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

2. 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
Dale

3. Family Court Review: July 2008 Special Issue

4. 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
Dale

5. Learning Objectives (con’t.)
Engage with professionals in related disciplines to foster communication and improve interventions in families suffering interpersonal violence.
Dale

6. Workshop Format
1st half – How do you determine what you have in front of you?
2nd half – What do you do about it?

7. What is the CONTEXT of the Domestic Violence?
Clare and Nancy

8. 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.
Clare and Nancy

9. 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?
Clare and Nancy

10. 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?

11. 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
Jenn and Nancy—Examples: if you are really dealing with someone responding to another’s use of violence and you miss that, you may require interventions that she does not need, reinforce the behavior of the real perpetrator of violence, and arrange for or order access in a way that fails to protect the child’s best interest. Don’t be bound by this example; use it or not as you see fit, but it is important to offer examples. Dale and Sue could as well.

12. Rule-Making Common Practice of Batterers
Inalienable Right/Obligation to Compose & Enforce Rules
Limited Right to Use Violence to Control Partner

13. 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.

14. Screening as a continuum for: Safety, Services & Parenting Plan
Focal concern shifts from filing thru interim proceedings to final disposition – but continues to cycle back to safety

15. 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)?

16. 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

17. 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

18. 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

19. 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

20. 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?

21. 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

22. 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

23. Looking at Screening from Different Perspectives
Judge Susan Carbon – The View from the Bench
Jennifer Rose, JD – The Advocate’s Perspective
Nancy Olesen, PhD – The Custody Evaluator Lens

24. Why Screen From a Judge’s Perspective
Do no harm
Moral imperative
JUDICIAL READINESS

25. 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

26. Challenges Where do courts get information from? Timing of Disclosure
Challenges for Victim

27. Resources - As a Court Challenge
Tools
Competency of staff, judges, others to screen
Funding for screening, services
Pro se litigants
Lack of advocacy services

28. 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.

29. 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

30. 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

31. 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

32. Screening from Custody Evaluator Perspective

33. 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

34. Differentiating Domestic Violence Cases from the Bench (Part II)
Hon. Susan B. Carbon
Hon. Dale Koch
Nancy Olesen, PhD
Jennifer Rose, JD

35. Discussion of Promising Practices

36. Developing a New Framework for A Differentiated Response: The PPP Screening Model
Potency
Pattern
Primary Perpetrator
Add
Parenting problems
Perspective of child

37. 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

38. 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?

39. Parenting Problems
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

40. 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

41. Matching Parenting Plans to Patterns of Domestic Violence
Potency of Violence
Patterns of Violence & Coercive Control
Primary Perpetrator Indicators
Parenting Problems
Perspective of Child

42. Priority 1. Protect children
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

43. Parenting Arrangements after Violence
Co-parenting
Parallel Parenting
Supervised
Exchange
Visits
No Visitation
High  Evaluated Risk to Children or Caregiver  Low
Common Couple Aggression
(No child maltreatment or special needs)
High Conflict
Potency, Pattern, Primary Aggressor
(pose risks if parents meet)
Abuse of Child or Adult Partner)
(untreated or unresolved)
Terrorism/ Stalking

44. 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.

45. 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?

46. 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

47. The Gap between Theory & Practice
Training
Standards
Resources
Applying the right research to the right cases
Genuine Collaboration

48. How to Contact
Resource Center on Domestic Violence: Child Protection and Custody
Judge Susan Carbon –
Judge Dale Koch -
Nancy Olesen, PhD -
Jennifer Rose, JD -