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 Dale

Family Court Review: July 2008 Special Issue www.blackwell-syngery.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 Dale

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

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? Clare and Nancy

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

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

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 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.

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.

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

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

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

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?

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

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

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

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

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 – scarbon@comcast.net Judge Dale Koch - dale.r.koch@ojd.state.or.us Nancy Olesen, PhD - olesenphd@aol.com Jennifer Rose, JD - rosejenn@hawaii.edu