A Judicial Philosophy for Domestic Violence Cases

1. A Judicial Philosophy for Domestic Violence Cases National Council of Juvenile & Family Court Judges April 15, 2011 Fayetteville, AR

2. Why do we need a philosophy in domestic violence cases? • Domestic Violence Negatively Impacts Many of Society’s Worst Problems • Homicide • Suicide • Rape • Child Abuse • Juvenile Delinquency • Substance Abuse • Elder abuse • Stalking • Domestic Violence in Large % of Courts’ Caseloads 2

3. Why do we need a philosophy for domestic violence cases? The relationships are intricate, complicated, conflicted, and inscrutable The goals of domestic violence victims differ from those of most other victims and from our own The offenders are practiced manipulators We all have a natural aversion to involving ourselves in the “private affairs” of others 3

4. Domestic Violence Facts • More than 3 women a day are murdered by their husbands or boyfriends. • Women experience 2 million injuries from IPV each year • IPV resulted in 1,510 deaths in 2005 – 78% were female and 22% were male • Children have been killed by fathers involved in volatile custody battles with their former partners. • Approx. 20% of the 1.5 million people who experience intimate partner violence annually obtain civil protection orders. • Studies show that 25-50% of disputed custody cases involve DV • Among false allegations, fathers are far more likely than mothers to make intentionally false accusations (21% compared to 1.3%) • Mothers who are victims of DV can present poorly in court and to the best- interest attorneys and/or custody evaluators • 30%-60% of perpetrators of IPV also abuse children in the household.

5. Children and Domestic Violence • 15.5 million children in the US live in families in which partner violence occurred at least once in the past year, and 7 million children live in families in which severe partner violence occurred. • In a single day in 2008, 16,458 children were living in a domestic violence shelter or transitional housing facility. Another 6,430 children sought services at a non-residential program • Children may experience the following problems associated with exposure to domestic violence: • Behavioral, social, and emotional problems – Higher levels of anger, aggression, oppositional behavior, fear, anxiety, depression … • Cognitive and attitudinal problems – Lower cognitive functioning, lack of conflict resolution skills, pro-violence attitudes… • Long-term problems – Higher levels of adult depression, trauma symptoms, increased tolerance for and use of violence in adult relationships

6. Economic Impact of domestic violence • Annual cost of domestic violence to the nation is aprox $67 billion • There are 16,800 homicides and $2.2 million (medically treated) injuries due to IPV annually, which cost $37 billion. • Direct costs to health care are estimated at $5.9 billion annually • The medical care, mental health services, and lost productivity (e.g. time away from work) cost of IPV was an estimated $5.8 billion in 1995 and $8.3 billion in 2003 (Results based on those that reported abuse – actual amounts are higher). • Long-term medical consequences last long after the initial trauma

7. Domestic Violence Costs to Employers • DV affects the workplace and costs employers • Recent victims have increased incidences of: • Absence, tardiness and distractions • Abused women lose nearly 8 million days of paid work = 32,000 full-time jobs and almost 5.6 million days of household productivity. • Annually cost almost $728million in medical, mental health costs, and productivity losses • $893 million due to premature mortality

8. Internal Symptoms Somatic Symptoms Sleep difficulties Loss of Appetite Anxiety Depression Stress Overeating Sadness Feelings of helplessness Feelings of hopelessness Fatigue External/Hostility Anger Intolerance of others Irritability Frustration Cynicism Vicarious Trauma Symptoms

9. Vicarious Trauma - Judges • 63% of Judges reported one or more symptoms of vicarious trauma • Female judges reported more symptoms as well as judges that have seven or more years of experience • Female judges tend to score higher on internal symptoms • Judges with seven or more years of experience score higher on externalizing or showing signs of hostility • Some judges experience unique symptoms which include: • Fear of perpetrator • Nightmares • Preservation regarding cases • cognitive flooding • Difficulty concentrating • Hyper vigilance • Feeling Overwhelmed • Guilt flashbacks • PTSD diagnosis

10. Past judicial efforts to intervene in domestic violence cases largely ineffective because: Victim-blaming Domestic violence was seen as only a justice system problem Neither we nor the community fully understood what we were dealing with We didn’t think outside of the box and, therefore, limited our creativity 10

11. A Judicial Philosophy On Domestic Violence Goals • A Just Result • Safety for the Victim • Informed by the Victim • Offender Accountability • Elimination of Recidivism 11

12. A Judicial Philosophy (Cont.) Primary Objectives • Prevent Additional Harm • Obtain Control • Punish Past Acts BUT Emphasize Prevention of Future Violence • Preserve Relationships (if desired) • Vindicate the Rule of Law 12

13. A Judicial Philosophy (Cont.) Tools Available Self-Education Consistent Application A Coordinated Community Response Jail 13

14. What will you do? “I will look into the possibility of a DV court.” “I will identify appropriate opportunities to involve the judiciary in DV education.” “I am going to invite legislators to my court and offer them my help in DV issues.” “I am going to order more financial relief where appropriate.” “I will make a checklist for collateral consequences.” 14

15. Best Practices in Domestic Violence & Family Law Cases • Distinguish between cases with high conflict components and domestic violence components. • Assess whether a child or parent is at risk for physical, emotional, or mental abuse. • Review the evidence so that the safety of the child is the primary factor in determining his or her best interest. • Evaluate safety risks at various stages of a case, from initial filing through post-disposition. • Make findings that explain and prioritize safety concerns. • Draft custody and visitation orders that maximize family safety.

16. What we heard from judges: • The most egregious cases are often the easiest for judges • Judges want to promote the safety and resilience of children • Judges would like help (checklists) in understanding when to ask questions and what to do with the answers

17. Decision-Making Tools to Help Achieve Best Practices • A Judicial Guide to Child Safety in Custody Cases • Navigating Custody & Visitation Evaluations in Cases with Domestic Violence: A Judge’s Guide

18. What we learned in the process: • There is a disconnect between acknowledging safety issues and applying them to family law matters • Family law cases involving domestic violence are very often not identified as such for a variety of reasons

19. Judicial Perspectives Statutory Presumption = Both parents entitled to access to children (custody/parenting time) Look at long-term, not short-term Child’s best interests are defined from perspective of parental access Parental goal of protection of child may be viewed as “alienating” Parent not viewed as victim; rather, as uncooperative parent Family court

20. Problem: We fail to carry over safety concerns because our paradigm does not center around safety first. Statutory paradigm of access is based on equal parental entitlement to children; it is not a safety-first paradigm. We fail to apply DV lens in Family Court. Family court

21. Why does domestic violence matter? • Abuse does not end with separation • There is a significant overlap between child abuse and domestic violence • Victims’ ability to parent may be affected • Batterers may use the courts to perpetuate the abuse • Resiliency of child may be damaged

22. Implications for intervention • Anger management is inappropriate • Interventions must be clear, concise, and unambiguous and must divest the abusive parent of rule-making authority • Continuing contact with the abused parent may put the abused parent or the child (or both) at further risk

23. Children, abuse, and custody • Abuse can make a child more vulnerable to a variety of adverse consequences • Maximizing a child’s exposure to supportive roles with caring adults, especially the non-violent parent, can bolster his or her resiliency

24. Analyzing the evidence • When there is conflicting testimony, fact-finding requires more than simply determining credibility • It requires you to assess bias, motive and the perspective of the parties

25. To sort through testimony • Determine whether any alleged physical act was part of a pattern of abuse • Determine the context of the violence • Consider whether one parent inflicted more harm • Consider the impact of the abuse

26. The lens of safety • Asking questions to get the information you need in order to make a well-informed decision about child (and adult) safety does not compromise your judicial neutrality

27. Temporary/Emergency orders • Issues of safety may exist that need to be addressed between the time of initial filing and final order • Evidence at this point may be thin • Safety may dictate steps at this point, such as deferred decision or emergency order

28. The pretrial process • Maximize safety: • Mediation and other third-party information/processes • Settled agreements • Discovery and pretrial hearings

29. The hearing • Actively obtaining the information you need to make informed decisions does not compromise your neutrality • All jurisdictions require abuse to be considered in custody determinations • Making findings of abuse if part of the judgment benefits all parties

30. Drafting the order • Precision and attention to detail minimize the need to return to court • Safety is enhanced by reducing the need for contact between the parties • Make certain your order does not conflict with the terms of an existing protection (or other) order

31. Enforcement • Enforcement of orders and holding abusers accountable for violations is critical to assuring both the child and the at-risk parent remain safe • At-risk parents may violate the order for safety reasons

32. Conflicting paradigms

33. Conflict cases children survive divorce most successfully with ongoing access to both parents the conflict stops when the parties separate a parent who resists joint custody is “unfriendly” mediation is appropriate and desired the unfriendly parent is not the appropriate custodian Abuse cases joint custody permits the abuse to continue and may be dangerous danger increases at separation victim engages in protective behavior mediation is inappropriate or must be used carefully abuser is not the appropriate custodian Custody

34. Conflict cases Conflict stops at separation Supervised visitation or no contact order is punishment “Friendly” parent will facilitate contact Children need ongoing contact with both parents Abuse cases Danger increases at separation Visitation requires careful consideration Protective measures are appropriate and necessary Ongoing contact may be harmful, if not dangerous Visitation

36. Take Away Points • Fact finding – more than determining credibility; court must assess bias, motive, and perspective of witnesses and parties • A finding of fact that domestic violence has occurred can help protect adult and child victims of abuse • Attorneys, judges, custody evaluators, and others can take a leadership role in ensuring that judges routinely have the information they need

37. Specifically: • Carefully review agreements and reject/amend those which undercut the capacity of the protecting parent • Ask questions if more information is needed before making decisions • Enter orders with terms which protect the safety of adult and child victims

38. Points to remember: • You are likely to see these cases at their most volatile • Restricted contact may be essential for a period while other interventions are happening and may be eased as time progresses • Safety is paramount

39. How to Contact The National Council of Juvenile and Family Court Judges Family Violence Department P.O. Box 8970 Reno, Nevada 89507 Resource Center on Domestic Violence: Child Protection and Custody 1-800-527-3223