Differentiating Domestic Violence Cases from the Bench

Hon. Susan B. CarbonHon. Susan B. CarbonHon. Dale KochHon. Dale Koch

Nancy Olesen, PhDNancy Olesen, PhDJennifer Rose, JDJennifer Rose, JD

American Judges AssociationAmerican Judges AssociationSeptember 9, 2008September 9, 2008

Maui, HawaiiMaui, 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

Family Court Review: July Family Court Review: July 2008 Special Issue2008 Special Issue

www.blackwell-www.blackwell-syngery.com/toc/fcre/46/3syngery.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

Learning Objectives (con’t.)

Engage with professionals in related disciplines to foster communication and improve interventions in families suffering interpersonal violence.

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?

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.

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?

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

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.

Focal concern shifts from filing thru interim proceedings to final disposition – but continues to cycle back to safety

Questions About Family Court Questions About Family Court Domestic Violence Screening and Domestic Violence Screening and

AssessmentAssessment What is “domestic violence” for purposes of What is “domestic violence” for purposes of

triage or screening?triage or screening? LegalLegal definitions of DV may be relevant definitions of DV may be relevant Not just “whether” but “what, where, when, how”Not just “whether” but “what, where, when, how”

Context Context for the violence must be a focus of screeningfor the violence must be a focus of screening

What kind of What kind of risksrisks are faced by the victim and are faced by the victim and children?children?

What is the significance of an expression of What is the significance of an expression of fearfear (in (in the absence of allegation of violence)?the absence of allegation of violence)?

How Should Screening for DV Be How Should Screening for DV Be Accomplished or Administered?Accomplished or Administered?

Not a one-time eventNot a one-time event DV risk is dynamic, circumstances are fluidDV risk is dynamic, circumstances are fluid Screening process must be recurrent and Screening process must be recurrent and

ongoingongoing Screening must not obstruct or delay justice Screening must not obstruct or delay justice

How Should Screening for DV Be How Should Screening for DV Be Accomplished or Administered?Accomplished or Administered?

Sources of InformationSources of Information Parties (separated)Parties (separated)

Non-public settingsNon-public settings Linguistically and culturally accessible processLinguistically and culturally accessible process

Court filesCourt files BUT absence of other files, reports must not lead BUT absence of other files, reports must not lead

to negative determinationto negative determination Parties given opportunity to respond to information Parties given opportunity to respond to information

considered in other filesconsidered in other files Chilling effect of accessing other filesChilling effect of accessing other files

Who Should Do Screening?Who Should Do Screening?

Court staffCourt staff Present in court, directed by courtPresent in court, directed by court But not confidential, so victims may be reluctant to But not confidential, so victims may be reluctant to

disclosedisclose Need training on DV, good supervisionNeed training on DV, good supervision

Advocates (NGO)Advocates (NGO) Need to be brought into courthouseNeed to be brought into courthouse Not directly supervised by courtNot directly supervised by court Confidential conversation advantage/disadvantageConfidential conversation advantage/disadvantage

What level of evidence should What level of evidence should trigger a positive screen?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 Any allegation should trigger more

inquiries, a context assessmentinquiries, a context assessment Context assessments should be the basis Context assessments should be the basis

for any court responses to evidence of for any court responses to evidence of violenceviolence

Screening Information: Screening Information: Who Gets It?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 court’s inquiry of parties in court?How would this differ from the court’s inquiry of parties in court? If If onlyonly for tracking into a dispute resolution process or certain services, 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 won’t court be able to tell something about the case from the track the case is on?case is on?

Screening Information is obtained Screening Information is obtained ex parteex parte: does this create ethical : does this create ethical issues?issues?

To anyone else for any other purposes?To anyone else for any other purposes? Results sealed? When? Only on a party’s motion? Is that an Results sealed? When? Only on a party’s motion? Is that an

accessible process?accessible process?

More Issues in ImplementationMore Issues in Implementation

What effect will screen outcome have on a What effect will screen outcome have on a party’s success obtaining relief?party’s success obtaining relief?

If screening is for tracking to dispute If screening is for tracking to dispute resolution processes, can a person be resolution processes, can a person be denied access to others they chose?denied access to others they chose?

Screening must account for the false Screening must account for the false positives and negatives which will result positives and negatives which will result from the paucity of good toolsfrom the paucity of good tools

Enhancing Safety Must Trump All Enhancing Safety Must Trump All Other Purposes for ScreeningOther Purposes for Screening

Best screening processBest screening process Informs victims of risks, dangerousness, Informs victims of risks, dangerousness,

lethalitylethality Informs decision makingInforms decision making Aids in survival and safety planningAids in survival and safety planning Includes access to confidential services, Includes access to confidential services,

especially conversations with advocateespecially conversations with advocate

•Judge Susan Carbon – The View from the Bench

•Jennifer Rose, JD – The Advocate’s Perspective

•Nancy Olesen, PhD – The Custody Evaluator Lens

Why Screen Why Screen From a Judge’s PerspectiveFrom a Judge’s Perspective

Do no harm Do no harm Moral imperative Moral imperative JUDICIAL READINESS JUDICIAL READINESS

State of Procedure Drives PurposeState of Procedure Drives Purpose--Focus shifts as we go through the court Focus shifts as we go through the court

processprocess

Initial FilingInitial Filing Early stagesEarly stages ADRADR Final hearingFinal hearing Always circle around to SAFETYAlways circle around to SAFETY

ChallengesChallenges

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

Resources - As a Court ChallengeResources - As a Court Challenge

ToolsTools Competency of staff, judges, others to Competency of staff, judges, others to

screenscreen Funding for screening, servicesFunding for screening, services Pro se litigantsPro se litigants Lack of advocacy services Lack of advocacy services

Other Court ChallengesOther Court Challenges

Presence (or not) of competent custody Presence (or not) of competent custody evaluatorevaluator

If no money, then what?If no money, then what? Judicial educationJudicial education Dilemma: best interests of children v. Dilemma: best interests of children v.

victim autonomy—how to weigh the victim autonomy—how to weigh the factors.factors.

An Advocate’s Perspective on An Advocate’s Perspective on ScreeningScreening

Advocates do screeningAdvocates do screening To determine victim’s propriety for available To determine victim’s propriety for available

(scarce) services such as shelter(scarce) services such as shelter To identify conflicts with other victims servedTo identify conflicts with other victims served To assist victim in identifying her own issues, To assist victim in identifying her own issues,

including risksincluding risks To determine needs of the victimTo determine needs of the victim To offer appropriate helpTo offer appropriate help

Advocates’ ScreeningAdvocates’ 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 Screening from an Advocate’s PerspectivePerspective

Participation in SCREENING is one thing Participation in SCREENING is one thing about which victims will need to be about which victims will need to be strategicstrategic

MN ExampleMN Example OFPs provide child-related relief; HROs do OFPs provide child-related relief; HROs do

notnot OFP filings going down; HRO filings going upOFP filings going down; HRO filings going up Battered mothers are not disclosing the Battered mothers are not disclosing the

violence to the courtsviolence to the courts

Screening from Custody Screening from Custody Evaluator PerspectiveEvaluator Perspective

Small Group ExerciseSmall Group Exercise

1) What are the 3 most difficult aspects of 1) What are the 3 most difficult aspects of screening for DV? (e.g. lack of tools, training, screening for DV? (e.g. lack of tools, training, resources, implementation strategies etc.)resources, implementation strategies etc.)

2) What 3 practices have you seen or used 2) What 3 practices have you seen or used that seem to hold the most promise? 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)(Part II)Hon. Susan B. CarbonHon. Susan B. Carbon

Hon. Dale KochHon. Dale KochNancy Olesen, PhDNancy Olesen, PhDJennifer Rose, JDJennifer Rose, JD

Discussion of Promising Discussion of Promising PracticesPractices

Developing a New Framework for Developing a New Framework for A Differentiated Response: The A Differentiated Response: The

PPP Screening ModelPPP Screening Model Potency Potency PatternPattern Primary PerpetratorPrimary Perpetrator

Add Add Parenting problemsParenting problems Perspective of childPerspective of child

Safety measures Safety measures indicated byindicated by: : PotencyPotency (severity, dangerousness, risk of (severity, dangerousness, risk of

serious injury or lethality) serious injury or lethality)

Services (ADR, corrective, rehabilitative Services (ADR, corrective, rehabilitative measures) measures) indicated byindicated by:: PatternPattern (history of using violent tactics & (history of using violent tactics & coercive control, any substance abuse, mental coercive control, any substance abuse, mental illness etc)illness etc)

Parenting Plan Parenting Plan indicated by indicated by Who is the Who is the Primary Perpetrator, Primary Perpetrator,

Parenting Problems & Perspective of Parenting Problems & Perspective of ChildChild

Perspective of ChildPerspective of Child •Are the child’s expressed wishes for contact mature Are the child’s expressed wishes for contact mature and/or reasonable?and/or reasonable?

•Is the child’s fear/anger toward parent so strong that Is the child’s fear/anger toward parent so strong that child feels/behaves unsafe/ly?child feels/behaves unsafe/ly?

•Does the child show significant and sustained Does the child show significant and sustained emotional/ behavioral distress in response to access emotional/ behavioral distress in response to access arrangement?arrangement?

•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 Options for parenting plans for families where domestic violence is for families where domestic violence is alleged, or has been or continues to be alleged, or has been or continues to be

an issuean issue

Co parentingCo parenting Parallel ParentingParallel Parenting Supervised ExchangeSupervised Exchange Supervised VisitationSupervised Visitation Suspended AccessSuspended Access

Matching Parenting Plans to Matching Parenting Plans to Patterns of Domestic ViolencePatterns of Domestic Violence

Potency of ViolencePotency of Violence Patterns of Violence & Coercive ControlPatterns of Violence & Coercive Control Primary Perpetrator IndicatorsPrimary Perpetrator Indicators Parenting ProblemsParenting Problems Perspective of ChildPerspective of Child

Guiding Principles For Resolving Conflicting Priorities Guiding Principles For Resolving Conflicting Priorities in Custody Decisionsin Custody Decisions

Priority 1. Priority 1. Protect childrenProtect childrenPriority 2.Priority 2. Protect the safety & support the well-being of the Protect the safety & support the well-being of the

victim parentvictim parentPriority 3.Priority 3. Respect the right of adult victims to direct their own Respect the right of adult victims to direct their own

liveslivesPriority 4.Priority 4. Hold perpetrators of domestic violence accountable Hold perpetrators of domestic violence accountable

for their abusive behaviorfor their abusive behaviorPriority 5Priority 5. Allow child access to both parents. Allow child access to both parents

StrategyStrategy: : Begin with the goal of achieving all five. 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

Common Couple Common Couple AggressionAggression(No child (No child

maltreatment or maltreatment or special needs)special needs)

High ConflictHigh Conflict

Abuse of Child Abuse of Child or Adult or Adult Partner)Partner)

(untreated or (untreated or unresolved)unresolved)

Terrorism/ Terrorism/ StalkingStalking

Potency, Pattern, Primary Aggressor

(pose risks if parents meet)

Co-parenting

Parallel Parenting

SupervisedExchange

SupervisedVisits

No Visitation

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Parenting Arrangements after Violence

Small Group ExerciseSmall Group Exercise

In your group identify a custody dispute with the In your group identify a custody dispute with the presence of domestic violence that may be presence of domestic violence that may be appropriate for each of the following:appropriate for each of the following:

Shared parentingShared parentingParallel ParentingParallel ParentingSupervised ExchangeSupervised ExchangeSupervised VisitsSupervised VisitsNo ContactNo Contact

Identify the history and pattern of violence, ages of children Identify the history and pattern of violence, ages of children and any additional factors to consider as part of children’s and any additional factors to consider as part of children’s best interests.best interests.

Group Exercise (cont.) Group Exercise (cont.) What rights should the What rights should the

(allegedly) violent (allegedly) violent parent have regarding parent have regarding decision-making (i.e. decision-making (i.e. legal custody) within legal custody) within each plan?each plan?

How long should any How long should any restrictive restrictive arrangements be arrangements be imposed or under what imposed or under what conditions should they conditions should they be lifted?be lifted?

What prevents you in What prevents you in your jurisdiction from your jurisdiction from implementing these implementing these kinds of parenting kinds of parenting plans?plans?

What exemplary What exemplary practice/service/policy practice/service/policy or procedures do you or procedures do you have in your have in your jurisdiction that jurisdiction that address this problem?address this problem?

Critical Issues in Developing Parenting Critical Issues in Developing Parenting PlansPlans

Access to services (barriers)Access to services (barriers) Sequencing of services (court & community Sequencing of services (court & community

collaboration)collaboration) Interagency cooperation, communication, Interagency cooperation, communication,

formal protocols 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 servicesOverall community coordination of services

The Gap between Theory & The Gap between Theory & PracticePractice

TrainingTraining StandardsStandards ResourcesResources Applying the right research to the Applying the right research to the

right casesright cases Genuine CollaborationGenuine 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