International Family Law Chambers

their views of the credibility of the parties; and their consideration of other pending court cases between the parties, prior court orders or criminal convictions.

Law and Due Process Ignored. Orders based on custody and visitation evaluators’ recommendations ignore their state’s appellate case law and statutes.vii In addition, the right of citizens under the First Amendment to the U. S. Constitution to seek redress of grievances before the courts is violated by these practices. Custody and visitation proceedings have been removed from the rules of due process into some fuzzy area of “discussions” among people who make recommendations that judges follow.viii The judicial authority is thereby delegated improperly to non-judicial personnel. It is suggested by the National Council of Juvenile and Family Court Judges that reliance on evaluators may be a way that judges avoid making decisions.ix

“High Conflict” Characterization Misleads. These practices are used particularly in cases categorized as “high conflict” family law cases. That label is code for cases in which parties are deemed to be misusing the courts to express their rage and seek revenge for affronts by their spouses.x Unfortunately for the victims of IP violence and their children their cases are placed in this category often. This is caused by ineffective screening for IP violence cases by staff working for the courts or service agencies assisting the courts. Also, it results from discrediting women’s sworn testimony and statements in counseling or mediation sessions,xi and trivializing domestic violence and denying the harm to children from domestic violence.xii

Zealous Advocacy Needed
The best response to these systemic barriers to court is legal representation for victims and their children. Lawyers work in the interest of their clients only. They do not have divided loyalties. Screeners working for the courts have two goals: to assess litigants; but also, to support the court system seeking to manage case loads and divert cases to mental health and mediation services and away from the trial calendars.
Lawyers protect their clients from incompetent and prejudicial evaluations and recommendations that fail to comply with legal rules. They make motions to protect their clients from inappropriate counseling and mediation. Lawyers make offers of proof to show the court the reasons that their cases require trials, and that they have competent, material, and relevant evidence to support their claims when proposed settlements are dangerous to their clients.

Oppose Mental Health Evaluations
Mental health evaluations should be opposed in cases in which there are no issues of mental illness. Mental health evaluations and psychological tests cannot establish that intimate partner violence occurred or did not occur.xiii There is no diagnosis of violent intimate partner or victim of intimate partner violence.xiv Lawyers should oppose evaluations also because evaluations delay the proceedings and increase litigation costs.xv
I declined to order mental health evaluations unless there were allegations of mental illness during the 16 years when I presided in the New York Family Court and Supreme Court. I was never reversed for making decisions in custody, visitation, and child protection cases without mental health evaluations.
Furthermore, victims of intimate partner violence may appear less stable than their violent partners because they are suffering from the emotional effects of abuse and fear of losing custody of their children. For these reasons, the test results may not provide accurate assessments of their parental capacity. Abusive partners, by contrast appear calm and self-assured.xvi
Family Systems Approach Flawed. Custody evaluators fail to consider the studies showing that domestic violence offenders often commit other types of crimes.xvii Also, they are serial offenders who commit multiple crimes within a single relationship, and with multiple victims.xviii Evaluators may not know that alleged verbal provocation is not a defense to assault, kidnapping, rape, attempted assault, reckless endangerment, menacing and stalking, all of which are typical domestic violence offenses.
Thus, evaluators ignore the history of criminal conduct, or prior criminal convictions and protection orders, frequently. They do not understand court decisions and orders are res judicata or law of the case determinations of the issues of domestic violence. They instead may characterize intimate partner violence as a problem of family dynamics.xix
The reason for this is that evaluators are influenced by family systems theory. Family systems theory, however, is inappropriate for assessing or responding to intimate partner violence.xx Mental health professionals and judges who adopt the family systems perspective in intimate partner violence cases blame victims for provoking violence and abuse. They perceive intimate partner violence as the result of “reciprocal interactions” within the family system.xxi No one is held responsible for his violent acts, contrary to both criminal and family law.
These perceptions result from the flawed structure of family systems theory when applied to intimate partner violence. It ignores all aspects of families other than communication and dyad interaction. It does not include the legal, social and political “systems” or contexts within which families exist. Differences in size and strength, social status and political power between men and women are omitted from the family systems analysis of intimate partner violence.xxii These views “direct the focus away from the violence and fail to address” the safety needs of weaker family members.xxiii
Evaluator Reports Ignore Court Rulings. Evaluator reports based on offender denials rather than the prior court orders, verdicts, and findings of fact, therefore, are incompetent and prejudicial. They should not be received in evidence. Custody evaluators must accept prior judicial dispositions as the established facts of the case upon which they must base their reports and recommendations. They may not adopt the statements of offenders attempting deny or minimize the history of intimate partner violence and shifting blame to the victims by claiming provocation. They may not disregard the prior court determinations based on the offenders’ claims. xxiv
Courts show tolerance for violence against women. This is a pattern not seen in other cases of violent crime or property crimes. It is a human rights violation for the State to deny the protection of the law to victims of intimate partner violence. This is recognized in the European Union.xxv
The content and style of judicial education materials and programs provide general background information regarding the dynamics violence against women for judges.xxvi Sometimes, however, the training includes analyses based on family systems theory. Family systems theory shifts the responsibility for domestic violence from the offender to the victim.xxvii This result is contradictory to the legislative intent to hold domestic violence offenders accountable for their violent behavior.

Judicial Education is Not Enough to Protect Victims of Domestic Violence
Thus, judicial education cannot be relied upon as a substitute for competent, relevant, and material evidence presented to judges on the record in court. Judges are neutrals who are persuaded to rule based on facts proven and legal argument. They do not collect evidence for the parties; they do not leave the court to find documents and witnesses.
Trained lawyers also take appeals from judicial orders that are contrary to the law and the evidence presented at trial. Successful appeals depend upon the quality of evidence and legal argument presented to trial judges. Lawyers take appeals also from the refusal to allow trials and the presentation of evidence.
Need for Legal Representation of Victims by Trained Lawyers.
The essential role of lawyers is recognized for criminal defendants in the Sixth Amendment to the United States Constitution. Crime victims seeking protection orders and safety for their children need the same legal representation. Few States, however, provide the statutory right to counsel for petitioners and respondents in civil protection order and custody and visitation proceedings.xxviii
Judges are more likely to make orders that keep victims and their children safe based on evidence and legal argument presented on the record. Lawyers with trial skills and knowledge of the special issues arising in cases of domestic violence, rape, stalking, and threats know how to marshal evidence. Lawyers educate judges about the facts in their clients’ cases. They propose orders with protective conditions that meet the needs of the clients based on the statutory remedies.xxix Lawyers know how to take appeals from orders that place their clients at risk of continued violence and abuse.
The current practices in many courts are prejudicial to the safety and lives of domestic violence victims and their children. They are based on the presumption that visits by parents who committed acts of violence or patterns of verbal abuse against the custodial parents are good for children in all circumstances. This bias is so strong that victims and their children find it impossible to present their evidence and fears in court.
Many States have good domestic violence laws and judicial education programs. The protection and safety to be gained from them is realized when victims are represented by skill trial and appellate lawyers. Thus, we should turn our efforts to getting funding for representation by lawyers and domestic violence training for lawyers.

i. Statement in court by a women judge presiding is a divorce case in Supreme Court, Kings County, New York, 1978.
ii.Marjory D. Fields was a judge on the New York Family and Supreme Courts for 16 years. She declined another term on the court to return to work as a consultant for improved responses to violence against women and children. She has worked for better legal remedies and services for victims of domestic violence for 35 years. Judge Fields is Special Counsel to Beldock Levine & Hoffman in New York City, and International Family Law Chambers in London. To correspond with author, mfields@blhny.com.
iii. Annette M. Gonzalez & Linda M. Rio Reichmann, “Representing Children in Civil Cases Involving Domestic Violence,” 39 Family Law Quarterly 197, 216-18 (ABA Section of Family Law, Spring 2005).
iv. 11 Violence Against Women No. 8 (August 2005) reports of four NIJ funded empirical studies of court orders in custody and visitation cases with histories of IP violence.
v. Jane C. Murphy & Robert Rubinson, “Domestic Violence and Mediation: Responding to the Challenges of Crafting Effective Screens,” 39 Family L Q 53 (Spring 2005).
vi. Frye v. United States, 293 F 1013 (DC Cir 1923); Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 US 579 (1993); Kumho Tire Co. v. Carmichael, 526 US 137 (1999).
vii. Gonzalez & Rio Reichmann, supra note 3, at 198-99; Chart # 2 “Custody Criteria,” 39 Family L Q 917 (Winter 2006); Marjory D. Fields, The Impact of Spouse Abuse on Children and Its Relevance for Custody and Visitation Decisions in New York State, 3 Cornell J.L. and Public Policy 221 (1994); Wissink v. Wissink, 749 NYS2d 550 (2d Dept 2002), for example.
viii. See, In re Gault, 387 US 1 (1967), holding that due process is required in juvenile delinquency proceedings in Family and Juvenile Courts. It is relevant to custody and visitation cases, too.
ix. National Council of Juvenile and Family Court Judges, Navigating Custody and Visitation Evaluations in Cases with Domestic Violence: A Judge’s Guide at 16 (2004), available free at www.ncjfcj.org/images/stories/dept/fvd/pdf/navigatingguide_supplementcards_final_2006.pdf.
x. See, Andrew Schepard & J.W. Bozzomo, “Efficiency, Therapeutic Justice, Mediation, and Evaluation,” 37 Family Law Q 333, 345-49 (Fall 2003).
xi. Elizabeth Sheehy, “Evidence Law and ‘Credibility Testing’ of Women,” 2QUTLJJ 157 (2002); T. Brown, F. Federico, L. Hewitt, & R. Sheehan, R., “Revealing the Existence of Child Abuse in the Context of Marital Breakdown and Custody and Access Disputes,”24 (6) Child Abuse & Neglect 849-85 (2000).
xii. Gonzales & Rio Reichmann, supra note 3 at 197-202; 216-18; Allison C. Morrill, Jianyu Dai, Dunn, Samantha Dunn, Iyue Sung, & Kevin Smith, “Child Custody and Visitation Decisions When the Father Has Perpetrated Violence Against the Mother,” 11(8) Violence Against Women 1076-1107 (2005); Jeffrey L. Edleson , “Problems Associated with Children’s Witnessing of Domestic Violence (1999) at www.vawnet.org/DomesticViolence /Research/VAWnetDocs/AR_witness.php; CDC continuing study of “adverse childhood experiences” including witnessing domestic violence at www.acestudy.org; www.cdc.gov/od/oc/media/pressrel/r980514.htm; A.E. Appel & G.W. Holden, “The Co-Occurrence of Spouse and Physical Child Abuse: A Review and Appraisal,” 21(4) J Family Psychology 578-99 (1998).
xiii. Nancy S. Erickson, “Use of the MMPI-2 in Child Custody Evaluations Involving Battered Women: What Does Psychological Research Tell Us?” 39 Family L. Q. 87, 88 (Spring 2005); The New York State Matrimonial Commission, Report to the Chief Judge 46-54 (Feb. 2006).
xiv. Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV) (American Psychiatric Association, 2000); Edward Gondolf, “MCMI-III Results for Batterer Program Participants in Four Cities: Less ‘Pathological’ Than Expected,” 14(1) J. of Family Violence 1-17 (1999).
xv. See, Report of the Matrimonial Commission 46-54 (New York State Office of Court Administration, Feb. 2006), available at www.courts.state.ny.us/reports/matrimonialcommissionreport.pdf.
xvi. Erickson at 87-89, 108; Lundy Bancroft & Jay G. Silverman, The Batterer as Parent: Addressing the Impact of Domestic Violence on Family Dynamics (Sage, CA, 2002).
xvii Melissa Labriola, Michael Rempel, & Robert T. Davis, Testing the Effectiveness of Batterer Programs and Judicial Monitoring , “Offender Profiles” 32 (Center for Court Innovation, NY, 2005, NIJ grant study); David M. Kennedy, “Rethinking Law Enforcement Strategies to Prevent Domestic Violence,” National Center For Victims Of Crime, Networks 8 (Spring/Summer 2004); Nancy E. Jones, et al., “Men Who Batter: Profile from a Restraining Order Database,” Archives of Family Medicine 52 (1994); Jeffrey A. Fagan, Douglas K. Stewart, & Karen V. Hansen, “Violent Men or Violent Husbands? Background Factors and Situational Correlates of Domestic and Extra-Domestic Violence,” in David Finkelhor, et al., eds., The Dark Side of Families (Beverly Hills, CA: Sage Publications, 1983).
xviii. Kennedy, op cit.
xix. Marsali Hansen & Michèle Harway, Battering and Family Therapy: A Feminist Perspective (Sage, 1993) notes in Ch. 1 "An Overview of Domestic Violence" by Michèle Harway & Marsali Hansen 1, 7.
xx. Marsali Hansen, “Feminism and Family Therapy: A Review of Feminist Critiques of Approaches to Family Violence,” in Hansen & Harway, supra note 19, at 69-80; Michèle Harway & Marsali Hansen, “Therapist Perceptions of Family Violence,” Id. at 42-53; Marsali Hansen & Michèle Harway, “Intervening with Violent Families: Directions for Future Generations of Therapists,” Id. at 232-37.
xxi. Marsali Hansen, “Feminism and Family Therapy,” Id. at 76-77; but, see a contrasting view, Christine Murray, “Controversy, Constraints, and Context: Understanding Family Violence Through Family Systems Theory” 14 (3) The Family Journal 234-39 (2006).
xxii.Id. at 78-80.
xxiii. Id. at 80.
xxiv. Cathy Humphreys & Rachel Carter, et al., The justice system as an arena for the protection of human rights for women and children experiencing violence and abuse Final Report at 7 (Co-ordination Action on Human Rights Violations, European Commission project, 2005), available from Rachel.carter@gldvp.org.uk. This report describes a “four planet” analysis in which the protection order/criminal prosecution; child custody and visitation; child protection; and immigration legal systems ignore each other. In the first she is a crime victim/witness; in the second an “unfriendly parent”; in the third a mother who fails to protect her child from the violent father; and in the fourth an illegal alien.
xxv. Id. at 5-6.
xxvi. National Council of Juvenile and Family Court Judges, supra note 9.
xxvii. Zorza, Joan, “A Mixed and Dangerous Tool,” 10 Domestic Violence Report 49, 57-61 (April-May, 2005), Hansen, supra note 20.
xxviii. But see, for example, New York Family Court Act § 262 and New York Judiciary Law §35(8) which provide the right to counsel for the parties in custody and visitation proceedings and in protection order proceedings, and, also, when these issues arise in divorce actions.
xxix. See, Gonzales & Rio Reichmann, supra note 3, and cases cited therein at 216-18. Chart # 2 “Custody Criteria,” supra note 7.

International Family Law Chambers

Publications

Lawyer skills training for DV representation: Tips from a retired Judge.
Domestic Violence Report Oct/Nov 2006

[AT] “Just because he beats his wife does not mean he is a bad father”i:

Judge Marjory D. Fields

International Family Law Chambers

Publications

Lawyer skills training for DV representation: Tips from a retired Judge. Domestic Violence Report Oct/Nov 2006

[AT] “Just because he beats his wife does not mean he is a bad father”i:

Judge Marjory D. Fields

Lawyer skills training for DV representation: Tips from a retired Judge.
Domestic Violence Report Oct/Nov 2006