Educate--Judicial Checklist

JUDICIAL CHECKLIST

Prepared by the Judicial Subcommittee of the American Bar Association's Commission on Domestic Violence

DEFINITIONS

DOMESTIC VIOLENCE IS ABOUT POWER AND CONTROL.

Domestic violence is learned behavior (through observation, experience, reinforcement, culture, family, community) and is rarely caused by substance abuse, genetics, stress, illness, or problems in the relationship, although these factors are often used as excuses and can exacerbate violent behavior. Many batterers believe they have the right to make and enforce rules, and many victims routinely evaluate/decide which rules they will follow, depending on a variety of factors, such as the dangers presented, the available intervention, and the likelihood of punishment of the perpetrator.

LEGAL (varies by state): Any assault, battery, sexual assault or battery, violation of protective order, stalking, rape, kidnapping, assault with weapon, arson, criminal trespass and/or terrorist threat, robbery, burglary, or destruction of property.

BEHAVIORAL: An act of violence which is part of a pattern of assaultive and controlling behaviors, including physical, sexual, and/or psychological attacks and/or economic coercion. Examples include slaps, punches, pushes, humiliation, severe shaking, forced sex, threats of violence against victim or self, withholding money, isolation, emotional abuse and/or unlawful restraint, including false imprisonment (forcing/locking a victim at home or in hotel room), stalking, threats, and kidnapping.

LETHALITY ASSESSMENT—attempt to identify when a perpetrator is most dangerous by examining perpetrate beliefs, patterns of violence, and control.

Red Flags to Judges

suicidal and/or homicidal ideation, threats or attempts
escalation in frequency and severity of violent episodes
weapons owned by perpetrator, threats to use weapons, or recent purchases of weapons
prior criminal behavior or injunctions
mental health issues, including: psychiatric history, medication needs, acute depression
substance abuse
preoccupied or "obsessed" with victim
stalking
saying "If I can't have her, nobody can"

CAVEAT: In all likelihood, violence will escalate in frequency and severity when victim attempts to end relationship.

COMMON PERPETRATOR ATTITUDES & CONDUCT

consistent attempts to control alleged victim
minimizing, denying own behavior, and blaming victim or others instead
feeling inadequate once caught
low self-esteem
jealous and possessive
intimidating
dependency on victim
appear presentable and even likeable in court but Jekyll-Hyde personality at home
promising "It will never happen again"
using children to "spy" on parent
substance abuse

COMMON EFFECTS OF VIOLENCE ON VICTIMS

(may be situational and vary due to effects of violence)

low self-esteem
self-blame or blames circumstances
stress
shame
unaware of legal and social options
self-medicating by use of alcohol and/or drugs, suicidal
stress disorders; exhaustion from coping
isolated from family and friends
rationalize batterer behavior, "I must have caused it"
fearful of offender violence
minimizes violence

Domestic Violence Affects People from All Races, Religions, Age Groups,
Sexual Orientations, and Socioeconomic Levels.

NATIONAL DOMESTIC VIOLENCE HOTLINE: 1-800-799-SAFE; TDD: 1-800-787-3224

CUSTODY AND VISITATION IN DOMESTIC VIOLENCE CASES

COURT GOALS: Focus on protecting children and non-abusive parent from violence and on stopping violence so that effective parenting can take place.

CHILDREN WHO WITNESS DOMESTIC VIOLENCE: At least 85% of children who live in violent homes are eyewitnesses, attempt to intervene, and/or experience the violence from behind closed doors.

RISKS TO CHILDREN: Children are at a greater risk of being abused when living in a violent home through deliberate or inadvertent injury. There is likelihood of intergenerational transmission of violence in future intimate relationships. Boys who witness family violence are at sharply elevated risks of perpetrating adult violence.

PHYSICAL AND EMOTIONAL CONSEQUENCES: medical problems, substance abuse, suicide attempts eating disorders, nightmares, anxiety about being hurt, loneliness, bed wetting delinquent/criminal behavior such as fighting, prostitution, truancy, crimes against other people, running away, dropping out of school, teenage pregnancy, low self-esteem, cognitive disorders

MORE THAN HALF OF PARENTAL ABDUCTIONS OCCUR IN FAMILY VIOLENCE CASES.
CHILDREN OF ALL AGES ARE AFFECTED BY FAMILY VIOLENCE.

DRAFTING ORDERS ON CUSTODY/VISITATION

Use clear and concise language.
No contact between parties except as provided in court order.
Order psychological evaluation, home study, custody evaluation, completion of batterer's program, substance abuse treatment, parenting class, or mental health counseling, where appropriate.
Consider sole custody to nonabusive parent until perpetrator completes court-ordered programs.
STRUCTURE TIME, METHOD, AND MANNER OF VISITATION. Do not leave visitation as "reasonable" or "mutually agreeable." Police and courts will be unable to enforce such a ruling.
Consider supervised visitation through visitation center, intermediary not involved in perpetuating the violence, or location away from abused party (especially when parental abduction or safety of child is a concern).
Start with short, time-specific visits and increase time if compliance; limit overnight visitation (consider age).
Order no use of alcohol or drugs in presence of child or prior to visitation.
Counseling for children exposed to violence may be very helpful.

All states permit courts to consider domestic violence in relationship to "the best interest of the child." Some states have adopted a presumption against award of joint or sole custody to the abusive parent. Judges may be required to permit testimony about domestic violence and the impact on children and the nonabusive parent.

Carefully craft custody/visitation arrangements to serve child's best interest.

THE UNITED STATES CONGRESS RECOMMENDS A PRESUMPTION AGAINST CUSTODY FOR PERPETRATORS [House Concurrent Resolution 172 (1990)]. THE NATIONAL COUNCIL OF JUVENILE AND FAMILY COURT JUDGES ADVISES AGAINST AN AWARD OF JOINT CUSTODY WHERE ABUSE IS LIKELY OR HAS OCCURRED.

MEDIATION

Generally inappropriate due to a power imbalance between parties; if mediation is required, mediators should be trained in the dynamics of domestic violence and safety planning. Parties should be interviewed separately.
Can be dangerous to victim/children by increasing risk of retaliation.

Couples therapy may place victim in danger of further abuse and retaliation; may be psychologically harmful.

ENFORCEMENT

Ensure compliance with terms of order (may use bond).
Review perpetrator's compliance with regard to programs ordered.
Periodic review of all custody/visitation arrangements.
Modify order as needed to improve compliance.

EFFECTIVE DOMESTIC VIOLENCE CASE MANAGEMENT:
Goals, Reasons, and Solutions

GOALS OF JUDICIAL INTERVENTION

stop the violence
protect the abused party, children
protect safety of family members, general public
hold perpetrator accountable for violence
rehabilitate perpetrator
stop emotional, financial and physical abuse used to control and coerce victims and children
provide restitution to abused party
convey to the general public that domestic violence is a crime and "not just a family matter"
break intergenerational cycle of violence

SOLUTIONS: Protective Orders

CRUCIAL CONSIDERATIONS:

RELATIONSHIP OF PARTIES: e.g., spouses, ex-spouses, boyfriends, girlfriends, former boyfriends/girlfriends, persons living together as a family unit, persons with a child in common, parents, children, siblings, other family members

ACTIONABLE ABUSE: as defined by statute. to include criminal acts against protected parties and potentially noncriminal acts that place petitioner in reasonable fear of imminent danger and/or bodily harm

DUE PROCESS: personal service on respondent and opportunity to be heard; long-arm statute may confer jurisdiction

FEDERAL LAW: all jurisdictions give full faith and credit for protective orders of other states, tribes, territories

JURISDICTION where did act occur or is there present danger? (not required in every state)

RESIDENCY: usually no minimum residency for petitioner to file (petitioner may have fled out of fear)

VENUE: where violence occurred, respondent resides. parties may have lived together (may vary by state)

RELIEF PRIOR TO FULL HEARING:
Most states authorize the court to prohibit further acts of violence; exclude respondent from residence; restrain further contact (in person, by phone or mail, or through third parties), threats, abuse, or harassment by respondent; award petitioner exclusive possession of shared residence; exclude respondent from petitioner's place of employment; grant temporary custody of minor children to nonabusive parent; direct supervised visitation where appropriate; or order such other relief as court deems proper for protection, including directives to law enforcement. Some courts order temporary child support or support for the petitioner.

RELIEF AFTER FULL HEARING:
Restrain further acts of violence, abuse, threats, harassment, contact (in person, by phone or mail, or through third parties); award possession of shared residence; exclude respondent from petitioner's place of employment; order temporary custody and support for minor children and supervised visitation where appropriate; order respondent to appropriate domestic violence intervention, substance abuse treatment, parenting classes, mental health counseling; refer petitioner to support groups, children to counseling programs: order no firearm access, relinquishment of firearm; and restitution and attorney fees where permissible.

Protect confidentiality of victim's address/phone number
Concisely draft orders specifically tailored to parries; clearly structure what you intend to say and avoid ambiguity or leaving decisions to parties

MODEL NO-CONTACT CLAUSE: Respondent shall stay at least 150 yards from petitioner and shall not go to the home, school, or place of employment of petitioner or make any contact, directly or indirectly, by phone, through third parties, or by mail, except to mail court-ordered support payments or to appear in court proceedings or to communicate through counsel.

FIREARMS AND AMMUNITION: Where appropriate, order surrender and verify surrender of weapons to law enforcement; order respondents to file receipt from police agency or proof of sale to court.

Suggested language: Respondent represents a credible threat to the physical safety of petitioner (and children). Respondent shall not possess or purchase any firearm or ammunition, and shall surrender any such items currently possessed to law enforcement officials and file a copy of the receipt of surrender with the court. Law enforcement shall further enforce this provision by impounding any firearms or ammunition found in possession of respondent, which thereafter shall be retained by law enforcement during the term of this order unless otherwise ordered by the court.
Note: Federal law prohibits the shipment, possession, or receipt of any firearm or ammunition in interstate commerce during the pendency of certain restraining orders issued after a hearing on notice: applies when order includes finding that respondent represents a credible threat to the physical safety of petitioner or child or explicitly prohibits use or threatened use of physical force that would reasonably be expected to cause bodily injury. See 18 U.S.C. § 922(g)(8)(1994).

ENFORCEMENT OF COURT ORDERS

timely enforcement of orders is essential to insure victim safety and due process
schedule case-monitoring conferences when necessary

CRIMINAL

BAIL: RESTRICTIONS ON PRETRIAL RELEASE

no-contact stay-away order to keep defendant separate from victim; make order specific as to terms and conditions
monetary bond
electronic monitoring
house arrest with specific conditions
custody release (not to victim)
release to agency that will monitor defendant and advise victim of defendant's release
order appropriate substance abuse and/or mental health evaluations

CRIMES:

Violation of a civil protection order is a crime in most states.
It is a federal crime to cross a state line to commit domestic violence against a spouse or intimate partner or to cause a spouse or intimate partner to cross a state line and then commit domestic violence against or cause bodily injury to a spouse or intimate partner. 18 U.S.C. § 2261 (1994).
It is a federal crime to cross a state line to violate a civil protection order. 18 U.S.C. § 2262 (1994).

COMMON TRIAL ISSUES

VOIR DIRE: Inclusion of questions to identify jurors who have views about domestic violence, witnesses, victims, and perpetrators—to ensure a fair and impartial jury

EVIDENCE

Note: A lack of physical evidence should not be interpreted to mean that domestic violence did not occur.

Physical Evidence: medical records, photographs, 911 tapes, diaries, journals, police reports, civil protection orders

Hearsay Exceptions: prior inconsistent statements, excited utterances, spontaneous statements, admissions against interest

Character Evidence: if at issue, how to prove (varies by state)

Prior History of Abuse by Defendant: admissibility of evidence of similar acts to show intent, identity, lack of accident, motive, knowledge, plan or preparation, or good faith belief in consent rather than bad conduct or propensity

Privileges: clergy, therapist, probation officer, shelter worker, physician, lawyer, mental health worker, victim advocate

Expert Testimony: mental health experts, pathologists, medical personnel

SENTENCING: Goals in domestic violence cases are to hold perpetrator accountable, change perpetrator behavior, and provide clear and consistent consequences for failure to follow court mandates.

CONSIDER: incarceration, restitution, fines, monitored probation with specific conditions, community control, community service hours, mental health evaluation and treatment, parenting classes, batterer intervention programs, drug and alcohol treatment, stay-away order from victim and children (if necessary)

TREATING DOMESTIC VIOLENCE AS A SERIOUS CRIME CAN DETER FUTURE VIOLENCE

JUDICIAL CHECKLIST

DEFINITIONS

CUSTODY AND VISITATION IN DOMESTIC VIOLENCE CASES

EFFECTIVE DOMESTIC VIOLENCE CASE MANAGEMENT: Goals, Reasons, and Solutions

CRIMINAL

EFFECTIVE DOMESTIC VIOLENCE CASE MANAGEMENT:
Goals, Reasons, and Solutions