- The purpose of Identification/Assessment lessons learned is to organize the work of family court practitioners so that survivors have access to the kind of full and accurate information that enables them to make choices and exercise their autonomy. While the focus of these lessons is on enabling the survivor to make informed decisions, an additional important benefit will be improved family courts’ ability to understand what is going on in the family so they can respond effectively
- The underlying assumption is that survivors and others (abusers, children, witnesses, collateral sources) need to understand why they might choose to disclose domestic violence and the implications of disclosing and describing it (e.g., with whom the information may be shared and how it may be used).
- The family court system (both dispute resolution processes and the forms of relief available) must be understood by survivors before they engage with the family court system and make disclosures.
- For family courts, identifying domestic violence as an issue should not dictate any particular response other than triggering a further assessment and, thereafter, a differentiated response.
- Regardless of how the family courts come to know that domestic violence is an issue in a case, the family courts have an obligation to further assess the violence and its effects before responding.
- Procedures for screening and assessment of domestic violence should account for cultural and linguistic issues and differences.
- Each interaction between practitioners and parties should be trauma-informed, respond to the possible and actual effects of trauma upon parties and children, and avoid re-traumatizing them.
Basic Screening and Assessing Considerations
The presence of domestic violence can have major implications for child custody decision-making in any family court case. Therefore, it is critical that each family court practitioner maximize the likelihood that survivors make informed and safe disclosures of any abuse. It is also important that each practitioner fully assess the nature and context of the abuse and its effects before responding.
Survivors, perpetrators, witnesses, collateral sources and children may not, for many reasons, disclose the existence of domestic violence or describe fully (or perhaps even understand) its nature and context and effects. As survivors make decisions about whether, when and to whom to disclose any domestic abuse, they are weighing the potential dangers of disclosure against the potential benefits. The dangers related to disclosure of domestic violence can include
- not being believed,
- being blamed for staying in the relationship,
- causing their children to be placed in unsafe custody arrangements,
- triggering unwanted interventions such as child protective services or criminal court,
- triggering retaliation by their abusers, including reports to CPS, immigration problems, interference with employment, and serious or lethal violence against them, their children or other family members and friends.
A party’s decision about.
- whether to disclose any domestic abuse,
- when to make any disclosures and
- how much to disclose
Every initial contact with any party in any case should include a screening conversation that is designed to improve the likelihood that a survivor would make a safe, informed and voluntary decision about disclosing the abuse. The screening protocol must be used even if the practitioner has no reason to believe that abuse is an issue. The screening must be done outside the presence or hearing of the other party.
When screening for domestic violence, practitioners must ensure that parties understand how any information about the domestic violence would be useful, how it could be used and by whom, who would determine how it would be used, and whether anyone else could access the information. One tool for doing this systematic screening for domestic violence is the Initial Domestic Violence Screening Guide (https://www.bwjp.org/assets/compiled-practice-guides-may-2018.pdf) developed by the Battered Women’s Justice Project.
It is critical that the practitioner listen for and track the kinds of DV issues that arise in a case. There is a tool that can help the practitioner (1) track issues that need a deeper assessment and (2) identify issues that remain unexplored: the BWJP Screening for Intimate Partner Violence worksheet https://www.bwjp.org/our-work/projects/safer/safer-worksheets.html It is one of several in a suite of worksheets that the practitioner can employ as the DV is further examined and assessed. All FCEP sites have engaged in the training of family law practitioner on how to screen for and assess any domestic abuse.
Any intake questionnaires or forms should offer clients the opportunity to disclose any abuse on that document or in later communications directly with the practitioner. But because many survivor parents will not disclose a history of abuse (or certain details, including sexual abuse) until a high degree of trust is established, a party’s failure to disclose victimization on an intake form should not be taken as evidence that abuse is NOT an issue.
Effective screening for domestic violence must account for the likelihood that the person has been traumatized by the domestic violence or by other forms of trauma in their past. Creating a safe environment for survivors requires practitioners to distinguish themselves from abusers. Because an abuser can be unpredictable, untrustworthy, forceful, and manipulative, practitioners must be deliberate in (1) creating and increasing predictability for the survivor, (2) providing transparency of the process and potential outcomes, and (3) giving the survivor the ability to choose what they share and don’t share, while acknowledging how what they share or don’t share can influence outcomes. Practitioners should inform themselves about trauma-informed interviewing and be prepared to respond to a DV disclosure in a way that is validating, compassionate, and that centers the survivor’s needs first and foremost. http://www.nationalcenterdvtraumamh.org/2018/04/new-resource-tools-for-transformation-becoming-accessible-culturally-responsive-and-trauma-informed-organizations/
Culture - and cultural differences - can have implications for the process of screening for domestic violence. Language, terminology, demeanor and other components of communication can complicate the conversation. Furthermore, survivors who have a history of problematic responses by courts, governments and institutions may be very reluctant to share information with family court practitioners. Practitioners and courts should be aware of the cultural issues that need to be addressed in order to engage in effective and respectful screening conversations.
Screening for DV should not be a one-time event: Disclosures of abuse are commonly delayed until the survivor client believes that failing to disclose would be more dangerous than disclosing the abuse. Therefore, the practitioner should intermittently offer the client the opportunity to revisit the issue and to fill out the picture of any abuse that has been disclosed or become apparent
ASSESSING THE NATURE, CONTEXT AND EFFECTS OF THE ABUSE
Family Court practitioners may learn that abuse is an issue in the case from a party, a child or a witness, from a filing for or issuance of a protection order, or from other court filings or cases. But no matter how the abuse is raised as an issue, once it has, the practitioner must develop a full understanding of the abuse and its effects by assessing the full range of behaviors the abuser is using, including
- the abuse of the victim parent,
- interference with or coercive control over the victim parent,
- the child’s experience of the abuse of a parent, either directly or indirectly,
- how the abuser parent is engaging directly with and parenting the child and
- the abuser parent’s history of co-parenting with the survivor parent.
In addition to assessing the nature and context of the abuse, the practitioner must explore the effects the abuse has had or is having on the adult survivor, the child and on co-parenting.
The Domestic Abuse Interview Guide developed by BWJP https://www.bwjp.org/assets/compiled-practice-guides-may-2018.pdf can assist any practitioner in this full interviewing and fact-gathering process. The related SAFeR worksheets, (including the Assessing the Nature and Context of Abuse worksheet) https://www.bwjp.org/our-work/projects/safer/safer-worksheets.html) can be useful to a practitioner in tracking the issues raised, facts gathered and matters needing further exploration.
If it appears that each parent has been using violence against the other, the nature, context and effects of the abuse by each parent must be assessed separately.
Even if the practitioner has been involved in one case (such as a CPO or a child protection matter), it is critical that the abuse be further assessed in light of any separate case or legal context. This is especially the case if the survivor is in need of permanent and more comprehensive child-related relief from the family court. A full assessment of the nature and context of the abuse and its effects is a necessary step in the process of that comprehensive and long-term relief.
Practitioner-Specific Guidance on Screening and Assessing the Domestic Violence
The following are points at which an Attorney and Legal Aid Organizations could (1) encourage safe, informed disclosures of DV and (2) assess the nature and context of the violence and its effects in order to ensure that their responses promote safe and workable parenting arrangements.
Attorneys and Legal Aid Organizations
The following are points at which a Mediator could (1) encourage safe, informed disclosures of DV and (2) assess the nature and context of the violence and its effects in order to ensure that their responses promote safe and workable parenting arrangements.
The following are points at which Family Court Services/ Court-based ADR services could (1) encourage safe, informed disclosures of DV and (2) assess the nature and context of the violence and its effects in order to ensure that their responses promote safe and workable parenting arrangements.
Family Court Services/ Court-based ADR services
The following are points at which a Court Administration / Court Clerks could (1) encourage safe, informed disclosures of DV and (2) assess the nature and context of the violence and its effects in order to ensure that their responses promote safe and workable parenting arrangements.
Court Administration / Court Clerks
The following are points at which a Judicial Officer could (1) encourage safe, informed disclosures of DV and (2) assess the nature and context of the violence and its effects in order to ensure that their responses promote safe and workable parenting arrangements.
The following are points at which a Advocate (non-lawyer) could (1) encourage safe, informed disclosures of DV and (2) assess the nature and context of the violence and its effects in order to ensure that their responses promote safe and workable parenting arrangements.