As a family lawyer for nearly 30 years, I have always been troubled by domestic violence cases. Are they exaggerated to get an advantage in family court? Or are they minimized so that true victims and children will continue to be harmed or perhaps killed? Is what we’re doing with the case in family court possibly making the situation worse or potentially deadly? There has always been this tension when allegations of D.V. have arisen in divorce and custody disputes. Since I have only had occasional cases, this has not been the focus of my practice and I never felt like I really understood the big picture.
With COVID, most people recognize there has been an increase in family violence. So, I undertook a project with two colleagues – a high-profile family lawyer and a retired judge – to interview 16 experts in domestic violence to get the big picture and to understand some of the best approaches to take to really help families with allegations of domestic violence (also known as intimate partner violence or IPV). The result is six one-hour videos specifically for family lawyers covering topics from screening for domestic violence to family court dilemmas to mediation (yes or no? If yes, then when?) to false allegations and recanting to offender treatment to professional training.
5 Things All Family Lawyers Should Know About Domestic Violence
Here are a few of the key points that I now believe every family lawyer should know.
1. Ask all your clients specific questions about domestic violence.
We should ask all our clients about DV/IPV, because they won’t volunteer it and it may have a big impact on the case sooner or later. Family lawyers are in a unique position to find out information with the protection of confidentiality of the lawyer-client relationship. Many victims/survivors of domestic violence are afraid to tell the seriousness of DV/IPV in their homes for fear the offender will lose his job, will find a way to hurt her for talking about the abuse, or will cause the children to lose their father. A family lawyer can discuss with the client what her choices are and help the client decide what to pursue and the possible consequences.
Many victims/survivors don’t think they were abused and answer general questions, such as “Have you been a victim of domestic violence?” by saying “No,” and believing it. Yet when you get specific, you find out they have been abused. This is also true for male victims of domestic violence who are particularly hesitant to let anyone know what has happened to them. “Has your partner ever hit you? Held you down? Tried to strangle you? (Strangulation is one of the biggest predictors of spousal murder.) Broken valued objects of yours? Prevented you from leaving the house, or seeing friends or relatives? Taken your phone away? Controlled your access to family money?” And so on.
2. Coercive control is the biggest underlying problem.
There is a wide range of types and severity of domestic violence. “Situational couple violence is perhaps the most prevalent, but neither partner lives in fear of the other and it may be contributed to by both partners because of a lack of conflict resolution skills resulting in pushing, shoving, throwing things, and similar behaviors. Separation-instigated violence may be one or two incidents at the time of separation, without a history of violence. But coercive controlling violence is understood to mean situations in which the victim/survivor lives in fear and may be controlled in where she goes, who she can be with, how she spends money, even how much she eats.
With coercive controlling violence, there may have been bruises and broken bones, but it’s unlikely the police have been called or that she has gone to a hospital. It’s often kept secret by both the offender and the survivor. The offender usually denies any of this has occurred and the survivor may deny it too – out of fear. Some jurisdictions, such as California starting in 2021, are recognizing coercive control even when there is no physical violence because it has such a harmful effect. While some men are victims/survivors of coercive control, the vast majority are women controlled by men.
3. Discuss whether mediation is appropriate for your domestic violence case.
Mediation has become standard for parenting issues in many family law jurisdictions, often as a requirement before appearing before a judge. With COVID, use of mediation for all family law matters has greatly increased, because of its ease of use with videoconferencing and the difficulties and delays of getting into court. But what about domestic violence cases?
Research is now showing that mediation can be as good as or better than court in many domestic violence cases.[1] This study found that parents felt safer in mediation than traditional litigation. Of the two forms of mediation, mediators preferred shuttle (using separate rooms, before COVID) over videoconferencing (where the parties could see each other), and shuttle was twice as effective at reaching agreements. Now, during COVID with mostly videoconferencing, using video breakout rooms as a form of shuttle mediation may be most effective because the parties don’t have to see and hear each other – which could increase their chances of reaching an agreement.
However, there are cases that are not appropriate for mediation. In severe coercive controlling violence cases, it may be dangerous for the survivor to negotiate at all. Even if the parties do not know where each other is located during a videoconference call, an offender may become furious at what his co-parent wants and make plans to hurt her later on when he can. Some of the experts we interviewed called this “absent presence,” because the offender may be physically absent but their potential to harm is always present in the mind of a victim of coercive controlling behavior and in the mind of the abusive partner. Many of these cases may not be appropriate for mediation, so it is best if attorneys and judges are the ones who negotiate or make court orders.
With this in mind, all mediators should screen their cases for appropriateness for mediation. There are several different checklists of questions that can be used to help make this decision, which are explained in the video titled “Mediation Concerns in Domestic Violence Cases”.
4. The children almost always know.
One of the common myths that many parents and professionals have about domestic violence is that the children are not affected by it. In reality, the children tend to know, even if they are not in the room where it happens. This has an impact on them, which varies in severity based on many factors. This should be considered in parenting plans, so that children feel safe and so that both parents become more sensitive to their needs.
One of the things the treatment professionals told us is that most perpetrators of domestic violence truly want their children to grow up without becoming perpetrators or victims of domestic violence. Ways to develop such empathy for their victims and children are actually a helpful part of many offender treatment programs.
5. The difference between high conflict families and families with domestic violence.
Persistent cases in family courts are often considered to be caused by “high conflict families,” usually meaning those in which both parents are equally argumentative and controlling. But domestic violence families are often persistent cases because of an offender’s ongoing abusive behavior. In domestic violence families, one person is highly-controlling and the other person has no control and is instead a victim. When lawyers, judges, mediators, evaluators, and therapists get this wrong, it often increases the problematic behavior and the risk of more harm.
Therefore, lawyers must be careful to present their domestic violence cases with specific detailed information about the behavior of each party so that a court or evaluator can understand why it is not a “high conflict” case, but rather a domestic violence case needing stronger controls and protections. Identifying the victim’s behavior as making sense in the face of abuse, including efforts to protect the children, can help judges and evaluators see that it is not just a case of “two parties arguing.”
Lessons Learned About Domestic Violence
The lessons we learned from interviewing the 16 experts were often very powerful and helpful for the practice of family law. These are just a few of the many key points that were made. New family lawyers and experienced family lawyers can benefit by taking domestic violence cases seriously and addressing the many nuances of these cases that often need more information. As we learned, these cases are not about good and bad people, but about behaviors that need to stop and change where possible, and to have stronger protections when change is unlikely. Everyone in these families can use some help.
You can find more information on domestic violence in family law through the video series, Conversations About Domestic Violence in Family Law with 16 Experts.
[1] Holtzworth-Munroe, A., Beck, C. J., Applegate, A. G., Adams, J. M., Rossi, F. S., Jiang, L. J., Tomlinson, C. S., & Hale, D. F. (2021). Intimate partner violence (IPV) and family dispute resolution: A randomized controlled trial comparing shuttle mediation, videoconferencing mediation, and litigation. Psychology, Public Policy, and Law, 27(1), 45–64. https://doi.org/10.1037/law0000278
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