This four-part framework is designed to help family court practitioners gather, synthesize and analyze information about the context and implications of domestic abuse in order to improve informed decision-making.
The framework can be used by anyone in any profession at any stage of the proceeding, consistent with their responsibilities as defined by the person’s role and function in the case. It can be used by parties themselves. In addition, it can be used to assess whether an entire family court system - or discrete parts of it - are organized in a way that encourages effective interventions. The framework consists of the following four parts.
1. Identifying Domestic Abuse
The first step of the framework is to identify domestic abuse. At the outset, a practitioner must try to determine whether abuse is or may be an issue in the case. Several tools currently exist to help identify domestic abuse, including some created by BWJP’s National Child Custody Project.
Most domestic abuse screening tools are designed for one specific purpose and a specific practice setting. Different tools look for different things for different reasons. Each has its own strengths and limitations. Consequently, it is important to use a tool that is designed for the specific purpose for which it is being used.
In order to promote safe and informed disclosures of domestic abuse, it is also important to explain to the people being screened why they are being asked about abuse, how the information provided will be used, who will have access to it, and where it might show up later in the family court process.
2. Understanding the Nature and Context of Abuse
Identifying domestic abuse is an important first step, but just knowing that abuse has occurred or is still occurring does not tell a practitioner all that is needed in order to make informed decisions and take informed action. Parties and practitioners need to know more specifically what is actually going on – what the nature and context of the abuse are. The issues are who is doing what to whom, why and to what effect. And, in the context of a family law case, it is important to know what is going on with respect to parenting and the health, safety and wellbeing of the children, as well as the parent who is subjected to abuse.
3. Connecting the Abuse to the Standards for Decision-Making
The third step of the framework is to connect the abuse to the issue to be decided and the standard by which that decision will be made. It asks, “Now that you know what’s going on, what does the abuse mean for the task or decision at hand?” For instance, a judge deciding custody and access must act relative to the legal standard for decision-making: generally, the best interest of the child. A mediator deciding whether a case is appropriate for mediation should be acting under a different standard: whether the parties can engage safely in voluntary, autonomous and interested-based negotiations. Parties may have less formal standards for decision making that may be based upon their own values, level of trust and life circumstances.
4. Taking Informed Action by Accounting for Abuse
By virtue of custom and practice, the family court system is often more focused on “divvying things up” (including the children) than it is on “making things work.” When institutional attention turns to “divvying things up” – to dividing and allocating aspects of the child’s life between the parents – it does not always tend to the very immediate things that get in the way of “making things work” for the child and the parents. For instance, it does not always account for post-separation abuse, or ongoing coercive control, or parenting practices that jeopardize the child’s safety and well-being, or the safety and well-being of the battered parent.
To address this problem, the last stage of the framework focuses on making informed decisions and taking informed actions that fully account for the nature, context and implications of abuse. In this way, the framework encourages practitioners to directly address the underlying conditions that would otherwise allow the abuse and its effects to persist long after the family court case is officially closed.