Halle Berry’s personal family saga continues to evolve (see our previous posts on Berry’s child custody case here and here, and a related one involving Kelly Rutherford.) Just a few days ago, on Thanksgiving Day, a fight broke out between Gabriel Aubry, the father of Berry’s daughter Nahla, and Olivier Martinez, Berry’s fiancée. Apparently, Aubry was arrested at Halle’s house after allegedly pushing Olivier and striking him in the shoulder. (Martinez apparently defended himself by punching Aubry in the face – and sources differ as to whether Aubry was rendered unconscious from the blow.)
This comes at a particularly interesting time for Berry as she just failed in an attempt to get a court to grant her permission to relocate with her daughter to France, where Martinez lives. Does this violent episode help her? Does it hurt Aubry in the eyes of the court with regard to child custody? If a court finds that Aubry committed domestic violence will it help Berry get out of the country?
Having worked with many domestic violence cases, the first question that must be asked is this: is this incident domestic violence? Domestic violence laws vary from state to state, but, generally speaking, they are designed to protect family members from violence that might be perpetrated against them by other family members. The laws generally can be enforced through either civil courts or criminal courts. Where a court finds domestic violence (“DV”) to have occurred, broad remedies are available to protect family members. This could mean that someone is summarily evicted from their home. Financial arrangements could be made to protect vulnerable parties. Temporary protection orders could be issued against alleged perpetrators prohibiting them from trying to be anywhere near protected parties. These remedies can be applied at an ex parte hearing (a hearing without the opposing party present to defend himself or herself.) Shortly thereafter, such orders can be made more “permanent” at a full hearing where the accused is given a chance to appear and defend himself/herself.
Back the Berry’s story, according to news reports Aubry is being charged with some sort of criminal assault. He is also restrained from going near Berry, Martinez, or Nahla. So, is this domestic violence? Or is this just a case of criminal assault and battery? The answer may turn on whether or not a court considers Martinez to be a family member. In answering this question, where Martinez lives is relevant. If he simply stays with Berry in Los Angeles when he is not in France, that may not be enough for protection under the relevant DV laws.
Does a DV hurt someone’s attempt to get companionship rights with their child? Will this hurt Aubry regarding getting access and time with his daughter if a court finds that this episode is DV? Maybe. Maybe not. A finding of domestic violence, whether civil or criminal, could detrimentally impact a court’s determination of custody and access. But a court should consider against whom the violence occurred. If the DV was perpetrated against the child at issue it will matter more than if the violence that (allegedly) occurred was against only the fiancée.
Here, it appears that the violence occurred between Aubry and Martinez, and the child was not involved. Therefore, even though news reports indicate that Aubry is restrained from being near Berry, Martinez, or Nahla, those restraining orders may have been issued on an emergency and temporary basis. The reality is that the temporary restraining orders (“TRO”s) may be dissolved soon, especially the one against Nahla.) However, it is also likely that the court will not only consider, but frown upon, Aubry’s behavior if it is established that he was violent towards Martinez. But because the violence was not directed toward the child this incident may well have no impact on the overall child custody case.
So, ultimately, is this event likely to hurt Aubry with regard to Berry’s attempt to leave the country? If this case had taken place in Ohio (interestingly, Berry is originally from the Cleveland area) a number of protections against Aubry could have been put into place. For example, Aubry could have been ordered into counseling. He could have been prohibited from contacting, even via a third party, Berry, and even his daughter. And, if an act of domestic violence is established under Ohio Revised Code 3113.31, the civil law controlling domestic violence, or its counterpart under the criminal codes, that act of violence should be considered by a court not only as a reason against finding that a shared parenting plan is appropriate but also as a major factor in determining an appropriate parenting schedule.
At our firm we have lectured to other lawyers and consulted with many clients about this exact issue, and we have handled many cases where domestic violence intersects with child custody and shared parenting issues. These are tough cases. Findings of domestic violence do not help people seeking shared parenting with their children, and can impair their access to their children. But a finding of domestic violence it is often not fatal. This reality is good or bad depending on your perspective, either as the accused or as the alleged victim.
Finally, as we discussed in another blog entry, the reason Berry was not permitted to relocate to France was because the move would limit Nahla’s access to her father. That is true whether or not Aubry acted violently toward Martinez. Therefore, at the end of the day it is unlikely that this event will help Berry relocate from the United States to France. But, it most certainly could come back to haunt Aubry if (or when) he seeks to expand his parental access to Nahla. A court might find – and perhaps reasonably so – that if one cannot avoid a violent outburst when one comes to pick up one’s daughter, he may not be able to effectively co-parent with the mother of his child.