Presentation on theme: "Differentiating Domestic Violence Cases from the Bench"— Presentation transcript:
1Differentiating Domestic Violence Cases from the Bench Hon. Susan B. CarbonHon. Dale KochNancy Olesen, PhDJennifer Rose, JDAmerican Judges AssociationSeptember 9, 2008Maui, Hawaii
2Introduction Introductions Recognition that families experiencing domestic violence are not all alikeImplications for practice and policymakingNeed for professional communities to identify areas of consensus and topics requiring additional investigationDale
4Workshop 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; andDale
5Learning Objectives (con’t.) Engage with professionals in related disciplines to foster communication and improve interventions in families suffering interpersonal violence.Dale
6Workshop Format1st half – How do you determine what you have in front of you?2nd half – What do you do about it?
7What is the CONTEXT of the Domestic Violence? Clare and Nancy
8Context is KeyThe 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
9Context Determines the Type of Abuse/Abuser INTENT of offender in use of violenceMEANING of the violence to the victimEFFECT of the act on the victimLethality and risk of further violenceLikelihood of intimidation and nonviolent abuseWho is doing what to whom, with what impact, and under what circumstances?Clare and Nancy
10Historical 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?
11Context is CriticalFailure to distinguish different kinds of domestic abuse can:Endanger victims of ongoing violenceEmbolden perpetrators to continue violent behaviorPlace children at riskDis-empowers parents & violates their civil rightsJenn 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.
12Rule-Making Common Practice of Batterers Inalienable Right/Obligation to Compose & Enforce RulesLimited Right to Use Violence to Control Partner
13Basic/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.
14Screening 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
15Questions About Family Court Domestic Violence Screening and Assessment What is “domestic violence” for purposes of triage or screening?Legal definitions of DV may be relevantNot just “whether” but “what, where, when, how”Context for the violence must be a focus of screeningWhat 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)?
16How Should Screening for DV Be Accomplished or Administered? Not a one-time eventDV risk is dynamic, circumstances are fluidScreening process must be recurrent and ongoingScreening must not obstruct or delay justice
17How Should Screening for DV Be Accomplished or Administered? Sources of InformationParties (separated)Non-public settingsLinguistically and culturally accessible processCourt filesBUT absence of other files, reports must not lead to negative determinationParties given opportunity to respond to information considered in other filesChilling effect of accessing other files
18Who Should Do Screening? Court staffPresent in court, directed by courtBut not confidential, so victims may be reluctant to discloseNeed training on DV, good supervisionAdvocates (NGO)Need to be brought into courthouseNot directly supervised by courtConfidential conversation advantage/disadvantage
19What level of evidence should trigger a positive screen? Allegation alone, however credible?“Credible” allegation? (what standard?)Any allegation should trigger more inquiries, a context assessmentContext assessments should be the basis for any court responses to evidence of violence
20Screening 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?
21More 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
22Enhancing Safety Must Trump All Other Purposes for Screening Best screening processInforms victims of risks, dangerousness, lethalityInforms decision makingAids in survival and safety planningIncludes access to confidential services, especially conversations with advocate
23Looking at Screening from Different Perspectives Judge Susan Carbon – The View from the BenchJennifer Rose, JD – The Advocate’s PerspectiveNancy Olesen, PhD – The Custody Evaluator Lens
24Why Screen From a Judge’s Perspective Do no harmMoral imperativeJUDICIAL READINESS
25State of Procedure Drives Purpose -Focus shifts as we go through the court process Initial FilingEarly stagesADRFinal hearingAlways circle around to SAFETY
26Challenges Where do courts get information from? Timing of Disclosure Challenges for Victim
27Resources - As a Court Challenge ToolsCompetency of staff, judges, others to screenFunding for screening, servicesPro se litigantsLack of advocacy services
28Other Court Challenges Presence (or not) of competent custody evaluatorIf no money, then what?Judicial educationDilemma: best interests of children v. victim autonomy—how to weigh the factors.
29An Advocate’s Perspective on Screening Advocates do screeningTo determine victim’s propriety for available (scarce) services such as shelterTo identify conflicts with other victims servedTo assist victim in identifying her own issues, including risksTo determine needs of the victimTo offer appropriate help
30Advocates’ ScreeningAssumes that DV may be “battering” until otherwise apparentAssumes victim is telling the truth unless otherwise apparentAssumes that facts will not come out all at onceAssumes that she will need to be strategic in seeking helpinstitutions are sometimes not helpful and may even be dangerous to victim or children
31Screening from an Advocate’s Perspective Participation in SCREENING is one thing about which victims will need to be strategicMN ExampleOFPs provide child-related relief; HROs do notOFP filings going down; HRO filings going upBattered mothers are not disclosing the violence to the courts
33Small 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
34Differentiating Domestic Violence Cases from the Bench (Part II) Hon. Susan B. CarbonHon. Dale KochNancy Olesen, PhDJennifer Rose, JD
36Developing a New Framework for A Differentiated Response: The PPP Screening Model PotencyPatternPrimary PerpetratorAddParenting problemsPerspective of child
37Safety 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 byWho is the Primary Perpetrator, Parenting Problems & Perspective of Child
38Perspective of ChildAre 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?
39Parenting ProblemsCritical incidents of physical, sexual, emotional abuseUse of child/access to coerce/control other parentInability to reflect on child’s experience as victim/witnessUnable to assume responsibility & repair damage to child
40Options for parenting plans for families where domestic violence is alleged, or has been or continues to be an issueCo parentingParallel ParentingSupervised ExchangeSupervised VisitationSuspended Access
41Matching Parenting Plans to Patterns of Domestic Violence Potency of ViolencePatterns of Violence & Coercive ControlPrimary Perpetrator IndicatorsParenting ProblemsPerspective of Child
42Priority 1. Protect children Guiding Principles For Resolving Conflicting Priorities in Custody DecisionsPriority 1. Protect childrenPriority 2. Protect the safety & support the well-being of the victim parentPriority 3. Respect the right of adult victims to direct their own livesPriority 4. Hold perpetrators of domestic violence accountable for their abusive behaviorPriority 5. Allow child access to both parentsStrategy: Begin with the goal of achieving all five.Resolve conflict by abandoning the lower priority.Janet Johnston 2007
43Parenting Arrangements after Violence Co-parentingParallel ParentingSupervisedExchangeVisitsNo VisitationHigh Evaluated Risk to Children or Caregiver LowCommon Couple Aggression(No child maltreatment or special needs)High ConflictPotency, Pattern, Primary Aggressor(pose risks if parents meet)Abuse of Child or Adult Partner)(untreated or unresolved)Terrorism/ Stalking
44Small Group ExerciseIn your group identify a custody dispute with the presence of domestic violence that may be appropriate for each of the following:Shared parentingParallel ParentingSupervised ExchangeSupervised VisitsNo ContactIdentify the history and pattern of violence, ages of children and any additional factors to consider as part of children’s best interests.
45Group 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?
46Critical Issues in Developing Parenting Plans Access to services (barriers)Sequencing of services (court & community collaboration)Interagency cooperation, communication, formal protocolsResponsibility for determination of:Level of need/services (assessment)Monitoring safety & progressAccountability for service providersOverall community coordination of services
47The Gap between Theory & Practice TrainingStandardsResourcesApplying the right research to the right casesGenuine Collaboration
48How to ContactResource Center on Domestic Violence: Child Protection and CustodyJudge Susan Carbon –Judge Dale Koch -Nancy Olesen, PhD -Jennifer Rose, JD -