An Appealing Strategy
California Lawyer

An Appealing Strategy

by Karmah Elmusa

January 2013

Largely ignored parts of the state's Family Code are now likely to get a lot more attention, thanks to an ambitious new nonprofit based at UC Berkeley School of Law. The Family Violence Appellate Project (FVAP) intends to systematically appeal cases, particularly those dealing with custody disputes in domestic violence matters.

Cherri Allison, the executive director of the Alameda County Family Justice Center, says that FVAP would have been an invaluable tool to her when she was practicing family law. "There's never been a resource like this before," says Allison. "When I was practicing, there was no organization that dealt with appeals. I couldn't afford to do appeals, considering many of my clients could barely afford representation of any kind."

Since 2004 the Family Code has contained a carefully worded provision designed to protect children from ending up in the care of violent guardians. The code states, in part, that: "[T]here is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child." (Cal. Fam. Code § 3044(a).) And yet, according to FVAP, one study found that abusers are granted custody in 54 percent of custody cases involving documented domestic violence.

"Statistically, when battered moms bring up domestic violence in mediation before a custody hearing, they are less likely to be awarded custody," says Nancy Lemon, a UC Berkeley law professor, FVAP's legal director, and the drafter of section 3044. "It's baffling. And the only way to reverse these adverse decisions is via appeal."

Advocates say that domestic violence survivors often fare poorly in court. A survivor of abuse might not be able to afford stable housing on her own, or she may have difficulty finding permanent employment, while the batterer has both. These disadvantages can skew the outcome of family law cases, and until now, appeals in such matters have rarely been filed.

FVAP opened its doors in June 2012 with full-time FVAP attorney Erin Smith, along with Lemon and a smattering of law students. This core group screens cases and then will either file the appeal itself or act as co-counsel to a small army of outside attorneys who work for the nonprofit pro bono. So far, FVAP has filed two appeals and an amicus brief on behalf of domestic violence survivors.

Obstacles include fund-raising, a small staff, reaching out to in pro per litigants, and the time restrictions that appeals impose. But for Smith and Lemon, the effort is worth it.

"In my career, I've come to several conclusions about domestic violence and family law," says Lemon. "One of them is that if you don't appeal domestic violence cases, then family court may ignore the legislation."

Reader Comments

Family Violence Appellate Project - January 3, 2013
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Nancy Lemon - January 5, 2013
Credit must also be given to the two fabulous law students who came up with the idea of FVAP, Sonya Passi and Alex Scott, while in my Domestic Violence Law seminar at Berkeley Law in fall 2011. They worked extremely hard to create this new non-profit, sit on its board, and are key partners with Erin Smith and me.
(Lets Get Honest username) - March 8, 2013
I hope new law students will take some time to read this article and understand that mothers who left abusive relationships (often with help of a DV restraining order with kickout, for which we ARE thankful -- don't get us wrong about this) -- are starting to fill in the missing pieces to the puzzle (I am fairly sure Ms. Allison and others, as a family lawyer, know about it already): A woman (who had to drop out of law school to fight her custody battle, as I understand this) is one of the rare people who simply look up the funding of the organizations contracting with the courts: Child Support is number one (OCSE has been re-tooled to support fatherhood, as has welfare, etc. since especially 1996). Welfare Reform specificaly targeted African American single mothers, however it expanded later to stigmatize ALL single mothers, and has since expanded to beyond low-income families, in the effort to ensure every young child has a resident father involved; sometimes they are fetched out of prison to be persuaded to co-parent after abandoning their kids. Somehow, feminist lawyers tend to bond with low-income fathers; that's fine, but the fact is, there is a feminist backlash going on, to the point that women who could get free and move on in the 1980s, since the 1990s, cannot. WHY? The family courts. The men are getting pro bono legal help to file for custody, and reduction of child support arrears in return for it; they are being incited to file for custody when they wouldn't otherwise want it. The situation is beyond dangerous, and the answers do NOT lie in helping at the appeals level, but stopping the "out of the frying pan into the fire" situation between filing a restraining order, and being hauled into court. Mine was recruited, it appears, in a church (see Bush Faith-based Initiatives). I am a survivor of religious domestic violence, was almost killed while seeking refuge/counseling from pastors, had my own family (in denial) then financiall and socially back my attacker; later experienced overnight child-stealing (destroying a reputation) and now we find that "justice centers" are reaching out to faith communities to stop DV??? First noted is Child Support (OCSE is now a fatherhood promoting franchise, at ALL levels, practially). Notice the last item "Domestic violence is a multibillion dollar industry complete with its own ambiguous gender neutral lingo often causes victims in profitably dangerous homes. " Certainly Futures without Violence is a multi-million$$ adventure in San Francisco. And they run a Fatherhood Institute to stop domestic violence?? How about, in SF backyard, the regular conferencing of a fatherhood organization from Arizona, backed by Mr. Leving from Chicago (with White House ties) whereby fatherhood affiliates hook up with HHS high-ranking officials to grab those grants? Among the board of directors are a few COGIC Bishops, and I also found a Los Angeles Judge whose nonprofit hasn't been filing its tax returns (Honoring Unsung Fathers/Judge Mablean Ephriam). (70 pages of conference material, recent. I found someone who was in charge of child support for my county, during the time my ex accrued an arrears of $15K (but as he stole the kids, got it reduced by one-third). I have a twenty-year history (domestic violence//after domestic violence)in your backyards of what it was like to seek help from the Family Violence Law Center, and get drop-kicked (ex parte consolidated into) the family law system, and how women in my situation (with whom I am widely networked) are coming to understand the system, although despite attempts to speak to people such as: (Ms. Lemon, Barbara. J. Hart (Muskie, formerly PCADV I believe), Joan Meier (DVLeap), and a number of prominent (in the SF Bay Area) domestic violence prevention nonprofits. For the most part, input from the street is rejected. So after being financial devastated for doing the right thing (leaving the batterer) and been "indoctrinated" into our rebuttable presumption rights (Section 3044) but told NOTHING about the Conciliation Courts (Section 1800), or, the related nonprofit promoting them and staffing many of them (as it has been since 1960, picking up speed in the 1980s), like Association of Family and Conciliation Courts -- we are starting to put together the pieces of the puzzle. I think it ironic that right in my home town, nonprofits are getting their millions to NOT talk about what we needed to know, while some of us are sending $15 here, $30 there to help each other get through a week, given that child support is going to be compromised (COAR/COAP programs for family reunification//   ), we have had our work lives devastated through being hauled repeatedly into court, and despite all the wonderful "Collective Community Response" policies, it's rare to find a police officer or county sheriff who will actually enforce a restraining order, or even a custody order. Rather than listening primarily to each other, how about seeking input from survivors, one, two, five, or ten years after going through this system? I still am experiencing stalking, but have despaired of doing anything about it. Once the man knows that no one is going to enforce, or that these fatherhood programs exist, there seems to be no restraint. I was about 50 when I threw out the abuser, I restructued within three years next door, and then was assaulted repeately through the family court scenario. It wasn't until a full year after being (needlessly) driven BACK onto Food Stamps that I started understanding to follow the grants and look at the nonprofits. I ask again -- is there any feminist lawyer willing to listen to a point of view which might be politically incorrect -- but utterly relevant to life and death matters for women (mothers, specifically) leaving sociopathic abusers, under counties with Conciliation Courts and mandatory mediation? After I express the dismay and some anger (no violence), I really do have some valuable information which might help future generations. Women cannot be expected to know all the relevant information automatically while exiting DV, but women who have managed to survive it have developed resources and stam
Hilda Felix - April 11, 2014
I'm going thru the same situation, it's desperate because you don't understand why the court looks like they protect the abuser and not the victim, but the most important the kids. What side the justice is?, To protect who? I love your article I agree en everything you said. How I can appeal to dismiss Temporary Restraining Order? Can someone tell me how PLEASE. Thanks you. CONGRATULATIONS..........
Concerned in Cali - September 7, 2014
I've personally known two women who were abused by men in their lives with whom they have had children. One occured many years ago and she didn't pursue any charges because the abuser was a cop at the time. He was a jerk that deserved to be behind bars and eventually got fired from the department he worked for for brandishing a gun in a local restaurant. He didn't want custody of their daughter so it was not a problem for her. The other was just a couple years ago. My friend was held hostage while her ex boyfriend and baby's father who owned a local Karate school and held a black belt in Karate kept her for 5 to 6 hours repeatedly beating her from head to toe almost taking her life...she was hospitalized for days. She not only had black eyes and her entire head swollen, but she had a chunk of her lip cut out. The baby was just a couple of weeks old and her body was still healing from the birth. Fortunately she had no broken bones, but he repeatedly kicked and punched her. She had to testify in court...she was terrified doing so. She also went into hiding from him out of fear of him stealing the baby and retaliating. The prosecuting attorney did the best she could for my friend and got the guy 11 years. Not much time to have done what he did in my opinion. It's my belief a life sentence would have been much more just. The man was NOT on drugs or drinking...he was a local business owner...had been her older son's Karate instructor and had a 17 year old daughter who lived and worked with him. While it was somewhat of a relief for him to get that sentence, again, I feel a life sentence was in order. Now THAT is what domestic violence laws should be preventing...someone maniac whose hands are considered weapons who kidnapped and brutalized a woman putting her in the hospital and endangering a new born baby. But again...he's probably out already being given credit for good behavior or whatever. Not THAT'S totally what these domestic violence laws and partnerships claim they intend to prevent. Another friend of mine brought a young man to my home last summer in 2013. This guy was recently out of prison and on an ankle monitor. The monitor???? It was to keep him 100 yards away from guess who? Yes....HER. He went to prison after locking her in a shed and she claimed he threatened to kill her only it was himself he threatened to kill. Her mom testified on his behalf in court. He was practically a vegetable in court but was sent to prison anyway since he had a prior record. While in prison, the two exchanged love letters. She took the ones he sent to her in to his probation officer and he got in trouble for it. She contacted him the whole time although he was restrained from her. I kept wanting to report to probation what I had seen and knew, but he said not to that he would still be in trouble and it didn't matter that she was the one instigating the contact with him. Now where is the JUSTICE in this? He did eventually end up back in jail for another drug related charge and for violating the restraining order and thereby his parole. I haven't heard more about him, but I know the young woman has moved on to other men. She has also filed restraining orders on at least one other male that I know. Seems it's a big game to her. Now on the other end of things...with the new laws in place...I happen to know a young man who had it not been for the influence of drugs, which take over his brain making him a total wacko, he would have NEVER laid a hand to his wife. A wife who is well versed with domestic violence after putting her ex boyfriend behind bars for domestic violence. This young man seems drawn to women who have bitten, pushed, slapped and scratched the heck out of him and he didn't hit back but held their arms to keep them from wailing on him more and to shove them aside so he could get away from them. He even had his head put into a towel rack during one episode breaking it away from the wall. While there is no reason for any man to ever lay a hand on a is equally a violation for any woman to insult and ridicule and badger and attempt to control a man to the point of putting up barriers keeping him from his family and friends and financially controlling him. When a woman pulls a knife on a man even though her child is present, then something is wrong since this woman isn't under the influence of anything but her temper. Yet the man goes to jail and a temporary restraining order is placed on him. The wife is happy because now she has full control back. He has two felony charges against him and must do domestic violence classes. No drug treatment, which is far more needed than being labeled a batterer. Oh and the cost of the classes plus being on probation upon finances that are already 50K in the hole with 2 children to raise and support and a third one to support. I don't know about you but something doesn't seem quite right. And yes, the husband has already had a child support case filed against him for the two children already here. He and his wife have been on cash aid and getting food stamps, but from this point on every dime his wife gets will be taken out of any future pay he may earn. And child support accumulates at a 10% penalty. Oh and getting a job with 2 felony counts on one's record? Not much chance of obtaining a really decent paying job with health benefits with his record. He has been trying, but his wife has preferred him being at home since she would rather walk her dog down the street watching everyone else working (her words). So while I believe that a man should never lay a hand on a woman...I also believe that a woman should keep her mouth shut and walk away from someone who is out of their mind on drugs and or alcohol rather than proceed to argue and fight with him. And no...he is not showing her that he will punch her next by punching a hole in the wall. He is punching a hole in the wall because God help him he will never punch her, but he can't communicate in response to her because as he went through puberty he was taught to STUFF his emotions/feelings and BE a MAN! He was taught to never show fear or shed a tear as neither one is manly. I mean come ON here...there have been plenty of studies to show exactly what I'm talking about with men who have rage issues due to having to stuff their feelings in order to be accepted by society. And now society has figured out how to take such tragedies as Nicole Simpson's brutal murder and treat every case as an OJ Simpson matter. Look at OJ's

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