Chapter 13: Family Violence 12 Family Law for the Paralegal 2nd Edition WilsonClass NameInstructor NameDate, Semester
LEARNING OBJECTIVES After this lecture, you should be able to:13.1 Explain what family violence is, and who the 12 victims and perpetrators are. Identify remedies available to adult victims of13.2 family violence, including criminal actions, civil actions, protective orders, and guardianships. Explain how to recognize and respond when a13.3 client is a victim or perpetrator of abuse. Class Name Instructor Name Date, Semester Cont.
LEARNING OBJECTIVES After this lecture, you should be able to:13.4 Identify various kinds of child abuse and 12 neglect. Describe who is required to report abuse and to13.5 whom, and how the state responds. Explain how abuse and neglect influence13.6 custody decisions. Class Name Instructor Name Date, Semester Cont.
LEARNING OBJECTIVES After this lecture, you should be able to:13.7 12 Discuss the ethical duty of members of the family law team in the family violence context. Class Name Instructor Name Date, Semester
Learning ObjectiveAfter this lecture, you should be able to: Explain what family violence is,13.1 and who the victims and perpetrators are.
13.1 What is family violence? • Family violence goes by many names: domestic violence, domestic abuse, intimate partner abuse, and spousal and child abuse among others. • Generally it involves a pattern of coercive behavior designed to exert power and control over a person in a family relationship. It comes in no single form, but rather may involve any combination of behaviors such as threatening, intimidating, belittling, harassing, and outright physical attacks. • Legal definitions of various kinds of abuse differ from state to state. Most focus on physical abuse that causes bodily injury, compelled sexual activity, and fear of physical assault. Some encompass abuse inflicted through neglect, stalking, cyberstalking, and other psychological tactics and behaviors. 6
Who are the victims and perpetrators13.1 of domestic violence? • Domestic violence crosses all geographic, socioeconomic, racial, cultural, religious, educational, and occupational boundaries. • The overwhelming majority of domestic violence (85%) is committed by men against women. One in every four women will experience domestic violence in her lifetime. • Incidence of domestic violence varies by race and ethnicity with African American females experiencing intimate partner violence at a rate 30% higher than white females. • Domestic violence occurs with about the same statistical frequency in heterosexual and homosexual relationships. • Approximately 90% of incidents of alleged elder abuse occur in a domestic setting. 7
Learning ObjectiveAfter this lecture, you should be able to: Identify remedies available to adult victims of family violence,13.2 including criminal actions, civil actions, protective orders, and guardianships.
13.2 What are the four most common kinds of remedies available to adult victims of family violence? • Criminal prosecution: Abusive conduct may be prosecuted under a variety of criminal statutes ranging from murder and manslaughter in cases involving deaths, to assault, aggravated assault, battery, rape/sexual assault, domestic battery, stalking and cyberstalking among others. When a victim is unwilling or unable to assist in the prosecution of an offender, the prosecutor can choose to proceed with an evidence-based prosecution. • Civil actions: A victim may choose to sue an abuser for damages in a tort action for assault, battery, or intentional infliction of emotional distress. 9
13.2 What are the four most common kinds of remedies available to adult victims of family violence? (continued) • Protective orders: Under civil domestic violence laws of all states, a victim of family violence can seek a protective order if he or she satisfies the threshold requirements regarding standing and qualifying conduct laid out in statutes that vary from state to state. Protective orders may be of several kinds: • Restraining order: a court order most commonly issued in a domestic violence case restraining an individual from threatening and/or harassing another individual or individuals. • Stay away order: a court order requiring a person to keep away from another individual wherever he or she may be (home, work, school, etc.) • No-contact order: a court order prohibiting an individual from having contact of any kind with a person he or she has threatened or abused in some manner. 10
What are the four most common kinds of remedies13.2 available to adult victims of family violence? (continued) • Guardianship: In some cases, an abused woman may become so incapacitated by repeated abuse that she cannot protect herself or escape from her abuser. She may be incapable of arranging for her own housing, medical care, or finances. The guardian is appointed by the court and is granted the authority to act on behalf of the “ward” for some or all purposes until the court determines the ward has the capacity to act on her own behalf. 11
Learning ObjectiveAfter this lecture, you should be able to: Explain how to recognize and13.3 respond when a client is a victim or perpetrator of abuse.
13.3 How can members of the family law team recognize when the client is a victim or perpetrator of abuse? • Many victims are afraid, ashamed, or embarrassed about the abuse they experience and never report it to the police, physicians, families, friends, or even their attorneys. Some do not even recognize they are abused and assume that any maltreatment they suffer is their own fault based on what their abuser has told them. • Many perpetrators are aware that their conduct is criminal but they are unwilling to acknowledge it to others and face the consequences. Some abusers do not even recognize they are perpetrators especially if their conduct is culturally condoned. • As a result, it is important for members of the family law team to watch and listen to clients carefully and be sensitive to cues that suggest that they are abused or perpetrators of abuse. 13
13.3 How should members of the family law team respond when the client is a victim of abuse? • The most important issue to address when the client is a victim is her safety. This may mean suggesting one or more of the following options: – Recommend that the client file for a comprehensive protective order on an ex parte basis. – Depending on the nature and severity of the abuse, file a criminal complaint against the abusive spouse. – Recommend that the client file a Complaint for Divorce (and custody of the children, if applicable) and make arrangements to be in a safe location when the Complaint is served on the spouse. – Give the client a safety plan and offer assistance with its completion. The plan will call for the client to locate contact numbers for key resources (the police, shelters, etc.); identify locations she can go to if forced to leave home; identify means of increasing safety while at home, work and in the community; and identify documents to copy and/or take with her when leaving the abuser.) 14
13.3 How should members of the family law team respond when the client is a victim of abuse? (continued) • The client ultimately must make the decisions concerning his or her case and should not be pressured into filing for divorce on the grounds of cruel and abusive treatment if such an option is available no matter how appropriate that course of action may seem. A victim is never at greater risk than they are when they commit to leaving and exposing the abuser. • Although members of the team can listen sensitively and reinforce the message that no one deserves to be abused, they must recognize that the client needs to make her own decisions even if it means deciding to not leave the spouse and pursue a divorce before they are ready. See Paralegal Application 13.1 “Why Do They Stay? If Anyone Ever Hit Me, I Would Be Out the Door in a Minute” on page 452 of the text. 15
13.3 How can members of the family law team recognize when the client is a perpetrator of abuse? • Abusers come from all backgrounds and there is no single mold into which they all fit. However, there are some “red flags” to watch for, a cluster of characteristics abusers commonly share such as: – He believes in traditional, hierarchical sex roles – He engages in jealous, possessive and controlling behaviors – He is hypersensitive to criticism – He is self-centered – He is manipulative – He engages in minimization and denial and blames the victim for his behavior – He has difficulty expressing feelings – See Exhibit 13.2 Profile of an Abuser on page 462 of the text. 16
13.3 How should members of the family law team respond when the client is a perpetrator of abuse? • In some cases, the client may not be able to conceal their conduct if the abuse is a matter of public record, documented in police reports, medical records, photographs, and criminal complaints and convictions. Copies of these documents should be obtained. • Members of the team need to remain as objective and nonjudgmental as possible to serve as zealous advocates remembering that in this country everyone is entitled to representation no matter how offensive or illegal their behavior may be. • The members of the team must balance the duty to maintain client confidentiality with the responsibility to prevent commission of a crime that could result in death or serious injury. 17
Learning ObjectiveAfter this lecture, you should be able to: Identify various kinds of child13.4 abuse and neglect.
13.4 What is child abuse? • Under federal law, child abuse and neglect is defined as: • “…at a minimum, any recent act or failure to act on the part of a parent or caretaker, which results in death, serious physical or emotional harm, sexual abuse, or exploitation, or an act or failure to act which presents an imminent risk of serious harm.” • Of the confirmed reports annually about 78.3% of child victims suffer neglect, 17.8% physical abuse, 9.5% sexual abuse, 7.6% psychological maltreatment, and 2.4% medical neglect. More than 1500 children reportedly die as a result of abuse and neglect each year. • More than half the victims are seven years old or younger and the highest rate of victimization is of children under one year of age. • Approximately 80% of the perpetrators of child maltreatment are parents. 19
What are the six major types of13.4 child abuse? • Abandonment: Abandonment occurs when the whereabouts of a child’s parent(s) are unknown, the parent has left the child in unsafe circumstances, and/or has failed to maintain contact with or provide support for the child for an extended period of time. • Neglect: Neglect is a type of maltreatment that involves deliberate failure by a caregiver to provide needed, age-appropriate care although financially able or offered other means to do so. It usually involves an ongoing pattern of inadequate care falling into one or more categories: physical, emotional, medical or educational neglect. 20
What are the six major types of13.4 child abuse? (continued) • Physical abuse: Physical abuse is commonly defined as non-accidental, physical injury to a child that may be caused by behaviors such as punching, striking, kicking, biting, etc. • Although the most visible form of abuse, it is less common than neglect and involves varying degrees of culpability (e.g. deliberate physical abuse by a parent; severe punishment of the child by a parent acting in the good faith belief he or she is acting in the child’s best interest; abuse committed by parents who have never developed effective parenting skills; and accidental injuries of children at the hands of their parents. 21
What are the six major types of13.4 child abuse? (continued) • The U.S. Supreme Court has held that parents have a constitutionally protected right to direct their children’s upbringing but the right to discipline is not unlimited. • Common law recognized a “parental privilege” to use reasonable force in disciplining children and today several states have recognized some variation on the privilege by statute, case law, or administrative rule. • Emotional abuse: Emotional abuse is usually defined as injury to the psychological capacity or emotional stability of a child evidenced in an observable and/or substantial change in behavior, emotional response or cognition, or in anxiety, withdrawal or aggressive behavior. • Emotional abuse usually encompasses a pattern of behavior including verbally assaulting and belittling, terrorizing with threats of harm and abandonment, and humiliating and embarrassing among other behaviors. 22
What are the six major types of13.4 child abuse? (continued) • Sexual abuse: States define sexual abuse in various ways generally including both touching offenses (fondling or penetrating the child’s genitals or having the child touch the caretaker’s sex organs etc.) and nontouching offenses such as exposing a child to sexual acts or to pornographic materials. • Substance abuse: States address this topic in both civil and criminal statutes that focus on exposing and involving children in illegal drug abuse. Several states have specifically criminalized prenatal substance abuse. 23
Learning ObjectiveAfter this lecture, you should be able to: Describe who is required to13.5 report abuse and to whom, and how the state responds.
Who is required to report abuse13.5 and to whom? • Approximately 3.3 million reports of abuse are made to state child protective agencies annually of which approximately 25% are substantiated. About 60% of the reports are made by professionals (police, teachers, medical and social services personnel, etc.), 9% by anonymous persons, and the remainder by nonprofessionals (relatives, neighbors, friends, etc.) • Mandatory reporters: Every state identifies individuals who are required to report suspected child abuse or neglect to a designated child protective services agency (usually a state social or human services agency). They typically include at least law enforcement personnel, health professionals, social workers, teachers, and day care providers who are usually provided statutory immunity for filing reports in good faith. 25
Who is required to report abuse13.5 and to whom? (continued) • Permissive reporters: Permissive reporters are individuals who may, but are not required to, report suspected abuse. They typically include friends, neighbors, store personnel, and strangers who witness incidents especially in public places such as stores, playgrounds, and parking lots. They are not liable for reports filed in good faith but in some states may be penalized for knowingly filing a false report. 26
What is the role of a state’s child13.5 protection agency? • State child protection agencies are responsible for: – Receiving reports of suspected abuse – Promptly investigating reports usually by making a home visit within twenty-four hours if the child is in imminent danger otherwise within three to seven days – Developing plans for families in need of services – Providing services (counseling, homemaking, parent education, etc.) directly or through third parties – Removing children from homes where they are at risk of immediate serious harm – Scheduling court hearings – Arranging for and monitoring foster care placements – Initiating proceedings to terminate parental rights when warranted – Referring cases involving serious injury or harm to law enforcement authorities for investigation and possible criminal prosecution 27
How does the state respond to reports13.5 of child abuse and neglect? • When a report of suspected abuse is received and processed, it customarily proceeds along one of four paths: • If the report is found to be false or frivolous, it is deemed invalid. • If the report was made in good faith but there is no reasonable cause to believe the child is at risk, the report is deemed unsubstantiated but remains in the agency’s files. • When the report is substantiated and the abuse is not serious, the agency develops a service plan with the caretaker(s) and the child may remain in the home. If the abuse is serious or the plan is not accepted, the agency may file a care and protection petition seeking temporary removal or removal with termination of parental rights, if appropriate. • If necessary to ensure the child’s safety, the agency may immediately remove the child and file a care and protection petition to be heard by the court within 72 hours. 28
What basic principles guide the13.5 agency’s efforts under federal law? • The state has the authority under the legal doctrine of parens patriae to protect those within its boundaries who cannot protect themselves. • Child protection agencies have a duty to keep families together and if removal is necessary to make a reasonable effort to reunite the family although priority must continue to be given to the child’s health and safety. • In an effort to place children in stable homes as soon as possible, if a child is removed and placed in foster care, a permanency planning hearing must be held no later than twelve months after placement or sooner if reunification is not possible or appropriate. • When removal of an Indian child is at issue, the procedural safeguards of the Indian Child Welfare Act designed to promote the stability and security of Indian families are triggered. 29
Learning ObjectiveAfter this lecture, you should be able to: Explain how abuse and neglect13.6 influence custody decisions.
13.6 How does a history of abuse and neglect and domestic violence influence custody decisions? • All states require that evidence of child abuse and neglect be considered in decisions concerning child custody and visitation in some way: • Some require consideration of a history of domestic violence before joint custody can be awarded. • Some states provide that batterers are presumed to be unfit custodians of children. • Some include documented abuse as a factor in their “best interests” statutes • Some mandate that the courts not award joint custody where abuse has been documented. • Some states also consider the impact of witnessing interspousal domestic violence on a child when making custody decisions. See Paralegal Application 13.3 Making the Case for Custody of a Child Who Has Witnessed Family Violence on page 475 of the text. 31
How does a history of abuse and neglect and13.6 domestic violence influence custody orders? (continued) • Custody orders in abuse cases are designed to protect both children and parents who have been victims of family violence. Ideally they are carefully tailored to the facts of each individual case. The court may order conditions on custody and visitation such as the following: – A restraint on the abusive parent’s communication with or proximity to the child except in the context of authorized visitation. – A requirement that the abuser successfully complete a batterer’s program – A requirement that the abusive parent not use alcohol or drugs during or within a certain period prior to a visit – Exemption of the victimized parent from any state required parenting program – Impounding/denial of access to school and other records containing address and phone information – Supervised visitation in a court approved location 32
Learning ObjectiveAfter this lecture, you should be able to: Discuss the ethical duty of13.7 members of the family law team in the family violence context.
13.7 What is the ethical duty of members of the family law team in the family violence context? • Domestic violence permeates many family law cases and poses monumental ethical dilemmas for members of the family law team. The legal community is divided between those who believe lawyers should be required to disclose serious threats to third parties and those who believe they should not be required to do so given the duty to maintain client confidences and zealously advocate on their clients’ behalf. • Confidentiality requirements are left to the discretion of the states and the states are not uniform in their requirements. Some specifically exclude attorneys from mandatory child abuse reporting requirements. Others adopt the American Bar Association’s Rule that a lawyer may disclose information about abuse if disclosure is reasonably necessary to prevent death or substantial bodily harm or to comply with a law or court order. The remaining states fall in between. 34
Chapter Summary13.1 Explain what family violence is, and who the 12 victims and perpetrators are. Identify remedies available to adult victims of13.2 family violence, including criminal actions, civil actions, protective orders, and guardianships. Explain how to recognize and respond when a13.3 client is a victim or perpetrator of abuse. Class Name Instructor Name Date, Semester Cont.
Chapter Summary13.4 Identify various kinds of child abuse and 12 neglect. Describe who is required to report abuse and to13.5 whom, and how the state responds. Explain how abuse and neglect influence13.6 custody decisions. Class Name Instructor Name Date, Semester Cont.
Chapter Summary13.7 12 Discuss the ethical duty of members of the family law team in the family violence context. Class Name Instructor Name Date, Semester