Domestic Violence and Custody The Role of Guardian Ad Litems Vicky O. Kimbrell Georgia Legal Services Program December 2005 .

Domestic Violence and Custody

The Role of Guardian Ad Litems

Vicky O. KimbrellGeorgia Legal Services Program

December 2005

www.GLSP.org

“Since batterers are more likely to fight for custody of children and as likely as non-batterers to be successful in

this action, more intensive reading and training in this area

is essential for professionals.”

Lundy Bancroft & Jay G. SilvermanThe Batterer as Parent: Addressing the Impact of Domestic Violence on Family

Dynamics (2002)

I. Power and Control -The Essential Elements of Family Violence

Prevalence

Myths and Realities

Control

Possessive

The Charming Batterer

Prevalence of DV The American Medical Association estimates that

over 4 million women are victims of severe assaults by boyfriends and husbands each year.  

About 1 in 4 women is likely to be abused by a partner in her lifetime. (Sara Glazer, "Violence Against Women," CQ Researcher, Congressional Quarterly Inc., Vol. 3, No. 8, Feb. 1993, p.171.)

The victim in domestic violence is female in 85% of all cases reported.   Uniform Crime Reports as cited by M.C. Moewe, "The Hidden Violence:  For Richer and For Poorer,"  Fort Worth Star-Telegram, Apr. 5, 1992)

DV Against Pregnant Women

As many as 17% of adult pregnant women are battered. The number of teenagers that are battered during pregnancy may be as high as 21%.

Abused pregnant women have a higher rate of poor weight gain, first or second trimester bleeding, miscarriage, still births, premature labor and low birthweight babies than non-

battered pregnant women. Thirty-seven percent (37%) of female patients treated in an

emergency room for violent injury have been injured by their

partners.

– http://www.save-dv.org/stats.htm

Georgia Fatality ReportGCADV,GCFV December 2004

137 Deaths as a result of DV 2003– 101 gunshots -- 1 pushed from car– 15 stabbings -- 1 asphyxiation– 7 strangulation -- 1 head injury – 5 beaten to death -- 1 hanging– 2 arsons -- 3 unknowns

Lethal violence is highest during and after the couple separates

Children become tools of batterers efforts to control victim

Batterers often accuse their partners of alienating the children (Parental alienation friendly-parent requirements.)

Control – “The” issue for batterers

The overarching behavioral characteristic of the batterer is the imposition of a pattern of control over the partner.

Batterers are also controlling with their children. Professionals who intervene need to remain aware

at all times of the high potential for punishment or intimidation of the victim or the children for discussing events in the home.

– Lundy Bancroft & Jay G. SilvermanThe Batterer as Parent: Addressing the Impact of Domestic Violence on Family Dynamics (2002)

Possessiveness

Partners and children are possessions to a batterer Not an issue of “anger” Anger Management is not appropriate Violence is a learned life long and effective

behavior – FVIPs teach behaviors and consequences

Manipulative tactics are used to keep control of partners

– Lundy Bancroft & Jay G. SilvermanThe Batterer as Parent: Addressing the Impact of Domestic Violence on Family Dynamics (2002)

The Charming Batterer

Batterers who seek custody have distorted perceptions: universally minimizing the role of their violence

May not seem to others like abuser May have successful work/community life Jekyll/Hyde behaviors - MSV

– Lundy Bancroft, Why Does he Do That? Inside the Minds of Angry and Controlling Men (2002)

Myths Violence just happens when he’s angry He has some mental illness Alcohol is what makes him abusive Drugs make him abusive A Batterer can be a good parent Just as many abusive women as men

– 85-90% of batterers are men

– 5-10% of batterers are women

Escaping Family ViolenceEscaping Family Violence

On the average a victim will leave an abuser On the average a victim will leave an abuser 7 times before it becomes permanent.7 times before it becomes permanent.

Why?Why?

Why doesn’t she just leave?

FEAR - #1 reason Safety Lack of money Threats to children Promises Lack of enforcement Frequency/Severity of

abuse

Her childhood Isolation Beliefs about marriage and/or men

Refugee/Immigrant BarriersRefugee/Immigrant Barriers

CulturalCultural

EconomicEconomic

LanguageLanguage

DistrustDistrust

Fear of DeportationFear of Deportation

II. Georgia LawLegal Standards in Custody and

Visitation Awards in Georgia

Standards in Awarding Custody when family violence is found

Standards in Awarding Visitation when family violence is found

Third Party Custody - Child Protective Services

Impact on Children

50% of the time batterers also abuse the children in the home.

Children who witness violence in their homes are much more likely to become perpetrators or victims of domestic violence.

Children who see their mothers abused are 6 times more likely to commit suicide than children in non-violent homes.

Standards on Awarding Custody when FV - OCGA 19-9-1 (a)(2) – “In a proceeding awarding

custody/visitation when family violence is found:”

– Court shall consider as primary the safety and well-being of the child and parent who is the victim of family violence;

– Court shall consider the perpetrator’s history of harming another;

– If one parent is absent or relocates because of family violence such shall not be deemed abandonment of the child;

– Court can order supervised visitation.

Custody between parents:O.C.G.A. Sec. 19-9-3

(3) In addition to other factors that a court may consider in a proceeding in which the custody of a child or visitation by a parent is at issue and in which the court has made a finding of family violence:

(A) The court shall consider as primary the safety and well-being of the child and of the parent who is the victim of family violence;

Visitation O.C.G.A. Sec. 19-9-7

(a) A court may award visitation by a parent who committed one or more acts involving family violence only if the court finds that adequate provision for the safety of the child and the parent who is a victim of family violence can be made.

In a visitation order, a court may:

   (1) Order an exchange of a child to occur in a protected setting;

   (2) Order visitation supervised by another person or agency;

   (3) Order the perpetrator of family violence to attend and complete, to the satisfaction of the court, a certified family violence intervention program for perpetrators as defined in Article 1A of Chapter 13 of this title as a condition of the visitation;

   (4) Order the perpetrator of family violence to abstain from possession or consumption of alcohol, marijuana, or any Schedule I controlled substance listed in Code Section 16-13-25 during the visitation and for 24 hours preceding the visitation;

 (5) Order the perpetrator of family violence to pay a fee to defray the costs of supervised visitation;

   (6) Prohibit overnight visitation;

   (7) Require a bond from the perpetrator of family violence for the return and safety of the child; and

   (8) Impose any other condition that is deemed necessary to provide for the safety of the child, the victim of family violence, or another family or household member.

Custody and Batterers Batterers are twice as likely

to seek sole physical custody for their children than are non-violent fathers.

When batterers do press for custody, they are awarded it at the same rate of non-batterers, 50% of the time.

Forced Joint Custody

Forcing joint physical custody on unwilling parents results in high levels of parental conflict and re-

litigation, leaving children with two tense and angry

parents. In Re: ARB

STATE INTERVENTION IN FAMILY VIOLENCE CASES

“My three month old woke up in the middle of the night with an ear infection and temperature. My husband screamed, ‘Shut the baby up, I’m trying to sleep.’ I was trying to comfort her, but nothing worked. He got up, took her and whacked her. She had a black and blue rear end. Now what should I do? My husband told me. ‘No matter what you say, I’m going to tell them that you did it.’” Effective Intervention in Domestic Violence & Child Maltreatment Cases – National Council

of Juvenile & Family Court Judges, p. 11.

What would you Do?What would be the Consequences? Call police. Call DFCS. Go to doctor. Call your family. Call a friend. Call a lawyer. Call a shelter. Leave.

Cruelty to Children

O.C.G.A. Sec. 16-5-70 Third Degree - Such person, who is the primary

aggressor, intentionally allows a child under the age of 18 to witness the commission of a . . .family violence battery

Such person, who is the primary aggressor, having knowledge that a child under l8 is present and sees or hears the act, commits family violence battery.

Legal Requirements before Removal

Continuation in the home contrary to the welfare of the child

Reasonable efforts by DFCS to prevent or eliminate the need for the removal - 15-11-58

Such findings shall be made at every subsequent review Child’s health and safety is paramount - 15-11-58(a)(1) Parents have right to zealous and competent

representation. Indigent parents have right to appointed counsel

Principles for an Effective and Humane CPS System - Greenbook

Safety, well-being and stability for children and families

Children in care of non-offending parent

Community service system with many points of entry

Differential response to families

Domestic violence perpetrators do not victimize only adults.

Where women are abused, their children are also often maltreated.– Services must be provided for the parent-victim to

protect children.From: Effective Intervention in Domestic Violence & Child Maltreatment Cases – National Council of Juvenile & Family Court Judges - Greenbook

Principle I: Courts, lawyers, child protective Principle I: Courts, lawyers, child protective agencies, domestic violence agencies must agencies, domestic violence agencies must intervene to create safety, enhance intervene to create safety, enhance well-being, and provide stability for children well-being, and provide stability for children and their families.and their families.

Principle II: To ensure stability and permanency for children, courts and communities must try to keep children in the care of their non-offending parent.

Historically, mothers have been held responsible for batterer’s violence – failure to protect;

Shortsighted to remove children from care of their battered mothers rather than remove the batterer;

Link the safety of the children to safety of the mother; Communities must develop a broad range of services and

interventions for family violence –Natl. Assn. Of Public Child Welfare Administrators, Guidelines for a Model System (1999).

Principle III: Responsibility for Family Violence Must be Placed Where it Belongs – On the Abuser Criminal Responsibility Civil Responsibility Financial / Economic Responsibility Batterer Intervention Programs Parenting Training Supervised Visitation Drug/Alcohol Abuse Intervention – Not excuses,

not causes of abuse.

DV ToolKit - Tools to Effectively Intervene in DV Cases Where

Children are at Risk

Do’s and Don’ts in Caseplans– TPOs– DV Shelters– Separation from Batterers– Evaluations– Counseling

Temporary Protective Orders

Do– Advise Client of

Options– Refer Client to Legal

Services, Private Attys,Legal Advocate, Vic Asstc, SAAGs

– Realistically explain benefits and risks of TPOs

Don’t– Mandate TPOs– TPOs can Anger

Batterer– Mutual TPOs– Uses your authority

to control victim– Victim has more

information than you upon which to make decisions

DV Shelters

Do– Provide information

about shelters– Include shelter adv in

discussions– Help with safety

planning

Don’t mandate survivors go into shelter– Not ready to leave

mentally financially– Not prepared for

communal living– Not willing to take

children out of environment

Separation from Batterer

Do– Educate Victims on Separation

resources -Places, shelters– Financial resources,

• Safety in Workplace• Child Support

– Public Benefits• TANF, Food Stamps• Medicaid, Peachcare• SSI/SSD• Public/Subsidized Hsg.• PUP funds• Victims Compensation –

$25,000

Don’t– Make Victim Responsible for

Separation

– Mandate Separation without safety planning

– More women are killed leaving than staying. 75% of homicides occur during separation

Evaluations

Do– Offer Services

Relevant to the Safety Needs of the Victim and Children

Don’t – Order evaluations

because “everybody” gets them - parenting classes won’t keep anyone safe

– Drug testing, mental health - being beaten is not a mental condition

Joint Case Plans Put Victims & Their Children in Danger

Make each party responsible only for the actions they can control. “Ms. Jones will not participate in domestic violence.”

If he knows where and when her classes/evaluations/tests/services are scheduled, she’s in danger - and the case plan put her there.

FVIPS are never appropriate for victims

What can lead to economic abuse?

Lack of child support in TPOs Lack of property awards in TPOs Injuries requiring medical attention Debts - Credit abuse Lack of Enforcement Workplace Violence

Safety Planning

With the Adult With the Children

– Shelter Advocates - Experts in this area– Are Advocates on Case Panels in your

community?

Batterer Case Plans

Perpetrator will:– Commit no acts of violence;– Commit no intimidating acts, threats or

verbal abuse– Remove all weapons– Comply with all court orders– Attend and comply with all Batterer

Intervention program recommendations– Not use physical violence against

children

Batterer case plans

Acknowledge past abuse Comply with substance abuse

recommendations Comply with mental health

recommendations Pay child support as ordered

Under the ODR Guidelines - Mediation Issues

The party alleging domestic violence may choose whether or not to proceed with mediation;

These standards also require that parties be fully informed about the mediation process. In keeping with these principles, and the necessity of protecting participants, an alleged victim of domestic violence will be given the opportunity to exercise choice about whether to proceed with mediation prior to assignment of the case;

To ensure that the alleged victim’s choice to proceed with mediation is self-determined, s/he must be provided with sufficient information about the process to make an informed choice.

Mediation Often Results in Poor Outcomes for DV Survivors

The present study empirically evaluated outcomes and found that mediators failed to recognize and report DVin 56.9% of the DV cases. Mediation resulted in poor outcomes for DV victims in terms of protections, such as supervised visitation, and protected child exchanges. – http://vaw.sagepub.com/cgi/content/abstract/11/8/1022

Resources:

DV Hotline: (800) 33Haven (800) 334-2836

Georgia Legal Services: (404) 206-5175Atlanta Legal Aid: (404) 524-5811