Differentiating Domestic Violence Cases from the Bench - PowerPoint PPT Presentation

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Differentiating Domestic Violence Cases from the Bench

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Recognition that families experiencing domestic violence are not all alike ... thru interim proceedings to final disposition but continues to cycle back to safety ... – PowerPoint PPT presentation

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Title: Differentiating Domestic Violence Cases from the Bench


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
  • www.blackwell-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
  • 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?
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
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 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?
  • Screening Information is obtained ex parte does
    this create ethical issues?
  • To anyone else for any other purposes?
  • 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?
  • 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 Advocates Perspective
  • Nancy Olesen, PhD The Custody Evaluator Lens

24
Why Screen From a Judges 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
    autonomyhow to weigh the factors.

29
An Advocates Perspective on Screening
  • Advocates do screening
  • To determine victims 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 Advocates 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 Exercise1) 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 childs expressed wishes for contact
    mature and/or reasonable?
  • 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?

39
Parenting Problems
  • 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
  • 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
  • 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
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 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?
  • 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
  • 1-800-527-3223
  • Judge Susan Carbon scarbon_at_comcast.net
  • Judge Dale Koch - dale.r.koch_at_ojd.state.or.us
  • Nancy Olesen, PhD - olesenphd_at_aol.com
  • Jennifer Rose, JD - rosejenn_at_hawaii.edu
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