When Family Court Fails to Recognize Domestic Violence

The family court system often fails to adequately address the issues, and needs, of families who have been impacted by domestic violence. Domestic violence is a serious problem that harms families and individual lives, and has a devastating impact on society as a whole.  This is made worse when family court rulings allow abuse to continue, and empower abusers to the detriment of families, and children.

To properly protect children, and ensure better outcomes for families, it is crucial that family court judges and other professionals have a clear understanding of the nature and dynamics of domestic violence, and are educated on how abuse presents itself after separation, and in the legal system. 

Statistics About Domestic Violence:

The Department of Justice conducted a 10 year study on non-fatal domestic violence (2003-2012) and found that domestic violence accounts for 21% of all crime, and current or former intimate partners commit the most violence. It has been a long-established fact that leaving an abuser is the most dangerous time for a victim, the study confirms the rates of violence are greater for those who were separated or divorced, compared to other groups surveyed. 

Domestic violence perpetrated by intimate partners or immediate family members was reported to the police 56% of the time. Studies on domestic violence have found often women do not report abuse until after separation because they are now receiving support, or feel they are in a safe place to report the abuse.

A separate study reports that an estimated 3.2 million American children witness incidents of domestic violence annually. Further, “Research also indicates that child maltreatment happens in 30-60% of families where domestic violence is present. Men who batter their wives are more likely than non-violent men to also abuse their children. Studies have found that between 23 and 70 percent of men who batter their partners also abuse their children, and one study estimated that 50 percent of battered women have been abused while stopping their partner from abusing the children. Research also shows that women who are abused by intimate partners are more likely to abuse, neglect or use aggressive disciplinary behaviors.“(MCADSV).

Why Are Family Court Professionals Failing to Recognize Domestic Violence?

There are many reasons why family court professionals fail to recognize domestic violence – some reasons are based on the incompetence or corruption of individuals, other issues are systemic in nature. 

In general, it has been found that family court professionals are not properly trained to recognize domestic violence, and not trained to recognize how abusive behavior manifests in a legal setting. The family court professional may have just a limited understanding of domestic violence, or may rely on their own interpretation to guide them. In addition, the family court professional may not be aware of existing laws that define domestic violence, or may not be knowledgeable about existing child custody laws and what they say about pertinent issues.  Family court judges may also ask court professionals (GALs, evaluators, therapists, supervised visitation facilitators, etc) to take on roles or tasks that are beyond their duty, or their skill level – which creates another set of problems. 

Context is also important to understanding and recognizing domestic violence, how it has affected the children, and how it has affected the family dynamic as a whole. Along with lack of education and training on domestic violence issues, comes a general bias of what constitutes a “fit” parent or a “better parent”. An abuser is often adept at conning people, or gaining sympathy, and can win the trust and support of a family court professional while turning that same person against their ex partner.  If the professional minimizes, ignores or negates concerns about domestic violence, the victim is not seen as credible, and the context changes from understanding the abuse to now designating one parent as the “problem”. 

Other failures result when family court judges are overwhelmed with caseloads and working under a constrained budget, with limited resources available. As a result, judges often rely on their own personal beliefs to guide difficult decisions. Other judges “rubber stamp” recommendations made by Guardians, evaluators, and mediators (and other professionals) without a second thought to the unique needs of the family, or the safety concerns of those involved.

 

Common Signs that the Family Court Does Not Understand Domestic Violence:

Some common signs the family court professionals (judge, Guardian ad Litem, attorney, therapist, mediator, etc) does not recognize domestic violence include (but are not limited to):

• An abuse victim is told to  “communicate” with a former abuser, even if it endangering personal safety or that of the children. Communication may result in emotional or psychological abuse, threats or intimidating behavior. The court professionals not only ignore concerns for the safety of the victim, but will imply, directly state or take action that failure to communicate with an abuser will result in loss of custody and/or visitation or other punitive action. 
• An abuse victim being to told to “cooperate” or “co-parent” in a way that endanger themselves or their children, or in ways that are humiliating or put the victim in a position where they feel powerless to a former abuser.                                                                         The threat is real — statistics from the 10 year Department of Justice study (2o12) found that 77% of domestic violence incidents occurred at or near the victim’s home, and the perpetrators were largely intimate partners or immediate family members.
• When an abuse victim raises safety concerns, they told by a judge or other family court professional that that their concerns are not valid or are not real or they cannot “prove” abuse has occurred.
• When an abuse victim raises safety concerns, or speaks about the violence that happened in the home, they are falsely branded as crazy or told they are mentally ill.
• Warning signs you have been given a false mental health diagnosis by family court: The diagnosis does not consider your experience with domestic violence, or ignores evidence you have about the abuse. The diagnosis is vague or nondescript. The diagnosis was not made by a medical professional (may be implied or stated by a GAL, evaluator, or opposing counsel etc). The diagnosis is made by someone you do not trust or do not feel comfortable with. You were forced to go with a certain provider, and had little say in choosing a provider, or the recommendations made by your therapist were ignored. The diagnosis conflicts with the assessment, reports and/or testing by a treating physician or therapist. The diagnosis is not supported by credible medical evidence. The patient has no symptoms of the diagnosis. The patient is stable, and generally is doing well in their everyday life, with little or no impairments (some allowance should be made for the stress of continued litigation, and separation from children). The court refers patients to the same providers or therapists over and over again – there is a pattern of diagnosis, and treatment. If any of this is happening to you – it is advisable to seek legal help or counsel to find out if there any remedies available to you.
• A victim of abuse is forced into mental health treatment, co-parenting classes, family therapy (etc) they do not need, while the abuser is never held accountable, never mandated to get treatment for their violent behavior.
• The family court professionals ignores, denies or rejects protective orders, or protection offered through state address confidentiality programs. Many victims report family court judges will dismiss or throw out their protective orders.
• Evidence, documentation, witness statements, medical reports and other credible evidence are not take seriously, are ignored or dismissed.
• Children are put in harm’s way or are actually harmed after the court professional has ignored a past history of domestic violence or child abuse. This usually happens when a child is allowed into unsupervised contact with a former abuser, transitions from one parent to another are also a common place where there is a high risk of danger.
• A parent is punished for taking legal action to protect their children, or to raise concerns about abuse. Punishment can include: monetary fines, jail, loss of visitation with child, loss of custody of children, forced medical or psychiatric treatment where success is viewed as compliance with the court or staying silent about concerns, judges refusing to hear motions, delay on issuing rulings or requested court documents, etc.

There is also a prevalent attitude that occurs along with these actions – that the couple is “high conflict” or engaged in mutual tensions, because the court professional does not recognize the power, control and intimidation tactics coming from just one side – that of the abuser.

Lucy, writing for “Turning Point”, an organization that offers support and services for victims of domestic and sexual violence in Wisconsin, wrote an article on the struggles abuse victims face when involved in family court litigation, and the professionals do not recognize domestic violence, or support survivors. Lucy is herself a domestic violence survivor who has been involved in family court. She says, “And, here in my home state of Wisconsin, where refusal to communicate with the other parent is a factor in determining custody and placement, domestic violence victims may feel that they have no choice, but to cooperate.

It’s a notion that confounds me.

In no other context would we ever expect the victim of a rape or physical assault to sit down in a confined space and talk through her “differences” with her perpetrator. And yet, that’s what’s expected of domestic violence victims.”

What Can Be Done to Improve Family Court’s Response to Domestic Violence?

The legal system has sought to improve the court’s response to domestic violence in the criminal courts, family court has largely been untouched as far as systemic reform.

So what can be done? The issue is complex, and I do not mean to imply that I have all of the answers… but to begin the discussion, here are some ideas.

** Require specialized training on domestic violence, the dynamics of abuse and relevant laws for family court professionals. Also require regular, updated continuing education classes on required topics such as domestic violence, legal abuse, child development, ethics and boundaries, etc.

** The National Council of Juvenile and Family Court Judges is a great place to go for research, educational articles and training assistance. http://www.ncjfcj.org

There is also an article that may be particularly helpful: A Judicial Guide to Safety in Child Custody Cases

This guide offers education about domestic violence with insight on the behavior of an abuser, and victim of abuse. It gives tips on handling domestic violence cases and ways to ensure the safety of the parties, and children, and more. Also includes a supplemental guide and bench cards follow a judge’s decision-making from the initial filing through drafting and enforcing the order.

** Conduct an independent system wide audit of family court to determine its needs, areas of improvement, and to offer a way (anonymously) for litigants to provide feedback. The audit should result in a written report that outlines all areas that were reviewed, and identifies the strengths and weakness in the family court. Review the progress of the court in following recommendations. 

** Sponsor legislation that creates a presumption against joint custody when domestic violence or child abuse is present. For joint custody to be successful, parents need to be able to work together as equal is child rearing – which is impossible for abusers who use joint custody as as a way to exert power and control, or retaliate against, a former partner.

** Make the safety of children the key goal of the best interest factors (this has already been implemented in Canada, under The Family Law Act).

** Require family dispute resolution practitioners to screen for violence to ensure the processes used are appropriate (this has already been implemented in Canada, under The Family Law Act).

** Model best practices, and family court procedures after what is currently being used in a Domestic Violence Court

** Increase accountability for judges, judicial officers, GAL and other family court professionals

ANY OTHER IDEAS? PLEASE POST BELOW! IT TAKES “JUST US” TO RESTORE “JUSTICE” TO FAMILY COURT – YOUR IDEAS, INSIGHTS, AND EXPERIENCES ARE IMPORTANT TO REFORM EFFORTS. 

~ Emily Court, 2015

Additional Sources:

“Department of Justice; Nonfatal Domestic Violence, 2003-2012” by  Jennifer L. Truman, Ph.D., and Rachel E. Morgan, Ph.D., published April 2014: Nonfatal Domestic Violence, 2003–2012

Lucy’s story: Co-Parenting Counseling – A No-Win Sitch For Domestic Violence Victims

“Supporting Battered Mothers Protects Children: Reducing the Effects of Domestic Violence on Children” An MCADSV Report to the Missouri Children’s Services Commission, 2011: Supporting Battered Mothers Protects Children

“Witnessing Domestic Violence: The Effect on Children” by Melissa M. Stiles, M.D., Am Fam Physician. 2002: Witnessing Domestic Violence: The Effect on Children