One of the challenging parts of being a family law attorney is that much of what we do centers around our ability to convince a judge of something based on individual circumstances. So, if I present the same fact pattern to one judge, it could make a massive difference in a case.
Then, if I were to walk down the courthouse hallway and present the same fact pattern to another judge, the evidence may not leave much of an impression at all. So much is left up to the individual biases and opinions of the judge your case sits before that determining how important a particular piece of information is can be challenging.
Like all people, judges have opinions shaped by their life experiences. This is not a bad thing. We want our judges to be competent opinion formers. The Texas Family Code enables family court judges a wide degree of latitude to make decisions based on those opinions. A judge's formulation of what is in the best interests of your child, for example, is based on specific circumstances of your case and their own biases and opinions.
My point is that I cannot simply read a statute and then tell you how that statute is going to apply to your case specifically. For instance, if your spouse is abusive and you have filed for divorce, you may have a question about how your spouse's abusive tendencies could affect a judge's ruling.
Without knowing the judge that your case will go before and the extent of the abuse, I would not be able to give you anything but a generalized, boilerplate answer. Sure, if your spouse is determined to be a domestic abuser, you will likely gain primary conservatorship of your child. Absent any other information; this is likely how I would respond to you.
Today's blog post from the Law Office of Bryan Fagan, PLLC, will center around the subject of how a judge can identify behaviors in your spouse that could identify them as a domestic abuser- either of you or your child. So much of the concerns that I have encountered with clients center around what happens if the judge doesn't believe what we have to say about the abuse occurring. Let's examine what a judge looks for in a person when allegations of abuse have been made.
How a party to a family law case can be identified as an abuser
Many of their tactics outside of court are difficult to identify and even more challenging to prove in the context of a hearing or trial. If done with words, you can feel the abuse, but those feelings can be challenging to describe. What's more, if all you are doing is describing feelings, you will probably not overwhelm the judge with convincing testimony.
I have seen a handful of alleged abusive spouses attempt to belittle, criticize and be generally nasty to their spouse in a courtroom. Their reasons for doing so are transparent: abusers seek to control and do so by any means necessary. Abusers are often never called out for their actions at any time before their appearance in court. This can lead to their incorrect belief that their actions have no consequences- even when they are before a judge.
Ultimately, a judge is looking for a display of behavior that can evidence potential risk to you or your child. Some people are unpredictable, and that quality will shine through in a courtroom. A judge's difficulty is that every person who walks through their courtroom doors will display their relationship to abuse differently.
Some parents who are the victims of abuse will minimize its effect to prevent future incidents (at least in their minds). Others will exaggerate and embellish incidents to make the situation worse than it is. This is an example of how you can hurt your case overall.
How an abusive parent or spouse testifies in court
From what I have seen, a judge will readily identify an abuser by behavior that involves acting arrogantly. If your spouse believes that they are above the entire divorce process and that their actions towards you and your child are wholly justified, then this will shine through in their testimony.
A side note that I will make here is that abusive spouses that I have encountered will speak poorly of their spouses in private and feel comfortable doing so in public. These are the same folks that will not hesitate to criticize a judge or second-guess a decision that a judge makes.
Another classic track that abusers like to run on is being a victim themselves. Abusive spouses will attempt to convince a judge that they have been the victim of abuse at your hands. Have you ever attempted to fight off your spouse?
Have you ever told a family member about the abuse you've suffered? Be prepared for the possibility that your spouse could argue that you have been violent with them. It can look foolish to a judge, but the abusive spouse does not see it this way. In their mind, their actions are always justified.
How you as an abused spouse can appear when testifying
Unfortunately, because you have been through traumatic experiences, you may not be in the best condition mentally or physically to testify to the best of your ability. For instance, you may appear to be nervous or anxious while testifying, which can cause you to lose credibility in the eyes of a judge.
Keep in mind that it is perfectly reasonable for you to feel this way! You have probably been holding back on the information before speaking to your attorney about everything. Now you are actually in court and in front of the person who has abused you. Your emotions and adrenaline are likely running at all-time highs. Try to do your best to calm yourself before testifying and to understand that your perceptions of yourself matter.
What is a high conflict family law case?
Now that we have discussed how abusive and nonabusive spouses can appear in court let's go through how a judge may respond to your case if it is determined that it is a high conflict family law case. A high conflict case involves long-standing problems in a family that will require court and community involvement. Translation: if the judge believes that the problems in your family are so severe that counseling, therapy, and hearings are required to help, then yours will be a high conflict case.
Hallmarks of high conflict divorce cases are those where you and your spouse do not trust each other at all and where each of you has a history of engaging in harmful behavior towards one another.
This can include the physical violence that we have discussed in the earlier portions of this blog post. While you cannot help how a judge perceives your case, it is essential to note that the judge's primary responsibility is to protect your child in a family law case. Any protections or precautions that a judge makes regarding your case will be done with this goal in mind.
How will your judge view evidence presented in a divorce involving abuse? Read tomorrow's blog to find out.
Tomorrow's blog post from the attorneys with the Law Office of Bryan Fagan, PLLC, will detail the sort of weight a judge will give to evidence that involves allegations of abuse. In the meantime, if you have any questions about family law cases in Texas, please contact our licensed family law attorneys. We offer free of charge consultations six days a week to answer questions and discuss the services that we can provide to you as a client.