This column highlights a joint initiative of the Association of Family and Conciliation Courts (AFCC) and the Family Violence Department of the National Council of Juvenile and Family Court Judges (FVD/NCJFCJ) to create a dialogue between family court stakeholders and the domestic violence advocacy community to help family courts better serve victims and children exposed to domestic violence.
This joint initiative is significant because AFCC and FVD/NCJFCJ address the problem of domestic violence and the family court from different perspectives and with different constituencies. The FVD/NCJFCJ has a long history of partnering with leaders in the domestic violence advocacy community and serving as a catalyst for important advances in this area. AFCC is a leader in the movement to develop alternatives to litigation for parents and children in family court, especially mediation, parenting coordination, custody evaluation and parent education.1
The joint AFCC-FVD/NCJFCJ initiative culminated in a conference in February 2007 at the Johnson Foundation conference center outside of Racine, Wis., commonly called Wingspread and designed by the legendary architect Frank Lloyd Wright. Wingspread Conference participants included experienced representatives from the family court judiciary and other court professionals, domestic violence advocates, representatives from a variety of professions that operate in the family court system, and academics from law and social science. They engaged in dialogue about domestic violence and the family court in small facilitated groups for several days.
The result of the dialogue is a conference report drafted by coreporters professors Nancy Ver Steegh of William Mitchell Law School and Clare Dalton of Northeastern Law School currently available on the AFCC Web site.2 The Wingspread Domestic Violence and Family Courts Conference Report will be published in the July 2008 Family Court Review along with detailed articles by participants in the Wingspread Conference. The result will be a state-of-the-art publication about where we are, and where we should be going to help family courts help families experiencing domestic violence.3
This column attempts to summarize a few of the major themes of the Wingspread Domestic Violence and Family Courts Conference Report, especially as they relate to children. An obvious limitation must be stated at the outset: the subject is too complex and too important to be comprehensively addressed in this short column. All I can accomplish is to encourage readers to review the entire report and the July 2008 Family Court Review issue.
Another critical limitation must also be stated at the outset. The differentiation of domestic violence and parenting arrangements that the Wingspread Domestic Violence and Family Courts Conference Report discusses, briefly summarized below, is a conceptual framework not yet supported by comprehensive or conclusive empirical evidence. It is a foundation for future family court research and development, the fundamental recommendation of the Wingspread Domestic Violence and Family Courts Conference Report. The philosophy of differentiation cannot be safely implemented in individual cases at this time by overwhelmed family courts lacking resources to make the sophisticated determinations the framework requires.
A Differentiated Problem
Most of us think of a perpetrator of domestic violence as a male batterer or stalker who inflicts physical violence as part of a campaign to intimidate and control a female victim. Such batterers do exist and are a very real and very lethal threat to women and children.
A fundamental theme of the Wingspread Domestic Violence and Family Courts Conference Report, however, is that violence between intimate partners is not all motivated by control and intimidation and is not all initiated by males. Rather, violence between intimates has different meanings and future safety risks depending on its history and context. The report states:
Families who experience domestic violence differ from one another in significant ways. Violent behavior may range from an isolated incident to pronounced patterns that recur over time, often escalating in intensity and frequency. Infrequent or occasional physical violence may or may not be accompanied by other forms of abuse, including threats, sexual coercion, verbal abuse, isolation and financial control. The level of prior physical violence may or may not be a reliable indicator of future risk or lethality. The violence may be complicated by other problems such as mental illness or substance abuse. Finally, while researchers agree that exposure to domestic violence is harmful to children’s development, not all children are equally affected; there are multiple factors that influence children’s well-being and contribute to decisions about their best interests. Frequently the law of any given state or jurisdiction imposes a definition of domestic violence that is both under- and over-inclusive, and demands uniform treatment of families that fit the definition, despite growing recognition that they are not all alike.
Based on the cases that came before them, the family court judges who participated in the Wingspread Conference agreed that violence between intimate partners is not “one size fits all.” Sometimes it is associated with alcohol abuse or mental illness. Sometimes it is a one-time outburst of anger induced by a revelation that an intimate partner has been unfaithful. Sometimes, violence is mutual: one partner strikes another and the one who is hit responds even more violently.
The Wingspread Conference participants were informed that a body of empirical research is developing that potentially could help courts classify instances of violence and differentiate the risk of harm from future violence the particular category presents. The Wingspread Domestic Violence and Family Courts Conference Report describes that research as subdividing domestic violence into more refined categories such as:
• violence used by a perpetrator in the exercise of coercive control over the victim;
• violent resistance or self-defense;
• violence driven by conflict;
• separation instigated violence; and
• violence stemming from severe mental illness.
Each category (described in more detail in the Wingspread Domestic Violence and Family Courts Conference Report) carries with it a different level of future risk of harm. For example, violence resulting from the batterer’s desire to exercise coercive control of the victim carries with it a great risk of future harm, while one-time separation-induced violence carries less risk.
Differentiating types of violence based on risk of future harm can, theoretically, lead courts to order more appropriate interventions and outcomes in individual cases and allocate limited resources efficiently. Agency-supervised visitation, for example, protects safety of a victim and children by limiting contact, but is expensive to operate and restricts a normal parent-child relationship. It may not be needed if a parent who was violent once but actually poses little future risk to other family members. Limited spaces in supervised visitation programs can then be used for families in which the risk of future harm is significantly higher.
The promise of future benefit from a classification framework must, however, be tempered by current reality. Social science has not yet empirically validated a nuanced classification scheme for different types of violence between intimate partners. Social scientists continue to disagree about what categories of violence actually exist and what kind of research needs to be done to distinguish them. Social science research has also not yet established which variables should influence a court’s choice of particular interventions and outcomes in a particular case; and family courts, operating with severely limited resources, may not be able to differentiate reliably at this point in time.
The Best Interests of Children
Wingspread Conference participants also spent a good deal of effort focusing on the best interests of children in families experiencing domestic violence. They agreed that courts should primarily consider risk to the physical and emotional safety of parents, children and other family members but remain sensitive to potential disruption of parent-child or other family relationships that court orders to protect safety create.
Wingspread Conference participants noted that in a world of limited resources and imperfect knowledge, courts will have to make choices between competing values in ordering parenting arrangements for families experiencing domestic violence. In a presentation to the conference, Professor Janet Johnston of San Jose State University, 4 suggested that those choices should be guided by the following priorities in values:
(1) protecting the safety of children;
(2) protecting the safety and well-being of the victim parent;
(3) respecting the right of adult victims to direct their own lives;
(4) holding perpetrators accountable for their abuse;
(5) allowing both parents access to the child.
Where a court cannot achieve all five priorities in a particular case, Professor Johnston suggested that the lower priorities should be successively relinquished until the conflict is resolved.
Conference participants also agreed that ideally courts should order parenting arrangements for families with a history of domestic violence that match the level of violence and ongoing risk the perpetrator poses to others in the family.
The potential parenting arrangements a court could order based on a comprehensive risk assessment are on a continuum from co-parenting at one end and no contact between a parent and child at the other, with various increasingly restrictive alternatives between the two such as supervised visitation by a relative, or by an agency, and appointment of a parenting coordinator in between. The Wingspread Domestic Violence and Family Courts Conference Report includes a summary table (see Table 1) that might be a useful beginning point for a classification framework to help courts determine what parenting arrangements should be ordered in families with a history of domestic violence.
5
The problem again, however, is that family courts do not yet have the empirically validated tools to conduct the sophisticated screening required to make the kinds of individualized risk assessment that the classification scheme requires. They also do not have the resources to provide supervised visitation or parent coordinators to all families who might benefit from such services.
Need for Collaboration
The Wingspread Domestic Violence and Family Courts Conference Report states:
At best, conference participants could offer only tentative directions for answers to these very difficult questions. They were especially confounded by the lack of research on critical points. All agreed that family courts desperately need additional research and development, for example, to
(a) understand when access to children should be supervised or suspended;
(b) identify appropriate short- and longer-term parenting arrangements;
(c) evaluate the feasibility and desirability of ongoing court monitoring, and
(d) develop best practices and model orders based on this work.
The Wingspread Domestic Violence and Family Courts Conference Report is, in essence, a call for more investment in our families and children through research and development for our family courts. It should be a beginning, not an end of collaboration between the family court and domestic violence advocacy communities. Families will be better served if practitioners, researchers, advocates, clients, and policy makers from different perspectives continue to engage in an ongoing dialogue to identify shared knowledge about domestic violence and agree on areas warranting additional investigation and attention. Research funders are more likely to undertake projects if supported by constituencies that do not normally work together. Listening to diverse voices improves the likelihood that important issues will be addressed, gaps in knowledge identified, best practices developed, and unintended consequences avoided. Better outcomes for parents and children exposed to violence will, in the long run, be the result.
Andrew Schepard is a professor of law at Hofstra University School of Law and director of the Center for Children, Families and the Law. He participated in the Wingspread Conference described herein. Disclosure: Billie Lee Dunford-Jackson, codirector of the Family Violence Division of the National Council of Juvenile and Family Court Judges prepared a summary of the Wingspread Domestic Violence Conference Report which he relied on in preparing this column. Responsibility for what is contained here is, however, his own.
Endnotes:
1. The joint article by Peter Salem, the Executive Director of AFCC, and Billie Lee Dunford-Jackson, codirector of the FDV/NCJFCJ in the July 2008 Family Court Review special issue describes how and why they organized the organizational collaboration, and the opportunities and challenges they encountered in encouraging the domestic violence advocacy community, the family court community and the research community to talk to each other. Peter Salem & Billie Lee Dunford-Jackson, “Beyond Politics and Positions: A Call for Collaboration Between Family Court and Domestic Violence Professionals,” 46 FAM. CT. REV. (2008) (forthcoming).
2. Nancy Ver Steegh & Clare Dalton, “Report from the Wingspread Conference on Domestic Violence and Family Courts” available at http://www.afccnet.org/resources/resources_professionals.asp (last visited April 21, 2008). In the interests of saving space, specific page citations to the report will not be provided here.
3. Nancy Ver Steegh & Clare Dalton “Report from the Wingspread Conference on Domestic Violence and Family Courts,” 46 FAM. CT. REV. (forthcoming July 2008).
4. See Janet R. Johnston, “A Child-Centered Approach to High-Conflict and Domestic-Violence Families: Differential Assessment and Interventions,” 12 J. FAM. STUD. 15 (2006); Peter G. Jaffe, Janet R. Johnston, Claire V. Crooks & Nick Bala, “Custody Disputes Involving Allegations of Domestic Violence: The Need for Differentiated Approaches to Parenting Plans,” 46 FAM.CT. REV. – (forthcoming 2008).
5. The table was taken from Peter G. Jaffe et al., “Making Appropriate Parenting Arrangements in Family Violence Cases: Applying the Literature to Identify Promising Practices” 56 (2005), available at http://www.justice.gc.ca/en/ps/pad/reports/2005-FCY-3/index.html. Wingspread Conference participants were invited to read this work and Nancy Ver Steegh’s article, “Differentiating Types of Domestic Violence: Implications for Child Custody,” 65 LA. L. REV. 1379 (2005) before the conference.
