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Differentiating Domestic Violence Cases from the Bench Hon. Susan B. Carbon Hon. Dale Koch Nancy Olesen, PhD Jennifer Rose, JD American Judges Association.

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Presentation on theme: "Differentiating Domestic Violence Cases from the Bench Hon. Susan B. Carbon Hon. Dale Koch Nancy Olesen, PhD Jennifer Rose, JD American Judges Association."— Presentation transcript:

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

3 Family Court Review: July 2008 Special Issue Family Court Review: July 2008 Special Issue syngery.com/toc/fcre/46/3 syngery.com/toc/fcre/46/3

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 childrens safety and other needs; and

5 Learning Objectives (cont.) Engage with professionals in related disciplines to foster communication and improve interventions in families suffering interpersonal violence.

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

7 What is the CONTEXT of the Domestic Violence?

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 Bs nose and repeatedly threatening to kill B and take their children.

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?

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

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 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? What is domestic violence for purposes of triage or screening? Legal definitions of DV may be relevant Legal definitions of DV may be relevant Not just whether but what, where, when, how Not just whether but what, where, when, how Context for the violence must be a focus of screening Context for the violence must be a focus of screening What kind of risks are faced by the victim and children? 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)? 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 Not a one-time event DV risk is dynamic, circumstances are fluid DV risk is dynamic, circumstances are fluid Screening process must be recurrent and ongoing Screening process must be recurrent and ongoing Screening must not obstruct or delay justice Screening must not obstruct or delay justice

17 How Should Screening for DV Be Accomplished or Administered? Sources of Information Sources of Information Parties (separated) Parties (separated) Non-public settings Non-public settings Linguistically and culturally accessible process Linguistically and culturally accessible process Court files Court files BUT absence of other files, reports must not lead to negative determination BUT absence of other files, reports must not lead to negative determination Parties given opportunity to respond to information considered in other files Parties given opportunity to respond to information considered in other files Chilling effect of accessing other files Chilling effect of accessing other files

18 Who Should Do Screening? Court staff Court staff Present in court, directed by court Present in court, directed by court But not confidential, so victims may be reluctant to disclose But not confidential, so victims may be reluctant to disclose Need training on DV, good supervision Need training on DV, good supervision Advocates (NGO) Advocates (NGO) Need to be brought into courthouse Need to be brought into courthouse Not directly supervised by court Not directly supervised by court Confidential conversation advantage/disadvantage Confidential conversation advantage/disadvantage

19 What level of evidence should trigger a positive screen? Allegation alone, however credible? Allegation alone, however credible? Credible allegation? (what standard?) Credible allegation? (what standard?) Any allegation should trigger more inquiries, a context assessment Any allegation should trigger more inquiries, a context assessment Context assessments should be the basis for any court responses to evidence of violence 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) The other party? (If so, disclose that) Others in the public? Others in the public? Law enforcement? (If so, warn about self incrimination) Law enforcement? (If so, warn about self incrimination) CPS? (If so, parent should know consequences) CPS? (If so, parent should know consequences) Court? Court? For what purpose? For what purpose? As evidence in the pending matter? As evidence in the pending matter? How would the other party challenge results/conclusions/relevance? How would the other party challenge results/conclusions/relevance? How would this differ from the courts inquiry of parties in court? How would this differ from the courts inquiry of parties in court? If only for tracking into a dispute resolution process or certain services, wont court be able to tell something about the case from the track the case is on? If only for tracking into a dispute resolution process or certain services, wont 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? Screening Information is obtained ex parte: does this create ethical issues? To anyone else for any other purposes? To anyone else for any other purposes? Results sealed? When? Only on a partys motion? Is that an accessible process? Results sealed? When? Only on a partys motion? Is that an accessible process?

21 More Issues in Implementation What effect will screen outcome have on a partys success obtaining relief? What effect will screen outcome have on a partys success obtaining relief? If screening is for tracking to dispute resolution processes, can a person be denied access to others they chose? 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 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 Best screening process Informs victims of risks, dangerousness, lethality Informs victims of risks, dangerousness, lethality Informs decision making Informs decision making Aids in survival and safety planning Aids in survival and safety planning Includes access to confidential services, especially conversations with advocate Includes access to confidential services, especially conversations with advocate

23 Judge Susan Carbon – The View from the Bench Jennifer Rose, JD – The Advocates Perspective Nancy Olesen, PhD – The Custody Evaluator Lens

24 Why Screen From a Judges Perspective Do no harm Do no harm Moral imperative Moral imperative JUDICIAL READINESS JUDICIAL READINESS

25 State of Procedure Drives Purpose - Focus shifts as we go through the court process Initial Filing Initial Filing Early stages Early stages ADR ADR Final hearing Final hearing Always circle around to SAFETY Always circle around to SAFETY

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

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

28 Other Court Challenges Presence (or not) of competent custody evaluator Presence (or not) of competent custody evaluator If no money, then what? If no money, then what? Judicial education Judicial education Dilemma: best interests of children v. victim autonomyhow to weigh the factors. Dilemma: best interests of children v. victim autonomyhow to weigh the factors.

29 An Advocates Perspective on Screening Advocates do screening Advocates do screening To determine victims propriety for available (scarce) services such as shelter To determine victims propriety for available (scarce) services such as shelter To identify conflicts with other victims served To identify conflicts with other victims served To assist victim in identifying her own issues, including risks To assist victim in identifying her own issues, including risks To determine needs of the victim To determine needs of the victim To offer appropriate help 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 Advocates Perspective Participation in SCREENING is one thing about which victims will need to be strategic Participation in SCREENING is one thing about which victims will need to be strategic MN Example MN Example OFPs provide child-related relief; HROs do not OFPs provide child-related relief; HROs do not OFP filings going down; HRO filings going up OFP filings going down; HRO filings going up Battered mothers are not disclosing the violence to the courts 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? 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 (Part II) 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 Potency Pattern Pattern Primary Perpetrator Primary PerpetratorAdd Parenting problems Parenting problems Perspective of child 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) 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 Who is the Primary Perpetrator, Parenting Problems & Perspective of Child

38 Perspective of Child Are the childs expressed wishes for contact mature and/or reasonable? Are the childs expressed wishes for contact mature and/or reasonable? Is the childs fear/anger toward parent so strong that child feels/behaves unsafe/ly? Is the childs 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? Does the child show significant and sustained emotional/ behavioral distress in response to access arrangement?

39 Critical incidents of physical, sexual, emotional abuse Use of child/access to coerce/control other parent Inability to reflect on childs 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 Co parenting Parallel Parenting Parallel Parenting Supervised Exchange Supervised Exchange Supervised Visitation Supervised Visitation Suspended Access Suspended Access

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

42 Guiding Principles For Resolving Conflicting Priorities in Custody Decisions Priority 1. Protect children Priority 1. Protect children Priority 2. Protect the safety & support the well-being of the victim parent 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 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 4. Hold perpetrators of domestic violence accountable for their abusive behavior Priority 5. Allow child access to both parents Priority 5. Allow child access to both parents Strategy: Begin with the goal of achieving all five. Resolve conflict by abandoning the lower priority. Resolve conflict by abandoning the lower priority. Janet Johnston 2007 Janet Johnston 2007

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

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: In your group identify a custody dispute with the presence of domestic violence that may be appropriate for each of the following: Shared parenting Shared parenting Parallel Parenting Parallel Parenting Supervised Exchange Supervised Exchange Supervised Visits Supervised Visits No Contact No Contact Identify the history and pattern of violence, ages of children and any additional factors to consider as part of childrens best interests. Identify the history and pattern of violence, ages of children and any additional factors to consider as part of childrens best interests.

45 Group Exercise (cont.) What rights should the (allegedly) violent parent have regarding decision-making (i.e. legal custody) within each plan? 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? 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) Access to services (barriers) Sequencing of services (court & community collaboration) Sequencing of services (court & community collaboration) Interagency cooperation, communication, formal protocols Interagency cooperation, communication, formal protocols Responsibility for determination of: Responsibility for determination of: Level of need/services (assessment)Level of need/services (assessment) Monitoring safety & progressMonitoring safety & progress Accountability for service providersAccountability for service providers Overall community coordination of services Overall community coordination of services

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


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