On the Question of Standing
46§2131. DOMESTIC ABUSE ASSISTANCE: Purposes
The purpose of this Part is to recognize and address the complex legal and social problems created by domestic violence. The legislature finds that existing laws which regulate the dissolution of marriage do not adequately address problems of protecting and assisting the victims of domestic abuse. The legislature further finds that previous societal attitudes have been reflected in the policies and practices of law enforcement agencies and prosecutors which have resulted in different treatment of crimes occurring between family or household members and those occurring between strangers. It is the intent of the legislature to provide a civil remedy for domestic violence which will afford the victim immediate and easily accessible protection. Furthermore, it is the intent of the legislature that the official response of law enforcement agencies to cases of domestic violence shall stress the enforcement of laws to protect the victim and shall communicate the attitude that violent behavior is not excused or tolerated.
The purpose of this Section is to protect adults who cannot physically or mentally protect themselves and who are harmed or threatened with harm through action or inaction by themselves or by the individuals responsible for their care.
"Abuse" is the infliction of physical or mental injury on an adult by other parties, including but not limited to such means as sexual abuse, abandonment, isolation, exploitation, or extortion of funds or other things of value, to such an extent that his health, self-determination, or emotional well-being is endangered. (14:403.2)
(7.1) "Isolation" includes:
(a) Intentional acts committed for the purpose of preventing, and which do serve to prevent, an adult from having contact with family, friends, or concerned persons. This shall not be construed to affect a legal restraining order.
(b) Intentional acts committed to prevent an adult from receiving his mail or telephone calls.
(c) Intentional acts of physical or chemical restraint of an adult committed for the purpose of preventing contact with visitors, family, friends, or other concerned persons.
(d) Intentional acts which restrict, place, or
confine an adult in a
restricted area for the purposes of social deprivation or preventing
contact with family, friends, visitors, or other concerned persons.
(14:403.2)
An elder who is "isolated" is prevented from petitioning on his own behalf
An elder who "cannot physically or mentally protect"
himself from
domestic abuse, who is prevented by an "adult grandchild" or "by the
individuals responsible for [his] care" "from having contact with
family, friends, or concerned persons", who is prevented "from
receiving his mail or telephone calls" and is confined to a restricted
area can not reasonably be expected to petition on his own behalf to
seek "a civil remedy for abuse". If he is to be protected it is
therefore necessary that someone else have standing to file on his
behalf.
Prosecutors may petition on the elder’s behalf, but can not be relied upon to do so
While the standing of prosecutors to file on the elder’s behalf is expressly provided for, the legislature had found these same authorities treat abuse occurring between family members differently than abuse occurring between strangers - by which "differently" is plainly understood to mean "inadequately", or else the legislature would have found no need to create a civil remedy for domestic abuse.
It is absurd to suppose the legislature would create "a civil remedy
for domestic violence" and intend that its power lay exclusively in the
hands of the very authorities whose recalcitrance it had observed and
was attempting to remedy.
A parent may petition on behalf of "any person" alleged to be incompetent
The provision that "[a]ny parent, adult household member, or
district attorney may seek relief on behalf of any minor child or any
person alleged to be incompetent..." does not stress the relationship
between a petitioner and a protected person alleged to be incompetent
as the protected person may be "any person". It is therefore
reasonably construed that any adult family member may seek relief on
behalf of any family member alleged to be incompetent.
An adult child should have standing to petition on behalf of his parent
If the construction above is valid then an adult child may certainly petition on behalf of a parent alleged to be incompetent.
Alternatively, as the petitioner’s standing to file on his father’s behalf is not excluded by the text of 46§2131, and legislative purpose demands that a parent, alleged to be incompetent, isolated and otherwise abused by an adult grandchild be protected from domestic abuse but can not himself petition the court or rely upon a prosecutor to protect him, it is therefore necessary that an adult family member have standing to file on his behalf.
It should never be necessary to subject a falsely imprisoned elder to the ordeal of interdiction simply to save him from abusive circumstances to which he never consented and which he, himself, intelligently protests. If an adult child may petition for his parent’s interdiction, the adult child should have standing to petition for a less drastic remedy to domestic abuse.
I believe it is consistent with legislative intent and well within the court’s discretion to recognize my standing to petition on my father’s behalf in this matter. I therefore respectfully ask this right and duty be understood.