Thanksgiving 2009

This week we celebrate Thanksgiving Day, the day which we believers dedicate to remember and give thanks God’s gifts. This year I have many things to be grateful for.

I thank God for my family, my brother Carlos, my sister-in-law Nydia, and my nephews Carlitos and Luisito, because they haven been my support during this long and difficult odyssey.

I thank God for the important advancements of the father’s rights movement throughout the whole world.

I thank God because, after such a long wait and so much struggle, He moved all the pieces on the chess table so I could have parenting schedule with my daughter that, although is not perfect, is far more fair than the former one.

I thank God because my daughter Sofía Isabel already knows that she is adopted, and has received the new with surprise and joy.

And above all, I thank God for having the daughter that I have, the reason and engine of all my struggles.

Thanks God.

False Domestic Violence Accusations Can Lead To Parental Alienation Syndrome

Written by David Heleniak

Parental Alienation Syndrome (PAS) is a pattern of thoughts and behavior that can develop in a child of separated parents where the custodial parent causes the child, through manipulation and access blocking, to unjustifiably fear and/or hate the other parent. PAS is more than brainwashing, in that the child comes to actively participate in the degradation of the target parent, coming up with original (often ludicrous) reasons to fear/hate him or her.

Domestic violence (DV) restraining orders are a perfect weapon for an alienating parent. Typically, in addition to removing an accused abuser from the marital home, a DV restraining order also “temporarily” bars the accused abuser from seeing his or her children, and “temporarily” gives the accusing parent exclusive physical custody. And temporary, in the Family Court, has a funny way of becoming permanent.

Obtaining a restraining order based on a false allegation of domestic violence gets the target parent out of the house and out of the picture. A father who can’t see his kids, for example, is unable to rebut the lie “Daddy doesn’t love you anymore. That’s why he left you.” Nor can he rebut the alternate lie, “Daddy is dangerous. The wise judge said so. That’s why he can’t see you.”

Often, if an accused abuser is allowed to see his or her children, it is in a supervised visitation center. As Stan Rains observed in “Supervised Visitation Center Dracula,” “The demeaning of the ‘visiting’ parent is readily visible from the minute that a person enters the ‘secured facility’ with armed guards, officious case workers with their clipboards and arrogant, domineering managers.... The child's impression is that all of these authority figures see Daddy as a serious and dangerous threat. The only time a child sees this type of security is on TV showing prisons filled with bad people.” Not only does visitation in a visitation center send the clear message to the child that the “visiting” parent is a bad person, if children decline to see their parents under such a setting, they are generally not forced to do so. More perversely, if a child is encouraged by the custodial parent to refuse to see the target parent, there will be no significant repercussion to the targeting parent, and, generally, the child will not be forced to see the target parent.

The more time a child spends away from the alienated parent, the worse the alienation will become. As psychologist Glenn F. Cartwright remarked in his article “Expanding the Parameters of Parental Alienation Syndrome,” “the old adage that time heals all wounds, such is not the case with PAS, where the passage of time worsens rather than heals the affliction. This is not to say that time is unimportant: on the contrary, time remains a vital variable for all the players. To heal the relationship, the child requires quality time with the lost parent to continue and repair the meaningful association that may have existed since birth. This continued communication also serves as a reality check for the child to counter the effects of ongoing alienation at home. Likewise, the lost parent needs time with the child to ensure that contact is not completely lost and to prevent the alienation from completely destroying what may be left of a normal, loving relationship.... The alienating parent, on the other hand, requires time to complete the brainwashing of the child without interference. The manipulation of time becomes the prime weapon in the hands of the alienator who uses it to structure, occupy, and usurp the child's time to prevent ‘contaminating’ contact with the lost parent, depriving both of their right to spend time together and furthering the goal of total alienation. Unlike cases of child abuse where time away from the abuser sometimes helps in repairing a damaged relationship, in PAS time away from the lost parent furthers the goal of alienation. The usual healing properties of time are lost when it is used as the primary weapon to inflict injury on the lost parent by alienating the child.” Along these lines, Dr. Richard A. Gardner, who coined the term “Parental Alienation Syndrome” in 1985, maintained: “If there is to be any hope of their reestablishing a relationship with the targeted parent, PAS children must spend significant time with him (her). They must have living experiences that will demonstrate that the PAS parent is not noxious and/or dangerous.”

A parent willing to falsely accuse the other parent of domestic violence would probably be willing to poison a child against him or her. Add to this the problem that a judge willing to “err on the side of caution” by entering a DV restraining order based on a dubious false allegation would probably not be willing to do what was necessary to prevent the development of PAS.

PAS is heart-wrenching and, tragically, common. If the DV restraining order system could be reformed so that only real victims obtained restraining orders and only real abusers were thrown out of their houses, I predict that the number of PAS cases would be greatly reduced. Let’s try to get there.

Connecticut Takes a Step to Protect Men’s Rights

The basic principle of due process is that a defendant whose rights the state wants to limit is entitled to notice of the charge against him/her and a hearing before an impartial arbiter. But in the area of domestic violence law, those two basic rights are usually ignored. The mere allegation of domestic violence can be enough to deprive a person of constitutional rights (refer to my two previous posts).

Connecticut resident Fernando A., whose full name is not released in court records, was divorcing when his wife fabricated the attack story to gain leverage in family court proceedings. He never got a chance to object to the order of protection issued against him that removed him from his house and prevented him from seeing his children. His lawyer, Steven D. Ecker, of Hartford’s Cowdery, Ecker & Murphy, asked for an evidentiary hearing, but Superior Court Judge James Bingham denied the request. Ecker then challenged the denial up to the state Supreme Court.

The Connecticut Supreme Court then ruled an opinion in which states that, in order to award a restriction order, a defendant must be granted an evidentiary hearing at which the state must consider both sides of the story and must prove, by the civil standard of a preponderance of evidence, that the order is necessary. The defendant may testify or present witnesses, and may cross-examine any witnesses against him. The order may be issued initially on little evidence and with no notice to the defendant, leaving the defendant with no opportunity to defend himself, but that order can now remain in force only for a "reasonable" period of time (what constitutes a reasonable time remains gray area).

This is small but very important step towards a fair treatment of those who are accused of domestic violence, which in turn is a step towards a fair custody awarding system, because, as we all know, domestic violence accusations are one of the instruments most commonly used to block fathers from having custody and visitation rights.

This court opinion has its setbacks. Judges have an extremely broad discretion and can emit restriction orders based on little evidence, relying only on the written materials and hearsay to continue their restriction order. How long a defendant may be deprived of his home, his belongings, access to his children, bank accounts, etc., is not specified. The standard of proof required is, instead of the more restrictive criminal standard, the civil one of "preponderance of the evidence," which means that if the prosecution produces barely more than half of the evidence submitted to court, it wins and the defendant's children may face an indefinite time apart from him.

Again: this is a small step, but a small step in the right direction. Hopefully, this Connecticut court opinion will serve as a deterrent against false accusations and as a shield to protect men’s basic constitutional rights. Hopefully this court opinion will save many men from living in constant fear and intimidation.

Review of “The New Star Chamber: The New Jersey Family Court and the Prevention of Domestic Violence Act” by David N. Heleniak. Part 2 of 2

Last week I started a discussion on David N. Heleniak’s text on the terrible legal implications of New Jersey’s “Prevention of Domestic Violence Act.” Today I will focus on his concerns about the constitutionality of the Act. At a 1995 seminar for municipal judges, Judge Richard Russell of Ocean City, N.J., was caught on tape giving the following advice:

“Our job is not to become concerned about the constitutional rights of the man that you're violating as you grant a restraining order, (…) They have declared domestic violence to be an evil in our society. So we don't have to worry about the rights."

Judge Russell’s attitude reflects the general attitude that many family courts judges have towards men. This blatant disregard of constitutional rights has a clear expression in the Act under discussion. Among the deficiencies that make the Act unconstitutional are:

1 - The lack of notice: The Act requires that a summary hearing has to be held within ten days of the filing of the complaint, to determine whether the allegations in the complaint occurred. Ten days is not enough time to prepare a defense. A wife willing to commit perjury can spend years with her lawyer planning to file a domestic violence complaint at an opportune moment in order to gain the upper hand in a divorce proceeding, while the accused husband has only ten days to get ready.

2 - The denial of the right to free counsel: The Act does not provide for the free assistance of counsel for poor defendants, which added to the fact that they have only ten days to prepare their defense, reduces dramatically their chances of a fair trial.

3 - The denial of the right to take depositions: The deposition is usually the most important discovery tool during a trial. During deposition, a defendant's attorney can corroborate the veracity of the plaintiff’s assertions. In a restriction order hearing, a defendant is deprived of this discovery tool because, according to the Chancery Division, allowing the “…alleged perpetrator to depose a victim, (…) perpetuates the cycle of power and control whereby the perpetrator remains the one with the power and the victim remains powerless.” Defendant is therefore unable to anticipate all of the things the plaintiff says at the hearing, is unable to analyze her version of the events alleged in the complaint prior to the hearing, and is unable to test the veracity of her testimony.

4 - An improper standard of proof: The Penal Code treats domestic violence complaints as something other than a criminal offense. The result is that family courts can circumvent the protections normally accorded for an accused in a criminal case, including the right to due process of law, and to a trial by jury.

5 - The denial of the right to a trial by jury: The trial by jury is necessary for preventing the abuse of judiciary power. The fathers of the constitution, reluctant to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges, insisted that the truth of every accusation should be confirmed by the suffrage of his equals. In our constitutional framework, the jury is expected to serve the people by checking the judge, by protecting us against arbitrary actions by courts. By denying the defendant of his right of a jury trial, the Act denies him of one of the most basic constitutional rights.

In summary, the Act is unconstitutional because it denies defendants due process of law. The Fourteenth Amendment of the United States Constitution provides that no State shall "deprive any person of life, liberty, or property, without due process of law." But as we have seen, the Act does precisely that.

And as Heleniak writes, the protection of women does not justify the surrender of civil rights.

Review of "The New Star Chamber: The New Jersey Family Court and the Prevention of Domestic Violence Act" by David N. Heleniak. Part 1 of 2

David N. Heleniak is an attorney in New Jersey. Holding a MA degree in Theological and Religious Studies from Drew University, he is the vice president of RADAR (Respecting Accuracy in Domestic Abuse Reporting), a non-profit organization that works to improve the effectiveness of the approach to domestic violence (http://www.mediaradar.org) and the senior legal analyst for True Equality Network, a group dedicated to educating on how the failures of numerous federal programs and the abuses of federal funding systems affect the sovereignty of the American family (http://www.true-equality.org).

He is the author of several works, one of which is titled The New Star Chamber: The New Jersey Family Court and the Prevention of Domestic Violence Act, published in the Spring of 2005 issue of Rutgers Law Review, adaptations of which were published in the New Jersey Law Journal, New Jersey Lawyer, and The Liberator, America's Shared Parenting Quarterly (PDF: http://www.njccr.org/Articles/Heleniak2006NewStarChamber.pdf) (Video: http://www.youtube.com/watch?v=mwsgT_Yu008). It is this text that I want to summarize on this and next week posts.

The text starts with a disturbing quote by Dean Roscoe Pound: "The powers of the star chamber were a trifle in comparison with those of our juvenile courts and courts of domestic relations." From there, Heleniak develops an exposé on how the family court system, particularly in New Jersey, violates basic constitutional rights.

The title of the text refers to the Star Chamber, so named because of the star pattern painted on the ceiling of the room in Westminster Palace, where the king of England's council met, that was intended to be a more efficient alternative to the common-law courts, but that in fact, it became the embodiment of unfair judicial proceedings. Heleniak argues that through The Prevention of Domestic Violence Act, the New Jersey Legislature has been allowed to create, in the Family Part of the Chancery Division of the New Jersey Superior Court, a modern day Star Chamber.

The Act permits a self-proclaimed victim to file a complaint alleging the commission of an act of domestic violence, and to request a temporary restraining order. If the court determines that an act of domestic violence has occurred, it can authorize any of the following reliefs:

- An order giving the plaintiff exclusive possession of the marital home.

- An order requiring the defendant to make mortgage or rent payments.

- An order restraining the defendant from making contact with the plaintiff.

- Temporary custody of a minor child.

- The suspension of parenting time for the defendant or limitation of visitation to supervised visitations.

- Monetary compensation for losses suffered by the plaintiff to be paid for by the defendant.

- An order requiring the defendant to receive professional domestic violence help.

- An order requiring the defendant to undergo a psychiatric evaluation.

- The award of temporary custody of personal property, such as an automobile, checkbook, and other personal effects of the defendant.

The Act also provides for imprisonment for any person convicted of a second or subsequent nonindictable domestic violence contempt. As it is easy to see, the potential for abuse of the Act is immense. The advantages of a restraining order to the complainant are a temptation hard to resist: exclusive possession of the home, temporary and probably permanent sole custody of the children, and the opportunity to make the other person’s life miserable.

The Prevention of Domestic Violence Act authorizes a chancery judge to bar a defendant from ever setting foot in his house again, yet make him pay the mortgage payments; make him pay large sums of money to the plaintiff; bar him from seeing his children; force him to see a psychologist and/or psychiatrist against his will; temporarily give the plaintiff exclusive possession of the defendant's car, checkbook, and other personal effects; bar the defendant from ever speaking to any individual that the plaintiff does not want him to speak to; force him to turn any firearms he has and bar him from ever possessing another firearm in his life; and make the defendant pay a "civil penalty" of $500.00, and if the defendant refuses to comply with any aspect of the judge's order, he can be tried for contempt and imprisoned. Lastly, he is labeled an abuser and his name is put on a list of domestic abusers known as the New Jersey Judiciary's Domestic Violence Central Registry, a societal stigma that will follow him the rest of his life.

Knowing all this, it should not be a surprise that in many divorce cases, allegations of abuse are used for tactical advantage.