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Confidentiality of Identifying Information for Domestic Violence Survivors

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Jennifer Less, MPLP Law Clerk

    Survivors of domestic violence who have separated from their abusers often do not want identifying information that abusers could use to track them disclosed through legal proceedings such as divorce. Procedures are available at both federal and state levels to keep survivors’ addresses confidential in legal proceedings if the release of that information would lead to physical or emotional harm. Many of the procedures outlined are applicable when minor children are involved; however there may be additional hurdles to confidentiality if the abuser is also the minor child’s legal parent and parenting time is sought by the abuser. Where circumstances involve interstate proceedings, there are federal laws and rules that can be used to keep the address of the survivor or child confidential.

Confidentiality in Personal Protection Order Proceedings

    The tendency for domestic violence to escalate in some relationships to the point of lethality when the victim leaves the abuser necessitates the implementation of procedures to protect survivors from their abusers. The first step in protecting the survivor who has physically removed herself from the situation is by keeping the abuser from knowing the whereabouts of his victim. A way to do this is to petition the court for a personal protection order against the abuser. This alerts the court to the existence of family violence in the survivor’s life and authorizes the court to prohibit a range of conduct by her abuser to increase her safety. Not only does the order give the survivor added protection from law enforcement by permitting arrest for a violation, but it also it establishes a history of domestic violence that the court may use to justify further protective measures in a subsequent divorce or custody matter.

      Petitioners in personal protection cases may omit their residential address from pleadings and documents filed with the court as long as a mailing address is provided to the court. MCR 3.706(B)(6). This omission should notify the court of the potential for danger in releasing identifying information on documents generated for the domestic relations action.
Confidentiality in Custody and Divorce Proceedings

      Before a court may make a custody determination it must first establish jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). MCL 722.1101 et seq. The UCCJEA provides confidentiality in cases where a party’s or a child’s health, safety or liberty is threatened. MCL 722.1209(5). The party alleging the threat must provide the court a sworn statement or a pleading under oath as to that matter. The court will then make all identifying information confidential to the other party and the public and the party need not disclose such information as required by court rules.

      If spousal support is being sought or if there are minor children involved in a divorce action, MCR 3.206(B)(1) requires that a verified statement which contains the addresses, employment information, insurance information and additional identifying information of both parties must be filed with the court for delivery to the friend of the court and served on the other party.  MCR 3.206(B)(2) allows omission of the addresses of a party and minors from the copy of the verified statement to be served on the other party “for good cause.” Other identifying information such as insurance information, place of employment or social security number may also be omitted. The reasons for the omission should be explained in a “sworn affidavit, to be filed with the court.” MCR 3.206(B)(3).

      To determine what constitutes “good cause” as meant in the rule, it is helpful to look at MCR 8.119(F)(2), which establishes the procedure for sealing court records:

 In determining whether good cause has been shown, the court must consider,
   (a) the interests of the parties, including, where there is an allegation   of domestic violence, the safety of the alleged or potential victim of the domestic violence, and
   (b) the interest of the public.

      An affidavit of good cause could include the following provision:
Information that could lead to the location of [Client] has been omitted from initial complaint. [Client] has a reasonable fear that release of this information to [Defendant] will lead to physical and emotional violence to [Client] and possibly others. This fear is based upon past incidents of domestic violence including [list all that apply].
      In divorce cases where there are no minor children and spousal support is not being sought, the language of MCR 3.206(A)(1) does not require the petitioner to provide her specific address in a complaint for divorce. The rule does require residency information, but less specific information such as city and county may be sufficient to verify that the petitioner meets the jurisdictional requirements to file.

The Family Violence Indicator

      Identifying information provided to friend of the court may be protected through a “Family Violence Indicator,” (FVI). The FVI is set when a protective order has been issued for a party or a minor child and the court has reason to believe that the release of identifying information may result in physical or emotional harm to the party or child. 42 USC 654(26)(B). The FVI flags an individual and all minor children associated with her in the state and federal court systems so all who come in contact with her file know that identifying information of that individual shall remain confidential. SCAO 2002-03.

      MCR 3.203(F) states that if a confidentiality order has been entered and the FVI is set, then that party must provide an alternate address to receive court documents and notices. This alternate address will be released to the opposing party or the friend of the court may make different arrangements for the service of pleadings and notices without revealing identifying information. On rare occasions, the court will order the friend of court office to be the listed as the alternate address. In that case, the friend of court would be responsible for forwarding any notices or pleadings to the party. If a party’s address is made confidential by means other than a court order, the friend of the court should still follow the alternate address procedure set forth in MCR 3.203.

       If it is necessary that the other party have access to a document that has a FVI and contains identifying information, MCL 552.507(4) authorizes the friend of the court staff to “summarize” the document before giving it to the requesting party.

Non-Custodial Parent’s Access to Minor Children’s Records

      Absent a protective order prohibiting access, MCL 722.30 provides non-custodial parents access to their children’s records including medical, dental, school records and “notifications of meetings regarding the child’s education.” The PPO statute, MCL 600.2950(1)(h) allows the court to restrain the respondent from accessing the records of minor children which might reveal the address , telephone number of the petitioner and minor child or the employment information of the petitioner. When a PPO has been issued restricting access to minor children’s records, schools are also restrained from revealing this information to the respondent of the PPO under MCL 380.1137(a).  In such a case, the protected party is advised to provide a copy of the PPO to the child’s school and medical personnel.
Interstate Actions

      When a survivor relocates to a different state than her abuser, she may need the court’s assistance to institute, modify or enforce a support order. These actions come under the Uniform Interstate Family Support Act (UIFSA), MCL 552.1101 et seq. Under UIFSA, the court may hold an ex parte hearing to determine whether “a party’s or child’s health, safety, or liberty would be unreasonably put at risk” if identifying information was revealed or if a confidentiality order has already been issued. Upon so finding, the court should order that identifying information should be kept confidential in any document filed for a proceeding under UIFSA. MCL 552.1320. This provides a broader veil of protection than provided for enforcement of support orders entered in Michigan.

    There are many avenues to protect the confidentiality of the location of a domestic violence survivor and her children.  In a PO proceeding the survivor to keep her address confidential so long as she provides an alternative address for notices.  In a divorce case with minor children confidentiality may be maintained upon a showing that a party’s or the children’s safety would be threatened by release.  Finally, the Family Violence Indicator will be set by the court to prevent release of identifying information where a protective order has been issued.  All of these remedies should be explored for a survivor entering the court system.