Transcript Slide 1
Differentiating Domestic
Violence Cases from the Bench
Hon. Susan B. Carbon
Hon. Dale Koch
Nancy Olesen, PhD
Jennifer Rose, JD
American Judges Association
September 9, 2008
Maui, Hawaii
Introduction
Introductions
Recognition that families experiencing
domestic violence are not all alike
Implications for practice and policymaking
Need for professional communities to
identify areas of consensus and topics
requiring additional investigation
Family Court Review: July
2008 Special Issue
www.blackwellsyngery.com/toc/fcre/46/3
Workshop Learning Objectives
As a result of this workshop, you will be better able
to:
Recognize that there are differences in the use
of violence in interpersonal relationships and
that these differences have implications for
interventions and outcomes;
Recognize that these differences also have
implications for children exposed to the various
uses of violence in the family and require
intervention strategies suited to children’s safety
and other needs; and
Learning Objectives (con’t.)
Engage with professionals in related
disciplines to foster communication and
improve interventions in families suffering
interpersonal violence.
Workshop Format
1st half – How do you determine what you
have in front of you?
2nd half – What do you do about it?
What is the CONTEXT of the
Domestic Violence?
Context is Key
The same violent act can have a very different
meaning depending on the context.
Example: A slaps B and there is no prior history
physical violence or emotional abuse.
Example: A slaps B one week after breaking B’s
nose and repeatedly threatening to kill B and
take their children.
Context Determines the Type of
Abuse/Abuser
INTENT of offender in use of violence
MEANING of the violence to the victim
EFFECT of the act on the victim
Lethality and risk of further violence
Likelihood of intimidation and nonviolent abuse
Who is doing what to whom, with what impact,
and under what circumstances?
Historical Context
History of intimidation and control?
Isolated and uncharacteristic incident?
Part of a larger pattern of violence outside
the family?
Mental impairment or illness, substance
abuse?
Self-defense?
Context is Critical
Failure to distinguish different kinds of
domestic abuse can:
Endanger victims of ongoing violence
Embolden perpetrators to continue violent
behavior
Place children at risk
Dis-empowers parents & violates their civil
rights
Rule-Making
●Common Practice of Batterers
●Inalienable Right/Obligation
to
Compose & Enforce Rules
●Limited Right to Use Violence to
Control Partner
Basic/Fundamental Rules
I make the rules.
I am entitled to YOU, your obedience,
services, affection, loyalty, fidelity and
undivided attention.
You cannot leave w/o my permission.
You cannot tell anyone of the abuse.
Focal concern shifts from filing thru
interim proceedings to final
disposition – but continues to cycle
back to safety
Questions About Family Court
Domestic Violence Screening and
Assessment
What is “domestic violence” for purposes of
triage or screening?
Legal definitions of DV may be relevant
Not just “whether” but “what, where, when, how”
Context for the violence must be a focus of screening
What kind of risks are faced by the victim and
children?
What is the significance of an expression of fear (in
the absence of allegation of violence)?
How Should Screening for DV Be
Accomplished or Administered?
Not a one-time event
DV risk is dynamic, circumstances are fluid
Screening process must be recurrent and
ongoing
Screening must not obstruct or delay justice
How Should Screening for DV Be
Accomplished or Administered?
Sources of Information
Parties (separated)
Non-public settings
Linguistically and culturally accessible process
Court files
BUT absence of other files, reports must not lead
to negative determination
Parties given opportunity to respond to information
considered in other files
Chilling effect of accessing other files
Who Should Do Screening?
Court staff
Present in court, directed by court
But not confidential, so victims may be reluctant to
disclose
Need training on DV, good supervision
Advocates (NGO)
Need to be brought into courthouse
Not directly supervised by court
Confidential conversation advantage/disadvantage
What level of evidence should
trigger a positive screen?
Allegation alone, however credible?
“Credible” allegation? (what standard?)
Any allegation should trigger more
inquiries, a context assessment
Context assessments should be the basis
for any court responses to evidence of
violence
Screening Information:
Who Gets It?
The other party? (If so, disclose that)
Others in the public?
Law enforcement? (If so, warn about self incrimination)
CPS? (If so, parent should know consequences)
Court?
For what purpose?
As evidence in the pending matter?
How would the other party challenge results/conclusions/relevance?
How would this differ from the court’s inquiry of parties in court?
If only for tracking into a dispute resolution process or certain services,
won’t court be able to tell something about the case from the track the
case is on?
Screening Information is obtained ex parte: does this create ethical
issues?
To anyone else for any other purposes?
Results sealed? When? Only on a party’s motion? Is that an
accessible process?
More Issues in Implementation
What effect will screen outcome have on a
party’s success obtaining relief?
If screening is for tracking to dispute
resolution processes, can a person be
denied access to others they chose?
Screening must account for the false
positives and negatives which will result
from the paucity of good tools
Enhancing Safety Must Trump All
Other Purposes for Screening
Best screening process
Informs victims of risks, dangerousness,
lethality
Informs decision making
Aids in survival and safety planning
Includes access to confidential services,
especially conversations with advocate
•Judge Susan Carbon – The View from the Bench
•Jennifer Rose, JD – The Advocate’s Perspective
•Nancy Olesen, PhD – The Custody Evaluator Lens
Why Screen
From a Judge’s Perspective
Do no harm
Moral imperative
JUDICIAL READINESS
State of Procedure Drives Purpose
-Focus shifts as we go through the court
process
Initial Filing
Early stages
ADR
Final hearing
Always circle around to SAFETY
Challenges
Where do courts get information from?
Timing of Disclosure
Challenges for Victim
Resources - As a Court Challenge
Tools
Competency of staff, judges, others to
screen
Funding for screening, services
Pro se litigants
Lack of advocacy services
Other Court Challenges
Presence (or not) of competent custody
evaluator
If no money, then what?
Judicial education
Dilemma: best interests of children v.
victim autonomy—how to weigh the
factors.
An Advocate’s Perspective on
Screening
Advocates do screening
To determine victim’s propriety for available
(scarce) services such as shelter
To identify conflicts with other victims served
To assist victim in identifying her own issues,
including risks
To determine needs of the victim
To offer appropriate help
Advocates’ Screening
Assumes that DV may be “battering” until
otherwise apparent
Assumes victim is telling the truth unless
otherwise apparent
Assumes that facts will not come out all at once
Assumes that she will need to be strategic in
seeking help
institutions are sometimes not helpful and may even
be dangerous to victim or children
Screening from an Advocate’s
Perspective
Participation in SCREENING is one thing
about which victims will need to be
strategic
MN Example
OFPs provide child-related relief; HROs do
not
OFP filings going down; HRO filings going up
Battered mothers are not disclosing the
violence to the courts
Screening from Custody
Evaluator Perspective
Small Group Exercise
1) What are the 3 most difficult aspects of
screening for DV? (e.g. lack of tools, training,
resources, implementation strategies etc.)
2) What 3 practices have you seen or used
that seem to hold the most promise?
Assume Different Settings (Judge/Court
Admin, Mediation, or Evaluation)
To be assigned by faculty
Differentiating Domestic
Violence Cases from the Bench
(Part II)
Hon. Susan B. Carbon
Hon. Dale Koch
Nancy Olesen, PhD
Jennifer Rose, JD
Discussion of Promising
Practices
Developing a New Framework for
A Differentiated Response: The
PPP Screening Model
Potency
Pattern
Primary Perpetrator
Add
Parenting problems
Perspective of child
Safety measures indicated by:
Potency (severity, dangerousness, risk of
serious injury or lethality)
Services (ADR, corrective, rehabilitative
measures) indicated by:
Pattern (history of using violent tactics &
coercive control, any substance abuse, mental
illness etc)
Parenting Plan indicated by
Who is the Primary Perpetrator,
Parenting Problems & Perspective of
Child
Perspective of Child
•Are the child’s expressed wishes for contact mature
and/or reasonable?
•Is the child’s fear/anger toward parent so strong that
child feels/behaves unsafe/ly?
•Does the child show significant and sustained
emotional/ behavioral distress in response to access
arrangement?
•Critical incidents of physical, sexual, emotional
abuse
•Use of child/access to coerce/control other parent
•Inability to reflect on child’s experience as
victim/witness
•Unable to assume responsibility & repair damage to
child
Options for parenting plans
for families where domestic violence is
alleged, or has been or continues to be
an issue
Co parenting
Parallel Parenting
Supervised Exchange
Supervised Visitation
Suspended Access
Matching Parenting Plans to
Patterns of Domestic Violence
Potency of Violence
Patterns of Violence & Coercive Control
Primary Perpetrator Indicators
Parenting Problems
Perspective of Child
Guiding Principles For Resolving Conflicting Priorities
in Custody Decisions
Priority 1. Protect children
Priority 2. Protect the safety & support the well-being of the
victim parent
Priority 3. Respect the right of adult victims to direct their own
lives
Priority 4.
Hold perpetrators of domestic violence accountable
for their abusive behavior
Priority 5. Allow child access to both parents
Strategy: Begin with the goal of achieving all five.
Resolve conflict by abandoning the lower priority.
Janet Johnston 2007
Parenting Arrangements after Violence
Potency, Pattern,
Primary Aggressor
(pose risks if
parents meet)
Abuse of Child
or Adult
Partner)
(untreated or
unresolved)
Terrorism/
Stalking
Evaluated Risk to Children or Caregiver
High Conflict
Parallel
Parenting
Supervised
Exchange
Supervised
Visits
High
Common Couple
Aggression
(No child
maltreatment or
special needs)
Low
Co-parenting
No Visitation
Small Group Exercise
In your group identify a custody dispute with the
presence of domestic violence that may be
appropriate for each of the following:
Shared parenting
Parallel Parenting
Supervised Exchange
Supervised Visits
No Contact
Identify the history and pattern of violence, ages of children
and any additional factors to consider as part of children’s
best interests.
Group Exercise (cont.)
What rights should the
(allegedly) violent
parent have regarding
decision-making (i.e.
legal custody) within
each plan?
How long should any
restrictive
arrangements be
imposed or under what
conditions should they
be lifted?
What prevents you in
your jurisdiction from
implementing these
kinds of parenting
plans?
What exemplary
practice/service/policy
or procedures do you
have in your
jurisdiction that
address this problem?
Critical Issues in Developing Parenting
Plans
Access to services (barriers)
Sequencing of services (court & community
collaboration)
Interagency cooperation, communication,
formal protocols
Responsibility for determination of:
• Level of need/services (assessment)
• Monitoring safety & progress
• Accountability for service providers
Overall community coordination of services
The Gap between Theory &
Practice
Training
Standards
Resources
Applying the right research to the right cases
Genuine Collaboration
How to Contact
Resource Center on Domestic Violence: Child
Protection and Custody
1-800-527-3223
Judge Susan Carbon – [email protected]
Judge Dale Koch - [email protected]
Nancy Olesen, PhD - [email protected]
Jennifer Rose, JD - [email protected]