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

What is considered “family violence”?

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 (e) presently residing together or who have resided together; (f) persons who have a child in common regardless of whether they are or have been married or have lived together at any time; and (g) persons 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.

Custody vs. Visitation

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 case developments.

[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).

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