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Legally Speaking


Issue: December, 2008
Author: Dona Playton

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Raising the Bar: Improving the Representation of Children in Family Law Cases Marked by Domestic Violence

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

Domestic violence is relevant in a wide variety of criminal and civil cases. In family law, evidence of domestic violence may impact distribution of assets, immigration issues, appropriateness of mediation, custody, relocation and appropriate parental education programs when domestic violence is present. In cases where child custody is at issue, it is imperative that clients are screened for evidence of domestic violence. Lawyers, including judges and guardians ad litem (GALs), need ongoing and updated training related to domestic violence. Domestic violence can harm not only the adult victim of the abuse, but the children residing in the household. This article will address the need for more emphasis on domestic violence training in order to establish effective standards and policies for GALs in high conflict divorce and custody cases.

While most of the academic attention on family law and domestic violence has been directed at the impacts of the violence on children, lawyers for battered women continue to face a legal system where the violence is too often minimized or denied by those involved in the proceeding. Any sympathy toward a victim or calls for accountability against the batterer in a criminal context can easily turn to disdain or suspicious doubt toward the victim for even bringing up abuse allegations in the family law context. Despite the widespread acceptance that domestic violence is detrimental to children, “family courts often do not consider the history of violence between the parents in making custody and visitation decisions. . .” Psychological evaluators not trained in domestic violence may contribute to this process by ignoring or minimizing the violence and by giving inappropriate pathological labels to women’s responses to chronic victimization. Terms such as “parental alienation” may be used to blame the women for the children’s reasonable fear of or anger toward their violent father.” Although some claim that women try to get an upper hand in divorce court by getting a Domestic Violence Protection Order in circuit court or by making false claims of abuse in custody proceedings, there simply is no evidence of fabricated claims being anything but rare. In fact, “among false allegations, fathers are far more likely than mothers to make intentionally false accusations (21% compared to 1.3%).” What is rare, however, is courts taking allegations of abuse to heart instead of with a heavy dose of doubt or perceived exaggeration. “Although recent reforms are making a difference, change has to happen at two levels—in the law itself, and then in the attitudes of those who implement and enforce it.”

Most of the progress regarding domestic violence has occurred in the civil protection order realm, with only sporadic relief in the family law system. However, even in protection order cases, many judges are reluctant to limit the batterer’s access to his children, claiming instead that the civil protection order case is not a “mini divorce” and the parents can seek custody determinations from the District Court. Of course, this is an often unattainable prospect, especially for low income parents in Wyoming, where affordable legal services are more a luxury than reality.

Unfortunately, the lack of training of judges and lawyers, including GALs, often inures to the detriment of the children involved in the cases. I recently attended a national domestic violence conference with over 600 judges, prosecutors, law enforcement, advocates and educators. I was struck by the amount of movement around the country in terms of family justice centers, even in small, rural towns like Las Vegas, New Mexico. Some of the progress includes, domestic violence courts staffed by specially trained judges and advocates, brilliant prosecutorial tactics in light of court decisions limiting the use of certain evidence in domestic violence cases, and law enforcement policies aimed at reducing recidivism and saving lives. Sadly, Wyoming was represented by only one Circuit Court judge, an advocate and two civil attorneys, including me.

The deficiency of training, policies or standards of practice in the state is apparent. How much weight should courts give the evidence of domestic violence when determining custody and visitation? Why is the domestic violence custody factor separate from the other factors to be considered by courts when making custody determinations? Is it a rebuttable presumption against joint or sole custody to a perpetrator of abuse? How might the experience of being beaten, humiliated, raped and controlled impact that parent’s willingness to nurture or even believe a loving, caring relationship between the child and the parent accused of perpetrating the violence is possible?

The vast majority of family law cases settle before going to court. For the percentage that do not, the chances of the signature tactics of power and control present in abusive relationships are likely to be at play. In complex custody matters, however, giving a child a voice may be necessary. While having a properly trained and committed GAL in a contested custody case can potentially be helpful, appointing GALs carte blanche without regard for the nature of the case or the credentials of the appointee, especially when domestic violence has been present, is not only inadvisable, but capable of causing irreversible harm and heightened levels of danger to children and the abused parent.

Caution and forethought prior to appointment are critical as many “believe that GALs do not possess an adequate understanding of the issue (e.g. do not view domestic violence as serious, do not understand the implications for couples’ counseling, do not realize how the courts can be used as a mechanism of control and do not realize the effects of domestic violence on victims and their parenting skills).” In 1995 the Family Violence Project of the National Council of Juvenile and Family Court Judges reported that guardians ad litem, along with custody evaluators, were “the professionals least trained about domestic violence of any actors in the civil justice system.” In addition, “One study found that judges accept the GAL’s recommendation in custody cases approximately 80% of the time, often with very little or no additional investigation.” Other than the requirements for GALs in juvenile court dependency cases, there is no requirement that a GAL have training relevant to domestic violence in custody and visitation proceedings, or that she abide by certain standards in the representation of a child’s bests interests to a court. “Cases involving divorce, child custody and child support are [often] handled by . . . guardians ad litem- who must be paid for their services. No laws or office governs them, and no training course is required . . .”

Although training opportunities around the subject of domestic violence have increased substantially over the past ten or so years, application of that training to the representation of children in cases where domestic violence is an issue has not taken hold. Even where statutory language is in place, implementation and application of the law is still being ignored. Courts should adopt standards and guidelines for when to appoint a GAL in a private custody case and for qualifications of those whom are appointed as the GAL. In particular, GALs should be mandated to have up-to-date training on the dynamics of domestic violence and how those dynamics affect children, victims and batterers.

Training should address the impact of spousal or domestic partner violence on custody and parenting time, and any statutes or case law regarding how allegations or findings of domestic violence should affect custody or parenting time determinations. Training should also sensitize lawyers to the dangers that domestic violence victims and their children face in attempting to flee abusive situations, and how that may affect custody awards to victims.

Doing so will professionalize the role of guardians ad litem and improve the outcome for parents and children in high conflict custody cases.

Dona Playton is an adjunct professor and the Director of the University of Wyoming Domestic Violence Legal Assistance Project at the UW College of Law. She has taught Domestic Violence and the Law since 1999 and also teaches a course on Children and the Law at the law school. She has been an attorney with the Wyoming Coalition Against Domestic Violence and Sexual Assault for over ten years.

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