Showing papers in "Family Court Review in 2008"

Differentiation among types of intimate partner violence: research update and implications for interventions

Abstract: A growing body of empirical research has demonstrated that intimate partner violence is not a unitary phenomenon and that types of domestic violence can be differentiated with respect to partner dynamics, context, and consequences. Four patterns of violence are described: Coercive Controlling Violence, Violent Resistance, Situational Couple Violence, and Separation-Instigated Violence. The controversial matter of gender symmetry and asymmetry in intimate partner violence is discussed in terms of sampling differences and methodological limitations. Implications of differentiation among types of domestic violence include the need for improved screening measures and procedures in civil, family, and criminal court and the possibility of better decision making, appropriate sanctions, and more effective treatment programs tailored to the characteristics of different types of partner violence. In family court, reliable differentiation should provide the basis for determining what safeguards are necessary and what types of parenting plans are appropriate to ensure healthy outcomes for children and parent‐child relationships.

Custody disputes involving allegations of domestic violence: toward a differentiated approach to parenting plans

Abstract: Premised on the understanding that domestic violence is a broad concept that encompasses a wide range of behaviors from isolated events to a pattern of emotional, physical, and sexual abuse that controls the victim, this article addresses the need for a differentiated approach to developing parenting plans after separation when domestic violence is alleged. A method of assessing risk by screening for the potency, pattern, and primary perpetrator of the violence is proposed as a foundation for generating hypotheses about the type of and potential for future violence as well as parental functioning. This kind of differential screening for risk in cases where domestic violence is alleged provides preliminary guidance in identifying parenting arrangements that are appropriate for the specific child and family and, if confirmed by a more in-depth assessment, may be the basis for a long-term plan. A series of parenting plans are proposed, with criteria and guidelines for usage depending upon this differential screening, ranging from highly restricted access arrangements (no contact with perpetrators of family violence and supervised access or monitored exchange) to relatively unrestricted ones (parallel parenting) and even co-parenting. Implications for practice are considered within the context of available resources.

Effects of father and mother parenting on children's mental health in high- and low-conflict divorces

Abstract: This article studied the relations of children’s mental health problems to the warmth of their relationship with their noncustodial father and custodial mother and the level of conflict between the parents. Using a sample of 182 divorcing families, multiple regression was used to test the independent effect of father warmth, mother warmth, and interparental conflict. Results indicated that father warmth and mother warmth were both independently related to lower child-externalizing problems. However, the relations between mother and child warmth and child-internalizing problems were different as a function of interparental conflict and level of warmth with the other parent. Implications for court practices and policies are discussed.

A nationwide survey of mandatory parent education

Abstract: In an effort to take positive steps toward coping with problems for families and children created by high levels of separation and divorce, ever increasing civil caseloads and the exposure of children to interparental conflict, court-affiliated educational programs have emerged in the United States for parents separating from their spouse or partner or going through a divorce. This article will provide an overview of the creation of such programs and their development, which includes a discussion regarding the numerous states currently mandating parents to attend. It will summarize some of the research which has been conducted as to the efficacy of the programs and will provide the results of our nationwide research for each state's parent education status. There is a discussion of domestic violence issues and sensitivities in the context of parent education programs and possible future directions for mandatory parent education.

Report from the wingspread conference on domestic violence and family courts

Abstract: In February 2007 the National Council of Juvenile and Family Court Judges and the Association of Family and Conciliation Courts brought together a working group of thirty-seven experienced practitioners and researchers to identify and explore conceptual and practical tensions that have hampered effective work with families in which domestic violence has been identified or alleged. Five central sets of issues were raised at the conference and are discussed in this report. These include the following: differentiation among families experiencing domestic violence, screening and triage, participation by families in various processes and services, appropriate outcomes for children, and family court roles and resources. The report emphasizes the need for continued multidisciplinary collaboration in order to better serve families affected by domestic violence and it includes an appendix of consensus points as well as suggestions for formation of ongoing work groups.

What's good for the gays is good for the gander: making homeless youth housing safer for lesbian, gay, bisexual, and transgender youth

Abstract: Across the United States, lesbian, gay, bisexual, and transgender (LGBT) youth are grossly overrepresented in the homeless youth population. These youth are at an increased risk of being victims of violence in homeless youth housing facilities. This Note examines the causes of the overrepresentation of LGBT youth in the homeless youth population. Additionally, this Note suggests the following changes to the regulation of homeless youth housing programs to make them safer for these youth: (1) placing low maximum limits on the occupancy capacity at which these programs may operate, (2) requiring that all showering facilities provide individual privacy, (3) prohibiting anti-LGBT discrimination in the provision of services, (4) requiring nondiscrimination and sensitivity training, and (5) promoting the creation of LGBT-specific homeless youth housing programs.

Parenting coordination (pc) practice: a survey of experienced professionals

Abstract: This study summarizes a survey of experienced North American parenting coordinators (PCs). The survey was modeled after a similar seminal study of child custody evaluators (Keilen & Bloom, 1986) and seeks to establish a similar baseline standard in alternative dispute resolution (ADR) court-sanctioned PC practices. Results reveal that PC is being practiced across North America by highly experienced practitioners that are multidisciplinary across legal and mental health professions who work by court order. These PCs work with a specific written PC agreement that specifies basis of authority, scope of authority, terms of service, retainer/fees, and grievance procedures. Results characterize PC as an increasingly established hybrid ADR court-sanctioned role that is effective precisely because of accessibility to families, the unique knowledge base of the family law professional concerning the dynamics of divorcing families, and the court-granted authority to help families resolve disputes that are generally more familial and psychological than legal in nature.

Relocation, research, and forensic evaluation: part ii: research in support of the relocation risk assessment model

Abstract: The forensic risk assessment model for child custody relocation cases was described by Austin (2000a, 2000b). It is a research-based, actuarial predictive model designed to assist evaluators in organizing data for the complex relocation case. It is only the first step in the forensic relocation analysis. The model can serve as a heuristic for decision makers who are in a position of trying to resolve the decisional dilemmas associated with relocation. The research basis for the model is more fully described. The fact-driven nature of relocation cases is emphasized. Evaluators and decision makers are also encouraged to integrate descriptive data that allow for a psychological cost/benefit analysis or the relative advantages/disadvantages to the children and parents associated with relocating or not relocating. The model is intended to facilitate the process of careful investigation by evaluators and to provide a scientific framework for the forensic analysis necessary for the crafting of appropriate parenting plans.

Beyond politics and positions: a call for collaboration between family court and domestic violence professionals

Abstract: The domestic violence advocacy and family court communities have each grown dramatically over the last three decades. Although these professional communities share many values in common, they often find themselves at odds with one another on a host of issues. This article examines the practical, political, definitional, and ideological differences between the two communities and calls for them to join forces and collaborate on behalf of children and families.

Divorce and the family court: what can be done about domestic violence?

Abstract: Approximately 50% of couples who have separated report being victims of violence and/or emotional abuse by their former intimate partners. Family courts can make an important contribution toward reducing the number of intimate partners who report being victims of domestic violence and abuse during and following their participation in divorce proceedings in three ways. First, increase opportunities for participation in nonadversarial procedures. Second, implement mandatory assessment/screening for domestic violence using field-tested instruments that link subscores on sets of items (e.g., control motivated violence, conflict instigated violence/abuse, substance abuse associated violence/abuse) with appropriate community-based treatments and/or resources. Third, educate family court judges, lawyers, mediators, and other court personnel in the dynamics of domestic violence generally, as well as the dynamics associated with separation/divorce.

“it's in their culture”: fairness and cultural considerations in domestic violence

Abstract: This essay attempts to critique the prevailing thinking on culture and cultural competency within the context of domestic violence. Current thinking and presentations of culture usually consists of providing court personnel with essentialist pictures of various groups of people with suggestions on how to work with them. These pictures obscure the reality that cultures are often unstable and generalizations that lead to providing more misinformation. The essay develops a critical framework on the issue and provides specific ways in which a more nuanced understanding of culture is helpful for court personnel as they grapple with how to work with a diverse population.

Questions about family court domestic violence screening and assessment

Abstract: Increasingly, family courts are seeking ways to focus limited resources on cases that require the most intervention, tailor court responses and dispute methods to each case, and account for the real differences among domestic violence cases. One of the means to that end may be the triaging or screening of cases. This article raises a number of questions about screening and urges that they be addressed by courts and communities that are considering whether and how to design a screening protocol. Issues include: How should we define domestic violence for the purposes of screening? Who should carry out the screening? How can we maximize the likelihood that we will fully assess the context of the violence in each case? How should we assess the risks or dangers inherent in the parties’ situation? How should a screening effort account for changing circumstances as a case proceeds through the courts? How can information gathered in a screening effort improperly impact subsequent decisions of the court?

The reproductive and parental rights of incarcerated mothers

Abstract: Acknowledging the explosive growth in the number of incarcerated women in the United States, this Note critically examines the current treatment of mothers and expectant mothers in the U.S. prison system. This Note highlights the severe inadequacy of current prison policies and accompanying maltreatment of incarcerated women and their children, especially with regard to the frequent separation of mothers from their children and the poor health care available to expectant mothers. The damage inflicted by current prison policies must be comprehensively redressed through the creation of prison nursery programs, halfway houses, the provision of optimal prenatal care, and the elimination of the draconian practice of shackling pregnant women. Such reforms will not only benefit incarcerated women and their children, but will also deter recidivism and promote the welfare of the community at large.

Reevaluating where we stand: a comprehensive survey of america's family justice systems

Abstract: The call for court reform remains critical in the face of the growing complexity of burgeoning family law cases nationwide. Many states have restructured their court systems using the unified family court model, resolving legal, personal, emotional, and social disputes with the aim of improving the well-being of families and children. Other states utilize the traditional approach, resulting in cases being handled in a fragmented, time-consuming and expensive manner. In this article, Professor Barbara A. Babb presents the results of her nationwide survey regarding how each state handles family law matters. The survey is a follow-up to her comprehensive 1998 survey and her 2002 survey update. The results of the recent analysis reveal that a total of thirty-eight states now have either statewide family courts, family courts in selected areas of the state, or pilot or planned family courts, representing seventy-five percent of states. The number of states without a specialized or separate system to handle family law matters has decreased from seventeen states in 1998 to thirteen in 2006. These changes are significant when one considers the complexities involved in court reform. The need for court reform remains an urgent one, as family law cases occupy a significant percentage of court dockets across the country. Families and children deserve a court system where justice is effective and efficient and where their legal, personal, emotional, and social needs are resolved in a therapeutic and holistic manner.

A comment on William J. Howe and Hugh McIsaac's article "Finding the balance" published in the January 2008 issue of Family Court Review.

Abstract: This article is a response to an article written by William Howe and Hugh McIsaac that questions their recommendations that court-based mediation not be used when certain types of persons appear in court. We assert that it will be very difficult for the court to identify these people. Further, we argue that mediation practice has advanced so far that even these persons (those with serious issues of domestic violence, substance abuse, and mental health) should be given an opportunity to participate in mediation before being referred to the adversarial court process.

Social work and law: a model approach to interdisciplinary education, practice, and community-based advocacy

Abstract: Many schools of social work maintain partnerships with schools in other fields, including law schools. Social work educators also seek to provide students with real-life educational experiences. Schools maintain ties with community-based organizations to facilitate field placements for students and also to effect social change. I review existing literature regarding social work interdisciplinary education, focusing on law and social work. I describe a social work program designed to provide students with interdisciplinary education both in the classroom and in the field and to effect community-based advocacy. Finally, I describe pending research designed to measure the program's efficacy.

Romancing the Court

Abstract: Problem-solving courts, created at the end of the twentieth century, make court-based solutions central to addressing significant societal problems, such as substance abuse and its impact on criminal activity and family functioning. Yet, lessons gleaned from over 100 years of family court history suggest that court-based solutions to intractable social problems have rarely been effective. This article asks three questions of the problem-solving court movement: What problem are we trying to solve? Is the court the best place to solve the problem? What are the consequences of giving authority to a court for solving the problem? Answering those questions through the lens of specific examples from family court—the original problem-solving court—leads to the conclusion that neither the structural issues that courts face, such as overwhelming numbers of cases, nor the momentous societal issues that problem-solving courts have recently begun to shoulder can be adequately addressed through court-based solutions. The factors that allegedly distinguish new problem-solving courts from earlier exemplars, especially the family court, are both less unique and less successful than they have been portrayed by problem-solving court enthusiasts. These factors alone fail to justify the expansion of problem-solving courts without further evidence of their effectiveness. Moreover, the potential dangers inherent in problem-solving courts are not theoretical. By examining illustrative examples from the history of the family court, the dangers become clearly apparent.

Advocating for comprehensive assessments in domestic violence cases

Abstract: Many jurisdictions handle domestic violence cases on a one-size-fits-all basis, with a presumption in favor of a finding of child neglect and removal when children are exposed to domestic violence. Such a standard fails to recognize that not all domestic violence is the same and not all families are equally affected. The impact of domestic violence depends on several factors such as the different types of domestic violence the frequency and intensity of the violence, the frequency and extent of the child's exposure, and each family member's unique experiences and characteristics. This view takes the position that parents’ capacity to participate in counseling and services promoting the health and safety of their children varies, as does the appropriateness of children being removed from the home as a result of exposure to domestic violence. Therefore, this Note proposes that states develop a standard for both courts and child protective agencies that carefully examines each domestic violence case using an individualized factual analysis and attempt to mitigate the effects of a child's exposure to domestic violence by means other than a presumption for or against removal (temporary or permanent) in every case.

Conflict and co-parenting: the constructs of nonresident fathers*

Abstract: Scots law constructs a co-parental role for nonresident fathers without clarifying how this should operate in practice. Personal Construct Theory (PCT) offers a useful approach to understanding such fathers’ distinct and changing conceptions of their role. Findings are presented from a study of 17 nonresident Scottish fathers maintaining contact with nonresident children. Idiographic analysis of data from repertory grid interviews administered three times over the course of a year shows that participants perceive family situations in terms of paternal involvement, impact, emotion, or antagonism. Changes in construing following family events support the PCT understanding of hostility; implications for family services are discussed.

Sex education left at the threshold of the school door: stricter requirements for parental opt‐out provisions

Abstract: Current state law creates the risk that, if sex education is not provided to a child in public school, no similar instruction will be given to the child Legislatively enacted opt-out provisions give parents broad control over their child's education by granting them the option to have their child excused from any sex education requirements within a public school's curriculum Through public school sex education, professionals provide youth information aimed at protecting them from the dangers of pregnancy and sexually transmitted diseases (STDs) A stricter statutory opt-out provision should be enacted by state legislatures that only allows parents to excuse their child from sex education after a parent attends a 90-minute STD prevention course and receives the instructional material used in the school's sex education curriculum Parents should be provided up-to-date information and a structural framework designed by the school to encourage them to discuss with their child the many sexual issues addressed within a school's sex education curriculum

Trade‐offs in formulating a consistent national policy on adoption*

Abstract: Just as the courts must consider the trade-off between the best interest of the child and parental rights in involuntary termination of parental rights, policy on international adoption must consider the trade-offs between the best interest of the child and the long-term interests of the nation. We argue that countries that suspend international adoptions do not maximize social welfare. A consistent national policy to maximize the well-being of the children and society at large would be to devote resources today to the oversight of international adoption in accord with child protections under the Hague Convention, while at the same time developing a domestic system of care that provides for the physical and developmental needs of orphaned children in the context of permanent families.

Family care commitment discrimination: bridging the gap between work and family

Abstract: This Note discusses the pervasive problem of employment discrimination based on family responsibilities, or family care commitment discrimination. Employees with family care commitments often find themselves being pulled in opposing directions—between work and family. When an employee is forced to choose work, for financial reasons, over family, his or her family ends up suffering. The current state and federal statutes aimed at employment discrimination are insufficient to deal with family care commitment discrimination. This Note proposes a change to the current legislation and explains how this change will protect employees and families, while causing employers to internalize externalities by adopting more family-friendly policies.

The calm after the storm: using mediation to resolve parenting disputes in the wake of natural disasters

Abstract: Hurricane Katrina not only tore apart communities along the Gulf Coast, it displaced hundreds of thousands of families throughout the country. Included in the massive numbers of displaced families were children from divorced, separated, or unmarried parents. As a result, many children have since relocated far away from one of their parents without court permission, causing an influx of parenting disputes among the unmarried parents. Litigation concerning parenting disputes that follow natural disasters is not only expensive, but is emotionally taxing on both parents and children and floods the already drained court system. This Note discusses alternative ways in which parenting disputes can be resolved following natural disasters. It explains how children are affected by relocating away from one of their parents and how those effects are comounded by natural disasters. Further, it explains how alternative dispute resolution methods help alleviate the effects of parenting disputes, specifically relocation disputes, on children. Finally, this Note proposes that all parents should be mandated to mediate any parenting disputes following natural disasters.

Journey from success to significance

Abstract: One of the most important journeys that we can take as individuals is the journey from success to significance Success is what we become and what we achieve when we value ourselves Significance, however, is what we become and what we achieve when we value others In this article, based on remarks by Judge David W Young at the May 2007 “Summit on Unified Family Courts,” Judge Young invites us on a journey, first described by John Maxwell in The Journey from Success to Significance Judge Young further explores what the journey from success to significance entails and reminds us that any success we have will leave the world with us while our significance will continue to live on in future generations through our service to children, families, and others

Families, courts, and the end of life: schiavo and its implications for the family justice system

Abstract: The article discusses a proposed universal adoption of comprehensive family law subject matter jurisdiction, inclusive of end-of-life (EOL) cases, as articulated in the unified family court (UFC) concept. It posits, using the Schiavo matter to illustrate the difficulties inherent in EOL disputes, that contested EOL cases are unlike other civil court cases in that they involve intimate facts and emotionally laden family dynamics. As such, these cases pose a distinctive challenge for the courts. The article suggests that contested EOL cases should be heard in a UFC because UFCs include alternative dispute resolution (ADR) protocols to deescalate family strife with the goal of facilitating out-of-court settlements and that litigation is an imperfect solution for an EOL dispute. It is also noted that judges presiding in UFCs are more experienced in handling fractious family matters and thus they are more likely to avert protracted litigation if the matter is not settled via ADR.

Confidentiality, due process, and judicial disqualification in the unified family court: report to the honorable stephanie domitrovich

Abstract: To the extent that courts realize the pure one judge–one family notion of the unified family court—in which one judge handles all domestic relations, probate, juvenile dependency, juvenile delinquency, and domestic violence cases involving members of the same family—they encounter three potential legal barriers: confidentiality of court records in some of the cases, due process issues arising from the consideration of material from a related case file in which the parties to the current case may or may not be parties, and judicial disqualification arising from the judge's handling of a previous case involving the family. This article summarizes information obtained from a survey conducted for the Children and Family Law Committee of the National Conference of State Trial Judges, of courts in sixteen states, to learn how they have resolved these legal issues.

Cervical cancer prevention: mandating the hpv vaccine as a condition of school attendance

Abstract: This Note advocates that states require all females entering the sixth grade to be vaccinated with the HPV vaccine Gardasil, as a means of preventing cervical cancer deaths in the United States. States that do pass such a mandate would receive federal funding to help disperse the cost of the expensive three-dose vaccine, especially to those females most in need. Subject to each individual state's mandate, parents would be allowed to opt their children out of such a mandate for religious, medical, and/or philosophical reasons.

Irc § 71 may impoverish children, endanger ex-wives, and disrupt federalism1

Abstract: The Internal Revenue Code provides that alimony will be deductible to the payor and taxable to the payee. Although this treatment may seem contrary to the payee's interest, compared to making the payments non-deductible and nontaxable, it can increase the payee's after-tax income. The payor's deduction will allow larger payments at no after-tax cost increase; if the payee is in a lower tax bracket, then even after paying taxes the payee will have more resources. Because this favorable treatment of alimony does not apply to child support, children of divorce are poorer. Nor does the favorable treatment apply to lump-sum payments, making this option less generous, even though many states have phased down the grant of alimony. Because the definition of alimony requires that it end with the payee's death—to protect the treatment provided for lump sums—the tax system is on the wrong side of the issue of violence against ex-spouses (typically the ex-wife). The article proposes extending to other similar payments the favorable tax treatment now provided for alimony.