Title: Differentiating Domestic Violence Cases from the Bench
1Differentiating 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
2Introduction
- 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
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 childrens
safety and other needs and
5Learning Objectives (cont.)
- Engage with professionals in related disciplines
to foster communication and improve interventions
in families suffering interpersonal violence.
6Workshop Format
- 1st 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?
8Context 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.
9Context 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?
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 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
12Rule-Making
- Common Practice of Batterers
- Inalienable Right/Obligation to Compose
Enforce Rules - Limited 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 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)?
16How 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
17How 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
18Who 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
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 assessment - Context 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 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?
21More 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
22Enhancing 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
23Looking 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
24Why Screen From a Judges Perspective
- Do no harm
- Moral imperative
- JUDICIAL READINESS
25State 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
26Challenges
- Where do courts get information from?
- Timing of Disclosure
- Challenges for Victim
27Resources - As a Court Challenge
- Tools
- Competency of staff, judges, others to screen
- Funding for screening, services
- Pro se litigants
- Lack of advocacy services
28Other 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.
29An 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
30Advocates 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
31Screening 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
32Screening from Custody Evaluator Perspective
33Small 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
34Differentiating Domestic Violence Cases from the
Bench (Part II)
- Hon. Susan B. Carbon
- Hon. Dale Koch
- Nancy Olesen, PhD
- Jennifer Rose, JD
35Discussion of Promising Practices
36Developing 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
38Perspective 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?
39Parenting 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
40Options 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
41Matching 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
44Small 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.
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
protocols - Responsibility for determination of
- Level of need/services (assessment)
- Monitoring safety progress
- Accountability for service providers
- Overall community coordination of services
47The Gap between Theory Practice
- Training
- Standards
- Resources
- Applying the right research to the right cases
- Genuine Collaboration
48How 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