A family court judge once told me that, in his experience, 50% of all allegations of domestic violence or child abuse are fabricated as a strategy to obtain property or custody of children. In my experience, the percentage is not that high, but it is a lot higher than the media or some special interest groups would like to admit. However, given the way many states, including my own, treat domestic violence cases, it is easy to see how the system can be abused for such reasons.
No Contact Order
When a person is arrested for domestic violence, most states impose an automatic “no-contact order,” by which the accused is denied access to or contact with his or her spouse or partner, children, home, vehicles, clothing, or pretty much anything else necessary to stay alive, maintain their job, and continue any form of a normal life. This occurs while the accused is still supposedly “presumed innocent.”
Moreover, in most states, including my own, this no-contact order is imposed without requiring the government to present any form of evidence, and without anyone being given an opportunity to argue the necessity or specifics of such an order.
Violations of No Contact are Separate Crimes
Violations of a no-contact order are separate crimes, and the spouse or partner of the accused who initiates contact with the accused may also be accused of a crime for causing the accused to violate the order. In short, the family is torn apart, emotionally, physically, and financially, the minute one partner is accused of domestic violence. The police don’t tell the crying partner or spouse this when they are there taking statements and gathering evidence in preparation to arrest someone. In fact, often they lead the complaining party to believe that everything will be just fine. And they wonder why often the complaining party later refuses to help them in their prosecution?
No Contact Order are Difficult to Lift or Modify
In many jurisdictions, prosecutors will essentially hold the whole family hostage by refusing to agree to modify or lift the no-contact order until the accused pleads guilty and submits to some sort of "treatment." This forces a lot of people to plead guilty to something for no other reason than to save their family or job. This is convenient for those working within the system, but it does not respect the Constitution or the needs of many families.
Fighting a No Contact Order
Until lawyers start to consistently demand an evidentiary hearing before a no-contact order is entered, judges will continue to enter them automatically, in violation of our constitutional rights. I make this demand whenever I can, but we are still early in the development of this area of law, and most judges do not listen. Some day the right case will reach our appellate courts, and the law will develop to the point where this practice changes. That will be a good day for families, and a bad day for those who would abuse this system just to get a spouse or partner ejected from the house as a strategy to seize property or custody of children.