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Custody Cases Put Under Supreme Legal Watch

Thursday, March 13, 2008

Advocates for abused women are combing custody cases for federal rights violations that might be used to boost them up to the Supreme Court and reform family court procedure. Latest story in our "Dangerous Trends, Innovative Responses" series.

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Advocates for abused women are combing custody cases for federal rights violations that might be used to boost them up to the Supreme Court and reform family court procedure. Latest story in our "Dangerous Trends, Innovative Responses" series.
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Elizabeth Liu

(WOMENSENEWS)--Legal advocates for battered women have spent years trying to internally reform the nation's family court system to better protect the due-process rights of battered women in child custody disputes. Now, at least one group is ready to make changes by appealing to higher authority.

The Supreme Court is the next frontier for custody and abuse cases, said Elizabeth Liu, staff attorney for the Washington-based Domestic Violence Legal Empowerment and Appeals Project, which is scrutinizing potential cases to submit to the high court.

"Having the moral authority from a Supreme Court pronouncement would be huge," Liu said.

But first, lawyers and infractions must be found.

Liu's group is now speaking to interest groups--including planning presentations for domestic violence conferences this summer--and looking for attorneys across the nation who might be able to offer cases that combine a pristine record of evidence and objections and clear violations of due-process rights.

Most cases undertaken by the Supreme Court involve federal issues. The issues addressed by family courts--divorce, child custody, orders of protection--are typically left to state court systems.

Liu and her colleagues, however, say that some violations in family courts abrogate the Constitution's promise of due process, which guarantees citizens the right to a fair and competent trial.

"They generally don't do family law cases," said Patricia Millet, "but the Supreme Court has a job to keep the federal constitution enforced." Millet co-leads the Supreme Court practice of Washington law firm Akin Gump and advises the project.

One key to overcoming the court's reluctance, Millet said, will be persuading the justices to acknowledge that problems in the family courts are also societal problems.

"I don't think it's going to be insurmountable," Millet said, adding that it will take persistence and patience.

The Supreme Court takes less than 1 percent of all requests to review cases, Liu said.


Jockeying Experience

Domestic Violence Legal Empowerment and Appeals Project has helped jockey cases to the Supreme Court on issues such as civil protection orders. In one case--where justices affirmed the right to use 911 tapes as evidence--the group's argument was cited in the decision. (The group had argued that live testimony, versus taped evidence, can be difficult to attain when a defendant intimidates a witness from testifying, such as in domestic violence cases.)

But this is its first attempt at deliberately trying to boost family court cases to the Supreme Court.

The immediate goal is to assist any lawyers who feel their client's rights have been denied and who are willing to push ahead with an ambitious appeals effort.

Joan Meier

Joan Meier, the group's executive director and founder, said she now receives regular calls from attorneys who think their clients' cases might be suitable. Often the attorneys say the courts' actions could be due process violations.

"We see a lot that we wish could go to the Supreme Court," Meier said, but she has not yet found a case that is truly ready.

Lawyers need to identify the federal legal issue and make a record of each court step through the state system, Liu said. This and taking a case through the state court system are two separate requirements for Supreme Court review.

Families also need to keep track of every hearing to determine custody, divorce decisions or protection orders. They also should keep track of judges' decisions and any inconsistencies with constitutional law, such as excluding one party from a meeting.


Challenge is Case-Spotting

Liu and Meier say the challenge is educating everyone involved about how to spot a solid case.

"This movement really involves lawyers and protective parents and advocates," Liu told participants at the Battered Mothers Custody Conference in Albany, N.Y., an annual national gathering since 2004 of battered mothers and their advocates. "Ideally we want to reach all segments from the population."

Another tool for their campaign will be public awareness, which Meier said might just obviate the need for higher-court recourse. She said the more they inform and prepare people to meticulously track cases, the more wins may occur in state courts of appeal, eliminating the need or option to take them to the Supreme Court.

"You don't need to go to the Supreme Court if you win in the state court of appeals," she said. "The more successful we are, the less likely we'll go to the Supreme Court."

Liu is prepared to provide specifics to lawyers, such as how to petition the Supreme Court to review a lower court's decision and how to portray the case as a good vehicle to decide the issue.

The group also is crafting a workbook of best practices, to be published this spring, to help lawyers and advocates position their cases for possible high court consideration.

Battered women fighting to keep custody of their children have long complained of lax judicial procedures in the family court system and poor outcomes in custody cases.


Call for More Dramatic Action

Advocates have tried to raise awareness through rallies, networking and support groups across the nation, and they are often opposed by a strong father's rights movement. But failure to attract much attention has led to plans for stronger action.

Renee E. Beeker, a former abused mother from Michigan, began an ongoing court watch program in 2005 to record inconsistencies in judicial procedures. The project is separate from the legal-appeals effort, but the statistics it recorded echo what Liu and Meier say they see in their work.

Volunteers--many of them advocates for women in family court--collected data on courtroom proceedings in California, Michigan, New York, Massachusetts and Rhode Island.

So far, a monitoring of about 200 cases found that 27 percent of cases involved "unprofessional behavior," according to a handout Beeker distributed at the January conference for battered mothers.

Monitors found violations of basic due process rights, such as judges forbidding abuse allegations to be heard.

Volunteers have waved a major flag about judges convening of "ex parte" hearings that exclude a party to a custody case.

Only hearing one parent's side of a story could dramatically alter a custody decision, sometimes permanently, advocates say.

"We did have a case where literally a woman was denied the ability to be involved in a chambers discussion. Her lawyer and her were both excluded," Beeker said.

Alison Bowen is a New York City-based reporter covering the presidential campaign for Women's eNews. Her work also appears in the New York Daily News.

This series is supported by a special grant from Mary Kay Inc.

Women's eNews welcomes your comments. E-mail us at editors@womensenews.org.

For more information:

Domestic Violence Legal Empowerment and Appeals Project (DV LEAP):
http://www.dvleap.org/

Battered Mothers Custody Conference:
http://www.batteredmotherscustodyconference.org/

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