Identifying Domestic Relations Cases Involving Domestic Violence & Developing Strategies for Those Cases
By: Julie Kunce Field
UNDERSTANDING DOMESTIC ABUSE IN GENERAL
Domestic abuse is common.
Domestic abuse can include emotional andpsychological abuse as well as physical assaults. Children are harmed bydomestic abuse, even if they are not the direct victims of the physicalviolence. Because domestic abuse is so prevalent, and its effects are sofar-reaching, court personnel must educate themselves to understand domesticviolence and determine strategies for handling cases where it is present.Even if domestic violence is present but does not seem to have a directimpact on the case at hand, one should be aware of the power and controldynamics of domestic abuse in order to provide effective intervention inchild custody and parenting time cases where there is domestic violence.
Statistics on domestic abuse demonstrate that courts will regularlyencounter cases where there is domestic abuse:
• There are five million reported incidents of domestic abuse every year
• Women are about ten times more likely than men to experience violencecommitted by an intimate
• Approximately 50 percent of homeless women and children are on thestreets because of violence in their home
• Approximately 3.3 million children witness their parents’ interpersonalviolence each year.
• More than 50 percent of abusers will be abusive of their partners in asubsequent relationship
• Nearly 100 percent of children in violent homes hear or see the abuse.
• Fifty-nine percent of battered women report battering during their firstpregnancy, 63 percent during the second, and 55 percent during the thirdpregnancy.
• Fifty to 70 percent of men who abuse their female partners also abusechildren in their home. In homes with four or more children, the figureleaps to over 90 percent.
• More women are treated in emergency rooms for battering injuries thanfor mugging, rapes by strangers, and traffic accidents combined.
• Up to 75 percent of battered victims have left or are trying to leavemen who will not let them go.
• In 1992, 1,414 women were known to have been killed by their husband,ex-husband or boyfriend.
Power and Control Dynamics
Domestic violence is a pattern of assaultive and coercive behaviors, oftenincluding physical, sexual, and psychological attacks, as well as economiccoercion, that adults and adolescents use against their intimate partners.The key factor characterizing domestic abuse is one partner’s need tocontrol the other. The “Duluth Model” has developed a graph to depict thedynamic and characteristics of domestic abuse. A copy of the Power andControl Wheel is attached as an appendix. Custody and parenting timebattles, or litigation over financial issues can be a means of perpetuatingthe abuser’s control which may manifest itself in the courtroom. Emotionalabuse is something court personnel should screen for, along with physicalabuse, in order to understand the full range of abuse in a given case.Some experts have described domestic violence as similar to a hostagesituation, where the “Stockholm Syndrome” manifests itself. The hostage isisolated by the terrorist, who can induce debility and exhaustion, and whouses threats, degradation, enforcement of trivial demands and thedemonstration of omnipotence to assert his control. The hostage becomesbonded with her captor, who has absolute power over his hostage, yetindulges her occasionally to keep her hopes up. Court proceedings couldserve as a forum to perpetuate this form of domestic hostage-keeping, andcourt personnel must develop insights to prevent from being used as a meansto continue such control. In addition, court personnel must be aware of thevery real danger faced by victims, particularly at the time of separation.
Lethality risks increase when the parties separate, and the court should beaware of these risks in order to try to identify cases where lethality maybe indicated. The Lethality Factors in the appendix lists certaincharacteristics which have been identified as increasing the risk of death.Courts should understand that the conduct of domestic violence victims maysometimes seem “counterintuitive” -- e.g., she may not leave the situation,not because she doesn’t want to, but because she is afraid, doesn’t haveresources, fears that he will become lethal if she leaves, or for any numberof other reasons. When her conduct is viewed in terms of the actions whichshe has taken in order to keep herself or her children safe, it can then beunderstood to be completely logical and sensible. Understanding domesticviolence victims’ ability to have what are in fact logical responses tosituations which are, by batterers’ designs, illogical and “crazy-making,”can help decsionmakers avoid victim-blaming and can lead to orders where thegoal of safety can be met.
Myths Which May Affect Judicial Decisions in Domestic Violence CasesCourt personnel must avoid accepting stereotypes about battered women andtheir abusers. Pervasive myths include:
1. Middle and upper class women are not battered;2. Battering occurs largely among racial minorities;3. Women who work in the paid labor force are not battered;4. Affluent respectable men, especially professionals, do not batter;5. Women want to be abused by their partners;6. If they wanted to, battered women could easily escape the violence;7. Abuse of women, though not the ideal, is inevitable and acceptable inour society, or a certain level of violence is part of many relationships;8. Abuse in the past is irrelevant to making custody, parenting time orFinancial arrangements at the present time;9. Abuse of a mother does not affect her children unless they too aredirectly treated with violence;10. Violence is a loss of control, and is not a choice made by theassailant;11. Batterers are brutes who have no charm or redeeming qualities; and12. Women are manipulative and make false allegations of sexual abuse, orengage in “alienating” behaviors.13. Joint custody is always preferable for children.
SCREENING FOR DOMESTIC ABUSE
Given the prevalence and high risk of harm in cases where there is domesticabuse, it is essential that court personnel screen for domestic violence. Aswith any case, it is essential that the investigator develop a rapport withthe parties, and understand that revelations about painful issues may notoccur fully or immediately. As with any custody case, compassion, patience,empathy and active listening skills are critical, and will be essential toobtaining necessary information in these cases. An awareness that battererscan appear charming and calm, while the victim may be fearful and agitated,can help court personnel as they assess the domestic violence in the case.Batterers are, by their nature, manipulators. The cautious courtinvestigator or judge will be able to assess the truth by listeningcarefully to what is said, and by looking for signs of power and control inthe parties’ statements.
The screening tools outlined below give some examples of questions whichthe investigator can adapt to suit her or his own style and practices. Somekeys to remember in gathering this information are:
• The information related to domestic violence should be asked about inevery case where intimate partners or family members are involved;
• Both parties may minimize the abuse or not identify it as “domesticviolence”;
• The more specific the questions, the more likely it is that theinformation elicited will be accurate. Asking “Has there been domesticviolence in your relationship?” will not provide accurate or enoughinformation to determine whether domestic violence has in fact occurred, orwhether precautions are necessary to protect the parties and the courtpersonnel from harm;
• The investigator should not be judgmental when asking the screeningquestions;
• The questions should be phrased in the investigator’s own words. If awritten questionnaire is used, it should be supplemented with questions in aface-to-face interview; and
• The questions should be introduced with a non-threatening opening, such as“Because abuse and violence are so common in intimate relationships, I askabout it routinely.”
Screening Questions To Elicit Prior Court Involvement
One of the most apparent means of discovering information about domesticviolence history in a relationship is to determine whether there has beenprior court involvement by either party. Court personnel should becautioned, however, that the lack of prior court or police involvement doesnot necessarily mean that there is no domestic violence between the parties,or that reports of current domestic violence are not truthful. Courtpersonnel should also be aware that victims may be arrested and charged withdomestic violence when they were defending themselves against the primaryaggressor. Therefore any screening must be mindful of these issues, andwith awareness of the myths about domestic violence victims andperpetrators. Some questions which can help determine whether there hasbeen prior court involvement might include:
• Are there now or have there ever been any criminal charges broughtagainst either party? If so, in what court? What was the outcome?
• Has any other court ever issued an order involving either party? If so,what court? What did the order provide?
• Has either party ever been arrested? If so, when? Where?
• Is there a personal protection order issued involving either party? Ifso, what court issued it?
• Has any other court ever issued an order for custody, support orparenting time regarding any of the parties’ children?
AMA Screening Guidelines
The American Medical Association has developed diagnostic and treatmentguidelines for cases of domestic abuse. Those guidelines suggest thatdoctors ask their patients questions included in the following list. Thosequestions are easily adapted to the court investigation setting:
• Are you in a relationship in which you have been physically hurt orthreatened by your partner?
• Are you in a relationship in which you felt you were treated badly? Inwhat ways?
• Has your partner ever destroyed things that you cared about?
• Has your partner ever threatened or abused your children?
• Has your partner ever forced you to have sex when you didn’t want to?Does he ever force you to engage in sex that makes you feel uncomfortable?
• We all fight at home. What happens when you and your partner fight ordisagree?
• Do you ever feel afraid of your partner?
• Has your partner ever prevented you from leaving the house, seeingfriendsgetting a job, or continuing your education?
• Does your partner use drugs/alcohol? How does he act when he is drinkingor on drugs? Is he ever physically or verbally abusive?
• Do you have guns in your house? Has your partner ever threatened to usethem when he was angry?
ABA Screening Suggestions
The ABA Commission on Domestic Violence has developed a Lawyer’s Handbook,which gives practical, useful information about domestic violence. TitledThe Impact of Domestic Violence on Your Legal Practice, it is available bycalling the ABA Service Center at 312-988- 5522. Many of the ABA' sproposed questions are similar to the AMA’s. Some additional screeningquestions outlined in the ABA's publication which may be adaptable toinvestigations include:
• Do you ever do anything differently because of the consequences of afight?
• Has your partner ever put his hands on you against your will, or forcedyou to do something you didn’t want to do?
• Does your partner criticize you or your children often?
• Has your partner ever tried to keep you from getting medical help? Keptyou from sleeping at night?
• Has your partner ever hurt your pets or destroyed your things? Does yourpartner throw or break things during arguments?
• Is it hard for you to have relationships with friends or relativesbecause your partner disapproves of, argues with, or criticizes them?
• Does your partner make it hard for you to keep a job or go to school?
• Does your partner withhold money from you? Do you know what yourfamily’s assets are? If you wanted to find out, or to find any importantdocuments like birth certificates, passports, bank books, house deed, wouldyour partner make it difficult for you to do so?
Other Screening Aids
Some substitute or additional questions to those in the AMA Guidelines weredeveloped by Susan Schechter, as part of the Guidelines for Mental HealthPractitioners in Domestic Violence Cases. Those questions may be useful foradaptation by court personnel:
• Is anyone in your family hitting you?
• Does your partner ever threaten you?
• What happens when your partner does not get his way?
• Does your partner threaten to hurt you when you disagree with him?
• Do you have to have intercourse after a fight to “make up?’
• Does your partner watch your every move? Call you 10 times a day? Accuseyou of having affairs with everyone?
Larry Rute from Kansas Legal Services proposes the following screeningquestions:
• Are you fearful of the other person for any reason?
• Are you afraid you will be harmed?
• Have you ever been threatened?
• Have you ever been harmed?
• Have you had to call the police for protection?
• Have you ever stayed in a shelter?
• Are you afraid to answer these questions?
• Are you afraid to be in the same room with the other party?
• How can I tell when he/she is angry?
• How can I tell if you are angry, frightened or upset?
• Can you ask for a break if you are feeling uncomfortable?To screen for violence from a different perspective, some sample questionsdeveloped by the Alternatives for Domestic Aggression program in Ann Arbor,Michigan include:
• Was there violence in your family (of origin)?
• During conflict do you often threaten someone, break things, punchwalls, slam doors, ignore her, or leave?
• Do you have mood swings, where one moment you feel loving andaffectionate, and the next moment angry and threatening?
• Have you ever shoved, grabbed, hit, slapped, or choked your partner, orany past partners?
• Do you find it difficult to talk to your partner about your feelings,your hopes, your fears?
• Do you tend to blame others for your behavior, especially your partner?
• Are you a very jealous person?
• Do you try to control how your partner thinks, dresses, who she sees,how she spends her time, how she spends her money?
• Do you try to discourage her from seeing her friends or family?
• Do you get angry or resentful when she is successful in a job or hobby?
• Do your conversations quickly escalate into threats of separation ordivorce?
• Do you ever threaten to hurt her, yourself, or others, if she talksabout leaving you?
• Do you do or say things that are designed to make her feel “crazy” or“stupid”?
• Do you blame alcohol, drugs, stress, or other life events for yourbehavior?
• Do you feel guilty after aggressive behavior and strive for yourpartner’s forgiveness?
• Do you think that you could never live without her, yet other times wanther out?
• Do you use sex, money or other favors as a way to “make up” afterconflict?
• Is your partner afraid of you sometimes?
WHAT TO DO IF THERE IS DOMESTIC VIOLENCE BETWEEN THE PARTIES
According to the National Council of Juvenile and Family Court Judges,communities which are concerned about domestic violence “are asked toconfront a new and compelling set of facts: (1) adult domestic violence andchild maltreatment often occur together and (2) new responses are requiredof everyone, if violence within families is to stop.”
The protocols which courts and court personnel may develop will depend uponthe nature of the information sought, the circumstances of the parties, andthe individual court’s caseload and resources, among other factors. But, atminimum, courts should develop procedures which will ensure: that the courtenvironment is a safe one for disclosure, that court personnel become aseducated as possible about domestic violence, and that local guidelinesaddress such topics as: Points in the proceedings when the parties will begiven a specific opportunity to talk about violence in their relationship,procedures for promoting safety and confidentiality, and when and whatreferrals will be made.
Recognize What Can and Can’t Be Solved Through Court ProcessesCourts have tremendous power to stop a batterer from continuing his powerand control over the victim. The most effective interventions are thosewhich hold the safety of battered women and their children paramount, andwhich provide for consistent, swift and sure consequences for batteringbehaviors.
Safety Of The Children And The Battered Partner Should Always Be ThePrimary Concern.
In custody and parenting time cases, child and victim safety follows whenone recognizes that battering a partner is per se bad parenting. It is notin a child’s best interest to be ordered to live with a batterer, or tovisit a batterer without clear and effective safeguards for the child’ssafety. In addition, research shows that batterers are difficult to change- -- many batter in subsequent relationships, so the presence of a new partnerfor the batterer may not be a safety valve for the children. When making anyorder in a domestic violence case, the court should actively ask itselfwhether it is doing everything that it can do to keep the children, and thenon-abusive parent, safe and alive.
Ways to protect battered women and children:1. Identify and understand domestic violence. Recognize that women andchildren are most often victims, and that men rarely are victims, thoughthey might try to portray themselves as victims.
2. Believe women and children when they report abuse, while at the sametime recognizing that many victims minimize the battering which theysuffered, or that they may have good reasons for later denying that anyabuse occurred.
3. Don’t hold women to impossible standards of parenting, and recognizetheir efforts to stay safe. Put the blame for the batterering where itbelongs -- on the perpetrator.
4. Draft all orders with safety as the primary consideration. “Father’srights” or “parents’ rights” should always be secondary to safety.
5. Recognize that keeping the mother safe can translate into keeping thechildren safe. As one means of ensuring that the mother is safe, the courtcan inquire about women's safety plans as part of its decision-makingprocess, order temporary custody as part of PPO’s to ensure that childrenare safe, and make supervised parenting time (supervised by a non-relatedthird party) the first choice until the perpetrator actually demonstratesthat he is fit to have the children unsupervised.
6. Orders must be clear, specific, and detailed as to the definite termsof the order, and should include built-in consequences for non-compliance.There should be no room for ambiguity or negotiation. Orders should bevigorously enforced and perpetrators held accountable.
7. Understand that the processing of a family law case where there is nodomestic violence is necessarily different than that of a case where thereis domestic violence. For example, the goals of joint decisionmaking,getting along, compromise, meeting to work out problems, and sharingresponsibility for the failure of the marriage or subsequent problems do notwork in a case marked by the power and control dynamics of domesticviolence. Asking the parties to work out their own parenting time scheduleand details would be comparable to asking a former hostage to return to hiscaptors alone, without any weapons or back-up support, to negotiate thesurrender of weapons, and the release of other hostages or goods. Thehostage-takers have all the guns, and the power, and the ability to controlthe outcome to their design. Similarly, the battered woman and her childrenhave no relative power without legislative and court assistance to design acustody or parenting time plan that can help them stay safe.
Two pervasive myths need to be avoided -- that mothers frequently engage in“alienating” behaviors, and that joint custody is always preferable forchildren. In fact, "[r]esearch indicates that joint physical custody andfrequent child-nonresidential parent contact have adverse consequences forchildren in high-conflict situations. Joint physical custody and frequentchild-nonresidential parent contact do not promote parental cooperation."And “parental alienation syndrome” is one man’s self-published theory, ofwhich the American Psychological Association says: “parental alienationsyndrome is not a valid diagnosis and shouldn’t be admitted into childcustody cases.”
SPECIFIC CONSIDERATIONS UNDER MICHIGAN LAW
Michigan law has specific provisions directed toward safety of children andthe non-abusive parent in custody and parenting time cases. Furtherdiscussion of each of these, and examples of specific cases and orders willbe presented at the accompanying seminar.
MCL 722.23, MSA 25.312(3) (1999)(“Best Interests of the Child Defined”):Best interests of the child includes, under factor (k) “Domestic violence,regardless of whether the violence was directed against or witnessed by thechild.” And, under factor (l): “Any other factor considered by the court tobe relevant to a particular child custody dispute.”MCL 722.27a, MSA 25.312(7a) (1999)(“Parenting Time”):
“(3) A child has a right to parenting time with a parent unless it is shownon the record by clear and convincing evidence that it would endanger thechild’s physical, mental, or emotional health.”
“(6) The court may consider the following factors when determining thefrequency, duration, and type of parenting time to be granted: ... “(c) thereasonable likelihood of abuse or neglect of the child during parentingtime. (d) The reasonable likelihood of abuse of a parent resulting from theexercise of parenting time....(f) Whether a parent can reasonably beexpected to exercise parenting time in accordance with the court order. (g)Whether a parent has frequently failed to exercise reasonable parentingtime. (h) The threatened or actual detention of the child with the intent toretain or conceal the child from the other parent or from a third person whohas legal custody. A custodial parent’s temporary residence with the childin a domestic violence shelter shall not be construed as evidence of thecustodial parent’s intent to retain or conceal the child from the otherparent. (i) Any other relevant factors.”
“(8) A parenting time order may contain any reasonable terms or conditionsthat facilitate the orderly and meaningful exercise of parenting time by aparent, including 1 or more of the following: ... (f) Requirements thatparenting time occur in the presence of a third person or agency. (g)Requirements that a party post a bond to assure compliance with a parentingtime order.”
For more information on how parenting time orders can be structured forsafety, refer to Field, J.K., Visits in Cases Marked by Violence: JudicialActions That Can Help Keep Children and Victims Safe, 35 Court Review 20(Fall, 1998), which is attached as an appendix to this outline.MCL 600.2950, MSA 722.27(1999)(Restraining or enjoining spouse, formerspouse, individual with child in common, individual in dating relationship,or person residing or having resided in same household from certainconduct):
“...an individual may petition the family division of circuit court toenter a personal protection order torestrain or enjoin a spouse, a former spouse, an individual with whom he orshe has had a child in common, an individual with whom he or she has or hashad a dating relationship, or an individual residing or having resided inthe same household as the petitioner from doing 1 or more of the following:...(d) Removing minor children from the individual having legal custody ofthe children, except as otherwise authorized by a custody or parenting timeorder issued by a court of competent jurisdiction. (f) Interfering withpetitioner's efforts to remove petitioner's children or personal propertyfrom premises that are solely owned or leased by the individual to berestrained or enjoined. (h) Any other specific act or conduct that imposesupon or interferes with personal liberty or that causes a reasonableapprehension of violence.”
Under Michigan law, then, the court has authority to issue necessary orderswhich can promote the goals outlined above in cases where domestic violencehas been identified. By understanding and identifying domestic violence,and keeping safety of the non-abusive parent and the children as theparamount concern, courts will go far in acting in the best interests ofchildren and families, and will be more effective in reducing violence inthe community.
Power and Control Wheel, Duluth Domestic Violence Intervention ProjectLethality FactorsField, J.K., Visits in Cases Marked by Violence: Judicial Actions That CanHelp Keep Children and Victims Safe, 35 Court Review 20 (Fall, 1998)McDonald, M., The Myth of Epidemic False Allegations of Sexual Abuse inDivorce Cases, 35 Court Review 12 (Spring, 1998)ABA, The Impact of Domestic Violence on Your Legal Practice: A Lawyer’sHandbook, Judicial Checklist (1996)