'Paper Abuse': How Family Courts Feed Coercive Control

By Cara Bayles | July 21, 2023, 9:07 PM EDT ·

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Jennifers' Law expanded the definition of domestic violence in Connecticut and required family court judges to impose sanctions for litigation abuse. The law is named for Jennifer Dulos, who went missing and is believed to have been killed by her allegedly abusive husband, and Jennifer Magnano, who was fatally shot by her estranged husband. Both were in the midst of divorce and child custody proceedings. (AP Photo/Jessica Hill)

Bonnie Carlson was a young legal aid attorney when she inherited a client who had divorced her husband and gained custody of their child about three years before. The client had been represented by another legal aid attorney for several years, and when Carlson left that job, a successor took on the case for several more.

"Everyone in the office knew that it was just going to be an ongoing case until the child turned 18," Carlson, now a professor at Mercer University's Walter F. George School of Law, told Law360. "There was just no question in our minds about that."

The client's ex-husband, who was representing himself, would file motion after motion, seeking to relitigate issues of custody, child support, visitation and who could have their car, Carlson said. He filed a motion to hold her client in contempt for being five minutes late to exchange their child. He would time new filings so his ex-wife would have to attend court hearings on the child's birthday. This went on for nearly a decade.

"He was pro se, so he would just be writing 30- or 40-page motions that were just sort of his ramblings and his problems with my client," said Carlson, who added that the experience was "a big part of why I left practice."

"By the time I was a few months into that case, I was like, 'I really don't feel like I can deal with this.' And I have no personal relationship with him, so I really felt for my client who obviously had the personal connection with him and had to share a child with him," she said.

Filing frivolous lawsuits, motions to reconsider and appeals has long been recognized as "vexatious litigation." But only in recent years has it been recognized as "paper abuse" in the family law context.

Domestic violence advocates say this is a form of "coercive control," a term coined by the sociologist and forensic social worker Evan Stark in a 2007 book by the same name, which explained how men entrap women into controlling and subservient relationships. Abusive partners — who are often, but not always, men — use a set of strategies, including not only violence, but manipulation, confinement, threats, surveillance, isolation and economic subordination.

When these relationships end, court is often the only way for abusive partners to maintain power over their exes. They will file motions seeking to change the terms of settled divorce or custody decisions as a means to extend interaction with survivors, disrupt their lives with court hearings or bankrupt them with attorney fees.

That only serves to terrorize people who are often already "profoundly depressed" and struggling with post-traumatic stress disorder, according to Lisa Goodman, a psychology professor at Boston College who has studied the phenomenon.

"The impact of trauma and coercive control is really profound and powerful, even before we get to court. The feeling of betrayal by a person who was supposed to love you makes you doubt everything," she said. "Many [survivors] seek justice through family court. When they don't get it from an institution that they think of as the one true and reliable safeguard, the mental health results can be really terrible and make it much less likely that they will ever seek justice through the system again."

But combating vexatious litigation is difficult, in part because it can be hard to draw the line between abuse and zealous self-advocacy in a court system that is adversarial by design. Judges are often reluctant to curb litigants' procedural due process rights.

"There's this big underlying constitutional right to petition," said Sasha Drobnick, director of appellate litigation at the Network for Victim Recovery of D.C. "How do you identify exactly what's abusive or vexatious, frivolous, in bad faith? It's hard to show those things on the face of a motion or a pleading."

"A Huge Drain"

Because paper abuse can be so difficult to identify, Goodman and fellow researcher Ellen Gutowski, a psychology professor at the University of Toronto, recently created a "legal abuse scale" by interviewing more than 200 survivors about their experiences in family courts across the U.S.

They identified 14 common tactics abusers used against survivors, including threatening to use the court as a means of punishment, threatening or succeeding in taking children away, filing motions with the sole purpose of causing distress and threatening to take control of all financial assets.

The toll that takes on survivors can manifest in several different ways.

One is the psychological impact of trudging to the courtroom to face the person who harmed them or their children, said Goodman of Boston College. Judges often don't recognize the ways they perpetuate abuse by "not ensuring that the survivor will be safe once the court day is over," or "not recognizing that there's a certain look that the abuser gives that says, 'You're gonna get it later,'" Goodman said.

"Coercive control can be going on right underneath the judge's nose," she said. "Abusers have a way of maintaining cool in court. They've got the money. They've got charm. They have a way of being believed. Victims are often on their last leg, falling apart, struggling with trauma and not particularly articulate, not remembering the details of what happened to them or their children."

There can also be an extreme financial toll on survivors, who are often less well off than their exes because of the gender wage gap and because women are more likely to stay home with young children. That can leave them financially dependent on their spouses, who then exploit that inequity in court.

"Those imbalances in an abusive relationship can really lead to a situation where the survivor really can't put up a fight," said Katina Miner, a legal aid attorney in Kentucky and chair of the American Bar Association's domestic violence committee.

Couples with at least one high net-worth individual are likely at greater risk for litigation abuse, according to Miner.

Abusive partners will try to take all the marital assets or withhold child support, said Gutowski of the University of Toronto, and they'll often file motions with the sole purpose of ratcheting up the other person's attorney fees, which can cost hundreds of thousands of dollars.

"I've heard of cases where people will file motions to try to make the target of this type of abuse show up to court in person, and then the party who initially filed the motion doesn't show," Gutowski said. "They took off from work. They found child care. They went through the distressing process of having to prepare to show up to court. Maybe they're there with an attorney who they're paying by the hour. That can be a huge drain on financial resources, but also just so draining emotionally."

"A Vital Tool"

According to Drobnick of the Network for Victim Recovery of D.C., perpetrators of litigation abuse will sometimes also seek tort damages outside of family court by suing for intentional infliction of emotional distress over a protection order the survivor took out, or filing defamation claims against survivors who speak about their experiences.

In combating defamation cases, Drobnick said she has found state anti-SLAPP laws, which aim to protect defendants from frivolous lawsuits designed to intimidate and silence public participation, "a vital tool for survivors."

"It's so hard to defend against abusive litigation unless you've got this counterbalance," she said.

Drobnick successfully invoked one such statute in filing an amicus brief in a Colorado case involving a man who had sued his former sister-in-law. The woman had posted on social media about the abuse his ex-wife suffered, her treatment by the courts and questions that remained about whether her death was a suicide. An appellate court sided with the sister-in-law, finding the suit's defamation claims could be dismissed because "domestic violence, and the justice system's handling of it, are undeniably issues of public concern."

Survivors can also fight back against paper abuse by seeking attorney fees, particularly when their exes seek to relitigate closed issues and the circumstances haven't changed, according to Maleaha Brown, a professor at Southwestern Law School, a former legal aid attorney in Texas and California, and an incoming commissioner of the American Bar Association's commission on domestic and sexual violence.

"For most states, you have to prove that the actions are being filed without a good reason or they're intended to harass the other party, the survivor. And so if you can meet those requirements, then I think attorney fees are a great way to address the financial aspects of it," she said. "If you're having a hard time finding an attorney because the abuser has run up legal fees, having attorney fees at the end may incentivize attorneys to retain survivors as clients, even though there's this threat of litigation abuse."

In about a dozen states, survivors can cite statutes disallowing vexatious litigation. An administrative rule in Idaho forbids self-represented parties from "habitually, persistently, and without reasonable grounds" using litigation to harass someone, and California has a similar provision for anyone who has filed at least five doomed civil actions in the prior seven years.

A few states have passed laws directly dealing with the issue in the family law context.

Jennifers' Law — which passed in 2021 and extends Connecticut's definition of domestic violence to include coercive control like surveillance, threats and isolation — includes a proviso that requires judges to sanction abusive litigants who demonstrate "a pattern of frivolous and intentionally fabricated pleadings."

That was a small but important piece of the legislation, according to Betsy Keller, founder of Connecticut Protective Moms, one of the advocacy groups that supported the law. During Keller's own ongoing divorce saga that began in 2011, her husband tried to get a restraining order against her and take sole custody of the children, and hundreds of motions were filed, according to the docket on her case.

"Why do you need 100 motions to get divorced? Why do you need to be in front of the judge?" she said. "The reason is you have someone who's behaving badly."

Tennessee passed a law in 2018 prohibiting relatives and ex-partners from trying to "harass or maliciously injure" someone with court filings that "are not warranted by existing law or by a reasonable argument for the extension, modification, or reversal of existing law, or the establishment of new law." Washington, too, recently passed a law allowing current and former intimate partners to request a court order restricting abusive litigation if their ex was physically abusive.

In June, both Rhode Island and Vermont passed laws regarding people who use court filings to abuse a current or former household or family member or someone they stalked or assaulted. A judge can require those litigants to pay the other side's attorney fees and subject them to "prefiling restrictions" that prevent them from filing again without first applying for permission to do so from a judge.

Another bill in Massachusetts would, like the laws in Rhode Island and Vermont, allow judges to hold hearings on whether litigation is abusive and impose prefiling restrictions. In addition to attorney fees, the Massachusetts bill, like the law in Rhode Island, would allow courts to require compensation for the other side's "court costs, lost wages, transportation costs and costs of child care."

"This will allow judges to recognize and respond to abusive litigation when it's happening," said Nithya Badrinath, associate director of policy and advocacy for Jane Doe Inc., one of the Massachusetts-based survivor rights groups that consulted on the legislation. "With the momentum of what's happening in other states, we're hopeful that this will pass."

State Sen. Michael Moore, one of the bill's sponsors, said the legislation would not "take anyone's rights away" and that it wasn't that different from anti-SLAPP laws. He said if it passes, the measure would likely be further refined as it's implemented.

"Many times, we'll have a law that's passed and that law itself is then litigated at some point. You may have precedent set that's going to further define the application of this law," he said. "It's a starting-off point. It's setting the foundation that you can't use the remedy that the legal system has created as a tool to weaponize against these victims."

These laws could signal a sea change in attitudes toward domestic violence policy, according to Danielle Pollack of the National Safe Parents Organization, which educates local activists and links them with national groups.

"I'm seeing momentum building for victim-centric legislation across the board. And in part, it's because victims are organizing," she said. "For so long, victims were so silenced and isolated and in the dark."


Legislation dealing with litigation abuse has drawn opposition as well.

For example, Connecticut Coalition Against Domestic Violence, a group of organizations providing shelter, counseling and court advocacy services to survivors, opposed Jennifers' Law, according to testimony from a March 2021 hearing on the bill.

"By establishing mandatory processes when coercive control is claimed, the proposal could make family law matters much more complicated and more expensive, which would be a huge problem for victims of domestic violence," said Steven Eppler-Epstein, who was then the organization's president.

Attorneys also struggled with some of the bill's provisions, according to Melissa Osborne, a Connecticut state representative who has been practicing family law for 14 years. Before she was elected to office, Osborne brokered talks between members of the Connecticut family law bar who opposed the legislation as initially drafted and the bill's sponsor, then-state Sen. Alex Kasser.

"Folks who aren't family law attorneys may not understand the unintended consequences of well-intended solutions," she said.

Osborne couldn't recall if the vexatious litigation provision in Jennifers' Law was discussed in that meeting. But she said in general, when those laws target family court disputes, they assume the abusive partner is the one filing the most pleadings, which is "not always the case." Abusive partners often hoard information — the names and numbers on bank accounts, for example — that the other party may need, she said.

"The person without power often ends up doing a lot of filing because they're trying to get access that the other person is denying. So if there's somebody who is acting in bad faith in discovery and not complying with the discovery obligations, sometimes the only thing you can do is file," Osborne said. "Not doing something can be just as abusive as doing something."

Even when states pass these laws, practices in the courtroom don't always change. Brown, the Southwestern law professor, said her research into coercive control laws in Hawaii, California, Washington and Connecticut has found that survivors still face gender bias and judges aren't always clear on what coercive control is.

"What likely needs to be paired with these statutes, and probably any litigation abuse statutes, are requirements for judges to get more training on what litigation abuse looks like, what coercive control looks like, because it's not as simple as, 'Were you physically abused?'" she said. "More training would be really helpful in making sure that these statutes are truly helping the survivors that they're intended to help."

In Connecticut, the implementation of Jennifers' Law has been slow, according to Keller of Connecticut Protective Moms, because attorneys have been reluctant to invoke it in filings.

"The lawyers were afraid," she said. "They were gun-shy. They did not want to be the first ones out there using the law in regards to their reputation with the judge."

Keller has been encouraging survivors in family court proceedings to file motions pro se so they can use Jennifers' Law, and several judges, she said, are now quoting it in their decisions. But she expects it will still be a few more years before the law's financial abuse and litigation abuse provisions are used in court.

Even in California, which was the first state to pass a vexatious litigation law, courts have been reluctant to punish litigants for excessive court filings. Drobnick pointed to one case where an ex-husband challenged the permanent extension of a domestic violence restraining order against him. An appellate court upheld the order, but sidestepped the issue of whether the lower court had erred in considering his numerous court filings as part of a pattern of abuse, finding "any error was harmless because strong admissible evidence unrelated to [the] petitioning conduct sufficiently supports the court's finding of a reasonable apprehension of future harm."

While the court ultimately ruled in her side's favor, the decision to avoid the vexatious litigation argument disappointed Drobnick, who had written an amicus brief arguing "if litigation abuse is ignored, the abuser can circumvent the restrictions of [a restraining order] completely to continue to harass and control his victim."

"You can see the discomfort that courts have with putting any kind of limits on the right to petition," she said. "It's the real frustrating aspect to this, because the courts really haven't been willing to get behind it, particularly in the domestic violence context where it's so needed."

--Editing by Jill Coffey.

Correction: An earlier version of this story misstated the name of the National Safe Parents Organization. The error has been corrected.

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