This is a follow-up to my recent article about Domestic Violence and the impact it can have on individuals. I decided to write this article to help educate the public about Domestic Violence proceedings in Ohio and what people should know when filing a petition or responding to a petition. After conducting an informal survey, I discovered that there are many important issues that people need to consider when dealing with a Petition for Domestic Violence. I have included some of the items that court personnel wished people knew, including information on the Petition, what is relevant in the proceedings, and the impact that a finding of Domestic Violence can have on an individual.

When filing a Petition for Domestic Violence, it is important to be specific. The main reason for this is that the other party has due process rights under the Constitution, and he or she is entitled to adequate notice of the allegations. Most courts will provide a petition form that you would need to complete. When you fill out the form, it will ask you questions about the alleged incident(s). Be sure to list sufficient information to put the other party on notice of what incidents occurred that led to filing the Petition. In other words, you need to identify, in clear terms, when the incident(s) took place and what happened. It is not appropriate to go into extensive detail describing the incident(s) like a play-by-play commentary, but you need to provide sufficient information that the other party will be advised of what you are describing. When in doubt, include more detail. If there has been more than one incident, you need to mention it in the Petition. The prior incident(s) helps put in context the recent event which prompted the domestic violence petition.

Another issue of importance pertains to what evidence is “relevant” in a Domestic Violence Hearing. Magistrates frequently complain that petitioners tend to elaborate on facts totally unrelated to the incident(s) of violence and if the petitioner has a reasonable fear for his or her safety based on threats of force. Under Ohio law, a person must show a pattern of behavior, including recent incidents of domestic violence, in order to be successful and obtain a Protective Order. Ohio law defines Domestic Violence as: (a) attempting to cause or recklessly causing bodily injury; (b) placing another person by the threat of force in fear of imminent serious physical harm or have been found guilty of menacing by stalking or aggravated trespass; (c) committing any act with respect to a child that would result in the child being an abused child; or (d) committing a sexually-oriented offense. Based on Ohio Revised Code Section 3113.31, the evidence submitted should be related to incidents where violence or attempts of violence occurred, where there were threats of violence that would reasonably lead an individual to fear imminent physical injury, or incidents that led to a child in the home being abused. If you are the Respondent at the hearing, you should make sure to present evidence that refutes these elements. Remember that this is not an opportunity to vent or air grievances over past slights. It is not the time to discuss affairs, bad cooking, poor management of finances or other things that do not relate to the above-mentioned elements. Often petitioners only touch on acts of violence and move to other underlying irrelevant issues that may have been building up for some time. They then end up missing crucial testimony and lose their case.

Finally, people need to be aware of the ramifications of a finding of Domestic Violence. The Petitioner needs to be aware that the restraints contained in the Protective Order apply both ways. He or she cannot contact the Respondent, just as the Respondent cannot contact the Petitioner. The Respondent may be forced to move out of his or her house, lose contact with their children (or have minimal contact with their children), be at a significant disadvantage if a custody dispute occurs, be precluded from owning a firearm, and alter their daily lives. There is generally a “no contact order” that means the Respondent cannot be within a certain distance from the Petitioner. If, while out in public, they encounter each other, the Respondent must leave. The issuance of a Protective Order can alter a person’s ability to work. In short, while acts of domestic violence cannot be condoned, there are very serious consequences that will impact both parties which need to be thoroughly evaluated.

There are two other things that I should mention. The first is who exactly may be covered under a Protection Order. The Protection Order generally covers all household members. The definition of a household member is pretty inclusive. It covers all family members who are living with, or who have lived with, the Respondent. It also covers persons living as a spouse with the Respondent. Basically, this means a person who is married to the Respondent, or a person who is living with the Respondent in a domestic relationship. It covers the parent of any child where Respondent is the other natural or putative parent. Finally, it covers family members of the spouse or person living as a spouse that live with, or have lived with, the Respondent.

There are several ways to go about obtaining a Protection Order for acts of domestic violence. The first is in criminal court. This is through the local Prosecutor’s office. The disadvantage to this approach is that the Order expires at the end of the case. It may be possible to get a no contact order as part of any sentencing, but this is up to the court’s discretion. The second way is to obtain an Order through the Domestic Relations Division of your County’s Common Pleas Court. These orders, if issued, will last for up to five years. They are more inclusive, covering household members as discussed above. Additionally, the Respondent can be ordered to attend counseling. A Civil Protection Order may award temporary child support or spousal support, temporary child custody and parenting time, including supervised visitation, award the use and possession of an automobile or other personal property of the parties. If you are looking into obtaining a Protection Order as part of the criminal investigation, it would be wise to consider obtaining an additional Civil Protection Order through the Domestic Relations Court, too, so you are protected for the longest period of time possible.

It is best that you consult with an attorney before filing your petition or if you are named as the Respondent and have been served with the Petition and Ex Parte Order. An experienced family law attorney will be able to fully explain the proceeding and its nuances and walk you through the process from start to end. Otherwise, there is a chance you may not present the proper evidence to the Court which could have dire consequences. For more information, click here to be linked to the Ohio Domestic Violence Resource Center.

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It isn’t every day that a Family Law issue makes it all the way up to the United States Supreme Court.  Last month, however, the Court issued a decision in United States v. Hayes that could have a far-reaching impact on Domestic Relations and Criminal Law in Ohio and elsewhere.  A lot of people realize that Federal law prohibits anyone who has been convicted of a misdemeanor crime of domestic violence from possessing a firearm or ammunition.  But now, after the Hayes decision, many more people are barred from possessing a firearm or even ammunition!

The Court’s decision in Hayes makes it so that an individual can be convicted of the Federal weapons prohibition statute even without having been convicted of a crime of domestic violence.  Most domestic violence laws are written in a manner that one of the requirements necessary to convict is proof that there was a “domestic relationship”.  There are many other crimes of violence where a “domestic relationship” between the defendant and victim is not an element for a conviction.  The Supreme Court held that a “domestic relationship, although it must be established beyond a reasonable doubt in a § 922(g)(9) firearms possession prosecution, need not be a defining element of the predicate offense.”  In layman’s terms, this means that individuals who have been convicted of any misdemeanor crime of violence against a family or household member who subsequently possesses a gun (or even ammunition), risk facing a Federal charge for having them.  It doesn’t even matter if the misdemeanor charge was silent as to the nature of the relationship with the victim.

A crime of violence is defined as “the use or attempted use of physical force, or the threatened use of a deadly weapon.”  The domestic relationship is made up of “a current or former spouse, parent, or guardian of the victim…[and] a person with whom the victim shares a child in common…[or] a person who is cohabitating with or has cohabitated with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.”  The essential elements of this Federal Firearm Prohibition offense can be viewed by clicking here.

The reason that this interpretation by the Supreme Court may have a far-reaching impact is that there are people in Ohio, and other states, who may have been convicted of a misdemeanor violation but never suspected that they are prohibited from possessing a firearm or ammunition by Federal law.  Many people may have entered a guilty or no contest pleas to a crime of violence in exchange for not being charged with domestic violence.  So if you were convicted of battery or assault, or any other crime of violence against a family member as defined above, you cannot possess a firearm or ammunition under the holding in Hayes.

As long as the United States Attorney can prove beyond a reasonable doubt that you have such a conviction and prove a domestic relationship, you are subject to this ban and risk prosecution.  If you are in doubt whether you might be barred from possessing a gun/ammunition under federal law, you should consult an attorney promptly for legal advice before either maintaining possession of, or obtaining a firearm or ammunition.  And for those of you out there who believe that you have an absolute right to bear firearms under the Second Amendment of the Constitution, you don’t.  Restrictions on the ability to possess a firearm and ammunition have been upheld as long as they are reasonable in courts all across the United States.

To read the entire opinion of the Supreme Court in United States v. Hayes click here.

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In recognition of October having been declared Domestic Violence Awareness Month, this post explores the mission goals and philosophy of the Artemis Center in Dayton, Ohio.

On Tuesday, October 14, 2008, I had the opportunity to meet with and to interview Patti Schwarztrauber, the Executive Director of Artemis Center since April, 2002. The Executive Director, having a Master’s Degree in Social Work (MSW) and being a Licensed Social Worker (LSW), began her employment with Artemis Center in 1997. She worked at various positions, including being a Children’s Therapist and serving as a liaison between Artemis Center and Montgomery County Children’s Services before being named Executive Director six (6) years ago.

I learned that in Greek mythology, Artemis was traditionally the friend and protector of women in childbirth and young children. Artemis, a female, was associated with a mythological forest. Accordingly, a saying developed over time- “no harm shall come to those who walk in the woods of Artemis.”

The Artemis Center for Alternatives to Domestic Violence was established as Artemis House in June, 1985. The founders were six (6) women who often worked without pay or benefits to provide services to family members affected by domestic violence. Today, twenty three (23) years after being founded, Artemis Center has a paid staff approximating twenty five (25) and an annual budget of 1.6 million dollars. In fact, Ms. Schwarztrauber advised me that one of her most challenging responsibilities is to plan the budget and find funding for the yearly budget. The funding for this community agency comes from grants (government sponsored and private foundations), United Way, the Montgomery County Human Services Levy, and contributions. With the tightening of our economy and with the present banking/mortgage crisis, the Executive Director believes there will be more agencies vying or competing for fewer monetary resources.

An Artemis Center brochure reflects the following facts:

-One in four women experiences domestic violence in her lifetime.

-Domestic violence is the single largest cause of injury to women in the United States.

-Domestic violence happens to persons regardless of income, profession, race, class, faith, tradition, age, or sexual orientation.

-80 to 90% of children living in violent homes are aware of the battering and abuse.

The mission of the Center is “leading the Community in its commitment to end domestic violence.” It is interesting to note that their definition of “domestic violence” includes conduct which is broader than the definition in the Ohio Code Section 3113.33(A). Under Ohio law, domestic violence is defined as “attempting to cause or causing bodily injury to a family or household member, or placing a family or household member by threat of force in fear of imminent physical harm.” The Artemis Center has defined “domestic violence” to include “an intentional pattern of abusive behaviors used by one person to manipulate, control and intimidate a partner, other family member, or roommate.” Therefore, a party under the Artemis definition may be a victim of domestic violence if his/her partner:

-Puts her down, calls her names, constantly belittles her.

-Prevents her from seeing her family and friends (isolates her from others).

-Threatens to harm her or other family members.

-Prevents her from having money and/or other financial resources.

-Hits, slaps, punches, pushes, or exhibits other battering behaviors.

-Frightens her by smashing or breaking objects or throwing things at her.

-Interferes with her use of the telephone or the family car (isolating behaviors).

Ms. Schwarztrauber confirmed that there are instances wherein the male in the family is the abused partner, but those instances are much, much less prevalent than the female being the abused partner. And, she confirmed there are instances of domestic violence between gay/lesbian partners.

The Artemis Center offers many services to victims of Domestic Violence and their children, and the services provided are “free” of charge to each client family. The services available include:

1. Twenty-four (24) Hour Domestic Violence Hotline (#937-222-SAFE or #937-222-7233). The telephone is answered by Artemis Center staff from 8:00 a.m. until 8:00 p.m. on weekdays (Monday through Friday). The telephone is answered by YWCA staff from 8:00 p.m. until 8:00 a.m. on weekdays (Monday through Friday) and on weekends. The “hotline” is the point of entry into the Artemis Center and the persons answering the “hotline” offer support to callers with the emphasis being “You are not alone!” and “You are not crazy!”
2. Children’s therapy program provides counseling to children who have witnessed domestic violence. The therapists include counselors and licensed social workers. Therapy sessions are available during morning hours, afternoon hours, and evening hours.
3. Assistance with the legal process is provided by Artemis Center. This may be in the form of an Advocate attending court hearings with the victims of Domestic Violence. The Advocates may be paid staff members or volunteers. Often, Advocates are recovering victims of domestic violence or survivors of domestic violence who want to return assistance to others who are experiencing difficulties within their homes. For the protection of the Advocates, they only use their first names for identification purposes.
4. Individual and group support sessions are provided by the staff of Artemis Center to assist victims with issues of finances, employment, visitation schedules, and other child-related and financial-related issues.
5. Workplace Safe from Domestic Violence Program is a program intended to educate employers about the issues involved with domestic violence.

Since the Artemis Center has been in existence since 1985 and since the Executive Director has been involved with the Center since 1997, I asked her if she has observed a decrease or decline in domestic violence. She related to me that she had not seen a decline in the incidence of domestic violence; and instead, she has observed increased brutality involving more family members, including children. And, she is concerned about the apparent increase in murder/suicides in domestic relations matters.

I found Patti Schwarztrauber to be completely devoted and committed to the goals of the Artemis Center. She is an avid advocate for victims of Domestic Violence in the greater Miami Valley area. She also advised me that other communities similar in size to Dayton have no comparable agency similar to the Artemis Center. We are indeed fortunate to have the Artemis Center available for our citizens affected by domestic violence in their homes. Click here to visit the Artemis Center website.

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Don’t forget to discuss with your lawyer before the final hearing if you want to be reinstated to a former name. This is the time to accomplish the name change with ease, and typically, without any additional costs! Procedures vary from court to court whether the name change can be submitted as part of the Final Decree or by way of a separate Court Order. Either way, it is easy, and the wife has the right to decide whether she wants to keep her married surname. No, husbands, you cannot require your ex to relinquish your surname. And wives cannot pick a new surname; they can only be reinstated to a maiden or former name.

If you decide months after the divorce that you want to go back to a former name, it may be too late to have the Domestic Relations Court enter the name change for you. In that event, one would have to file a new action through the Probate Court to accomplish the name change. That Probate action would likely take several months and add filing fees and more costs.

Also remember, if you do change your name, be sure to report the change to the Social Security Administration. Otherwise, your earnings may not be recorded properly and you may not receive all the benefits you are due. Not changing your name with Social Security can also delay your income tax refund. It’s easy to do this by making a trip to one of their local offices. It usually takes about two weeks to have the change verified and the new card issued. The form is available on the Agency’s website, by calling toll free 1-800-772-1213 and at local offices. To accomplish this you will need to fill out an application for a Social Security card (form SS-5). For more information about this, including the documentation you need to bring, click here.

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Submitted by Robert Mues with legal research and assistance from Aaron Hill, an extern from the University of Dayton School of Law.

Some cases of domestic violence are so severe that an identity change may seem to be the only solution. At first glance, changing one’s social security number and name is an enticing proposition. However, there are a number of very serious consequences to consider before taking this drastic step.

Negative Consequences to Changing Your Identity and Social Security Number:

The effects of changing one’s identity and social security number are lasting. The victim is essentially eliminating any connection with his/her prior life and literally starting from scratch. The victim loses all professional and academic credentials, past credit history (good or bad), and loss of interaction with family and friends of the victim. This, in turn, makes it incredibly difficult to find a new career, buy a house or rent an apartment, obtain any type of insurance, or safely contact any former friends or family. Any transaction or event that requires identifying information will be inconvenient at the very least. Without job references, educational credentials, and credit history, it will be difficult to provide for oneself. Such extreme consequences is part of the reason less than 1,000 people undergo this identity change each year. In my opinion, it is important to exhaust every other available option before deciding to pursue this extreme option. Additionally, even after a person that resorted to this procedure, the effect of a federal law called “The Real ID Act” might undermine the effort.

The Real ID Act and Address Confidentiality Programs:

The Real ID Act is a new federal law that at present is to be implemented by the States by December, 2009. There have been fierce battles over the law between Homeland Security, privacy advocates and the States that oppose the demands of the Real ID Act. The act requires States to set up systems that will encode accurate personal information on the face of the card/license and enter the information into data banks shared by States and the federal government. The minimum information that must be on a Real ID driver’s license includes the person’s full legal name, the person’s date of birth, the person’s gender, as well as the person’s address of principle residence.

So how would this law impact a victim of domestic violence? The new regulations of the Act provide an exception that “A DMV may apply an alternate address on a driver’s license or identification card if the individual’s address is entitled to be suppressed under state or federal law or suppressed by a court order including an administrative order issued by a state or federal court.” In order to protect victims of domestic violence, roughly half of American States have created Address Confidentiality Programs (ACPs). The ACP can create a “dummy” address for the victim so the driver’s license or ID card wouldn’t divulge a person’s real address for a former abuser to potentially obtain. So, in the states with ACP’s, the victim might be able to get by with the “dummy” address on the license and entered into the data system. Ohio is one of the States that unfortunately does not have such a program. In those states without ACP’s the person’s true address might need to be entered into the “system”. While some of the original concerns of advocates for victims of domestic violence, such as the National Network to End Domestic Violence, have been reduced by the exception regulation added to the law, the organization is still very concerned. Cindy Southworth, technology project director for the NNEDV, says “given that there are less than six degrees of separation between most abusers and a friend or relative who works for the DMV, we are concerned about victim’s location information housed in State databases that could be searched nationally.” It is still unclear as to what information will be exchanged among the State-to-State databases and how it will be secured. This leaves lingering doubts as to the security of personal information for victims of domestic violence even in states with ACPs. To learn more about the NNEDV click here.

The Real ID Act as Applied to Ohio and Social Security Number Changes:

As indicated above, Ohio is one of the States that does not have an Address Confidentiality Program. The remedies for victims of domestic violence under Ohio law are limited to civil and criminal protection orders (CPO). Ohio’s domestic violence CPO statute does not address the issue of address confidentiality. However, as a matter of practice, courts in Ohio allow the victim to use an alternate address for court papers in order to keep his/her address confidential. It is also common to allow the victim to use an alternate address as the victim’s address on the CPO petition itself. In Ohio, it is not common that a probate judge when issuing a name change entry to include in the order language that the prior identity of the applicant is to be suppressed. As discussed earlier, the Real ID Act will still allow address confidentiality if it complies with a state or federal law, or the confidentiality was court ordered. The practice in Ohio does not fall into either category. In Ohio, the court does not order the address to be confidential, but rather extends it as an option. Therefore, domestic violence victims in Ohio do not have as many options as residents of other States to keep their addresses from falling into the hands of their abusers.

Conclusion:

In severe cases of domestic violence, victims do have the option of changing their identity and social security number. If I were considering that action, I would first look to move to a State with an ACP and consult with them first to learn the protections they can offer before thinking of the drastic identity change. To see a list of the States with ACPs click here.

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In recognition of October having been declared Domestic Violence Awareness Month, this post and next week’s article focus on trying to assist individuals who have faced such devestating violence.

This is the first of a two part article on this subject. While not widely known, the Social Security Administration had established a procedure in 1998 for victims of family violence to obtain a new Social Security number. The Administration states:

“Public awareness campaigns stress how important it is for victims to develop safety plans that include gathering personal papers and choosing a safe place to go. Sometimes the best way to evade an abuser and reduce the risk of further violence may be to relocate and establish a new identity. Following these changes, it also may be helpful to get a new Social Security number.

Although Social Security does not routinely assign new numbers, we will do so when evidence shows you are being harassed or abused or your life is endangered.

Applying for a new number is big decision. It may impact your ability to interact with federal and state agencies, employers and others. This is because your financial, medical, employment and other records will be under your former Social Security number and name (if you change your name).”

Here is an overview of the process.

1. Gather all the police reports, medical records, court records, protection orders and any other evidence corroborating the violence such as letters or emails from the perpetrator.
2. Contact an attorney to assist in completing a name change through Probate Court. Be sure to seek to have the records of the name change sealed.
3. After obtaining the name change order, then contact the Social Security Administration and initiate the process for the new Social Secuirty number.
4. You will need to submit the supporting documentation outlined in number 1 above along with your birth certificate and proof of citizenship or immigration status. If obtaining the documentation is unsafe for you, the Administration will assist.
5. The timeframe to obtain the new number varies from two months to longer. Be patient.
6. After obtaining your new Social Security card and name change order, you can request a new birth certificate in your new name.
7. With these documents, you can obtain a new driver’s license, passport, etc.

All documents must be the originals or certified copies by the issuing agency. If you are requesting new Social Security numbers for children of whom you have custody, you will need to present the original documents establishing custody along with proof of their identity and Social Security numbers. Even individuals with poor credit and some criminal records have been succesful in this process. Each year about 1,000 domestic violence victims go through this process to obtain a new identity in an attempt to escape from their abusers. Of course, there are many implications to consider before undertaking this drastic course of action.

To go to the Social Security website click here or call 1-800-325-0778 for more information.

I will discuss more about this topic in my blog article next week.

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False allegations of domestic abuse are not just a phenomenon that routinely occur in the United States. Family law attorneys in Canada are similarly complaining about the unfairness and damage caused when a warring parent falsely accuses a spouse of abuse. Whether it is for revenge, to punish a spouse, or to attempt to gain an advantage in a custody proceeding, I see this occurring all too often in my practice. While domestic abuse should never be condoned, unfortunately there are seldom any recriminations for the false accuser.

According to Sarah Hampton of Toronto’s Globe and Mail, these common occurrences end up leaving many black eyes in its wake: for the accused, the justice system and especially the kids. She opines that the parent considering making a false allegation should give much more thought in advance about how it will detrimentally affect the children. The story, published on April 24, 2008, is an interesting read. Check it out.

Source: Divorce’s atomic bomb: false abuse allegations, Toronto Globe and Mail

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Domestic Violence is defined as a pattern of behavior utilized to establish power and control over another person. It typically involves an escalating pattern of abuse where one party in an intimate relationship controls the other through intimidation, threats of violence or actual violence. The abusers frequently manage to virtually “brainwash” the victim into believing that it was his/her fault and the abuse or beating was deserved. According to the National Violence Against Women Survey, nearly twenty-five percent (25%) of American women report being raped and/or physically assaulted by a current or former spouse, co-habitating partner, or a date at some time in their lives. Forty percent (40%) of adult Americans say they know a woman who has been physically abused in the past year by a male. In 2006, Ohio Law Enforcement Agencies responded to 71,946 domestic dispute calls (Ohio Attorney General’s Criminal Indemnification 2006 Statistics). Of those calls to the police, 34,021 were categorized as domestic violence incidents. Ohio’s statistics for the year of 2006, show that sixty-five percent (65%) of the alleged offenders were Caucasian; seventy-seven percent (77%) were men; and sixty-seven percent (67%) of the offenders were between the ages of 18 and 40. Sixty percent (60%) of the victims were wives, parents, or other partners of the offender.

All of us need to be sensitive and aware of the enormous effects domestic violence has on its victims. Along with the violence, the victims often experiences a sense of shame, loss of self-esteem, fear, humiliation, depression, isolation, and emotional and/or financial dependency upon the offender. The National Violence Against Women Survey conducted with more than six thousand (6,000) American families concluded that fifty percent (50%) of the men who frequently assault their wives have also abused their children! Studies also show that more than half (½) the female victims of intimate violence live in households with children under the age of twelve (12). This fact certainly gives cause for us to be concerned not only for the actual victims, but also for their children as well.

Acts of domestic violence not only have a profound affect upon the victim, but also upon the community at large. Many people naively believe that domestic violence only effects the victim and the offender. This is not true. The Bureau of Justice Statistics estimate that twenty-five percent (25%) of work-place problems such as absenteeism, low work productivity, turnover, and excessive use of medical benefits are in fact due to family violence.

Fortunately, there are many resources available both in the Dayton Community and nationally for victims of domestic violence. Locally in Dayton, Artemis House provides a safe haven with free emergency shelter for victims and their children. Help through this agency is only a phone call away at 937-222-7233. An emergency hotline at Ohio Domestic Violence Network is available twenty-four (24) hours at 800-799-SAFE (7233) or at 800-787-3224. For other local resources,
go to the Artemis Center web site.

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