and be chief advocates in their own cases. In civil matters, the court does not provide lawyers for either party, oftentimes resulting in one or both parties appearing pro se, without counsel. This is especially true among low-income litigants.

Civil Proceedings Force Survivors To Be Questioned by Their Abusers

Because abusers often appear pro se, when survivors go to Court they are confronted with the possibility that they will be directly questioned by their abuser about the abuse they endured, which can be re-traumatizing. As many cases I have worked on through the Clinic have shown, abusers use this kind of scenario to their advantage, forcing physical proximity on the people they have abused and filing unnecessary complaints or appeals with the courts.

These broader systemic challenges for domestic violence survivors were brought to the fore in an appeal the Clinic briefed, and that I argued, at the Massachusetts Appeals Court in January 2022. Since 2017, the Clinic has represented a mother, who has one child with the father, in proceedings over child custody, child support and parenting time. The mother is the primary caregiver for their daughter, raising her in Massachusetts until a recent move out of state. The mother initially fled to Massachusetts to escape domestic violence by the father. The father works and lives outside Massachusetts, and has not spent much time with his daughter over the course of her life. He has represented himself throughout the proceedings.

Abuser Appeals Court Decision; Files Litigation in Second State

In 2020, the Suffolk Probate and Family Court issued an order setting a new amount of child support and establishing a modified parenting time arrangement that slightly reduced the father’s time with his child. Unsatisfied with the amount of child support mandated and parenting time granted to him, the father appealed to the Massachusetts Appeals Court.

The father’s claims were insubstantial on the merits, as child support and parenting time decisions were made well within the Trial Court’s discretion and were even somewhat favorable to him compared to past court orders. Beyond that, and more importantly, by the time of the appeal, the mother and child had moved away from Massachusetts, meaning that no party to the litigation still lived in state. The father clearly recognized this, as he took the Massachusetts 2020 Order to our client’s new state of residence and began litigating the same child support and parenting time issues there.

The father was attempting to take two bites at the apple. The best-case scenario for him—success in litigation in both states—would likely result in conflicting child support orders, sowing confusion for both parties. The only tangible benefit to the father seemed to be “victory” over the mother, and as such, his choice to appeal was both confusing and inappropriate. We decided to argue for the appeal’s dismissal.

Arguing Jurisdiction and Mootness on Behalf of Survivor

While we saw the appeal as harassment of our client, we needed to argue for its dismissal using the legal tools at our disposal. In briefing for the case, we chose to argue for a dismissal based on jurisdiction and mootness. Jurisdictionally, we reasoned that the litigation was in an inappropriate forum, as the child no longer lived in Massachusetts. For mootness, we contended that the order on appeal was being actively litigated in a more appropriate forum and so the Massachusetts Appeals Court could provide no real relief to the father. If the court declined to dismiss, we asked that the order be affirmed on the merits.

Oral argument required a different, more flexible strategy, because we needed to be prepared to respond to the father—who was arguing first—and his pro se oral arguments, which were likely to be less legally formal. We particularly worked to anticipate and counter the father’s purported rationale for bringing the appeal—namely that there was relief that only the Massachusetts courts could provide.

At oral arguments, as expected, the panel focused on jurisdictional and mootness concerns, particularly the father’s reasons for pursuing litigation both in Massachusetts and out of state. I played on the panel’s skepticism of the father’s multi-state litigation efforts and highlighted our jurisdictional convenience argument. The panel had no questions regarding the merits of the case, which we took as a good sign that they would dismiss the appeal.

As we had hoped, the Massachusetts Appeals Court dismissed the appeal, finding it moot. In its decision, the Court relied on the father’s domestication and subsequent litigation of the 2020 order in the mother’s new state, noting that there is no longer any relief the Court could provide.

Case Dismissed in Massachusetts, But Litigation Continues Elsewhere

The dismissal of this appeal, first and foremost, provided meaningful relief to our client. But the fact that this appeal proceeded, and that litigation continues for our client elsewhere, highlights how domestic violence survivors are subjected to continued abuse because of the unique leverage our court system affords to abusers. The adversarial nature of our legal system means that abusers can continue to file lawsuits against their victims and force proximity to them in a courtroom at some or all court proceedings.

The stakes are high in family court, and the Domestic Violence and Family Law Clinic at the Legal Services Center does a fantastic job of achieving positive outcomes for our clients while doing everything possible to shield them from additional confrontation by their abusers in court, a concern that makes many survivors reluctant to seek help in the first place.