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					“HIGH CONFLICT CUSTODY DISPUTE?” “DOMESTIC DISPUTES?”

    HOW TO RECOGNIZE AND RESPOND TO ABUSIVE
         CUSTODY AND VISITATION TACTICS
             Detective Fred Upshaw, Las Cruces Police Department,
                    fupshaw@las-cruces.org; 575.528.4046
        Julianna Koob, NMCADV, koobjulie@yahoo.com; 505.920.6002
www.nmcadv.org                      1
    “There is no problem that we can’t solve if we
      can corral our resources behind it. That
      means people, that means money, that means
      the good will and cooperation of a large
      segment of the people.”


        • Coretta Scott King (b. 1927), American Civil
          Rights Activist

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 1.       Impact of domestic abuse on custody
          and visitation
 2.       NM & Federal law
 3.       Law Enforcement response to visitation
          & custody disputes
 4.       Court response to abusive
          custody/visitation tactics
 5.       What we all can do to protect children
          from abusive custody/visitation tactics
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                 THE BIG PICTURE
     • THROUGHOUT THIS DISCUSSION, THINK
       ABOUT ALL THE SYSTEMS THAT IMPACT
       CHILDREN SAFETY IN CUSTODY AND
       VISITATION DISPUTES.




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    Law enforcement


                                                Criminal Court
                                          Battery, assault, OP violation




                                             Civil Court
                                    OP, divorce, custody, support
        Policy Creation
  FF&C, Uniform child custody
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 1. Impact of domestic abuse on
    custody and visitation




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     • 30% - 60% of DV also = child abuse
         •   Office of Juvenile Justice and Delinquency Prevention. Safe from the start – taking action on children exposed to
             violence; ABA Commission on DV: 10 Myths about Custody and Domestic Violence and How to Counter Them (2006);




     • Overlap of DV and child sexual abuse by batterer:
       44-73% of incest perpetrators also battering mom.
             •      Zorza, J., J.D., “Child Custody Cases, Incest, and Domestic Violence,” ABA Commission on Family Violence
                    (July 2006).




     • “Attempts to leave a violent partner with children, is one of
       the most significant factors associated with severe
       domestic violence and death.”
         •   Websdale, N. Understanding Domestic Homicide. Published by UPNE, 1-289 (1999).




www.nmcadv.org                                                                 7
     • Although mothers SEEK and get custody a
       majority of the time (70%) overall, battering
       fathers seeking custody get custody 70-90%.
         •   American Judges Association, Domestic Violence and the Courtroom: Understanding the Problem . . .
             Knowing the Victim, http://aja.ncsc.dni.us/domviol/page5.html/Forms of Emotional Battering. . . Threats
             to Harm or Take Away Children; see also Jaffe, Peter, G., et al., Common Misconceptions in Addressing
             Domestic Violence in Child Custody Disputes, Juv. and Family Court 57-67 (Fall 2003).




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 • Family law encourages contact & cooperation
   between parents
     • “friendly parenting” and joint custody
     • NM Presumed joint custody

 • Criminal law prohibits contact

 • Batterer v. victim in hearing or mediation
     • In some jurisdictions, no advocate allowed with
       survivor

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         In custody/visitation disputes, goal is
         to prevent trauma to child
                                • In a recent study in California, 70% of
                                  children who were present at a parental
                                  arrest saw their parents being
                                  handcuffed.
                                • 30% of children who witnessed an arrest
                                  were confronted with drawn weapons.




San Francisco Bill of Rights for Children of Incarcerated Parents.
                                                 Trauma
• Lasting effect!

• Children of incarcerated parents spend an average
  of 6 years 8 months separated from them.

• 10% of children with incarcerated mothers will be
  placed in foster care.

• More than 60% of parents in prison are held more
  than 100 miles from home.
Connect for Kids/Child Advocacy; San Francisco Children of Incarcerated Parents Partnership
AGE IMPACT OF PARENT ARREST
BIRTH-2 React to sounds associated with arrest
3-6      Think arrest has something to do with them, learn gender roles with
         violence, exhibit aggressive behaviors
6-11     Concern for parent’s safety, awareness of violence in the world, mistrust
         “good people”, hostile aggression, regressive behavior
12-15    Try to stop arrest, embarrassed, maladaptive behavior to cope, negative
         attitude toward law enforcement
15-17    Incarceration?
         • Children of incarcerated parents are6 to 10 times more likely to end up in
            prison
         • 90% of juvenile detainees have experienced at least one traumatic event
         • Incarcerated youth have experienced more 4-8 times more physical
            trauma than other youth
         • PTSD- 8x higher
ALL      SEPARATION: Depression, anger, rejection, low self- esteem, poor school
         performance, developmental delays, poor social skills.
                       2.
                       NM AND
                    FEDERAL LAW
                 RELEVANT TO SAFETY
                    IN CUSTODY &
                      VISITATION
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                  The law: 40-13-1 to 8
      NM FVPA: “Domestic abuse”=
      •Stalking or sexual assault OR
      •Household member against household member:
          •Physical harm
          •Severe emotional distress
          •Bodily injury or assault
          •Threat causing imminent fear of bodily injury
          •Criminal trespass
          •Criminal damage to property
          •Repeatedly driving by a residence or workplace
          •Harm or threatened harm to children

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             Household member?
     • "household member" =
         • Spouse/former spouse;
         • family member
             •   Parent, present or former stepparent
             •   present or former in-law
             •   Grandparent/grandparent in-law
             •   child or co-parent of a child
             •   Adult sibling, cousin
         • continuing personal relationship
         • Cohabitation not necessary

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             If dv under the law…
 • Protection order – FREE
         •   Emergency by law enf.: 40-13-31.2 (72 hrs)
         •   Ex parte – 10 days: 40-13-4
         •   Temporary – 6 months
         •   Mutual – both petition & both primary aggressors
         •   Stipulated


 • NO MEDIATION… unless court finds “appropriate
   safeguards”


 • + criminal and civil measures

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                                op violations
     • misdemeanor – contempt of court
     • Aggravated stalking – 4th degree felony
     • 2nd violation = no less than 72 hrs in jail
         • NO suspension or defer sentence – 40-13-6

     • Full restitution
     • SHALL order batterer to complete a “program of
       professional counseling”
     • Police officer SHALL file all other charges
         State v. Gonzales, 123 N.M. 337, 340-341 (N.M. Ct. App. 1997)



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                 STATE LAW
     • 13 FACTORS

     • BEST INTERESTS OF CHILD STANDARD

     • CUSTODIAL INTERFERENCE

     • MISSING PERSONS

     • KIDNAPPING



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                   OTHER LAWS
     • Criminal charges: Assault, battery, criminal sexual
       penetration/contact, child abuse
     • Victims’ Rights Act: 40-13-7B.
         • Police “SHALL take whatever steps necessary to
           protect victim from further domestic abuse”
         • Advise of FVPA
         • Transportation to doc or shelter if requested
         • Go to her home with her to get immed. Needs

     • Jail/detention SHALL make reasonable attempt to
       notify law enf.  notify victim.

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      REPORTING CHILD ABUSE -
            § 32A-4-3.
32A-4-3

Doc, intern, law enf., judge, nurse,   “Everyone”
teacher, SWK, clergy (except
privileged)

Who KNOWS or REASONABLE                Who knew or reasonably should
SUSPICION that a child is an abused    have known of the perpetrator’s
or neglected child shall report        actions or failed to take reasonable
                                       steps to protect


No good faith defense                  Know or reasonable suspicion?
No confidentiality                     “specific articulable facts… that
No exemption from reporting or         would lead a reasonable person to
testifying                             conclude that child abuse has or is
                                       occurring.”
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                 FEDERAL LAW
     • FF&C: FEDERAL, STATE

     • UCCJEA

     • HAGUE

     • UNIFORM CHILD ABDUCTION ACT




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       3.
LAW ENFORCEMENT
   RESPONSE TO
CUSTODY/VISITATION
    DISPUTES
           CUSTODY/VISITATION
     • DIVORCE DECREE/PARENTING PLAN
             • Check welfare of children
             • If no abuse, refer to appropriate court
             • Can NOT remove child from parent or legal guardian
               without a court order.
             • Document finding

     • Order of protection: follow order and charge for
       violations of order
     • No OP or decree: can NOT remove child unless
       probable cause of abuse or neglect.


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Children’s Bill of Rights
           HB 271

An Act requiring law enforcement to
 identify minor or dependent
 children upon an arrest; providing
 for guidelines and a training
 program for ensuring child safety
 upon the arrest of a parent or
 guardian.
   Law Enforcement Shall
• Inquire at the time of arrest whether the person
  is a parent or guardian of minor or dependent
  children who may be at risk as a result of arrest.

• Make reasonable efforts to ensure safety in
  accordance with guidelines established by DPS.
               Goals:
• Ensure the safety of children and/or
  dependents whose parents or guardians are
  arrested.
• Minimize the disruption to children by
  providing the most supportive environment
  possible after an arrest, to minimize
  unnecessary trauma to the children of
  arrestees and to determine the best
  alternative care for the children.
Mitigating the
   Trauma
 General Guidelines
• Avoid sirens and lights in a non-emergency
  situation and where the use is discretionary


• If the arrestee is cooperative and the situation is
  deemed safe, allow the arrestee to talk with the
  child about what is happening, prior to being
  handcuffed
• When it is not possible to have the parent talk
  with the child, have the police officer talk with
  the child, separately, in a developmentally
  appropriate manner
Communication
 with the Child
                           Tips
                                    • Make no assumptions about
•   Use the child’s name              the child’s abilities based on
•   Sit at child’s physical level     age
•   Use simple language             • Allow child to hold onto a
                                      stuffed animal or other object
•   Explain your role - safety        for comfort
•   Recognize child’s loyalty to    • Avoid rushing the child; let
    parent                            them have time to process
•   Answer questions                  thoughts and feelings
•   Ask one question at a time      • Observe non-verbal
•   Avoid “why” questions             communication
•   Ensure the child understands
•   Ask open ended questions
    and use simple reflection
Officer Liability
   NMSA §31-1-8 Identification of minor or
      dependent children upon arrest

A. A state or local law enforcement officer who arrest
  a person shall, at the time of the arrest, inquire
  whether the person is a parent or guardian or minor
  or dependent children who may be at risk as a result
  of the arrest..

• The officer shall make reasonable efforts to
  ensure the safety of minor or dependent
  children at risk as a result of an arrest in
  accordance with guidance established by the
  department of public safety
           ANOTHER CAREGIVER?
• Is there another parent?

• Can the arrestee identify an alternate
  caregiver?
  •   Adult relative
  •   Fictive kin
  •   Child care provider
  •   Temp shelter IF parent signs child in

• Can anyone else at the scene identify an
  alternate caregiver?
               CHILD ABUSE?
LAW ENFORCEMENT MUST ASSESS SAFETY:
•Abuse/Neglect background check
              (505) 841-6100 Albuquerque
              1-800-797-3260 Statewide
•Local check—per department policy
  • Triple I
  • SCI Intake Worker will ask for badge # and superior
    officer’s phone number
  • Worker searches FACTS & gives officer info about possible
    caretaker
  • SCI can provide info on shelters in area if needed
                   4.
           Court response to
       custody/visitation disputes.




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www.nmcadv.org   40
What she expects                  NM Law
1.   To be heard            1.   “efficient” & “fair”

2.   Caretaker standard     2.   Best interests of child

3.   Sole custody           3.   Joint/timesharing

4.   child support          4.   Worksheets A or B

5.   no contact-batterer    5.   Co-parenting, mediation

6.   Continuous care        6.   6 week summer visits

7.   Ability to protect     7.   Childcare by Batterer’s girlfriend or wife

8.   Justice
www.nmcadv.org             41
 • 75% of mediated cases involve DV

 • Where DV, 40% joint sessions
     Jaffe, Juv. & Fam. Ct. J. (Fall 2003).


 • NMSA §40-4-8(b)(1): Court SHALL refer to mediation
   unless…

 • Mediator screening – continues throughout
     • Can party safely stand up for herself? Speak freely?
     • What happens AFTER mediation?



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       OFFENDER TREATMENT
     • DV offender “treatment” OR intervention
     • Funded through court fine fees
     • Offenders REQUIRED TO GO FOR
         • Stalking – 30-3A-3.
         • Battery and aggravated battery against a household
           member: 30-3-15 to 16.

     • Court MAY require
         • “professional counseling program” for 2 or more
           violations of OP
         • “professional counseling” for OP


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                 ABA and NCFJCJ
     • ABA Myths and facts

     http://www.americanbar.org/groups/domestic_viole
       nce.html



     • NCFJCJ – screening for domestic violence; Green
       Book

     http://www.ncjfcj.org/content/blogcategory/256/302

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                 5.
       What we all can do to
         protect children in
              abusive
      custody/visitation tactics

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      WHAT LAW ENF CAN DO




www.nmcadv.org   46
 1.   Prepare her for realistic expectations

 2.   SAFETY PLAN

 3.   Prepare her family law case NOW

 4.   SAFETY PLAN

 5.   Help her gather evidence

 6.   SAFETY PLAN

 7.   Try to go with her to mediation

 8.   (did I mention safety planning?)


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           V files petition –        Advocate advises V to include all
           Sworn affidavit                 needed for safety

           Advocate advises V to include all needed for safety:
                            •Child support
                               •Custody
                                 •Home
                               •Property
                       •Reimburse for damage
                                  •Car




                                V & O hearing



                                 6 month OP
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     • SAFETY PLAN - 1-800-799-SAFE(7233)
     • Early in the process, ask her:
         • What do YOU think will happen? Court? Mediation?
           Hearings? After each?
         • Safety plan specific to family court process
         • Protection orders with children listed & to protect
           against financial abuse


     • Before, during after: safety plan
         • Incorporate safety plan in each step & adapt it as
           circumstances change

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     “Instead of forcing contact, courts should incorporate
         as much information about a history of continuing
         domestic violence in parenting plans, in their
         screening process, and in mediation.”
             •   Jaffe, Peter, G., et al., Common Misconceptions in Addressing Domestic Violence in Child Custody Disputes, Juv.
                 and Family Court at 35.




     •     Refute “parental alienation,” “estrangement”



     • Evidence of her protecting children:
         • Journal, neighbors, family, faith, work.

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                 Pop quiz #2…
                 for big prizes!!




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     • Listen, listen, listen

     • Create relationships, build allies

     • Educate, educate, educate using their info:
         • www.ncjfcj.org
             • “Navigating Custody & Visitation Evaluations in Cases with
               Domestic Violence: A Judge’s Guide”
         • www.ABA.org
             • Model codes
             • ABA DV screening tool for attorneys
             • House of Delegates on Unified Family Courts

     • Advocate

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                  TOP 5 LIST OF TIPS
     1.          Include all safety measures in OP
     2.          Protect children by protecting the non-abusive
                 parent– prepare her custody case
     3.          Danger often increases on your watch – safety plan
     4.          Screen for other legal needs
     5.          Create Justice




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                   ?
               QUESTIONS?

Detective Fred Upshaw, Las Cruces PD
fupshaw@las-cruces.org; 575.528.4046
       Julianna Koob, NMCADV,
 koobjulie@yahoo.com; 505.920.6002

				
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