Protection Orders

*United States v. Dixon (December 2 1992-June 28 1993) U.S. Supreme Court. United States V. Michael Foster (United States v. Dixon, 598 A.2d 724, 725 (D.C. 1991), cert. denied, 112 S. Ct. 1759 (1992), aff’d in part and rev’d in part, 113 S. Ct. 2849 (1993). Amicus brief filed in the Supreme Court of the United States as the organization that serves as counsel for the domestic violence victim in the underlying protection order contempt proceeding that resulted in an over 600 day sentence for multiple counts of contempt of a civil protection order. The Brief argued that victims could constitutionally enforce their protection orders without undermining the ability of the state (in this case the United States) to bring criminal charges against the domestic violence perpetrator that included numerous assaults and assault with a deadly weapon. The Supreme Court upheld the right of a victim to enforce her protection order without barring criminal prosecution by double jeopardy as long as the contempt proceeding and the criminal prosecution each require proof of additional elements under the Blockburger “same elements” test.

Topics Addressed in this Amicus Brief:

• The Decision Below Undermines the District of Columbia’s Intrafamily Offenses Act Which Provides an Important Remedy to Victims of Domestic Violence………….. 8
• Jeopardy Does Not Attach When a Battered Woman Enforces her Civil Protection Order Without the Involvement of the State’s Criminal Prosecutor……………………15
• The Purposes Underlying the Double Jeopardy Clause Do Not Warrant Its Extension to a Battered Woman’s Enforcement of her Civil Protection Order……… 19
• Even if Jeopardy Attaches to the Enforcement of a Civil Protection Order, the Criminal Charges are Offenses Distinct from Respondent’s Violations of the Civil Protection Order…………………. 27

Ruiz v. Carrasco, (1997) DC Court of Appeals. NOW Legal Defense and Education fund, represented by Piper Marbury Rudnick & Wolfe, submitted this amicus brief in the case of Antonio Ruiz v. Wendy R. Carrasco, case nos. 98-FM-39 98-FM-40 on issues of civil protection orders. Amicus Brief was filed in support of a court issuing a protection order prohibiting an abusive husband from reporting his wife to government officials including (INS).
Topics addressed in this Amicus Brief:

• The Intrafamily Offenses Act Grants the Superior Court Broad Authority to Issue a CPO Prohibiting Ruiz from Contacting Government Officials………………………..9
• The Superior Court Issued the CPO Based Upon a Well-Supported Finding of Good Cause…………………………………….10
• The CPO Does Not Violate Mr. Ruiz’s Rights Under the First Amendment to the United States Constitution………………………………..17
• Mr. Ruiz’s Threatened Reports to the INS Constitute Conduct and Are Not Speech Protected by the First Amendment……………………………………………………………………………17
• District of Columbia Law Permits the Prohibition or Restriction of Verbal Conduct Intended to Injure or Harass Another Person …………………………………………………..20
• The Superior Court’s Order Is Supported By Congressional Findings and By Studies On Battered Immigrant Women…………………………………………………………….23

Harrison v. Harrison, (February 11 2002) Kentucky, Fayette Circuit Court 3rd Division. National Network to End Domestic Violence (NNEDV) and NOW Legal Defense Fund (NOW), represented by Wiley, Rein, & Fielding, filed an amicus brief explaining misuse of protection orders to penalize victims and discourage them from seeking legal relief, “mutual” protection orders as contrary to public policy, and the safety of DV victims as directly related to batterer responsibility enforced in the legal system.

Topics addressed in this Amicus Brief

• Misusing Protective Orders to Penalize Victims of Domestic Violence Discourages Victims from Seeking Relief from the Judicial System……..3
• Refusing to Insist that Batterers Take Full Responsibility for Their Violent Behavior Jeopardizes the Safety of Domestic Violence Victims…………6
• So-called “Mutual” Protective Orders are Contrary to Public Policy…..10
• The District Court’s Misuse of a Protective Order to Punish the Victim of Domestic Violence is Contrary to Law………………………………………………11

Jessica Ruth Gonzales v. United States of America Inter-American Commission on Human Rights (December 5 2007), The Inter-American Commission of Human Rights. Legal Momentum and Horvitz & Levy LLP submitted this amicus brief after Castle Rock police department failed to enforce an order of protection against Ms. Gonzales’s husband. This brief argues that there is an international consensus recognizing states’ obligation to protect against domestic violence and provide effective remedies for its victims. Even if laws and orders are issued, they must be enforced. The police failure to enforce the protective order in this case, together with the United States’ failure to provide a judicial remedy for this lack of enforcement, violate established international human rights treaties and standards, under which states are required to respect, protect, and fulfil women and girls’ rights to be free from gender-based violence, including domestic violence.

• Under International Human Rights Law, Nation States Have a Duty to Protect Women and Children From, and Provide an Effective Remedy for Gender-Based Violence, Including Exercising Due Diligence to Ensure that Domestic Violence Laws are Effectively Implemented and Enforced…………………………3
• In this hemisphere, the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women requires states to “prevent, punish, and eradicate” gender-based violence, including domestic violence . . . . . . . . . . . . . . . 3
• Contrary to International Law, Domestic Violence Has Been and Continues to be Treated as a Private Family Matter in Which the Police and the Courts Should Not Intervene. A Favorable Ruling in this Case Would Send a Powerful Message That, To Comply with Their International Obligations, And Provide Women and Children with Effective Protection from Gender-Based Violence, States Must Both Enact and Enforce Domestic Violence Legislation…………………..30
• State Authorities’ Longstanding Treatment of Domestic Violence as a Private Family Matter Remains One of the Chief Obstacles to Enforcing International Human Rights Norms and Protecting Women from Violence . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Meredith v. Muriel K&L Gates (July 17 2009) Supreme Court of the State of Washington. Submitted two amicus briefs, one on behalf of Legal Momentum and a second on behalf of the National Network to End Violence Against Immigrant Women, in a case in which an abuser appealed the issuance of a protection order containing a prohibition against the abuser communicating with the Department of Homeland Security regarding his wife. One brief (K & L Gates, Pro Bono) provided social science documentation of the harm to victims and the lethality of immigration related abuse and discussed the history and purpose of VAWA confidentiality protections. Both briefs were filed.
Topics addressed in this Amicus Brief:

• Threats of and Attempts at Deportation are a Recognized Form of Domestic Abuse and Constitute Controlling and Abusive Conduct…………………………………………………………………….2
• 1. Social-Science Research Makes Clear that Immigration-Related Violence Is a Significant Threat to Immigrant Women………………………………………………………………………………………………2
• 2. Congress Enacted VAWA Confidentiality Provisions to Deter Immigration Abuse Related to a Batterer’s Communications to DHS……………………………………………………………………………………5

Hague Custody

Blondin v. Dubois, (2000) U.S. Court of Appeals 2nd Circuit. NOW LDEF, represented by Crowell & Moring, filed an amicus brief in support of a mother’s child custody against a challenge under the Hague Convention on the Civil Aspects of International Child Abduction U.S.C. section 11601 by the father, a resident of France.

Topics addressed in this Amicus Brief:

• The District Court’s Findings are Fully Supported by the Record Evidence………………………6
• The District Court’s Fact-Finding Is Subject To The Clearly Erroneous Standard ……………………….13
• The Government is Improperly and Unthinkingly Dismissive of the Very Real Trauma and Danger to Children Arising from Domestic Violence…………………………31
• The Government’s Diplomatic Concerns Have no Place Within the Article 13(b) Analysis………35

Souratgar v. Fair (February 18 2013) 2nd Circuit Court of Appeals. NIWAP and others, represented by Greenberg and Trauri, participated in an amicus in a Hague Convention international custody case with Sanctuary for Families in New York. The amicus address domestic violence and immigration related abuse and provided social science research and legislative history documenting the dynamics of domestic violence experienced by immigrant victims, particularly immigration related abuse as well as research and Congressional Resolutions on the effect that witnessing a domestic violence has on children.

Topics addressed in this Amicus Brief:

• Manipulation of immigration status is a common tool of abuse used by batterers to establish and maintain power and control over the victim …………………………………………………………………………8
• Manipulation of immigration status and other tactics of coercive control and dangerous to the health and wellbeing of victims and their children ……………………………………………………………… 11
• The District Court failed to properly assess the allegations of domestic violence …………………… 15
• This Court should clarify the proper inquiry into the nature, severity and potential impact of domestic violence as it relates to children in the Hague Convention cases ……………………………. 18

Marcelle Guimaraes v. Christopher Scott Brann (May 8 2019) Texas Supreme Court. NIWAP, represented by KL Gates, served as lead amicus on a brief before the Texas Supreme Court. The amicus curiae brief is filed on behalf of a woman who is fighting for complete custody and the ability to keep her child in Brazil away from the child’s father, who had abused the mother. The mother won a contested Hague
Convention Case in which both parties participated and the mother was granted the right to keep the child in Brazil and was awarded full custody. The Texas trial court ignored the Brazilian order and in a divorce proceeding awarded custody to the father.

Topics addressed in this Amicus Brief:

• This Court’s Review is Needed to Ensure Texas Courts Extend Comity to Decisions from Sister Signatories of the Hague Convention………………………………….4 
• The Lower Court Should Have Extended Comity to the Sister Signatory’s Grave-Risk Determination Because it Reasonably Interpreted the Text of the Exception and was Consistent with the Convention’s Fundamental Purpose…………………………………..6 
• The Brazilian Courts’ Application Of The Grave-Risk Exception Was Consistent With The Plain Text Of The Exception………6 

Child Welfare Custody

Nicholson v. Williams (May 2004) New York State Court of Appeals Second Circuit. Legal Momentum, National Organization for Women Foundation, and New York Civil Liberties Union filed this amicus brief in support of battered women and their children. The Nicholson case is a class action suit against the Administration for Children’s Services (“ACS”) of New York City based on their policy and practice of presumptively removing children from battered mothers and charging them with neglect for “engaging in domestic violence.” Under the ACS policy, children are removed and women charged simply because the mothers are victims of domestic violence. The Nicholson case, comprised of over 20 class members, challenges the ACS policy on constitutional grounds. The Court of Appeals for the Second Circuit has certified questions to the New York State Court of Appeals to assist in determining whether the policy is unconstitutional.
Topics addressed in this Amicus Brief:

• Widespread Persistent Gender Bias Compromises Government’s Response to Domestic Violence, Particularly When Children are Involved…………….4
• Sex Discrimination Jurisprudence Makes Clear the Impropriety of Basing Government Policy or Practice on Gender-Based Stereotypes………………………………………………………………………………………5
• This Court Should Interpret the Family Court Act to Require a Particularized Showing of Actions (or Inactions) That Constitute a Failure to Exercise a Minimum Degree of Care………20
• The Family Court Act Requires a Showing that a Child’s Injury Is Attributable to an Individual Parent’s Failure to Exercise a Minimum Degree of Care ………………………………………………………………..20
• This Court Should Respond to the Certified Questions with Guidelines that Deter Reliance on Gender-Based Stereotypes………….28

State v. Maria L. The Nebraska Supreme Court (April 8 2009), Nebraska Supreme Court. Legal Momentum and DLA Piper submitted this amicus brief for a termination of parental rights case in which an undocumented immigrant mother was denied language access to child protective services, the courts and the hospital. In a unanimous decision that Nebraska Supreme Court returned two children to their Guatemalan mother who had been deported and her parental rights were terminated by the state ruling that undocumented, detained and deported immigrant parents have the constitutional right to care for, have custody of, and control over their children

Topics addressed in this Amicus Brief:

• Fundamental Importance of the Parent Child Bond ………………………………………… 1
• Termination of parental rights must follow statutory grounds ………………………… 1
• Requirement of Sufficient Notice Was Not Met …………………………………………………… 10
• DHHS Failed to Adequately Communicate the Case Plan……………………………. 10
• Failure to Consider the Language Barrier Supports Reversal ……………………….. 12

Adoption C.M.B.R. Minor. S.M. and M.M. Respondents vs. E.M.B.R. (July 21 2010), Missouri Court of Appeals and Supreme Court. Amicus brief was filed by Legal Momentum, represented by Crowell & Moring, and others in the Missouri Court of Appeals (2010) and a second in the Missouri Supreme Court (2010) in support of reversing a court decision to terminate the parental rights of an immigrant mother Encarnacion Bail and finalize the adoption of her children as a result of Encarnacion’s immigration detention. Encarnacion Bail had been subject to an immigration raid at her workplace and was coerced into taking a plea to aggravated identity theft. While Encarnacion served her jail sentence, the State of Missouri terminated her parental rights and finalized the adoption of her children. After she finished serving her sentence the U.S. Supreme Court ruled that convictions like hers for use of false documents was unconstitutional. Won favorable decisions in both cases confirming that limiting who may place a child for adoption and confirming that immigration status should “never” be a factor “when determining whether to terminate parental rights.

Topics addressed in this Amicus Brief:

MISSOURI SUPREME COURT (2010)

• The Circuit Court’s Decision Violated Encarnacion’s Constitutional Parental Rights………………4
• Missouri’s Statutory Grounds for Terminating Parental Rights Do Not Apply to this Case…………………………………………………………………………………………………………5
• The Circuit Court Violated Encarnacion’s Due Process Rights…………………….15
• Due Process Extends to Immigrant Family Relations……………………………………………………..15

In Re D.T. –O Maryland Court of Special Appeals (May 20 2021) Maryland Court of Special Appeals. NIWAP, represented by K & L Gates LLP, filed a case in which Maryland State Child Protective Services used a parent’s immigration status and issues related to immigration status to terminate a parent’s parental rights. This amicus brief argues that federal preemption precludes Maryland from imposing penalties against undocumented immigrant parents fin custody and termination of parental rights cases. This together with failures to provide language access in this case violated the immigrant mother’s due process rights. E-filed on 5/20/21.

Topics addressed in this Amicus Brief:

• A State Cannot Terminate Parental Rights Over Immigration Status…………. 3
• The State’s Failure to Provide Appellant Consistent Access to Qualified Interpreters and Translation Services Violated Her Due Process Rights……………………………………………… 9

Divorce & Annulment

In Re the Marriage of David M. Salcido and Irina N. Salcido, (August 24 2004) Arizona Court of Appeals Division Two. Legal Momentum represented by Crowell and Moring filed an amicus brief in support of overturning a grant of annulment in favor of an abusive spouse who sought an annulment after a five year marriage in order to deny the victim-wife VAWA immigration status. Topics addressed in this Amicus Brief:

• The Court Erred in Failing to Consider Domestic Violence Committed Against Irina When Weighing the Equities in its Decision to Award David an Annulment……….15
• Domestic Violence Is a Systemic, Nationwide Problem………………………………………………………….15
• The Court Erred in Failing to Weigh the Extensive Evidence of Domestic Abuse when Making Its Equitable Determination to Grant an Annulment Rather than a Divorce………………………………..25
• The Trial Court’s Finding that David Did Not Know Irina was Still Married When He Submitted Her K-1 Visa Papers Was Clearly Erroneous………32
• In Annulment/Divorce Determinations Involving Battered Immigrants, Courts Must be Wary of Effectively Preempting Federal Laws Protecting Immigrants from Abuse of their Immigration Status by their Abusive Spouses…………………………………….34
• Remedies Granted by Congress Protect Immigrant Women from Catch 22s Resulting from Domestic Violence………………………………………………………………………………………………………………..35

Senjab v. Alhulaibi (September 25 2020) Supreme Court of Nevada. NIWAP, represented by K&L Gates, filed an amicus brief confirming that for purposes of jurisdiction in divorce cases residence can be established without regard to the immigration status of the party seeking divorce. This is a case in which an abusive spouse argued successfully to the trial court below that a visa holder spouse (in this case a student visa holder) could not file for divorce (custody and child support) in Nevada because her visa is only temporary, and she could never obtain a divorce in NV despite the state being the victim and her abusive spouse’s state of residence. The victim otherwise met the residency requirements. This could have had broad implications for all visa holders in the U.S. if the trial court’s ruling was not overturned. DECISION: Nevada Supreme Court ruled that residence in the state is all that is needed for divorce jurisdiction. This ruling ensures that courts retain the ability to grant divorces to all persons who meet the state residency requirements without regard to any party’s immigration status.

Topics addressed in this Amicus Brief:

• The Lower Court Erroneously Interpreted Park………………….3
• Federal Law Does Not Broadly Preempt State Residency Requirements for Family Court Jurisdiction………………………………….8
• Dismissing Appellant’s Divorce Complaint for Lack of Subject Matter Jurisdiction Violates Her Due Process Rights…………………………..13

Affidavit of Support

Kumar v. Kumar (September 26 2016) California Court of Appeals. NIWAP served as sole amicus (represented by Crowell & Moring) in a case in which a California state family court judge imposed the duty to mitigate that applies in contract cases and alimony cases to an immigrant spouse, in this case a battered immigrant spouse, seeking to enforce the Affidavit of Support her husband signed with the U.S. Department of Homeland Security when he sponsored her to attain legal permanent residency status. The brief cited case law from other states and law review articles discussing current state family court practice allowing immigrant spouses to enforce affidavits of support in family court cases. The brief provided legislative history and social science data supporting the position imposing a duty to mitigate undermines the legislative purpose of the Affidavit of Support and in the case of battered immigrant spouses, the Violence Against Women Act. Trial court decision was reversed (07/28/17).
Topics addressed in this Amicus Brief:

• As a Third-Party Beneficiary, Immigrants Such As Ms. Kumar Must Be Permitted to Enforce the 1-864 Affidavit of Support in Family Court …………………………………….………………………………….. 2