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Lawyer skills training for DV representation:
Tips from a retired Judge.
Domestic Violence Report Oct/Nov 2006
[AT] “Just because he beats
his wife does not mean he is a bad father”i:
Judge Marjory D. Fields
Domestic violence
victims, their lawyers and support organizations
assert that often judges ignore prior court determinations
regarding domestic violence and make custody and
visitation orders that place victims and their children
at risk of continued abuse.iii Recent social science
research supports these assertions.iv
Problems with Custody Settlement Recommendations
Court house hall-way settlements are forced because
judges will not try the cases, it is suggested.
Parties are required to attend mediation and counseling
programs.v Often, judges accept reports and recommendations
for settlement orders from evaluators, mediators,
court appointed special advocates, psychologists,
and guardians ad litem. These reports may be presented
to judges ex parte, and from people who could not
be qualified as expert witnesses in many instances.vi
When reports are inaccurate and prejudicial to their
clients, lawyers should object to the reports, request
examination of the makers of the reports, and lay
the foundation for an appeal. Ask the makers of
reports:
-
their qualifications
to be expert witnesses;
-
the theoretical
bases of their conclusions and recommendations;
-
the scholarly
literature upon which they rely;
-
the sources of
their information;
-
their reliance
on self-report by the parties or collateral sources
and multi-level hearsay;
-
their views of
the credibility of the parties;
and their consideration of other pending court
cases between the parties, prior court orders
or criminal convictions.
Law and Due Process Ignored.
Orders based on custody and visitation evaluators’
recommendations ignore their state’s
appellate case law and statutes.vii In addition,
the right of citizens under the First Amendment
to the U. S. Constitution to seek redress
of grievances before the courts is violated
by these practices. Custody and visitation
proceedings have been removed from the rules
of due process into some fuzzy area of “discussions”
among people who make recommendations that
judges follow.viii The judicial authority
is thereby delegated improperly to non-judicial
personnel. It is suggested by the National
Council of Juvenile and Family Court Judges
that reliance on evaluators may be a way that
judges avoid making decisions.ix
“High Conflict” Characterization
Misleads. These practices are used
particularly in cases categorized as “high
conflict” family law cases. That label
is code for cases in which parties are deemed
to be misusing the courts to express their
rage and seek revenge for affronts by their
spouses.x Unfortunately for the victims of
IP violence and their children their cases
are placed in this category often. This is
caused by ineffective screening for IP violence
cases by staff working for the courts or service
agencies assisting the courts. Also, it results
from discrediting women’s sworn testimony
and statements in counseling or mediation
sessions,xi and trivializing domestic violence
and denying the harm to children from domestic
violence.xii
Zealous Advocacy Needed
The best response to these systemic barriers
to court is legal representation for victims
and their children. Lawyers work in the interest
of their clients only. They do not have divided
loyalties. Screeners working for the courts
have two goals: to assess litigants; but also,
to support the court system seeking to manage
case loads and divert cases to mental health
and mediation services and away from the trial
calendars.
Lawyers protect their clients from incompetent
and prejudicial evaluations and recommendations
that fail to comply with legal rules. They
make motions to protect their clients from
inappropriate counseling and mediation. Lawyers
make offers of proof to show the court the
reasons that their cases require trials, and
that they have competent, material, and relevant
evidence to support their claims when proposed
settlements are dangerous to their clients.
Oppose Mental Health Evaluations
Mental health evaluations should be opposed
in cases in which there are no issues of mental
illness. Mental health evaluations and psychological
tests cannot establish that intimate partner
violence occurred or did not occur.xiii There
is no diagnosis of violent intimate partner
or victim of intimate partner violence.xiv
Lawyers should oppose evaluations also because
evaluations delay the proceedings and increase
litigation costs.xv
I declined to order mental health evaluations
unless there were allegations of mental illness
during the 16 years when I presided in the
New York Family Court and Supreme Court. I
was never reversed for making decisions in
custody, visitation, and child protection
cases without mental health evaluations.
Furthermore, victims of intimate partner violence
may appear less stable than their violent
partners because they are suffering from the
emotional effects of abuse and fear of losing
custody of their children. For these reasons,
the test results may not provide accurate
assessments of their parental capacity. Abusive
partners, by contrast appear calm and self-assured.xvi
Family Systems Approach Flawed. Custody
evaluators fail to consider the studies showing
that domestic violence offenders often commit
other types of crimes.xvii Also, they are
serial offenders who commit multiple crimes
within a single relationship, and with multiple
victims.xviii Evaluators may not know that
alleged verbal provocation is not a defense
to assault, kidnapping, rape, attempted assault,
reckless endangerment, menacing and stalking,
all of which are typical domestic violence
offenses.
Thus, evaluators ignore the history of criminal
conduct, or prior criminal convictions and
protection orders, frequently. They do not
understand court decisions and orders are
res judicata or law of the case determinations
of the issues of domestic violence. They instead
may characterize intimate partner violence
as a problem of family dynamics.xix
The reason for this is that evaluators are
influenced by family systems theory. Family
systems theory, however, is inappropriate
for assessing or responding to intimate partner
violence.xx Mental health professionals and
judges who adopt the family systems perspective
in intimate partner violence cases blame victims
for provoking violence and abuse. They perceive
intimate partner violence as the result of
“reciprocal interactions” within
the family system.xxi No one is held responsible
for his violent acts, contrary to both criminal
and family law.
These perceptions result from the flawed structure
of family systems theory when applied to intimate
partner violence. It ignores all aspects of
families other than communication and dyad
interaction. It does not include the legal,
social and political “systems”
or contexts within which families exist. Differences
in size and strength, social status and political
power between men and women are omitted from
the family systems analysis of intimate partner
violence.xxii These views “direct the
focus away from the violence and fail to address”
the safety needs of weaker family members.xxiii
Evaluator Reports Ignore Court Rulings.
Evaluator reports based on offender denials
rather than the prior court orders, verdicts,
and findings of fact, therefore, are incompetent
and prejudicial. They should not be received
in evidence. Custody evaluators must accept
prior judicial dispositions as the established
facts of the case upon which they must base
their reports and recommendations. They may
not adopt the statements of offenders attempting
deny or minimize the history of intimate partner
violence and shifting blame to the victims
by claiming provocation. They may not disregard
the prior court determinations based on the
offenders’ claims. xxiv
Courts show tolerance for violence against
women. This is a pattern not seen in other
cases of violent crime or property crimes.
It is a human rights violation for the State
to deny the protection of the law to victims
of intimate partner violence. This is recognized
in the European Union.xxv
The content and style of judicial education
materials and programs provide general background
information regarding the dynamics violence
against women for judges.xxvi Sometimes, however,
the training includes analyses based on family
systems theory. Family systems theory shifts
the responsibility for domestic violence from
the offender to the victim.xxvii This result
is contradictory to the legislative intent
to hold domestic violence offenders accountable
for their violent behavior.
Judicial Education is Not Enough to
Protect Victims of Domestic Violence
Thus, judicial education cannot be relied
upon as a substitute for competent, relevant,
and material evidence presented to judges
on the record in court. Judges are neutrals
who are persuaded to rule based on facts proven
and legal argument. They do not collect evidence
for the parties; they do not leave the court
to find documents and witnesses.
Trained lawyers also take appeals from judicial
orders that are contrary to the law and the
evidence presented at trial. Successful appeals
depend upon the quality of evidence and legal
argument presented to trial judges. Lawyers
take appeals also from the refusal to allow
trials and the presentation of evidence.
Need for Legal Representation of Victims
by Trained Lawyers.
The essential role of lawyers is recognized
for criminal defendants in the Sixth Amendment
to the United States Constitution. Crime victims
seeking protection orders and safety for their
children need the same legal representation.
Few States, however, provide the statutory
right to counsel for petitioners and respondents
in civil protection order and custody and
visitation proceedings.xxviii
Judges are more likely to make orders that
keep victims and their children safe based
on evidence and legal argument presented on
the record. Lawyers with trial skills and
knowledge of the special issues arising in
cases of domestic violence, rape, stalking,
and threats know how to marshal evidence.
Lawyers educate judges about the facts in
their clients’ cases. They propose orders
with protective conditions that meet the needs
of the clients based on the statutory remedies.xxix
Lawyers know how to take appeals from orders
that place their clients at risk of continued
violence and abuse.
The current practices in many courts are prejudicial
to the safety and lives of domestic violence
victims and their children. They are based
on the presumption that visits by parents
who committed acts of violence or patterns
of verbal abuse against the custodial parents
are good for children in all circumstances.
This bias is so strong that victims and their
children find it impossible to present their
evidence and fears in court.
Many States have good domestic violence laws
and judicial education programs. The protection
and safety to be gained from them is realized
when victims are represented by skill trial
and appellate lawyers. Thus, we should turn
our efforts to getting funding for representation
by lawyers and domestic violence training
for lawyers.
i. Statement in court by
a women judge presiding is a divorce case
in Supreme Court, Kings County, New York,
1978.
ii.Marjory D. Fields was
a judge on the New York Family and Supreme
Courts for 16 years. She declined another
term on the court to return to work as a consultant
for improved responses to violence against
women and children. She has worked for better
legal remedies and services for victims of
domestic violence for 35 years. Judge Fields
is Special Counsel to Beldock Levine &
Hoffman in New York City, and International
Family Law Chambers in London. To correspond
with author, mfields@blhny.com.
iii. Annette M. Gonzalez
& Linda M. Rio Reichmann, “Representing
Children in Civil Cases Involving Domestic
Violence,” 39 Family Law Quarterly 197,
216-18 (ABA Section of Family Law, Spring
2005).
iv. 11 Violence Against Women
No. 8 (August 2005) reports of four NIJ funded
empirical studies of court orders in custody
and visitation cases with histories of IP
violence.
v. Jane C. Murphy & Robert
Rubinson, “Domestic Violence and Mediation:
Responding to the Challenges of Crafting Effective
Screens,” 39 Family L Q 53 (Spring 2005).
vi. Frye v. United States,
293 F 1013 (DC Cir 1923); Daubert v. Merrel
Dow Pharmaceuticals, Inc., 509 US 579 (1993);
Kumho Tire Co. v. Carmichael, 526 US 137 (1999).
vii. Gonzalez & Rio Reichmann,
supra note 3, at 198-99; Chart # 2 “Custody
Criteria,” 39 Family L Q 917 (Winter
2006); Marjory D. Fields, The Impact of Spouse
Abuse on Children and Its Relevance for Custody
and Visitation Decisions in New York State,
3 Cornell J.L. and Public Policy 221 (1994);
Wissink v. Wissink, 749 NYS2d 550 (2d Dept
2002), for example.
viii. See, In re Gault, 387
US 1 (1967), holding that due process is required
in juvenile delinquency proceedings in Family
and Juvenile Courts. It is relevant to custody
and visitation cases, too.
ix. National Council of Juvenile
and Family Court Judges, Navigating Custody
and Visitation Evaluations in Cases with Domestic
Violence: A Judge’s Guide at 16 (2004),
available free at www.ncjfcj.org/images/stories/dept/fvd/pdf/navigatingguide_supplementcards_final_2006.pdf.
x. See, Andrew Schepard &
J.W. Bozzomo, “Efficiency, Therapeutic
Justice, Mediation, and Evaluation,”
37 Family Law Q 333, 345-49 (Fall 2003).
xi. Elizabeth Sheehy, “Evidence
Law and ‘Credibility Testing’
of Women,” 2QUTLJJ 157 (2002); T. Brown,
F. Federico, L. Hewitt, & R. Sheehan,
R., “Revealing the Existence of Child
Abuse in the Context of Marital Breakdown
and Custody and Access Disputes,”24
(6) Child Abuse & Neglect 849-85 (2000).
xii. Gonzales & Rio Reichmann,
supra note 3 at 197-202; 216-18; Allison C.
Morrill, Jianyu Dai, Dunn, Samantha Dunn,
Iyue Sung, & Kevin Smith, “Child
Custody and Visitation Decisions When the
Father Has Perpetrated Violence Against the
Mother,” 11(8) Violence Against Women
1076-1107 (2005); Jeffrey L. Edleson , “Problems
Associated with Children’s Witnessing
of Domestic Violence (1999) at www.vawnet.org/DomesticViolence
/Research/VAWnetDocs/AR_witness.php; CDC
continuing study of “adverse childhood
experiences” including witnessing domestic
violence at www.acestudy.org;
www.cdc.gov/od/oc/media/pressrel/r980514.htm;
A.E. Appel & G.W. Holden, “The Co-Occurrence
of Spouse and Physical Child Abuse: A Review
and Appraisal,” 21(4) J Family Psychology
578-99 (1998).
xiii. Nancy S. Erickson,
“Use of the MMPI-2 in Child Custody
Evaluations Involving Battered Women: What
Does Psychological Research Tell Us?”
39 Family L. Q. 87, 88 (Spring 2005); The
New York State Matrimonial Commission, Report
to the Chief Judge 46-54 (Feb. 2006).
xiv. Diagnostic and Statistical
Manual of Mental Disorders, 4th Edition (DSM-IV)
(American Psychiatric Association, 2000);
Edward Gondolf, “MCMI-III Results for
Batterer Program Participants in Four Cities:
Less ‘Pathological’ Than Expected,”
14(1) J. of Family Violence 1-17 (1999).
xv. See, Report of the Matrimonial
Commission 46-54 (New York State Office of
Court Administration, Feb. 2006), available
at www.courts.state.ny.us/reports/matrimonialcommissionreport.pdf.
xvi. Erickson at 87-89, 108;
Lundy Bancroft & Jay G. Silverman, The
Batterer as Parent: Addressing the Impact
of Domestic Violence on Family Dynamics (Sage,
CA, 2002).
xvii Melissa Labriola, Michael
Rempel, & Robert T. Davis, Testing the
Effectiveness of Batterer Programs and Judicial
Monitoring , “Offender Profiles”
32 (Center for Court Innovation, NY, 2005,
NIJ grant study); David M. Kennedy, “Rethinking
Law Enforcement Strategies to Prevent Domestic
Violence,” National Center For Victims
Of Crime, Networks 8 (Spring/Summer 2004);
Nancy E. Jones, et al., “Men Who Batter:
Profile from a Restraining Order Database,”
Archives of Family Medicine 52 (1994); Jeffrey
A. Fagan, Douglas K. Stewart, & Karen
V. Hansen, “Violent Men or Violent Husbands?
Background Factors and Situational Correlates
of Domestic and Extra-Domestic Violence,”
in David Finkelhor, et al., eds., The Dark
Side of Families (Beverly Hills, CA: Sage
Publications, 1983).
xviii. Kennedy, op cit.
xix. Marsali Hansen &
Michèle Harway, Battering and Family
Therapy: A Feminist Perspective (Sage, 1993)
notes in Ch. 1 "An Overview of Domestic
Violence" by Michèle Harway &
Marsali Hansen 1, 7.
xx. Marsali Hansen, “Feminism
and Family Therapy: A Review of Feminist Critiques
of Approaches to Family Violence,” in
Hansen & Harway, supra note 19, at 69-80;
Michèle Harway & Marsali Hansen,
“Therapist Perceptions of Family Violence,”
Id. at 42-53; Marsali Hansen & Michèle
Harway, “Intervening with Violent Families:
Directions for Future Generations of Therapists,”
Id. at 232-37.
xxi. Marsali Hansen, “Feminism
and Family Therapy,” Id. at 76-77; but,
see a contrasting view, Christine Murray,
“Controversy, Constraints, and Context:
Understanding Family Violence Through Family
Systems Theory” 14 (3) The Family Journal
234-39 (2006).
xxii.Id. at 78-80.
xxiii. Id. at 80.
xxiv. Cathy Humphreys &
Rachel Carter, et al., The justice system
as an arena for the protection of human rights
for women and children experiencing violence
and abuse Final Report at 7 (Co-ordination
Action on Human Rights Violations, European
Commission project, 2005), available from
Rachel.carter@gldvp.org.uk.
This report describes a “four planet”
analysis in which the protection order/criminal
prosecution; child custody and visitation;
child protection; and immigration legal systems
ignore each other. In the first she is a crime
victim/witness; in the second an “unfriendly
parent”; in the third a mother who fails
to protect her child from the violent father;
and in the fourth an illegal alien.
xxv. Id. at 5-6.
xxvi. National Council of
Juvenile and Family Court Judges, supra note
9.
xxvii. Zorza, Joan, “A
Mixed and Dangerous Tool,” 10 Domestic
Violence Report 49, 57-61 (April-May, 2005),
Hansen, supra note 20.
xxviii. But see, for example,
New York Family Court Act § 262 and New
York Judiciary Law §35(8) which provide
the right to counsel for the parties in custody
and visitation proceedings and in protection
order proceedings, and, also, when these issues
arise in divorce actions.
xxix. See, Gonzales &
Rio Reichmann, supra note 3, and cases cited
therein at 216-18. Chart # 2 “Custody
Criteria,” supra note 7.
Also see: http://www.civicresearchinstitute.com/vi2.html
This article was originally
published in Domestic Violence Report, ©2006
Civic Research Institute, Inc., 4478 US Route 27,
Kingston NJ 08528 USA, and is reprinted here with
express permission. All rights reserved. Domestic
Violence Report is a bimonthly professional report
letter devoted to innovative programs, legal developments,
and current services and research for those protecting,
assisting, counseling, and treating the victims
of domestic violence. For subscription information,
visit www.civicresearchinstitute.com
or write Civic Research Institute, 4478 U.S. Route
27, P.O. Box 585, Kingston, NJ 08528 USA or call
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