Domestic violence is a serious problem in family law. Whether there has been a conviction or not, the lasting effects of intimate partner violence can make any divorce, custody, or parenting time case far more emotional and difficult. The Michigan Legislature has just approved a number of bills designed to crack down on Domestic Violence, including in the family court.
The criminal penalty for domestic violence is relatively minor. A misdemeanor with a maximum jail time of 93 days, domestic violence penalties often go away entirely through a special diversion program offered by state prosecutors. That means that even with documented and convicted violence, a search of an abuser’s criminal record could come perfectly clean. Some domestic violence survivors report the worst thing that ever happened was when their abusers were sent to jail. That’s because after a few short months, the abusers were released from any supervision and free to continue their systems of abuse.
For others, the divorce itself was the toughest part of separating from their abusers. Being forced to face their abusers in court hearings and mediation put them back into the position of victim they had worked so hard to escape.
That’s why the changes recently made by the Michigan legislature are a good first step to better protecting domestic violence victims in the courts. Seven bills have been passed by both the House and the Senate and is headed to the Governor’s desk soon. Here’s what is changing:
HB 4476 Family Court Mediation
HB 4476, limits court-ordered mediation in a family law case if a domestic violence survivor has a personal protection order (PPO) against his or her abuser, or if there is an abuse/neglect proceeding against either party. Before ordering mediation, the court must hold a hearing to decide whether it is appropriate. The only exception is if the PPO holder is the one requesting mediation.
HB 4477 Service to Confidential Addresses
One key protection in family court is denying an abuser access to the victim’s new address after they move out. Under HB 4477, the Michigan Court of Appeals and Supreme Court would take on service to the protected party. That way the address stays confidential, but the parties still get served.
HB 4478 PPOs Protecting Animals
HB 4478 changes Michigan personal protection law to allow petitioners to seek protection for their companion animals as well as themselves, their children, and their property. This is an important change, because often abusers will use control of a person’s pet to continue dominating a domestic violence survivor.
HB 4479 and 4788 Domestic Violence Against Pregnant Women
HB 4479 and 4788 increase the criminal penalties to repeat domestic violence offenders if the abuser knew the woman abused was pregnant. A second offense has a one year penalty. A third or subsequent offense is a 5 year felony. This law falls short because it only protects pregnant women. Victims of continued domestic violence include men and women of all ages and fertility. Aggravated domestic violence should have compounding penalties no matter who is the victim.
HB 4481 Child Custody and Rape
HB 4481 expands an existing law prohibiting a court from awarding custody of a child to a person who was convicted of criminal sexual conduct (or rape) that resulted in the child’s conception. Under the new law, a sexual assault survivor can provide clear and convincing evidence of the rape directly to the family court, rather than requiring a criminal conviction first.
HB 4480 Child Custody and Protective Acts
HB 4480 is one of the biggest changes for family lawyers. One of the 12 Best Interest Factors that family court judges consider in awarding custody is how well each parent facilitates the child’s relationship with the other parent. For domestic violence survivors, this factor is a challenge. Reasonable and necessary steps taken to protect children from a domestic violence abuser can work against a survivor and can sometimes tip the scales toward granting custody to the abuser. HB 4480 prevents the court from holding protective acts against the domestic violence survivor. This change will make it easier to make the decision to leave the home, deny parenting time, and cut off communication for the safety of the children.
This packet of domestic violence reform bills make some big changes in favor of domestic violence survivors. But it still leaves some big gaps to be addressed. Victims of abuse should make sure they have a team of advocates and an experienced family lawyer to take full advantage of the bills and existing laws to get them all the protection they need.
Lisa J. Schmidt is a family lawyer at Schmidt Law Services, PLLC, in Ferndale, Michigan. She represents domestic violence survivors in family court. If you or someone you know is escaping an abusive relationship, contact Schmidt Law Services to schedule a free consultation.