An Appealing Strategy

Largely ignored parts of the state's Family Code are now likely to get a lot more attention, thanks to an ambitious new nonprofit based at UC Berkeley School of Law. The Family Violence Appellate Project (FVAP) intends to systematically appeal cases, particularly those dealing with custody disputes in domestic violence matters.

Cherri Allison, the executive director of the Alameda County Family Justice Center, says that FVAP would have been an invaluable tool to her when she was practicing family law. "There's never been a resource like this before," says Allison. "When I was practicing, there was no organization that dealt with appeals. I couldn't afford to do appeals, considering many of my clients could barely afford representation of any kind."

Since 2004 the Family Code has contained a carefully worded provision designed to protect children from ending up in the care of violent guardians. The code states, in part, that: "[T]here is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child." (Cal. Fam. Code § 3044(a).) And yet, according to FVAP, one study found that abusers are granted custody in 54 percent of custody cases involving documented domestic violence.

"Statistically, when battered moms bring up domestic violence in mediation before a custody hearing, they are less likely to be awarded custody," says Nancy Lemon, a UC Berkeley law professor, FVAP's legal director, and the drafter of section 3044. "It's baffling. And the only way to reverse these adverse decisions is via appeal."

Advocates say that domestic violence survivors often fare poorly in court. A survivor of abuse might not be able to afford stable housing on her own, or she may have difficulty finding permanent employment, while the batterer has both. These disadvantages can skew the outcome of family law cases, and until now, appeals in such matters have rarely been filed.

FVAP opened its doors in June 2012 with full-time FVAP attorney Erin Smith, along with Lemon and a smattering of law students. This core group screens cases and then will either file the appeal itself or act as co-counsel to a small army of outside attorneys who work for the nonprofit pro bono. So far, FVAP has filed two appeals and an amicus brief on behalf of domestic violence survivors.

Obstacles include fund-raising, a small staff, reaching out to in pro per litigants, and the time restrictions that appeals impose. But for Smith and Lemon, the effort is worth it.

"In my career, I've come to several conclusions about domestic violence and family law," says Lemon. "One of them is that if you don't appeal domestic violence cases, then family court may ignore the legislation."

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