Docstoc

CUSTODY lemon law

Document Sample
CUSTODY lemon law Powered By Docstoc
					GUARDIAN AD LITEM:


BRIDGING THE GAP BETWEEN
HIGH-CONFLICT DIVORCE AND
DOMESTIC VIOLENCE
PRESENTERS
   Honorable Judge Chester Harhut
   Danielle M. Ross, Esquire
   Ann Marie Termini, Ed.S., M.S., LPC

    Lackawanna County Family Court
          45th Judicial District
          200 Adams Avenue
         Scranton, PA 18503
BRIDGING THE GAP BETWEEN HIGH-CONFLICT
DIVORCE AND DOMESTIC VIOLENCE


   Objectives:
     Examine the difference between conflict
      and abuse
     Introduce a differential case
      management approach that prioritizes
      families based on the severity of conflict
      and abuse
     Showcase a guardian ad litem program
      designed to investigate domestic
      violence and recommend appropriate
      interventions
SOURCE OF CONFUSION
   Term high-conflict used to describe more
    intense and protracted disputes that
    require court resources and include
    domestic violence cases
   Terms domestic violence, conflict and
    abuse used interchangeably, without clear
    definition or understanding of terms
   Domestic violence euphemized as conflict
    and others argue that any conflict
    interpreted as domestic violence
HIGH CONFLICT VERSUS ABUSE
Dalton, Carbon & Olesen. High Conflict Divorce, Violence, and Abuse: Implications
for Custody and Visitation Decisions, Juvenile and Family Court, Fall 2003, pp 11-32



            CONFLICT                             DOMESTIC VIOLENCE

-   Mutual responsibility for                -   Strategic, instrumental
    disagreements,                               tactics and behaviors
    problems or antagonism                       asserted by the batterer
-   Referred to by levels:                       directed at or upon his
    high-low                                     intimate partner
-   Considered result of                     -   Designed to induce fear
    stress, health problems,                     and maintain power and
    or alcohol and drug use                      control in the
-   Situational                                  relationship
                                             -   Induction of fear and
                                                 threats to harm
                                             -   Views authority as right
                                                 and privilege
HIGH CONFLICT VERSUS ABUSE
Dalton, Carbon & Olesen. High Conflict Divorce, Violence, and Abuse: Implications
for Custody and Visitation Decisions, Juvenile and Family Court, Fall 2003, pp 11-32



     HIGH CONFLICT                                        ABUSE

    ● Personality                           ● Attitudes and
      Disorders                              behavior intended to
                                             apply inappropriate
         Resulting from                      control in the
         unresolved                          relationship
         childhood issues                   ● Symptoms of
                                              physical and/or
                                              emotional harm from
                                              exposure from abuse
HIGH CONFLICT VERSUS ABUSE
Dalton, Carbon & Olesen. High Conflict Divorce, Violence, and Abuse: Implications
for Custody and Visitation Decisions, Juvenile and Family Court, Fall 2003, pp 11-32



     HIGH-CONFLICT                                        ABUSE

 ● Parents equally vocal                    ● Abusive partner likely
   about their differences                    deny/minimize abuse
   and one another’s                        ● Abused partner may
   perceived parenting
   inadequacies                               have been or still may
                                              be, unwilling or afraid
                                              to disclose either
                                              abuse or concerns
                                              regarding partner’s
                                              parenting abilities
HIGH CONFLICT VERSUS ABUSE
Dalton, Carbon & Olesen. High Conflict Divorce, Violence, and Abuse: Implications
for Custody and Visitation Decisions, Juvenile and Family Court, Fall 2003, pp 11-32


       HIGH CONFLICT                                       ABUSE

● Unresolved feelings                       ● Abusive partner’s
  associated with the                         unresolved feelings
  failed relationship                         regarding partner's
                                              desire to separate from
  which are directed                          the relationship trigger
  into fighting over                          the abusive partner to:
  the children
                                                       fight for custody
                                                       or generous access
                                            or
                                                       use children to
                                                       meet physical or
                                                       emotional needs
HIGH CONFLICT VERSUS ABUSE
Dalton, Carbon & Olesen. High Conflict Divorce, Violence, and Abuse: Implications
for Custody and Visitation Decisions, Juvenile and Family Court, Fall 2003, pp 11-32


         HIGH CONFLICT                                       ABUSE

● Mistrust of each parent for               ● Mistrust of the abusive partner
 the other:                                   by the victim, documented by:
                                                    ● past experience
    ● based on distorted and                        ● informed assessment
     exaggerated negative view                        of abuser's current
     of each held by the other                        intentions and likely
                                                      future behavior

                                            ● Unfounded allegations about
                                              the victim made by the abusive
                                              parent
                                                     ● based on his or her
                                                       distorted and
                                                       exaggerated negative
                                                       view of the abused
                                                       parent
HIGH CONFLICT VERSUS ABUSE
Dalton, Carbon & Olesen. High Conflict Divorce, Violence, and Abuse: Implications
for Custody and Visitation Decisions, Juvenile and Family Court, Fall 2003, pp 11-32




   HIGH CONFLICT                                         ABUSE

● Cycles of reaction                        ● Repeated instances
  and counter                                 of manipulation
  reaction, which                             and control, which
                                              further erode the
  further erode the                           abused partner’s
  possibility of trust                        capacity to trust
                                              the abuser
HIGH CONFLICT VERSUS ABUSE
Dalton, Carbon & Olesen. High Conflict Divorce, Violence, and Abuse: Implications
for Custody and Visitation Decisions, Juvenile and Family Court, Fall 2003, pp 11-32


        HIGH CONFLICT                                      ABUSE

● Pressure on the children                  ● Children fearful of
  to “take sides,” resulting                  exposure to the abusive
  in children, occasionally,                  partner’s dangerous,
  relieving the pressure by                   neglectful, or
  pleasing one parent since                   inappropriate behavior, yet
  they cannot please both
                                            ● Often desire to maintain
                                              contact to him or her.

                                            ● Sometimes distrustful of the
                                              abused parent’s capacity to
                                              meet their physical, social,
                                              and emotional needs.
    DOMESTIC VIOLENCE:
    THE DETERMINATION OF CHILD CUSTODY

   The National Council of Juvenile and Family Court Judges
    and the ABA recommend adopting a presumption:

                 Deny joint or sole custody
              to a parent with a history of DV

    - DV frequent shown to be harmful to children, whether
      abused physically or not.

    - Awarding batterers primary or joint custody should be
      viewed as being either detrimental to children or failing
      to satisfy their best interests.
DOMESTIC VIOLENCE:
THE DETERMINATION OF CHILD
CUSTODY

   The National Council of Juvenile and Family Court Judges and
    the ABA recommend adopting a presumption:
                   Deny joint or sole custody
                to a parent with a history of DV

    -Abusive parent realizes, after separation or divorce, that
     most effective way to hurt or destroy the other parent is
     through emotional or psychological abuse utilizing the
     family courts.
    -Joint custody and two equal parents cooperatively
     planning for their children's future is impossible for couple
     when there is family violence.

    -Shared custody may perpetuate the violence and abusive
     power and control in family relationships.
      DOMESTIC VIOLENCE:
      THE DETERMINATION OF CHILD CUSTODY

       Centre for Children and Families in the Justice System


                  “Rebuttable Presumption”


■   Approximately one-third of US states

■ Abusive spouse cannot have sole or joint custody
  of their children because of the potential harm
  (direct and indirect) to the children

                                   (Jaffe, Lemon & Poisson, 2002).
DOMESTIC VIOLENCE RELEVANT TO
POSTSEPARTION PARENTING ARRANGEMENTS


MYTH: Domestic Violence ends with separation for abused
      woman
 Fact: Abused women often face continuing risks
      from their partner after separation.

Separation is the most dangerous time for abused women

 - Approximately one-quarter of abuse victims, the
   violence became more severe compared to
   pre-separation violence (Statistics Canada, 2001)
DOMESTIC VIOLENCE RELEVANT TO
POSTSEPARTION PARENTING
ARRANGEMENTS


Fact: Abused women often face continuing
      risks from their partner after separation.

• Physical abuse, stalking, and harassment continue
  as significant rates post-separation

• Access to children can be used by batterers as an
 opportunity to further abuse their former
 spouse.

  - One-quarter of the women reported that their
    lives were threatened during access (Leighton,
    1989)
DOMESTIC VIOLENCE RELEVANT TO
POSTSEPARTION PARENTING
ARRANGEMENTS


Fact: Abused women often face continuing
      risks from their partner after separation

• Threats to obtain custody are commonly used by
  abusers as a weapon against the abuse victim to
  enhance his power and control post separation.

  - Research: batterers are more likely to apply for
    custody and equally likely to be granted it in
    comparison to nonviolent fathers (Zorza, 1995).
DOMESTIC VIOLENCE RELEVANT TO
POSTSEPARTION PARENTING ARRANGEMENTS


   Significant overlap between spousal
    violence and child abuse
   Children exposed to domestic violence may
    suffer from significant emotional and
    behavioral problems related to this
    traumatic experience
   Perpetrators of spousal abuse are poor role
    models for children
   Abusive partners undermine the victim's
    parenting role
                                    Jaffe, Crooks, Claire & Bala. Sept 2005.
       Making Appropriate Parenting Arrangement in Family Violence Cases:
                     Applying the Literature to identify Promising Practices
DOMESTIC VIOLENCE RELEVANT TO
POSTSEPARTION PARENTING ARRANGEMENTS

   Diminished parenting capacities among victims
    often occurs

   Victims may need to reestablish their competence
    as parents
       learn how to nurture and protect themselves and
        their children

   Victim’s behavior under stress of the abusive
    relationship and during the aftermath of a
    stressful separation should not inappropriately
    prejudice the residential or access decisions
SIGNIFICANCE OF DOMESTIC VIOLENCE
OFTEN OVERLOOKED BY COURTS AND
FAMILY LAW PROFESSIONALS


   Where DV has been alleged, courts may not give
    credence or sufficient weight to a history of
    partner abuse in making decisions about child
    custody or visitation.
   Judges often disbelieve credible evidence of DV
    and discount its seriousness.
   Allegations often wrongly perceived as false:
      Because they are made in a contentious
        environment
      Because of the misperception that litigating
        parents concoct violence charges to gain an
        advantage in court.
SIGNIFICANCE OF DOMESTIC VIOLENCE
OFTEN OVERLOOKED BY COURTS AND
FAMILY LAW PROFESSIONALS



   Most abused women have difficulty proving
    their abuse in family court proceedings
    because of insufficient corroborating
    evidence.

   Three quarters of abuse victims do not
    contact the police, independent evidence
    often required by the courts is lacking (Stats
    Canada, 1993).
SIGNIFICANCE OF DOMESTIC VIOLENCE
OFTEN OVERLOOKED BY COURTS AND
FAMILY LAW PROFESSIONALS

   Abuse survivors may present as angry,
    distrustful and suspicious with all
    professionals related to the court
    proceedings.

    ► Undermines their effectiveness in dealing
      with the court system

    ► May result in adverse inferences drawn
      about their attitudes, parenting skills and
      ability to promote a relationship with the
      other parent .

                                (Jaffe & Geffner, 1998).
PROBLEMS FOR VICTIMS CREATED BY CURRENT
CUSTODY DISPUTE RESOLUTION SYSTEM


   In situations of DV, a co-parenting relationship and
    impact of the ongoing conflict on children often
    represent a negative influence on children

   Battered spouses are advised to promote
    relationships and set aside past conflicts with their
    former spouses who may be of danger to them and
    their children

       If don’t comply, deemed unfit or unfriendly
        parents and could lose custody to “abusive”
        parent
THE ROLE OF THE
GUARDIAN AD LITEM


    DOMESTIC
    VIOLENCE
    CASES
                      Automatic
                        G.A.L.
                     Appointment



                                            G.A.L.
  G.A.L.                                  Meets with
Conference                                parties and
                                           child(ren)




       Information                 Assessment
        Gathering/                     for
       Exchanged                    Services
                                                                         PROCESS OF CUSTODY CASES

                     Filing of Custody Complaint                                            Filing of Petition for Special Relief / PFA /
                 Modification Petition/Relocation Petition                                   Emergency Relief / Unsuccessful Mediation
              Petition for Special Relief/Unsuccessful Mediation                                              (primary physical custody)
*1. CYS                                        ↓                                     *1. CYS Involvement
                                                                                        2. Mental Health
                                                                                                                                       ↓
 2. Mental Health
Issues;                                                                              Issues;
  3. Substance                          MASTER                                         3. Substance Abuse;
                                                                                      4. Domestic
                                                                                                                              JUDGE
Abuse;
 4. Domestic                                                                         Violence;
                                                                                      5. No
Violence;                          Conciliation Conference – Primary Physical        Communication;                      Initial Appearance
 5. No
Communication;                                                  Custody               6. PFA;
                                                                                      7. Pending Criminal
 6. PFA;
 7. Pending           *automatic               ↓                             ↓       Charges;                  *automatic              ↓
Criminal Charges;     appointment                                       MEDIATION     8. Supervision
                                                                                     Needed;                    appointment
 8. Supervision
Needed;                                  G.A.L.                                       9. Visitation Refusal;
                                                                                     10. Domestic
                                                                                                                               G.A.L
 9. Visitation
Refusal;
                               1. Meet with Parties                                  Instability; and/or              1. Meet with Parties
10. Domestic                   2. Meet with Child(ren)                               11. Allegations                  2. Meet with Child(ren)
                                                                                     Sexual/Physical Abuse
Instability; and/or
11. Allegations
                                          ↓                                          12. Relocation;                           ↓
                                                                                     13. High Volatility
Sexual/Physical
Abuse                          Assessment Stage               >   GAL to get Order                                    Assessment Stage                 > G.A.L. to get Order
12. Relocation                                                    if necessary                                                                           if necessary
13. High Volatility   ↓        ↓           ↓              ↓                ↓                            ↓       ↓             ↓                    ↓                    ↓
                Co-Parenting   DATS   Drug Testing   Anger Management   Counseling              Co-Parenting   DATS     Drug Testing       Anger Management      Counseling




                                      Information                                                                            Information
                                       Gathering                                                                              Gathering
                                               ↓                                                                                   ↓
                               G.A.L. CONFERENCE                                                                        G.A.L. CONFERENCE

                                GAL determines:                                                                        GAL determines:
                          1. Meet with Parents together and/or                                                 1. Meet with Parents together and/or
                          2. Meet with Parents and Counsel                                                     2. Meet with Parents and Counsel
                  ** GAL’s Preliminary Recommendation is communicated                            ** GAL’s Preliminary Recommendation is communicated
                      with parties and counsel at this stage.                                       with parties and counsel at this stage.

                                                                                               If Agreement reached                            No Agreement reached
           If Agreement reached                      If no Agreement
                        ↓                                     ↓                                               ↓                                            ↓
               G.A.L. gets Order                      G.A.L. gets date                                  G.A.L. gets Order                        G.A.L. gets date
                                                           HEARING                                                                                        HEARING
STEP 1
1.   C.Y.S. involvement;

2.   Parties with any mental health issues and/or allegations;

3.   Parties with substance abuse issues;

4.   Domestic Violence;

5.   Parent whom do not communicate;

6.   Pending and/or past PFA filings;

7.   Parties with supervised visits;

8.   Parties with pending criminal charges and/or investigations;

9.   Parties with domestic instability;

10. Allegations of sexual and/or physical abuse;

11. High Volatility;

12. Relocation issues; and/or

13. Visitation Refusal.
STEP 2




                                         &




  G.A.L. MEETS WITH                                          G.A.L. MEETS
       PARTIES                                                   WITH
                                                              CHILD(REN)

    Goal: The G.A.L. is to serve as the child’s life line, if necessary.
SPECIALIZED PROTOCOLS AND PROCEDURES
 Jaffe, P., Johnston, J, Crooks, C & Bala, N. (2008). Custody Disputes Involving Allegations of
                     Domestic Violence: Toward a Differentiated Approach to Parenting Plans


 Prioritized Goals:

 1. Protect children directly from violence, abusive, and
    neglectful environments

 2. Provide for safety and support the well-being of
    parents who are victims of abuse

 3. Respect and empower victim parents to make their
    own decisions and direct their own lives

 4. Hold perpetrators accountable for their past and
    future actions

 5. Allow and promote the least restrictive plan for
    parent-child access that benefits the child, along
    with parents’ reciprocal rights
BRIDGING THE GAP:
THE GUARDIAN’S ROLE



         Screening

         Intervention

         Case Management

         Enforcement
SCREENING: A DIFFERENTIAL
RESPONSE
   Collection of sufficient data:
        Safety of the child and principal caregiver

        Presence and extent of violence/abusive behaviors in the parental
         relationship

        Meaning and impact of violence on the victim

        Meaning and impact of violence on each child

        Degree to which behaviors interfere with the parenting and child-well
         being

        Degree children drawn in as instruments of the abuse, and overlapping
         forms of maltreatment

        Identification of the extent to which court process is being used to
         extend power and control issues

   Ongoing risk assessment

   Use of experts
SCREENING: A DIFFERENTIAL
RESPONSE

   Pertinent Records:
       Evaluations
       Police reports
       Child Abuse/Child Protective Reports
       Criminal records
       Records of court activity
       Court files
       Relevant Prior civil or criminal cases involving
        either party
       Medical, and dental records
       School records
SCREENING: A DIFFERENTIAL
RESPONSE

   Collateral Sources:
       Family Members, friend and neighbors
        regular interaction with family

       Professionals with whom family has
        had ongoing associations

       Professionals who have become
        involved because of reported incidents
STEP 3




Based on the interviews conducted, the G.A.L. will make an
                  assessment as to what
           services, if any, the parties need . . .

          Parenting           DATS                 Hair
                                                                   Individual
                                              Follicle/Drug
         Coordination       Evaluation                            Counseling
                                                Testing

                     Family         Reunification         Therapeutic
                   Counseling         Therapy              Visitation


                                      Domestic Violence
        Anger           Parenting       Intervention      Psychological   Supervised
      Management         Classes          Program
                                                           Evaluation       Visits




Procedural Note: G.A.L. will get agreement and/or Court Order, if necessary,
                             by filing a Petition.
INTERVENTION: A DIFFERENTIAL
RESPONSE

    Create custody and visitation orders that secure
     ongoing safety and well being of abused parent and
     child

    Prevent abusive parent using procedures as a means
     of controlling and abusing the other parent

    Structured agreements and schedules to avoid contact
     and negotiation

    Detailed orders readily enforceable and comprehensive

    Parenting plans appropriate to ensure healthy
     outcomes for children and parent-child relationships
INTERVENTION: A DIFFERENTIAL
RESPONSE
   Batter’s Intervention Program
   DV Victim services
   Programs for children
   Alcohol/Addiction Counseling
   Court monitoring/review hearings
   Sole Custody
   Denial of overnight visits
   Restrain abusive parent’s communication with or proximity to the other
    parent
    Restrain abusive parent’s communication with children except in context of
    authorized visitation
   Supervised Exchange
   Visitation
        Visits limited to a specific location or locations
        Restrictions on the presence of specific persons other than the parent
         while parent is with the children
        Prohibition on the abusive parent’s using alcohol or drugs during or
         within a specified time period prior to visits
   Supervised Visitation
        Appropriate levels of restriction
        Structured supervised setting
        Informally supervised by appropriate family members
        Ease restrictions over time if compliance
   Therapeutic Visitation
   Parallel Parenting
     STEP 4




                                          G.A.L.



                              Services’
In the best interest of the   Feedback

   child(ren), the G.A.L.
      orchestrates an                        Parties/Practitioners
   information network
    between the Court,
     Service Providers,
Practitioner’s and parties.
CASE MANAGEMENT: A
DIFFERENTIAL RESPONSE
   Create an information network between the court,
    service providers, practitioner’s and parties

   Determine access to services (barriers)

   Establish interagency cooperation and
    communication

   Monitoring safety and progress

   Overall community coordination of services

   Coordinate roles and provide checks and balances to
    interventions while ensuring accountability for
    violence, protecting civil rights of all parities
STEP 5




         So, then, is it
         safe to assume
         we cannot reach
         an agreement?
Will take place at the Family
         Law Center
                                           G.A.L. meets with parents
                                            without counsel present
                                                     and/or



                                         G.A.L. meets with parents with
                                                counsel present



                                              G.A.L.’s preliminary
                                            recommendation will be
                                           shared with parties and/or
                                                   counsel




        Unlike Mediation, in the event an agreement is not reached, the
        information obtained during this process may/shall be included
                       in the G.A.L.’s report to the Court.
 The G.A.L. Conference is the last chance the parties have to settle.

 In the event the parties do not settle at the G.A.L. Conference, a
Hearing will definitely take place. Their will not be an opportunity to
 discuss the issues with the Judge and/or his staff on the day the
                         hearing is scheduled.

                    This is for three (3) reasons:

      (1) The parties and practitioners need to utilize the G.A.L.
     Conference as a pre-hearing settlement conference and take it
                                  seriously.
 (2) Practitioners will know that if they make it to the Courthouse on
    the day their case is scheduled for a hearing, a hearing will take
     place. So, there will not be any question as to when witnesses
                          need to be available, etc.
(3) As a matter of course, cases wind up settling minutes before the
      hearing, which ties up the Judges’ calendars and wastes time
         that could have been utilized for other important cases.
          • Stipulation/
Agreement • Order Entered
 Reached



   No     • Hearing
Agreement


     Procedural Note: Depending on outcome of
     G.A.L. Conference, G.A.L. will obtain Order or
     case scheduled for hearing.
                   • Advocate for client.
                   • Be an example and voice of
                     reason for your client and
  Plaintiff’s        remind clients to consider best
  Counsel            interest of child.
                   • Encourage good relationship
                     between G.A.L., client and
                     their child.



                           • Advocate for child
                           • Helping parents reach
                             mutually satisfying child-
          G.A.L.             rearing decision
                           • Encouraging good relationship
                             between parties.



                   • Advocate for client.
                   • Be an example and voice of
                     reason for your client and remind
Defendant’s          clients to consider best interest
 Counsel             of child.
                   • Encourage good relationship
                     between G.A.L. , client and their
                     child
ENFORCEMENT: A
DIFFERENTIAL RESPONSE

   Higher level of care and vigilance

   Monitor detailed court order

   Ensure compliance with the details of the
    order

   Protect custodial parent’s autonomy to
    make decisions based on the children’s best
    interests

   Guard against manipulation by the abusing
    parent
Once an issue is resolved, either at the G.A.L.
Conference or a Hearing, prior to any
subsequent Petitions being filed, the
practitioner must first contact the G.A.L. to
determine whether the matter can be
resolved.




        The G.A.L. will work family back down the
        process to see if subsequent issue can be
        resolved, prior to initiating litigation.
   Each case will be assessed individually;

   There will be certain cases concerning issues which require a fast
    track approach to the process, i.e. Relocation.

   Within ten (10) days after meeting with both parties and the
    minor child(ren), the G.A.L. will contact the practitioners to
    discuss which services she/he feels are necessary;

   Within forty-five (45) days from the date the parties and/or
    minor child(ren) begin services, the G.A.L. will contact the
    practitioners and/or the parties to arrange for the G.A.L.
    Conference.

   The G.A.L. Conference will be scheduled no later than sixty (60)
    days from the date of the G.A.L.’s appointment, unless the G.A.L.
    obtains Court approval.
               Families whom:
1. Take advantage of the services offered by the
   Court;
2. Come to their own agreement and are best
   suited to follow their agreement;
3. Focus on the best interest of their children;
4. Are healthy enough to raise healthy children
   whom are resilient and have a chance.

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:3
posted:8/22/2012
language:
pages:54