We like to think that if a survivor would just leave an abusive relationship, she and her children would be safe and free to rebuild their lives. Unfortunately, leaving an abusive partner will not always increase a woman’s safety and in many cases the abuse will continue and likely escalate. Once an abusive relationship ends, the abuser’s need for power and control does not simply disappear. If anything, an abuser’s desire for control often intensifies as he senses the relationship slipping away from him.
Why do abusers use the court system?
For an abuser who can no longer exercise coercive control through physical and emotional tactics within the home, the platform for post separation abuse frequently becomes the family court system, where the abuser weaponizes the children and family court professionals to maintain power and control. Post separation legal abuse can take an even greater toll on a survivor than the physical and emotional abuse they endured for years.
What is post separation abuse?
Post separation abuse, also referred to as legal abuse, vexatious litigation, procedural abuse, or judicial terrorism, is defined by one litigant exerting power and control by dragging their partner through the court process repeatedly and excessively. Essentially, they engage in behaviors or legal maneuvers to either repeatedly return to court or to refuse to resolve the litigation or court process.
How do those who abuse manipulate the court system?
Some common tactics frequently used by abusers to manipulate the court system include:
- The abuser will bring the survivor back to court repeatedly. Each day in court can take a tremendous toll on the survivor in terms of stress, mental anguish, lost wages and attorney’s fees.
- The abuser will play the role of a loving, involved, and caring parent who wants to have half-time or more with their children, when their true goal is to continue a pattern of abuse and harassment.
- The abuser will frequently create a false narrative (gaslighting) that the other parent should lose much or all of their parenting time because they are mentally ill, mentally unstable, or incapable of parenting, often due to the trauma they have experienced.
- The abuser will manipulatively appear like they are trying to find solutions, but always find an impediment that prevents the legal conflict from being resolved.
- The abuser may allege that the survivor is denying him access to the children as a form of retaliation or trying to undermine his role in the children’s lives and accuse her of “parental alienation.” In many cases, the defense of parental alienation is raised in response to a survivor’s attempts to protect the children from abuse by seeking to limit his contact with the children.
- Where manipulation and charm do not work, the abuser may switch to intimidation, threatening or attacking those he perceives as being sympathetic to the survivor.
What does post separation abuse look like?
An abuser will continue his harassment of the survivor for years through the court system, causing the survivor and her children to be retraumatized and destroying the family’s finances. The abuser will file motion after motion, continuing his pattern of abuse until the children reach the age of majority and often well beyond, and the survivor is left bankrupt and exhausted. An abuser wants the case to drag on, relishing the opportunity to continue to have contact with their ex-partner and cause them to suffer. Every case of post separation legal abuse has three basic narratives: the abuser’s need for control, the abuser’s need to “win”, and the abuser’s desire to hurt or punish the other parent.
While there are many resources available to victims of intimate partner violence during the relationship, the only resource available to victims of post-separation abuse is the family court system itself (judges, mediators, guardians ad litem, custody evaluators, therapists, co-parenting counselors, parenting coordinators and attorneys). It is so important for those in the family court system to be educated on post-separation abuse and to recognize it in divorce cases, custody battles and parentage cases.
Is there is difference between high conflict divorce and legal abuse?
Unfortunately, many court professionals fail to identify these legal manipulations as abuse and instead label these cases as “high conflict divorces.” A high conflict divorce implies that both parties are difficult and contributing to the problem rather than identifying the abuser as the one truly creating the difficulty and taking steps to hold him swiftly accountable. The problem is not the couple—the problem is one member of the couple and should be handled accordingly.
Domestic abusers are master manipulators. When the court labels a divorce as “high conflict” this only opens the door for the abuser to use this to his advantage by painting the survivor as being the primary problem in the relationship. Unfortunately, this tactic can be very effective and often results in an abuser gaining much of the parenting time and decision making for the children.
How to help victims of post separation abuse
Unfortunately, this pattern of abuse is not likely to end until court professionals become better able to identify these manipulations and begin to hold abusers accountable for their behavior. In her article “How Domestic Violence Batterers Use Custody Proceedings in Family Courts to Abuse Victims, and How Courts Can Put a Stop to It, Emmaline Campbell identified a number of recommendations for judges and other court professionals to better limit lengthy litigation abuse and protect survivors:
- Judges and court professionals need to become more familiar with abuser profiles and patterns of intimate partner violence to detect these more easily when they appear in court. Too often court professionals fail to identify abusive patterns without the presence of glaring physical abuse.
- Judges and court professionals need to watch vigilantly for signs of abuse throughout the court and mediation processes and not be distracted by an abuser’s often affable presentation.
- Family courts need to sanction abusers who file frivolous motions. A court can discipline an abuser who brings excessive motions by ordering the abuser to pay the attorney’s fees and costs for the survivor. Other ways a court can discipline an abuser is to ban an abuser from filing any further actions or motions against the survivor without permission from the court, find the abuser in contempt of court, or refer the abuser’s attorney for disciplinary action.
- Abusers often fail to pay child support in order to prolong the court case and require the survivor to initiate further proceedings. Courts should find the abuser in contempt of court upon the very first failure to pay child support, or in some other way fail to comply with the terms of a court order– thus averting the need for repeated court hearings.
- Despite laws that require judges to consider intimate partner violence when deciding parenting time, many judges will still give significant parenting time to abusers. The court’s tendency to prioritize the abuser’s needs over the needs and safety of the children and survivor is highly troubling and remains pervasive today. Unfortunately, abusers who are granted parenting time will often use custody as an excuse to stay in communication and continue to exert power and control over the other parent. Where such contact is granted, orders should be drafted in a way that reduces the need for contact between the parties when not essential.
- Victims should seek a court order compelling the parties to communicate via Talking Parents or Our Family Wizard. Additionally, the victim should work with a therapist or attorney to learn how to effectively respond to an abuser’s communications, which are often accusatory, triggering and incite the victim to further engage with the abuser.
SHALVA is here to help
Those who abuse will use whatever methods they can to maintain power and control, and litigation abuse is one way they may continue to abuse and harass their ex. Unfortunately, many judges or individuals in the legal system do not understand the dynamics of power and control in abusive relationships. SHALVA offers free continuing legal education programs to attorneys, judges, mediators, paralegals, parenting coordinators and guardians ad litem (GALs) to bring greater awareness to domestic abuse in the legal system. We also provide legal education for our counseling clients so they can better understand the legal process. If you have questions or concerns, call our office at (773) 583-4673.
Kimberly Shapps, JD, LCSW, ICDVP has been a certified domestic violence counselor with SHALVA since 2005. She began her career as an attorney in the public interest sector, representing victims of domestic violence in civil proceedings and was the Clinic Legal Director at Pro Bono Advocates. In her spare time, she enjoys taking long walks with her dog.
