Family Law Prof Blog

Sedillo Lopez: "A Medical/Legal Teaching and Assessment Collaboration on Domestic Violence: Assessment Using Standardized Patients/Standardized Clients"

Antoinette Sedillo Lopez (University of New Mexico School of Law) has posted A Medical/Legal Teaching and Assessment Collaboration on Domestic Violence: Assessment Using Standardized Patients/Standardized Clients, 14 International Journal of Clinical Legal Education 61 (2009), on SSRN.  Here is the abstract:

The article describes a collaboration between a law professor, emergency medicine professors from the medical school, formative assessment specialists, standardized patient training specialists, a community attorney who specializes in domestic violence, and a teaching assistant from the law school.

The group collaborated in developing scripts and scenarios for standardized patients and standardized clients who experienced the medical and legal problems related to domestic violence. They developed assessment criteria and used the standardized patients and clients as part of a Family Law class and the training for emergency room residents. This type of training and assessment is common in medical school training but unique in legal education.

MR

Dwindling Funds for Ohio Domestic Violence Attorneys

An Ohio newspaper article reports that the state will more than halve repayment rates for attorneys who work on domestic abuse cases from $150 to $60 an hour for court work and $30 an hour for travel.  In 2008, Ohio had paid $1.32 million to lawyers, and nearly half went to a handful attorneys or law firms.  A local advocate is quoted expressing concern for domestic violence victims as a result of these cuts, many of whom seek protection orders from the courts, but as state coffers continue to lighten, we might see more cost cutting.  

                                                                     

MR

Protective order in Rhianna v. Chris Brown

For those of you who like to incorporate celebrity family law disputes in your teaching, a copy of the actual restraining order issued against Chris Brown can be found at http://www.etonline.com/documents/et_cbrown_minuteandprotectiveorder_090306.pdf

bgf

Domestic Violence and the Family Pet

A Bill introduced in the state of Washington, HB 1148, would protect animals from domestic violence. The introduction to the Bill states:

The legislature finds that considerable research shows a strong correlation between animal abuse, child abuse, and domestic violence.  The legislature intends that perpetrators of domestic violence not be allowed to further terrorize and manipulate their victims, or the children of their victims, by using the threat of violence toward pets.

RR

Case Update -- NY Courts Define "Intimate Relationship"

Pursuant to the New York State Family Court Act, domestic violence civil protection orders are available to "members of the same family or household," including those "who are or have been in an intimate relationship."

Two recent New York state trial court cases have applied the "intimate relationship" language.  In R.M.W. v.G.M.M, the court found that two women who bore children fathered by the same man have an "intimate relationship" for purposes of this statute.  In K.J. v. K.K., the court found that a woman has an "intimate relationship" with her biological daughter, even though the woman had relinquished the girl for adoption eight years earlier.

(MIF 02-12-2009)

Rural Domestic Violence

Professor Sara Benson, fellow LawProf blogger, and currently visiting assistant professor at the University of Illinois College of Law, has posted to SSRN a draft of her article: "Failure to Arrest: A Pilot Study of Police Response to Domestic Violence in Rural Illinois."  The article is explores the issue through focus-groups of survivors.  Professor Benson notes  that "it is important to consider law enforcement response to domestic violence calls because police officers often serve as the gateway to the legal community through first-response action."  The article "points out the disparity between law and action in rural Illinois as detailed by the survivor narratives."  The article then proposes a method of strengthening police responses to domestic violence calls in rural areas. bgf

r

Legislation update -- New York considers bill to protect children from "failure to protect" charges

In response to U.S. District Judge Weinstein's findings in Nicholson v. Williams, 203 F.Supp.2d 153 (E.D.N.Y. 2002), the New York State legislature will consider Bill A01440, designed to "prevent further trauma to a child whose custodial parent is a victim of domestic violence [by] establish[ing] a presumption of fitness on the part of the battered custodial parent to prevent the unnecessary removal of the child from the battered parent."

According to the "memo" describing Bill A01440, "Many child psychologists agree that the removal of children from their abused mothers actually harms children, who according to the Nicholson decision, 'are particularly sensitive to being separated from the non-abusive parent.' Often these children blame themselves for their placement into foster care. By establishing a presumption in favor of the battered parent, this legislation seeks to prevent routine and unnecessary removals of children from their custodial parent."

Bill A01440 has been referred to the New York State Assembly Children and Families Committee.

(MIF 01-30-2009)

Conference Announcement: New Approaches to Domestic Violence

The Journal of Legal Commentary of St. John's University School of Law will present its 16th Annual Symposium on Friday March 20, 2009 with the theme "Thinking Outside the Box:  New Challenges
and New Approaches to Domestic Violence."  Speakers include Caroline Bettinger-Lopez, Sarah M. Buel,
Donna Coker, Cheryl Hanna, Donna Lee,Holly Maguigan, Kristian Miccio, Emily J. Sack, Elizabeth Schneider, Deborah Tuerkheimer and Joan Zorza.

For more information please contact Karyn DiDominici didomink@stjohns.edu
or (718) 990-1950.

BGF

News: Domestic Violence and Asylum

A press release from the  CENTER FOR GENDER & REFUGEE STUDIES at UC-Hastings College of Law entitled " New Ruling by Attorney General Mukasey May Endanger Rights of Women Asylum Seekers."

In a move that could change the course of protection of women asylum seekers across the country, Attorney General Michael Mukasey certified the case of Guatemalan asylum seeker, Matter of R-A- , to himself, overruling the decisions of two prior Attorneys General, Janet Reno and John Ashcroft.

The case involves the claim for asylum of Rodi Alvarado, who fled Guatemala after suffering more than a decade of brutal domestic violence in a situation where neither the police nor the courts responded to her pleas for protection.

According to Professor Karen Musalo, Ms. Alvarado’s attorney and director of the Center for Gender & Refugee Studies at U.C. Hastings, the case has been on hold since 2001. “Though we are glad to see some movement in the case, I am worried that that the current Attorney General is less sympathetic than his predecessors to the protection of women asylum seekers who flee brutal forms of persecution in countries where their governments will not protect them.”

Musalo explained that domestic violence is recognized as a legitimate basis for refugee protection by the United Nations High Commissioner for Refugees, as well as by countries around the world – including Canada, the United Kingdom, Australia and New Zealand; however its acceptance in the U.S. has been controversial.

Matter of R-A- has a convoluted legal history. In 1996 Ms. Alvarado was granted asylum by an immigration judge in San Francisco. In 1999 the Board of Immigration Appeals (BIA), the highest immigration tribunal in the country, reversed her grant of asylum and ordered her back to Guatemala. This decision mobilized thousands of women’s rights advocates, who successfully persuaded then Attorney General Reno to intervene. In response, A.G. Reno vacated the BIA’s decision in January 2001, and ordered the BIA to reconsider the case once regulations the Justice Department had proposed in 2000 were finalized.

In 2004 Attorney General John Ashcroft took jurisdiction over the case, and ordered lawyers for Ms. Alvarado and the Department of Homeland Security (DHS) to brief the case. Though the DHS itself recommended that Ms. Alvarado be granted asylum, without explanation, Attorney General Ashcroft did not rule on the case but sent it back to the BIA with the same order that his predecessor Janet Reno had – that the BIA reconsider the case once the regulations proposed in 2000 were issued as final. To this date, the proposed regulations have not been issued in final form.

In a surprise move on September 25, Attorney General Mukasey certified Matter of R-A- to himself, and issued a decision ordering the BIA to reconsider it, removing the requirement that the BIA await the issuance of proposed regulations. This means that the BIA can immediately begin to consider this decision, as well as many others that had been on hold waiting a BIA decision in Matter of R-A-.

Professor Musalo expressed concern about the Attorney General’s decision to eliminate the requirement that Matter of R-A- be decided under the authority of the proposed – but not yet finalized – regulations. “The proposed regulations were generally seen as a positive legal development, which recognized claims such as Ms. Alvarado’s,” Musalo explained.

The release is available  here as a pdf.

RR (Thanks to Nate Treadwell for this lead).

Call for Papers

Writing on Domestic Violence?  Juvenile Justice?  Sex Offenses?  Focused on NYC? 

New York City Law Review: A Call for Papers
The Legal System’s Response to Violence in New York City

The New York City Law Review -- a student-run law journal based out of the City University of New York School of Law – is currently seeking papers for our Spring 2009 symposium on the legal system’s response to violent behavior.  With a particular emphasis on violent behavior within New York City, we will critically explore the increase in criminalization, mandatory arrests, and zero tolerance policies through four panels on the areas of domestic violence, sex offenses, juvenile justice, and police brutality.  We will be highlighting progressive legal responses within the present legal system, as well as ideas for new responses both within and without the legal framework.

The symposium will take place on February 13, 2009 at the Borough of Manhattan Community College. 

If you are interested in submitting a paper, please email
nyclawreviewsymposium@gmail.com
by November 1, 2008 with your name, school or organizational affiliation, and an abstract of no more than 250 words describing your article.  Selected authors may be invited to serve as panelists at the symposium.  Selected articles will be published in the spring of 2009.  All completed articles must be submitted by January 1, 2009.

(RR September 29, 2008)

Political Platforms on Family Law Issues

The political parties are in the process of drafting their national party platforms for the 2008 election and, as expected, there is some attention to family law issues.

The draft 2008 Democratic National Platform is interesting both for what it says and what it does not say.  A section on "fatherhood" states that "too many fathers are missing."  The party supports "removing tax penalties on married families and expanding maternity and paternity benefits," as well as rewarding those "who are responsibly supporting their children by giving them a tax credit" and will "crack down on men who avoid child support payments" and "ensure that payments go directly to families instead of bureaucracies." (page 44 lines 34-44).  There is a section on "empowering families" with an extensive discussion of policies on health care, employment, "work and family," and women.  Of particular interest is a pledge to "expand the Family and Medical Leave Act" to "enable workers to take leave to care for an elderly parent, address domestic violence, or attend a parent-teacher conference," and to work with states to make leave paid rather than unpaid.  (page 10 lines 31-35).  In a subsection entitled "Choice" the platform provides: "The Democratic Party strongly and unequivocally supports Roe v. Wade and a woman's right to choose a safe and legal abortion, regardless of ability to pay, and we oppose any and all efforts to weaken or undermine that right."  There is also strong support for "access to affordable family planning services and comprehensive age-appropriate sex education," and a mention of "caring adoption programs." (page 45 line 19-31).  There is also this single line: "We oppose the Defense of Marriage Act and all attempts to use this issue to divide us."  (page 47 lines 8-9).

The draft of the 2008 Democratic National Platform, in pdf format from CNN/TIME, is available here.

The Republican National Platform Committee is apparently still in progress - - - the committee is soliciting input for its 2008 platform here.

The draft of the 2008 Green Party Platform includes a section on youth, a call for equality regardless of sexual orientation and gender identity in civil marriage and child custody, a section on protecting abortion and contraception (specifically including the "morning after pill") and is available here.

The 2008 Constitution Party Platform calls for to the government to "secure and to safeguard the lives of the pre-born."  The platform opposes "government funding of 'partner' benefits for unmarried individuals," "any legal recognition of homosexual unions," and "efforts to legalize adoption of children by homosexual singles or couples," and is available here.

(RR  August 16, 2008)

Case Law Development: Standard for Granting Protective Order based on Threats

The Ohio Court of Appeals reversed the grant of a protective order based on repeated communications during a divorce. Husband's communications threatened no actual physical harm.  The trial court found that, while the statements would not cause imminent fear of physical harm for most people, given the "eggshell skull" rule, wife's subjective fear was sufficient.  The court of appeals held that "trial court in this case erred in applying a solely subjective test to the question whether appellee met her burden of proof of a fear of imminent serious physical harm."  Rather the court clarified that the standards for protective order require proof of:

Imminent fear -- fear of harm in the future is insufficient.
Actual fear -- there must be an actual subjective fear of physical harm
Reasonable fear -- this is an objective test, based on a reasonable person test, not an eggshell skull rule.  The court explained...

While a phrase such as "I'll get you" or severe physical and verbal intimidation may be sufficient to implicitly present a threat of force, necessitating an inquiry into whether the petitioner reasonably feared imminent serious physical harm, the "threat" [in this case] was a threat to take legal action, and was not an explicit or implied threat of physical "violence, compulsion or constraint." ... Similarly, a threat that things "could get really, really bad for everybody involved" if the parties go back to court over visitation with their children has been determined not to be a threat of force sufficient to constitute domestic violence.

Fleckner v. Fleckner, 2008 Ohio 4000 (Ohio App. August 7, 2008)

Read the opinion online (last visited August 8, 2008 bgf)

Special Issue of Family Court Review Featuring Domestic Violence and Family Courts Available Online

"The July 2008 issue of Family Court Review featuring outcomes from the AFCC and NCJFCJ Domestic Violence and Family Courts Project is available for free online for a limited period of time at Link. 

The highly anticipated special issue features articles co-authored by interdisciplinary experts from the domestic violence advocacy and family courts community.  The issue addresses topics including terminology, differentiated approaches to parenting plans, screening and cultural issues.  Guest edited by Professors Nancy Ver Steegh and Kelly Browe Olson, the issue also includes the Report on Wingspread Conference on Domestic Violence and Family Courts.  The Report addresses critical tensions raised by the growing awareness that not all uses of violence in intimate relations are the same. 

AFCC will host a several conference sessions on domestic violence and differentiation at its Eighth International Symposium on Child Custody Evaluations, September 25-27, 2008 and Eighth International Congress on Parent Education and Access Programs, September 26-27, 2008 in Albuquerque, New Mexico.  For more information, please view link.

The Family Court Review is the academic and research journal of the Association of Family and Conciliation Courts, published by Wiley-Blackwell in cooperation with Hofstra Law School’s Center for Children, Families and the Law.  For more information on AFCC, please view AFCC website or contact AFCC at afcc@afccnet.org or (608) 664-3750."

By AFCC (NVS 7-17-08).

Report on AFCC & NCJFCJ Wingspread Conference on Domestic Violence and Family Courts

"The Report from the Association of Family and Conciliation Courts (AFCC) and National Council of Juvenile and Family Court Judges (NCJFCJ) Wingspread Conference on Domestic Violence and Family Courts is now available online. Written by conference reporters, Professors Nancy Ver Steegh and Clare Dalton, the Report addresses critical tensions raised by the growing awareness that not all uses of violence in intimate relationships are the same. 

The Wingspread Conference featured nearly 40 participants from different backgrounds including family court judges, lawyers, domestic violence advocates, social science and legal scholars, court administrators and psychologists.  Until this conference, there had been no large-scale gathering of the disparate views of many relevant professions, and no attempt to resolve differences in ways that will improve system outcomes for families afflicted by these problems.

The Report will be the centerpiece of a special issue of AFCC’s research and education journal, Family Court Review in July 2008.  Presentations on the Report and work developed by conference participants will be featured at the AFCC 45th Annual Conference, May 28-31, 2008 in Vancouver, BC.  The Report can be accessed on the AFCC Web site at AFCC Website.  For more information, please contact AFCC at AFCC e-mail or (608) 664-3750." By AFCC

Domestic Violence Offender Website?

"Web sites that promise to give the dirt on prospective dates abound. A guy has a roving eye? Look him up on DontDateHimGirl.com.

But a California lawmaker says the background checks can be far more serious. The lawmaker, Assemblywoman Fiona Ma, the San Francisco Democrat who is the majority whip, introduced a bill last week to create an online database of men and women convicted of domestic violence in California.

Other states like Florida have databases used by law enforcement officials. Her proposal, Ms. Ma said, would be the first available to the public.

“If you’re online, Googling and looking for information on someone you met in a bar or on MySpace, this would provide a tool for people to go and look to see if someone who is suspicious and a little creepy has a history of violence,” Ms. Ma said.

The database would log the names of domestic violence offenders convicted of a felony or two misdemeanors, dates of birth, locations of convictions and other information. Unlike public registers of sex offenders, the database would not list addresses. It would, however, indicate how to obtain a restraining order."

By Rebecca Cathcart, N.Y. Times Link to Article (last visited 2-18-08 NVS)

Culturally Sensitive Shelters

"After enduring seven years of beatings from her husband, a young Yemeni-American woman recently fled to a local shelter, only to find that the heavy black head scarf she wore as an observant Muslim provoked disapproval.

The shelter brought in a hairdresser, whose services she accepted without any misgivings. But once her hair was styled, administrators urged her to throw off her veil, saying it symbolized the male oppression native to Islam that she wanted to escape.

Instead the woman, who asked for anonymity because she feared further violence from her relatives, decamped to the Hamdard Center for Health and Human Services in suburban Chicago, a shelter that caters mainly to Muslim women by not serving pork and keeping prayer rugs handy. Such shelters are extremely rare nationwide, activists say, because Muslim Americans only recently began confronting the issue of spousal abuse."

By Neil MacFarquihar, N. Y. Times Link to Article (last visited 1-18-08 NVS)

Teaching Resources: Domestic Violence & Poverty

For those of you who aren't familiar with the In Her Shoes exercise produced by the Washington State Coalition Against Domestic Violence, it is a fabulous resource for teaching how multiple systems affect the ability of victims of domestic violence to escape.  The coalition also produces an "Economic Justice" edition that helps students understand why low-income victims are at much higher risk of continued severe abuse. 

The WSCADV Website provides more information about this resource and an order form for the materials.

(last visited November 27, 2007 bgf)

Standards of Practice in Civil Protection Order Cases

The American Bar Association has recently published its new Standards of Practice for Lawyers Representing Victims of Domestic Violence, Sexual Assault and Stalking in Civil Protection Order Cases. The standards recommend that lawyers become knowledgeable about the dynamics of domestic violence and its intersection with sexual assault and stalking before undertaking representation of a victim in a protection order case. Texas Rio Grande Legal Aid participated in the development of the standards.

The standards are available online at the ABA  (last visited November 9, 2007 bgf)

Case Law Development: Inter-American Commission on Human Rights Finds Domestic Violence Police Response Case Admissible

The Inter-American Commission on Human Rights, in the case of Jessica Gonzales v. United States has declared Jessica Lenahan's (formerly Gonzales) case admissible. In Castle Rock v. Gonzales, the United States Supreme Court held that Jessica did not have a property interest in prompt police response to enforce the provisions of her domestic violence restraining order.  The court thus reversed the 10th circuit's decision finding a constitutional violation when the police ignored repeated calls from Jessica that her estranged husband had violated a protective order and taken her children. 

Ms. Lenahan (Gonzales) has since then pursued this action before the Inter-American Commission on Human Rights.  The Commission's recent decision says that Ms. Lenahan (Gonzales) exhausted all domestic remedies and indicates that countries in the Americas, including the United States, are responsible under the American Declaration on the Rights and Duties of Man for protecting victims of domestic violence from private acts of violence. This is the first time that the Commission has ever made such a pronouncement.

In the merits phase of this process, the  Commission will decide whether the US and the Castle Rock Police Department/Colorado violated Ms. Lenahan (Gonzales') and her children's human rights.  Ms. Lenahan (Gonzales) has alleged that the United States has violated her rights to life, non-discrimination, family life/unity, due process, petition the government, and the rights of domestic violence victims and their children to special protections.
The Commission's admissibility decision is available online at the Commission's website;  Columbia Law Schools Human Rights website, or the ACLU website.

Ms. Gonzales' testimony before the Inter-American Commission in March 2007, can be viewed at the Organization of American State's website

(Last visited October 10, 2007 bgf)

The Feminist War on Crime

Professor Aya Gruber's article "The Feminist War on Crime" appears in the most recent issue of the Iowa Law Review.  Professor Gruber, of Florida International University - College of Law, argues that domestic violence reform has become far removed from its progressive roots and now supports rather than supplants patriarchal ideology.

The Article traces the history of domestic violence reform and explains how it transformed from a grassroots populist movement to a politically powerful lobby deeply allied with law enforcement. One of the reasons for this transformation was the influence of the powerful victims' rights movement. This movement originated as a conservative counter to Warren Court civil liberties and employs essentialist discourse objectifying victims and characterizing defendants as purely autonomous agents to unmoor crime from its social roots. The Article argues that in recent times, victims' rights reformers and the government have appropriated the domestic violence issue, not to change the patriarchal institutions that support battering, but rather to further a pro-criminalization agenda. In addition, feminists, whose original program was to vindicate women's autonomy, have begun to adopt the essentialist discourse of objectifying battered women by characterizing abused women as helpless, scared, irrational, and sick. The Article suggests that feminists simply stop advocating criminal law reforms as the solution to the problem of domestic abuse and proposes some pedagogical methodologies for teaching domestic violence without characterizing abused women in an essentialist manner.

Read the article at SSRN  (Last visited August 21, 2007 bgf)