Domestic Violence and Divorce in Connecticut: How Relevant is Domestic Violence in Divorce Proceedings?

Leigh Ryan, Esq. is an attorney with Maya Murphy, P.C, a full service law firm with offices in Westport, CT and New York City. Ms. Ryan is licensed to practice law in Connecticut and New York.

Connecticut telephone number: (203) 221-3100

New York telephone number: (212) 682-5700

Firm url: www. Mayalaw.com

E-mail: LRyan@Mayalaw.com

In 2009, eighteen murders were committed as a result of domestic violence in Connecticut, and 21,018 total reported incidents of domestic violence.[1]  Domestic violence is a crime, and often results in divorce proceedings.  In reality, up to seventy-five percent of instances of domestic violence in a marriage occurs after the couple has separated.[2] Given the increased risk of violence after separation, it is extremely important for a victim of domestic violence to be aware and known her rights.

In Connecticut, domestic violence falls within a category known as “family violence” which is defined as “an incident resulting in physical harm, bodily injury or assault, or an act of threatened violence that constitutes fear of imminent physical harm, bodily injury or assault between family or household members.” Conn. Gen. Stat. § 46b-38a(1). Under this law, “verbal abuse or argument shall not constitute family violence unless there is present danger and the likelihood that physical violence will occur.” Id.   According to the statute, in order for an incident to fall under the family violence statute, it must be between (a) spouses, former spouses; (b) parents and their children; (c) persons eighteen years of age or older related by blood or marriage; (d) persons sixteen years of age or older other than those persons in subparagraph (c) presently residing together or who have resided together; (e) persons who have a child in common regardless of whether they are or have been married or have lived together at any time; and (f) persons in, or have recently been in, a dating relationship.  Conn. Gen. Stat. § 46b-38a(2).

Family violence is a pattern of abusive behavior based upon one partner’s attempt to control and dominate the other. This includes physical abuse, emotional abuse, economic abuse, sexual abuse, and stalking and harassment. Rarely are the different types of abuse mutually exclusive. By themselves, each one of these elements can make the decision to leave an abusive relationship difficult.  Unfortunately, given the complex nature of domestic violence, Connecticut law provides for criminal relief where physical abuse is present or there is present danger and likelihood that physical violence will ensue.[3]  Connecticut does not provide any criminal penalties for emotional or financial abuse.

Protective Orders & Restraining Orders

A victim of family violence has remedies under Connecticut law.  Under Connecticut law, a victim of family violence has two different mechanisms to help protect their safety: Protective Orders and Restraining Orders.

A Protective Order is made by a criminal court judge against a person who was arrested for stalking, harassment, or family violence crime.[4]  A Protective Order will direct the abuser to refrain from hitting, harassing, contacting the victim or her (his) children, or anything else a judge deems appropriate, and lasts only as long as the criminal court case.

A Restraining Order is made by a civil court judge after a victim files for an Application for Relief from Abuse.  Generally, a Protective Order does not address issues of child custody or the removal of the abuser from the marital residence, but a Restraining Order can resolve those issues temporarily.  Therefore, it may be necessary to file for a Restraining Order even after a Protective Order has already been granted. Moreover, the application can be granted ex parte, if the judge finds that there is enough evidence to suggest that the applicant is in immediate danger.[5] If the judge declines to grant the Restraining Order ex parte, the judge will set a hearing date within 14 days.  At that time, both the applicant and the party whom the Restraining Order is sought, must appear before the judge.  A Restraining Order survives for six months, and can be extended on judicial order.

Filing for Divorce

The decision to leave an abusive relationship is difficult, but always right. Abuse in a relationship is never acceptable.  While obtaining a Protective and/or Restraining Order is an important step for a victim in protecting herself and/or her children, both types of orders are not permanent.  Seeking a divorce or legal separation is the next step.

An action for dissolution of marriage is commenced by filing a summons and complaint with the Superior Court in the judicial district where one of the spouses resides. Conn. Gen. Stat. § 46b-45. Once commenced, the Court will dictate a series of Automatic Orders.[6] The Automatic Orders are designed to prevent either party from making any significant changes relating to their children or finances.  These orders prohibit relocating the children out of state or locking one party out of the marital residence.  If there is a prior Protective and/or Restraining Order in effect, the Automatic Orders will be issued in accordance with those prior order(s).  For example, if there is a Restraining Order in place, directing the husband to leave the marital residence will not be affected by the Automatic Orders.

During a divorce proceeding, the spouses will attempt to work out an amicable separation. The spouses will negotiate the marital residence, child custody, child support, spousal support and other issues.   Given the complexity of these proceedings, coupled with the intricate nature of family violence, it is important to have an attorney who understands these multifaceted issues.

Custody

Family violence affects every member of the family, directly and indirectly. It creates a home environment where children live in constant fear.  As a result, many survivors of family violence fear they will lose their children to the abusive partner. In some cases, this prevents the victim from leaving her abuser.

The most important thing for a victim of family violence to remember is that the Court will decide custody.  In doing so, the Court must consider the best interests of the child.[7]  In determining the best interests of the child, the Court will look at a litany of items, including the stability of the child’s existing or proposed residences, the mental and physical health of all individuals involved, and the effect on the child of the actions of an abuser. Conn. Gen. Stat. § 46b-56(c). If the Court views the victim as the primary parent, and the victim has not been abusive to the child(ren), then the victim is not likely to lose physical and legal custody.

It is important to understand that custody is not the same as visitation.  For example, even if a father has abused a mother, as long as he has not harmed the children, he will likely be granted visitation. However, the mother, as a victim of family violence, has the right to request certain conditions for the visitation in order to provide for her own protection.  That might include a provision that visitation only occur at certain times, on certain days, at certain locations, or with another person present.

Family violence and divorce cases are riddled with complex issues. It is important to find an attorney who understands domestic violence and has experience with domestic violence divorce cases. One should be confident that their legal advisors are well-versed in the law and familiar with recent case developments.

At Maya Murphy, P.C., we have decades of experience dealing with divorce, restraining order petitions, and criminal litigation – often in situations where the three matters run concurrently.  We handle all types of issues related to divorce and child-custody, including post-judgment matters, in a broad geographic area, which includes Westport, Fairfield, Greenwich, and the entire Fairfield County area. For a free initial consultation, contact Leigh Ryan, Esq. at (203) 221-3100 or (212) 682-5700. Ms. Ryan can also be reached via e-mail at LRyan@Mayalaw.com.

---

[1] 2009 Family Violence Detailed Report, Connecticut Department of Public Safety, September 2010.

[2] Hart, Barbara. Children of Domestic Violence: Risks and Remedies. Child Protective Services Quarterly; Pittsburgh Bar Association, Winter 1992.

[3] While not provided for under the definition of family violence crime, Connecticut law does criminalize sexual abuse and stalking and harassment.

[4] Family Violence Crime is defined as “crime as defined in section 53a-24 which, in addition to its other elements, contains as an element thereof an act of family violence to a family member and shall not include acts by parents or guardians disciplining minor children unless such acts constitute abuse.”  Conn. Gen. Stat. § 46b-38a(2).

[5] Ex parte means that only the party seeking the Restraining Order is before the Judge.  Ex parte Restraining Order only last until the hearing, which must be scheduled within 14 days.

[6] This is also true in legal separation, custody, and visitation proceedings in Connecticut.

[7] Schult v. Schult, 241 Conn. 767, 777, 699 A.2d 134 (1997).

“ELECTRONICALLY STORED INFORMATION” OR “ESI”—THE HIDDEN LITIGATION TRIPWIRE

“ELECTRONICALLY STORED INFORMATION” OR “ESI”—THE HIDDEN LITIGATION TRIPWIRE

 

Robert Keepnews, Esq.

October 12, 2010

New York: (212) 682-5700 Connecticut: (203) 221-3100

E-Mail: RKeepnews@Mayalaw.com

            We live in a digital world.  So prevalent is “data” that we forget that we are surrounded by visual portrayals of streams of zeroes and ones.  We have computers at work as well as at home, and laptops, PDA’s, and “Blackberrys” to keep us connected to e-mail, voice mail, and text messages while we vacation or commute (and blur the distinction between the two).  It has been said that technology is a wonderful slave and a terrible master.  Technology may also present the least understood and a most dangerous trap for the unwary litigant—one that can lose a case before it is even begun.  The solution is a timely and thoughtful “litigation hold” letter, and this article will explain when one has to be sent, and what it should say.

             In 1938, there was a tectonic shift in the litigation landscape with the adoption of the Federal Rules of Civil Procedure.  “Trial by ambush” gave way to liberal pretrial discovery and mandatory exchange among litigants of information and evidence.  State Rules of Court soon followed suit.  The theory was that while everyone is entitled to their own opinion of right and wrong, they are not entitled to their own set of facts held tightly to their vest like a poker hand.  Free and expansive pretrial discovery had at long last leveled the courtroom playing field.  Or so it seemed.

            Over the years, the Federal and State Rules governing pretrial discovery have generally kept pace with societal changes so that discovery vehicles such as Requests for Production could be tailored to fit the myriad and unique circumstances that surround any case, and perform as designed.  Recent technological advances, however, have pulled far ahead of the rules, and Courts have been scrambling to catch up.  Thus began the evolution of discovery of “electronically stored information”, or “ESI.”  Court interpretation of the discovery rules has given lawyers and litigants guidance on how to uncover ESI, but they also impose draconian penalties for conduct that heretofore might have been countenanced by a well meaning and lenient jurist.  The purpose of this article is to warn business owners and their counsel of the unseen pitfalls of ESI, and ensure by means of a “litigation hold” letter that devastating sanctions are avoided.  Simply stated, a “litigation hold” letter commands a party (or client) to locate, segregate, and preserve documents and data that may be relevant to pending or threatened litigation.

            In 2003 and 2004, Judge Shira A. Scheindlin of the United States District Court for the Southern District of New York, decided two in the series of the Zubulake v. UBS Warburg LLC cases and introduced a brave new world of ESI discovery.  In 2010, Judge Scheindlin decided Pension Committee of the University of Montreal Pension Plan v. Bank of America Securities, LLC, 2010 U.S. Dist. LEXIS 1839 and dispelled any doubt about the duty to preserve and produce ESI, and the penalties to be imposed for its breach.

            One teaching of Pension Committee is that the rules articulated in Zubulake are now “well established” and lawyers and litigants ignore them at their peril.  Judge Scheindlin leaves no room for interpretation or debate:

“Possibly after October, 2003, when Zubulake IV was issued, and definitely after July, 2004, when the final relevant Zubulake opinion was issued, the failure to issue a written litigation hold constitutes gross negligence because that failure is likely to result in the destruction of relevant information.” 2010 U.S. Dist. LEXIS at * 10.

The corollary teaching of Pension Committee is that if a party is currently in litigation or reasonably anticipates litigation, then such party in conjunction with its counsel must issue a timely and written litigation hold and supervise and oversee that hold diligently and in good faith, or face sanctions to include termination of the underlying case to its extreme prejudice. 

            A party to litigation or a party that reasonably anticipates litigation (more on that amorphous concept later) has a duty to preserve, collect, review and/or produce relevant evidence.  In failing to discharge that duty with respect to ESI, the party’s conduct may amount to negligence, gross negligence (a failure to exercise even that care which a careless person would use), or willful and bad faith misconduct (an intentional act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow).  In each instance, available sanctions ratchet up accordingly.  With regard to the duty to preserve, post-Zubulake, the failure to issue a timely, written litigation hold will likely rise to the level of gross negligence.  With respect to the duty to collect, the failure to collect paper or electronic records from “key players” (another “fuzzy” concept that may even include former employees) constitutes gross negligence or willfulness, in contradistinction to failing to collect records from all employees, which may be viewed as mere negligence and carry a lesser penalty.  As noted by Judge Scheindlin, “[e]ach case will turn on its own facts and the varieties of efforts and failures is [sic] infinite.”  Id. At * 12-13.

            So what is a business owner/HR executive/general counsel to do?

            The first step is to understand when the ESI duty to preserve, collect, etc. attaches.  Where a party sues or is sued, that particular point in time is clearly defined.  But when must a party “reasonably anticipate” litigation?  If one or two employees get a mere whiff of threatened litigation, that does not impose an “all hands on deck” company-wide duty to preserve.  If those same employees, however, document their concerns with an identifiable plaintiff and targeted defendant, then the duty to preserve would arise well in advance of the actual filing of the lawsuit.  Often, it is middle-management that first sees litigation storm clouds on the horizon, and they need to be conditioned to alert senior management and outside counsel to threatened litigation.

            Once the alarm is sounded, the litigation hold letter must be carefully drafted and quickly disseminated.  Each situation is different, and this is not an area where a generic, “one size fits all” form letter can be sent.  Management and counsel should collaborate on ensuring company-wide compliance and the letter should emanate from the company’s upper echelons (e.g., CEO, COO, and CIO).  Implementation and supervision of the litigation hold cannot be delegated away and senior management must remain involved and responsible throughout the process.  In the words of Judge Scheindlin, “[i]n short, it is not sufficient to notify all employees of a litigation hold and expect that the party will then retain and produce all relevant information.  Counsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched.”  Zubulake V, 229 F.R.D. at 432. 

            The litigation hold letter is both a sword and a shield.  It is a recognized and ubiquitous “terrain feature” on any litigation landscape and litigants and lawyers are now on notice that they are expected to be familiar with the evolving law and conform fully to its requirements.  Every case is different, however, and must be analyzed and evaluated on its own peculiar facts and circumstances.  If you have any questions relating to ESI in general, or litigation hold letters, in particular, please contact Robert L. Keepnews, Esq. by phone at (203) 221-3100 or via e-mail at RKeepnews@Mayalaw.com.