Choking seen as prelude to murder

6/24/2010

By Marisol Bello, USA TODAY

More states are trying to reduce fatal domestic assaults by increasing penalties against abusers who choke their victims.

New Hampshire and Delaware in May become the latest states to pass laws making it a felony to choke someone. A similar law that passed both houses of the New York Legislature this month awaits the signature of Democratic Gov. David Paterson.

States are targeting choking incidents because when an abuser tries to strangle someone in a domestic assault, it is a leading indicator that he will escalate his attacks and eventually kill his victim, says Gael Strack, a former prosecutor and founder of the Family Justice Center Alliance, which helps abuse victims.

Strack says states also need to train officers and prosecutors to look for evidence of strangulation, which can be hard to prove without bruises on the victim.

A 2008 study in the Journal of Emergency Medicine found 43% of women who were murdered in domestic assaults and 45% who were victims of attempted murder had been choked in the past year by their male partners.

Twenty-nine states have laws that make strangulation a crime, says the National Center for Prosecution of Child Abuse, a program of the National District Attorneys Association.

New Hampshire passed its law after Melissa Cantin Charbonneau, 29, a mother and nurse, was killed by her husband two days after he tried to strangle her.

Jonathan Charbonneau, 32, shot and killed her in October. He also shot his father-in-law and then killed himself, a report by the state attorney general found. He was out on $30 bail after being charged with a misdemeanor for throwing her down a flight of stairs and trying to strangle her.

Her father, John Cantin, who survived the shooting, says his daughter would still be alive if her killer had been in jail, charged with a felony.

“I’m doing this for my daughter,” he says. “I don’t believe this bill will stop the person doing the choking, but at least when it does happen and they are arrested, they are put away.”

In Delaware, two state troopers who tracked domestic abuse cases found that over a four-month period, more than half of the cases in one county involving strangulation were prosecuted as misdemeanors, says Brian Selander, a spokesman for Democratic Gov. Jack Markell. The troopers pushed for the new law, which carries a penalty of up to five years.

In New York, Democratic State Sen. Eric Schneiderman introduced a strangulation bill after chairing a commitee that investigated a state senator for domestic abuse. During the hearings, he learned there was no penalty for strangulation, even though women who were choked have a higher risk of being killed by their partner.

“I’m just sorry it took us so long in New York state to do this,” he says. “I think this will save a lot of lives.”

Another very important bill they also passed was House Bill 336, which enhances the Family Court’s ability to protect victims of domestic violence and abuse by authorizing the Family Court to enter the no contact provisions of protection from abuse orders for up to 2 years in every case and, where aggravating circumstances exist, authorizing the Family Court to order no contact for as long as it deems necessary to prevent further abuse, including the entry of a permanent order. This is so important, as “shared parenting” has been forced upon children in Delaware, even sharing time with their abusers thanks to biased, corrupt or lazy judges.

Governor Signs Bill Allowing Civil Suits Against Health Care Providers for Sex Abuse

New law creates two-year ‘look-back’ provision for civil suits

(Lewes, DE) – Governor Jack A. Markell signed legislation on Tuesday that allows victims who are sexually abused by a health care provider to file suit any time after the abuse took place.

Sponsored by House Majority Leader Rep. Peter C. Schwartzkopf, Rep. John C. Atkins and Rep. Helene M. Keeley, House Bill 326 is modeled after Delaware’s Child Victim’s Act, which was passed in 2007. That legislation eliminated the civil statute of limitations for sexual abuse of children. Like the 2007 legislation, House Bill 326 creates a two-year “look-back” provision for sexual abuse victims to file a civil suit.

“This law, in addition to the other nine bills I signed at the end of June, will collectively improve our system and put into place better protections for our children and help families ease the pain of abuse,” said Governor Jack Markell. “We want to give families the opportunity to seek judicial relief for abuse where appropriate and help them re-build their lives and those of their children.”

The legislation comes at a time when former Lewes pediatrician Earl Bradley has been charged with hundreds of counts of sexually abusing his young patients. The case has left many Sussex County families worried and concerned about the safety of their children.

Governor Markell signed the bill Tuesday afternoon at Survivors of Abuse in Recovery’s Lewes office, just a few miles from Bradley’s offices, which is located in Rep. Schwartzkopf’s district. SOAR provides mental health services for those who are affected by sexual abuse.

“The allegations of sexual abuse by this inhuman monster have horrified many of us throughout the state,” said Rep. Schwartzkopf, D-Rehoboth Beach. “These are unspeakable crimes that in my 25-year career with the Delaware State Police, I have never seen before, and hope I never see again. While we can’t undo what has happened, we can make sure that these and any other victims who are sexually abused by a health care provider can seek legal action.”

Child Custody and Visitation Decisions in Domestic Violence Cases: Legal Trends, Risk Factors, and Safety Concerns Daniel G. Saunders in consultation with Karen Oehme (Revised October 2007).

In Brief:

• Approximately half of all state laws make a presumption that it is harmful to the child and not in the best interest of the child to be placed in sole custody or joint physical or legal custody with the perpetrator of domestic violence. In the remaining states, domestic violence is merely one factor in a list of factors that must be considered in custody and visitation decisions.
• States have increasingly provided protections for battered women in the divorce process, for example exempting them from mandated mediation, protecting them from charges of “child abandonment” if they flee for safety without their children, and making it easier for them to relocate if they are in danger.
• Despite a reasonable reluctance to co-parent out of fear of harm to themselves or their children, battered women may end up being labeled “unfriendly,” thereby increasing the risk of losing their children because there may be a “friendly parent” statute that favors the “cooperative” parent.
• A recent trend is the use of “parenting coordinators” or “special masters,” a mental health or legal professional with mediation training who focuses on the children’s needs and helps the parents resolve disputes. They can make decisions within the bounds of the court order but it is important that they have training on domestic violence and realize when they need to act primarily as an enforcer of the court order.
• Another recent trend is the use of “virtual visitation.” Web cams and videoconferencing can supplement face-to-face visits or replace face-to-face visits in more dangerous cases.
• When parents believe the legal system has failed them, they sometimes form grassroots support and advocacy groups. They may conduct court watches and help parents share common court experiences, especially when they lose custody when trying to protect children and themselves from abuse.
• Half the men who batter their wives also abuse their children, a rate twice as high as that of battered women.
• Emotional abuse of children by men who batter almost always occurs because nearly all of these men exposed their children to domestic violence, and such exposure often has traumatic and lasting effects.
• Mothers may be unjustly blamed for harming their children through “failure to protect,” since mothers are supposedly capable of protecting their children from the physical and emotional abuse of their partners.
• Parental separation does not prevent abuse to children or their mothers. Indeed, physical abuse, harassment, and stalking of women continue at fairly high rates after separation and divorce and the risk of homicide increases. Attempts to undermine the mothers’ authority and to disparage her in front of the children also increase.
• Men who batter often have chronic but well hidden psychological disorders and problems stemming from childhood traumas that are often not apparent to evaluators and judges; on the other hand, battered woman’s psychological problems, primarily depression and posttraumatic stress disorder, appear to be reactions to the violence.
• Successful completion of an abuser intervention program does not substantially reduce the risk of re-abuse. Special parenting programs for men who batter are growing in number but remain untested.
• A high percentage of couples labeled “high conflict” are experiencing domestic violence, and thus attempts to detect domestic violence within “high conflict” families are crucial. Unfortunately, domestic violence is often not detected or not documented in custody/visitation proceedings.
• Contrary to common belief, allegations of domestic violence are not generally more common in disputed custody cases. When allegations are made, one study found that mothers are more likely to have their abuse allegations substantiated than fathers.
• Evaluators and judges may need more information on the continued safety risks to children from abusive fathers, the likelihood of post-separation violence, risks of mediation, the inadmissibility of Parent Alienation Syndrome, and the limitations of criminal justice and treatment interventions.
• The past and potential behavior of men who batter means that awarding joint custody or sole custody to them is rarely the best option for the safety and well-being of the children.
• Visitation should be granted to the perpetrator only if adequate safety provisions for the child and adult victim can be made. Orders of visitation can specify, among other things, the exchange of the child in a protected setting, supervised visitation by a specific person or agency, and completion of an intervention program for perpetrators.
• Visitation should be suspended if there are repeated violations of the terms of visitation, the child is severely distressed in response to visitation, or there are clear indications that the violent parent has threatened to harm or flee with the child.
• Some professional standards developed for supervised visitation/exchange programs contain a section on domestic violence that requires policies and procedures designed to increase safety for domestic abuse survivors and their children. In addition, the U.S. government is providing technical assistance to increase the awareness of visitation/exchange programs and their community collaborators of the special needs of battered women and their children.

To read “Child Custody and Visitation Decisions in Domestic Violence Cases: Legal Trends, Risk Factors, and Safety Concerns” by Dan Saunders, in consultation with Karen Oehme, please click here. To download the paper, please click here.

• Tj

February 19, 2010 6:13 PM
http://rightsformothers.com/child-custody-and-visitation-decisions-in-domestic-violence-cases/

You only see a small picture… Please take a moment to read and look around the link above. I am not a father that needs advice on how to negotiate. The court system fails way to many

• John Bolch
  February 20, 2010 3:53 AM
  RY: Many thanks for that.

  TJ: We are fully aware that many are not happy with the family justice system (and I certainly do not need to visit any more websites detailing injustices, whether real or perceived), although many of those who have had bad experiences only have themselves to blame. However, having worked in the system for 25 years I can tell you that the vast majority of cases have satisfactory outcomes. And no, I am not being complacent – I am fully aware that the system is not perfect (I doubt that there is any such thing as a perfect system), and we should constantly look for ways to improve it.

• Tj
  February 21, 2010 5:24 AM
  Again, you have done nothing more than confirm my first post. Had you taken the time to look at the link, you would have realized that it was not another post about someone thinking the system had let them down. When in fact it was a study done by Daniel G. Saunders, Ph.D. in consultation with Karen Oehme. Also, the Journal of Child Custody and Journal of Divorce and Remarriage, one study called Thematic Trends and Future Directions. by Professor of Sociology, Michelle Bemiller, Kansas State University, are also very interesting.

  Funny how you say the “injustices, real or perceived” are solely the result the of a person,(something they said or did?). But then go on to state that you are aware that the system is not perfect, and we should always look for ways to improve it. SO, I ask you to clarify: Is it the person, or the imperfect system that needs to change?

  You seem to be very closed minded to the idea that there may actually be some validity is someone’s “perceived injustice.”

  I am however, certainly not so naive to jump on every person’s victim of injustice band wagon. I am fully aware that there are far to many who cry, only because they did not get their way.

  What I do know is that there is a silent social epidemic that has worked its way into the family law system. This social epidemic is growing at alarming rates. Did you that roughly 80% of divorce’s where children are involved are resolved without a custody dispute? BUT then you have the other 20% and that’s where the number looks small but the outcomes are potently devastating. This % includes the “High Conflict” cases. Most of the time there are a high numbers of abuse allegations by one parent or the other included in this small %. This is where the “perceived” injustice comes into play. The even more alarming issue is that in most contested cases where abuse was substantiated, the abuser got custody, because the courts either down played the abuse or just didn’t take the time to look into it. Now you have these “high Conflict” cases where the very system set in place to protect, has now been utilized as the tool to continue the abuse. Take a guess as to who suffers? Not the parents who can’t seem to negotiate. Its the children who suffer the injustice. I want to take a second to point out that I work with abused and neglected children, and so many cases started out in the family court. Worse yet are the cases that did not make it into the juvenile courts. Ex. Father reported mothers instability and abusive behavior, courts felt it was a tactic. 2 weeks later mother killed all four of her children. Another case mother went to the courts for protection for herself and her son, the judge blatantly stated that one of you is lying and I think it’s you, indicating the mother after he found out they were in a custody battle then went on to tell mom he did like these kind of tactics to get the upper hand. Father ended up killing the son. Are these “perceived” injustices?

  John, you are so quick to point the finger at the person complaining and most likely believe that even I comment because of some “real or perceived” injustice. That you would not even entertain the idea that maybe, just maybe my statements may actually hold some water. You are correct that the vast majority of your cases, and many other cases turn out satisfactory. My concern is the minority of cases that do not, for this is where the real issues lie. You went on to say we need to always look for ways of improving the system, then why not take the time to see a bigger picture.

  Out of every 100 cases 15 to 18 cases are handled improperly. you start adding up the numbers and its clear to see that there is more than just an imperfection, or a case of one’s own doing. This is a big issue. I could take the time to clarify my earlier post, and show how these statements relate to one and other but not sure it would be appreciated.

• John Bolch
  February 21, 2010 6:16 AM
  (Yawn). Points already answered 100 times on this blog.My best advice to you is to stop dwelling on this, and move on in your life.THREAD CLOSED.

Thank goodness  “Hugh” (ur…TJ) is out there, and just as Picard sent Hugh back to the Borg, we are hoping Hugh’s ideas spread throughout the Collective.  This isn’t about father’s or mothers.  This is about abusers, and abusers getting custody of children from their victims.  Or even worse, custody of their victims.  Just as Glenn Sacks has complained about the punitive abuses family court lay on noncustodial parents when it comes to child support, and I have wholeheartedly agreed with him, a lot of folks just need to get past the fact this isn’t a man vs. woman thing.  It’s an abuser thing.  It’s a corrupt court thing.

ThanksTJ for being out there in the Collective.

RESEARCH INDICATING THAT THE MAJORITY OF CASES THAT GO TO COURT AS “HIGH CONFLICT” CONTESTED CUSTODY CASES HAVE A HISTORY OF DOMESTIC VIOLENCE

RESEARCH INDICATING THAT THE MAJORITY OF CASES THAT GO TO COURT AS “HIGH CONFLICT” CONTESTED CUSTODY CASES HAVE A HISTORY OF DOMESTIC VIOLENCE

Compiled by Professor Joan S. Meier, Esq.

George Washington University Law School

I. Janet Johnston’s publications

Janet Johnston is best known as a researcher of high conflict divorce and parental alienation. Not a particular friend of domestic violence advocates or perspectives, she has been one of the first to note that domestic violence issues should be seen as the norm, not the exception, in custody litigation.

Janet R. Johnston et al, “Allegations and Substantiations of Abuse in Custody-Disputing Families,” Family Court Review, Vol. 43, No. 2, April 2005, 284-294, p. 284.

Janet R. Johnston, “High-Conflict Divorce,” The Future of Children, Vol. 4, No. 1, Spring 1994, 165-182, p. 167.

Johnston has noted that approximately 80% of divorce cases are settled, either up front, or as the case moves through the process. Studies have found that only approximately 20% of divorcing or separating families take the case to court. Only approximately 4-5% ultimately go to trial, with most cases settling at some point earlier in the process. (Citing large study by Maccoby and Mnookin, dividing the child: social and legal dilemmas of custody. Cambridge, MA: Harvard U. Press [1992]).

Johnston cites another study done in California by Depner and colleagues, which found that, among custody litigants referred to mediation, “[p]hysical aggression had occurred between 75% and 70% of the parents . . . even though the couples had been separated. . . [for an average of 30-42 months]“. Furthermore, [i]n 35% of the first sample and 48% of the second, [the violence] was denoted as severe and involved battering and threatening to use or using a weapon.” -Johnston (1994), supra, citing Depner et al., “Building a uniform statistical reporting system: A snapshot of California Family Court Services,” Family and Conciliation Courts Review (1992) 30: 185-206.

After surveying the research, Johnston concludes:

“Taken all together these studies suggest that, in divorces marked by ongoing disputes over the custody and care of children, both inside and outside the court, there is often a history of domestic violence in the family and a likelihood that the violence will continue after the separation.” – Id. (1994) at p. 169.

It has previously been observed, based on research which predates the domestic violence/parental alienation battles that are now a feature of the field, that “multiple allegations of abuse are a feature of those higher conflict families” whose cases become contested custody litigation. – Johnston (2005), supra (citing Maccoby and Mnookin (1992).

II. Peter Jaffe’s compilation of studies

Peter Jaffe is one of the world’s leading experts on children, domestic violence, and custody.

- Peter Jaffe, Michelle Zerwer, & Samantha Poisson, (2004),”ACCESS DENIED: The Barriers of Violence and Poverty for Abused Women and their Children After Separation,” p. 1.

In “Access Denied”, Jaffe states the following:

“Myth: Domestic violence is rarely a problem for divorcing couples involved in a child custody dispute.”

Fact: The majority of parents in “high-conflict divorces” involving child custody disputes report a history of domestic violence.”

Jaffe et al also lists the following studies (with the following descriptions) as supporting the position that most custody litigants have had a history of domestic violence:

• In a review of parents referred for child custody evaluations by the court, domestic violence was raised in 75% of the cases. – Jaffe, P.G. & Austin, G. (1995). The Impact of Witnessing Violence on Children in Custody and Visitation Disputes. Paper presented at the Fourth International Family Violence Research Conference, Durham NH (Rep. No. July 1995)

• Of 2,500 families entering mediation in CA, approximately three quarters of parents indicated that domestic violence had occurred during the relationship. -Hirst, 2002

• Between 70-75% of parents referred by the family court for counseling because of failed mediation or continuing disputes over the care of their children, physical aggression had taken place. – Johnston & Campbell, (1988), Impasses of Divorce: The dynamics and resolution of family conflict. New York, NY, US: The Free Press.

• Attempts to leave a violent partner with children, is one of the most significant factors associated with severe domestic violence and death. – Websdale, N. (1999). Understanding Domestic Homicide. Boston, MA: University Press.

• A majority of separating parents are able to develop a post-separation parenting plan for their children with minimal intervention of the family court system. However, in 20% of the cases greater intervention was required by lawyers, court-related personnel (such as mediators and evaluators) and judges. In the majority of these cases, which are commonly referred to as “high-conflict,” domestic violence is a significant issue. – Johnston, J. R. (1994). “High-conflict divorce.” Future of Children, 4, 165-182.

III. National Center for State Courts

Studies conducted by the National Center for State Courts (NCSC), looking solely at court records, have found documented evidence of domestic violence in 20-55% of contested custody cases.

The NCSC’s study, looking only at documented domestic violence in custody court records, found that 24% of court records contained some evidence of domestic violence in Louisville; 27% in Baltimore; and 55% of Las Vegas cases indicated domestic violence. – Susan Keilitz et al, Ðomestic Violence and Child Custody Disputes: A Resource Handbook for Judges and Court Managers, prepared for the National Center for State Courts; State Justice Institute,” NCSC Publication Number R- 202, p. 5.

The same study found that a screening process (utilized by the mediation program) “revealed a much higher incidence of domestic violence than a review of court records alone would have indicated.” – Id . at 7.

IV. Custody Courts Regularly Fail to Note or Lack Information about history of Domestic Violence

Kernic et al., “Children in the Crossfire: Child Custody Determinations Among Couples With a History of Intimate Partner Violence,” Violence Against Women, Vol. 11, No. 8, August 2005, 991-1021, 1013,

Kernic et al. from the Harborview Injury Prevention & Research Center in Seattle, studied at divorce cases, including both those with a documented, substantiated, and/or alleged history of domestic violence, and those without. The study found that in 47.6% of cases with a documented, substantiated history, no mention of the abuse was found in the divorce case files. – Id . at 1005.

Kernic et al. found that “the court was made aware of less than one fourth of those cases with a substantiated history of intimate partner violence.” – Id. at 1016.

Further, Kernic et al. found that fathers with a history of committing abuse were denied child visitation in only 17% of cases. Mothers in these cases were no more likely to obtain custody than mothers in non-abuse cases. This study found that mothers were “more likely” than fathers to be awarded sole custody, but does not identify what proportion of cases resulted in equal sharing of physical custody (which is available in Washington even when one parent is designated “primary”). – Id. at 1014-1015.

The Virginia Commission on Domestic Violence Prevention commissioned a study of these issues at University of Virginia in 1997-98. The study found that in custody cases where there was also a domestic abuse case in court, only 25% of the custody files referenced the existence of the domestic abuse case. – www.courts.state.va.us/fvp/history.html

ATTACHMENT

Doreen Ludwig’s comments in response to Pennsylvania plan to increase funding of Counselors, Parenting Coordinators, etc. using HHS OSCE and TANF funds.

March 3, 2009 Presentation to Senate Judiciary Chairman in response to Proposed Changes to Child Custody Law.    Doreen Ludwig, PO Box 13778 , Reading PA 19612 , #610-939=1354

I contacted Mr. Warner because I have documented a lack of due process in child custody, especially in cases involving abuse.  Custody decisions are made not by Judges, but by Psychologists who call themselves evaluators.  The custody evaluator does NOT adhere to law or Rules of Evidence.  They do not investigate or verify false allegations.  They often rely solely on hypothetical tests and do not question collateral witnesses such as the children’s school, doctors, family, friends, or police reports.  They have no training or hands-on experience in abuse and control.  They have a profit motive and they are giving custody to abusers to continue cases and award themselves perpetual counseling fees which tend to be higher than the market average.

NO REMEDY FOR AN UNETHICAL, PERJURIOUS CUSTODY EVALUATION

THERE IS NO REMEDY FOR AN UNETHICAL, PERJURIOUS CUSTODY EVALUATION  THAT DOES NOT PROTECT VICTIMS OF ABUSE!!!!  See Dr. Ring’s report stating “abuse was mutual.”

The Pennsylvania Supreme Court DENIES appeals, against the PA Constitution, in order to permit custody to be determined solely on the basis of the custody evaluation, even when it is proven to be written for one parent only.  Likewise, Court Administration DENIES that custody evaluators are submitting fictitious reports.  The Rules Committee refuses to hold evaluators to any standard.

The Pennsylvania Supreme Court Rules Committee has refused to write standards for custody evaluations.  Reports are submitted as evidence WITHOUT cross-examination. Witnesses and exhibits that disagree with statements contained in the custody evaluation are DENIED or ignored.  Reports are not held to the legal standard of Frye Hearings to determine their admissibility.  Reports do not even address the Best Interests of the Children.  Judges abdicate responsibility to the evaluator.

BIAS REPORT PROVES BREAKDOWN

The “FINAL REPORT OF THE PENNSYLVANIA SUPREME COURT COMMITTEE ON RACIAL AND GENDER BIAS IN THE JUSTICE SYSTEM, 1999-2003” proves a severe breakdown in protection from abuse in issues of family law.   The Bias Report failed to adequately address domestic violence in custody, support and divorce.

The Bias Report failed to document results of contested custody including use of evaluations.

Page 474 – Custody - County Surveys – None of the counties responded to a survey question concerning the percentage of fathers who were awarded primary physical custody in contested custody actions, nor did any respond to the survey’s request for breakdowns by race and gender of the outcome of plaintiffs’ requests for physical custody for 2000–01.

Judges responsibility -  It is the family court responsibility to facilitate fair, and equitable litigation.  One party shall not maintain sole control of marital assets during pendency of custody litigation.  Parity and equal access to the law is in the best interests of the children.  An interim disbursement may be needed to obtain parity and equal access to the law.  The Bias Report states “The courts rarely grant advance distributions of marital assets. Because most non-consensual divorce cases take more than two years for assets to be distributed, the court’s reluctance to enter interim awards places a burden on the economically dependent spouse and may inhibit his or her full access to the legal system. The spouse controlling the marital estate may also dissipate the assets, leaving no recourse for the dependent spouse.”  “At public hearings throughout Pennsylvania, attorneys and litigants testified that the judicial system often provides little or no help to pro se litigants who are either initiating legal proceedings or responding to actions against them.[i]”

TRADE ASSOCIATIONS MAXIMIZE PROFIT

Since 1999, when the task force developed SB 74, Trade Associations have increased their influence within family court.  Trade Association members include Judges, Court Administrators, lawyers and custody evaluators.  Trade Associations facilitate networking between members, teaching Judges, administrators, lawyers and custody evaluators how to work together for maximum business profit potential.

Proposed 5332, 5334, 5335, 5339 and 5340 would help trade association, for-profit motivated, members increase business by court appointment and orders for fees.  There are NO limits on fees and NO ethical requirements for practitioners, and NO system for review.  In fact, the proposed 5340 protects unethical custody evaluators!!!  See Dr. Ring charges.

There is already court approval of bankruptcy due to litigation.  See Berks County Court Administrator letter.  Proposed 5332, 5334, 5335, 5339 and 5340 will increase bankruptcy.  There is no protection for equal access to funds for defense.  Abusers are more likely to control finances.  Legal aide and pro bono representation is NOT available for victims of abuse.

Abusers are more likely to seek custody and to take the abuse to court.  See Working Paper, page 91-93, Exhibit K, “Research Indicating That The Majority Of Cases That Go To Court As “High Conflict” Contested Custody Cases Have A History Of Domestic Violence” compiled by Professor Joan S. Meier, Esq., George Washington University Law School .

Bias Report at Page 402 – While some courts are all too willing to challenge the domestic abuse survivor’s motivations for filing a PFA petition, they often fail to question the abuser’s motive for requesting substantial custody. Research indicates that custody disputes are more frequent when there is a history of domestic violence. Moreover, fathers who are batterers are twice as likely to seek sole custody of their children.62 Such requests for substantial custody may be a misuse of the legal system, motivated by the batterer’s continuing need to control and abuse the mother through harassment and retaliatory legal action. Fathers in such cases may use children as an excuse to have contact with the women they are otherwise prohibited from seeing. Yet, if mothers seek to protect themselves and their children by moving frequently or seeking to limit the father’s contact, the courts may view the mothers as unstable, uncooperative, and unwilling to share access to their children, all in contravention of Pennsylvania’s Custody Act.

Unfortunately for children, the trade association has found abuse and extended litigation good for business!!!  The trade association is NOT motivated by The Best Interests of the Children.  The members are motivated by self-interest of profit!

STATE RESPONSIBLE FOR PROTECTION

The trade association’s minimize abuse and control.  They prefer to give victims equal accountability for the abuse, often dismissing abuse as high conflict or alienation.

This unequal treatment sends a message that the mother is more responsible for getting help and is more “sick” for being in an abusive relationship than the actual person who committed the violence. As part of their mental abuse, many fathers will tell a woman that if she seeks help to escape the home, the system will turn against her, that she will be blamed for the break up of the family, that she will lose everything and that the abuser will get away with everything because he is in control – the system often perpetuates this belief and reinforces to women that they are powerless and will be punished, no matter what they do. Id. In re Sharline Nicholson, et al., 00-CV-2229 (JBW) (CLP), US Eastern District New York  3/1/2002

The “Nicholson” Opinion was written after abused mothers sued New York Children and Youth for failure to protect victims of abuse.  The Honorable Justice Weinstein addresses Government’s responsibility to victims:

Responsibility for governmental protection of children rests primarily on the state or municipality. See, e.g. Lois A. Weithorn, Protecting Children from Exposure to Domestic Violence: The Use and Abuse of Child Maltreatment Statutes, 53 Hast. L. J. 1, 19-26 (2001).

In a heterogeneous, non-theocratic and democratic society such as ours, there is enormous diversity in domestic relationships and in the degree that they are founded on mutual respect and love (the norm) or malevolence. Particularly if there is a sexual relationship between the adults, the emotional interaction may be intense, sometimes flaring into psychological or even physical abuse. The abuse may be endemic. It may be directed against the children as well as the mother. The children may be indirectly affected, as when they observe an abusive incident. Even when the abuse is not physical, it may be so fierce as to be the equivalent of a beating. The mother may lack the ability or resources to either protect herself or the children. Economic, emotional, moral or other ties may, as a practical matter, prevent the mother from separating from the abuser or seeking governmental protection against him. She may hope for eventual reconciliation – and sometimes it does occur.

Myriad subtle reasons may prevent her from separating from the abuser, protecting the children, or seeking assistance. In some households ethnic or social mores are relied upon to justify abuse as a “traditional right.” Ability to deal with tensions induced by self, a partner, children, economic and social factors varies enormously among those who become embroiled in domestic violence. In short, this case presents the most intricate and recondite relationships, the stuff of thousands of novels, poems, newspaper accounts, and legal proceedings.

Whatever the explanation, physical abuse of mothers and children, or the imminent threat of such ill treatment is not tolerated in our American society. Whether the mother, the family, or the immediate social group accepts cruelty as the norm or as permitted, it is a minimum assumption of our twenty-first century United States that it will not be tolerated.  The Government has the obligation to stop it and prevent its recurrence whenever it can.

Second, battered women often suffer from behavioral and psychological problems that differentiate them quite sharply from non-battered women. Third, the behavior of social workers and health service providers was a direct, albeit inadvertent, contributor to women’s sense of being trapped in abusive relationships. Tr.1540.  The most dangerous time for a woman and a child appears to be immediately after she leaves the batterer; his threats will usually make her aware of this. Ex. 106 at 16.  The battered woman cannot change or stop the perpetrator’s violence by herself. If she does not have adequate support, resources, and protection, leaving him may simply make it worse for the children.” Id. at 19.

PSYCHOLOGISTS/EVALUATORS DON’T ACT IN THE BEST INTERESTS OF CHILDREN

An influential trade association is the Association of Family Conciliation Courts (AFCC).  This group began in California and has developed to a National organization with extreme influence over family courts.  This group does NOT advocate for victims of abuse.  It does NOT advocate for safety of children.  It advocates for Fathers Rights often by a presumption of shared custody even when the Father is abusive, ranging from physical abuse, verbal and psychological abuse to sexual abuse (looking, touching, to penetration).  Because of the advocacy for abusers, AFCC disseminates legal strategies for abusers to obtain custody.  Legal strategies that proliferate in family court include:

·       Making false allegations of mental illness, drug abuse,

·       Makings claims of alienation or unwillingness to foster a positive abuser/child relationship

Lawyers can obtain a custody evaluator who will write a report awarding custody to the abuser.  Lawyers are coached to have pre-arranged agreement with Judges to let the custody evaluator run the case.  See Dr. Bricklin’s  “SEVERE PARENTAL ALIENATION AND SIMILAR ESTRANGEMENT PATTERNS: OUTPATIENT THERAPEUTIC PROTOCOLS”  Exhibit J, page 82-90 of working paper, proving advocating pre-agreements for judicial orders to administer Threat Therapy to child abuse victims.  These pre-agreements with Judges are common.  All PACE custody evaluators are certified only after submitting a letter from a Judge.  It should be noted that Dr. Barry Bricklin advocates for pedophiles and treatment of children by Threat Therapy.  Dr. Bricklin’s wife is the President of the Pennsylvania Psychological Board.  In Berks County the PACE evaluator is Dr. Timothy Ring.  Charges against Dr. Ring and the transcript of 3/27/06 prove that Dr. Ring was used to award custody to Father, an abuser.

Even if a parent has a (mildly) “negative” style, a child who interacts with this parent has the opportunity to learn how to deal with it, increasing that child’s available coping and resource-styles throughout life.

Not only must a MHP deal with all of the diagnostic complexities already mentioned, but also with the fact that psychological life is transformational: it is a “work in continual progress.”  A parent who was previously a poor psychological match for a particular child can therapeutically upgrade and transform his or her styles and become a good match for the child. A maturing child may come to see aspects of value in a given parent’s behavior that were initially not perceived by the child, or were perhaps not even in existence prior to the child’s changing his or her own patterns which then could induce change in the parent.  All relationships are continuously interactive and potentially transformative for each member of any given family system.

Hence the best (and probably only) way to ascertain if an alienated or estranged child could profit from an ongoing relation with a “target” parent is to set up the special kind of therapeutic program that has a chance of being successful in such cases and observing what happens.  Once the program is in place one can carefully monitor the therapeutic process for positive and negative prognostic signs.  We rarely mention these emergent signs (signs that usually do not yet exist at the outset of treatment) because some can be “faked” (while others cannot be faked).  In other words, we rarely, at the outset, tell the main therapeutic participants all of the things we are paying attention to.

A therapeutic plan that can be successful in these cases is very different than traditional plans. For one thing, the Court must be actively involved in the process (specific details are listed later).  For another, the child must rapidly see that he or she is NOT going to be the major (or even minor) decision-maker of importance as to who attends the therapeutic sessions or for how long.  This “tail-wagging-the-dog” phenomenon in which a child gets to exercise control over parents will ultimately not only ensure that an out-patient reunification process fails, but is also ultimately harmful to the child as he or she grows up.

Conservative foundations investments paid off handsomely in 1996, as their grantees were deeply involved in drafting the new welfare legislation. Debate centered on correcting perceived defects in the nation’s welfare system, rather than designing a strategy to reduce child poverty or increase family income. Ending the features of the system that were perceived as encouraging dependency and family instability was stressed more than creating affirmative policies to improve the economic well-being of American’s low-income families. To the extent that enhanced well-being was considered, it was assumed to flow directly from reductions in dependency and non-marital births. The Republican’s Congressional victory in 1994, and the perceived endorsements of the GOP Contract with America – reinforced the conservative message.[1]

Dear Friends, Here is an update on our activities. We will be sending alerts for legislative letters during the next week or two.

Best, Connie

1. The Mother’s Day vigil at the White House on May 9, 2010 was very successful! It was inspiring to see so many mothers and supporters gathered – estimates are between 100 and 200 people. After the silent vigil and speak out, there was a wonderful parade down 17^th Avenue and back. Several television stations covered the event.   We are also working on a mini-documentary.  Here are some great clips made by attendees and others.

http://www.nbcwashington.com/around-town/events/Celebrating_Mother_s_Day_Washington_DC.html?__source=twitter

http://www.youtube.com/watch?v=8GUt0KndjUI&feature=related

http://www.youtube.com/watch?v=ESMcMIIjAHI&feature=fvw

http://www.youtube.com/watch?v=XxRm7_faGto&feature=player_embedded

Several of us stayed for the month, going out nearly every day with the banner to stand vigil in front of the White House like the suffragists 100 years ago. Foreign press and tourists were quite interested in these horrendous United States human rights violations.  We also met with with Congressional staff regarding having Congressional hearings. We’re planning another action at the White House, so stay tuned.

2. Quick action needed: Please fax a letter today to Governor Arnold Schwarzenegger at 916-558-3160 and/or email  him at http://gov.ca.gov/interact#email and/or call him at 916-445-2841. Ask him to veto SB 1253. It started out a good bill, but became dangerous in amendments that would allow judges discretion to place a sex offender on probation in the victim’s home if the judge thinks it is ok!  http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_1251-1300/sb_1253_bill_20100617_enrolled.html

SAMPLE LETTER

The Honorable Arnold Schwarznegger                           FAX 916-558-3160

State Capitol Building

Sacramento, CA 95814

Re: SB 1253 (Strickland), Probation: sex offenders VETO

Dear Governor Schwarzenegger:

We strongly urge you to VETO SB 1253 (Strickland). It endangers children by allowing judicial discretion to place a sex offender on probation in the home of the victim. The best interest for a victim is to be safe and free from sex abuse. This can only occur when the perpetrator is unable to gain access to the victim under any circumstance. The best interest standard is designed to keep victims safe. This bill wrongly discriminates against a child victim whose perpetrator is a household member by treating that situation differently from a child victim abused by a non-household member. The first victim could, in fact, be placed in far greater jeopardy due to this discriminatory language.  There is no possible reason that a perpetrator residing close to the victim would be in the best interest of the victim. These amendments would create statutory discretion about placement of convicted sex offenders. The amendments appear to be developed by protectors of pedophiles rather than children.  Please VETO SB 1253 as amended. It is very dangerous for children.

3. Great news! A very bad judge was voted off the bench by the teamwork of a few good men and women. http://www.lemkaumustgo.com/

4. Please take a minute to sign the petition by the National Association to Protect Children. President Obama and Congress are called to take action against hundreds of thousands of Internet predators known to the Justice Department. A large percentage of these criminals are hands-on predators, with local child victims. http://www.protect.org/childrescuepetition

5. Another good petition which is focused on family court: http://www.petition2congress.com/2/2386

6. Therapist’s arrest may mean a review of cases.

http://www.timesunion.com/ASPStories/Story.asp?StoryID=939611&LinkFrom=RSS

7. Annual ritual abuse conference will be held in Massachusetts: http://ritualabuse.us/smart-conference/

By Liz Szabo, USA TODAY

A new study paints a heartbreaking portrait of babies who die from child abuse — and suggests new ways to protect children.

More than half of the babies and toddlers showed signs of previous abuse, according to a study of 72 deaths of children under age 2, published online this week in Pediatrics. The study included data from five states and seven cities.

Babies this age, who are vulnerable in so many ways, are also among the most likely of all children to be victims of homicide, the study says.

More than 2,400 children under 2 were murdered in the USA from 2001 to 2005, almost twice the number killed in car accidents, the study says. Children this age account for about half of all homicides of children under 14. The murder rate for babies this age — 6 per 100,000 children — is 10 times higher than the rate for children 7 to 8 years old, and even higher than the rate for 15- and 16-year-olds, the study says.

In the study, the largest number of babies died after being shaken to death, often because of crying.

Many of these deaths may be preventable, because evidence suggests that the perpetrators act out of frustration and ignorance rather than a desire to harm, says co-author Takeo Fujiwara the of Harvard School of Public Health.

The study also shows that child advocates need to do a better job of educating men about ways to cope with crying, says Carole Jenny, a spokeswoman for the American Academy of Pediatrics on child abuse.

More than 70% of perpetrators in the study were male. That’s striking, given that women often spend more time with infants, says co-author Catherine Barber, also of Harvard.

There’s no national system to educate parents about shaken baby syndrome before they leave the hospital, Jenny says. Although 14 states require that new parents receive information before leaving the hospital, states rarely provide money to fund these programs, says Philip Scribano, medical director of the Center for Child and Family Advocacy at the Ohio State University College of Medicine.

Although home visiting and hospital-based educational programs have had some success, many efforts fail to include fathers, he says.

“The message to fathers should be, ‘Don’t shake a baby,’ ” says Jenny, who notes that for every baby that dies from being shaken, seven or eight suffer brain damage, blindness or other injuries. “If you get angry, put the baby down and ask for help.”

There were about 120 mothers that attended the silent vigil.

A few of the many banners held during the silent vigil.

A Massachusetts mother stands vigil with the group that carried on after Mother's Day.

More pictures from the vigil at the White House here and here.

Termination of Parental Rights

When families fail to care for and protect children, states have the authority, when granted legal jurisdiction by the court, to initiate family services and to provide substitute care for the children. The prevailing legal standard for the care and protection of children is the best interest standard. The state is expected to act in the best interest of the child. Termination of parental rights is a legal action initiated in state family or juvenile court by the state’s child protective services department. It typically follows a series of care and protection hearings and interventions designed to protect children within the confines of child welfare laws and regulations promoting child safety, family life, and parental rights. Cases of severe maltreatment, defined by statute, may move immediately to termination of parental rights without the provision of family services. Less serious care and protection cases are resolved without a termination hearing. When the conditions for family reunification remain unsuitable, a termination hearing is initiated according to state statutes, child protective service regulations, and codified timelines. The content of termination statutes varies across state jurisdictions (in some instances, federal statutes apply). Common thresholds for state jurisdiction and subsequent termination of parental rights include serious harm or the threat of serious harm to a child due to a caregiver’s physical abuse, sexual abuse, or physical and emotional neglect of the child. Some statutes contain other criteria, such as the amount of time the child has been in substitute placement and the child’s attachment to substitute caregivers after a defined period of time in their custody.

Termination of parental rights is a legal action and a subsection of child and family law and psychology. In termination proceedings, the attorney’s role depends on whom the attorney represents. The child protective services agency’s attorney, employed by the state, represents the interests of the state in the care and protection of children. When facing a termination hearing, parents in states allowing indigent funding are provided with attorneys. In other states, parents must hire attorneys privately. Usually, each caregiver has his or her own attorney. Children may be provided their own attorneys to represent their expressed interests and guardians ad litem to represent their best interests as determined by substituted judgment. The role of the psychologist, as a forensic evaluator or consultant, depends on the referral source and the referral question(s). The psychologist is retained by the court, the state, or one of the attorneys for the parent(s) or child. Evaluations are requested for five main reasons: (1) to assess the caregiver’s need for interventions after the state assumes jurisdiction; (2) to evaluate the risk of harm, if any, the caregiver poses to the child; (3) to assess the child’s level of functioning and intervention needs; (4) to assess the caregiver’s amenability to interventions; and (5) to determine the caregiver’s participation and progress in recommended interventions. Referral questions may be comprehensive, involving the evaluation of multiple family members; or they may be limited to a specific feature of the case.

A properly qualified forensic psychologist has knowledge of jurisdictional legal and regulatory care and protection standards. The acceptance of a referral takes place within the legal context. The referral question is framed in a manner that respects parents’ rights, the rights of children, the socioeconomic and cultural dynamics of the case, and the role and purview of the judicial finder of fact. Psychologists consult ethical standards and guidelines for practice, and they have a strong foundation in theories and research relevant to child maltreatment, parenting, child development, parental risk of harm through violence and neglect, parental mental illness and substance abuse, parental intellectual functioning, and parental poverty. They use the forensic assessment report and court testimony as communication mechanisms addressed to all parties relevant to the case.

Legal and Regulatory Standards

Societal responses to child maltreatment take many shapes, with the legal system representing the most formal mechanism of response. The nature and breadth of state jurisdiction in child care and protection matters are found in legal definitions of child maltreatment and in legal and regulatory procedures for identifying, investigating, intervening in, and making judicial decisions about family reunification or separation. Broad constitutional rights serve as the legal basis for family privacy, parental rights, and children’s rights. Federal regulations influence developments and changes in state statutes, with the most recent guidance found in the Adoption and Safe Families Act of 1997. Childabuse-reporting requirements and statutes influence the frequency and nature of cases entering the child protective services system. Procedural laws and regulations govern the sequence of hearings and the structure and process of service provision as cases move through the system. The confluence of these sources of laws and procedures provides a framework for the relative judicial weight given to state jurisdiction, family privacy, parental rights, and children’s interests in their protection from harm or the threat of harm. From a legal perspective, children are neither fully independent nor fully dependent legal actors in actions taken by the state over the competence of their caregivers.

A typical case in which a termination hearing is eventuated moves through the following phases: an anonymous report of maltreatment by a mandated or a nonmandated reporter; an initial screening of the complaint by the local or regional child protective services agency representatives; an investigation of the allegations in the complaint; an emergency evidentiary hearing and removal of the children from the custody of the caregivers; an evidentiary hearing over whether the emergency removal will stand or will be overturned; placement of the children in substitute care; provision of relevant services to the caregivers and the children; periodic reviews and hearings relevant to the continued need for state intervention and service provision; and a final evidentiary hearing that leads to an outcome of a reunification plan, permanent substitute care, or termination of parental rights. Only the most serious and protracted cases reach termination. If their rights are terminated, parents occasionally are allowed posttermination contact with their children under carefully specified and limited circumstances. More commonly, ties are severed, and posttermination contact is disallowed.

Forensic Assessment in Context

Referrals for forensic assessment in the context of care and protection matters are made to assist the court in gathering data relevant to the case. Referrals may originate directly from the court by prior agreement of all involved parties, through an ex parte motion by the attorney for one parent or a joint motion by the attorneys for both parents, from a representative or an attorney for the child protective services agency, through a regional child protection agency’s contracted relationship with specific consultants/evaluators, or through an ex parte motion by the attorney for the child. Ex parte motions are those that occur in front of the judge without the knowledge of the other parties to the case. They preserve attorney–client privilege until the report is introduced into evidence. Motions may or may not be requested in this private fashion. The use of exparte motions gives the attorney the option of quashing results unfavorable to the client’s case. The disadvantage is the difficulty of retaining attorney–client confidentiality and protecting the evaluation results under the attorney work product rule because of the eventual need for the evaluator to contact multiple parties to conduct a thorough evaluation that would typify most referral questions in care and protection matters.

Referral questions cover a range of topics. The evaluator might be asked to assess the child’s psychological well-being in the aftermath of maltreatment or threats of maltreatment, to determine what services should be offered to the child and/or the caregiver to promote child well-being and safety, the amenability of the caregiver to interventions designed to reduce the risk of harm to the child, the psychological impact on the child of a return to the custody of the caregiver, the psychological impact on the child of permanent substitute care or parental rights termination, and the child’s attachment to substitute caregivers.
Ethical Standards and Guidelines for Practice

Psychologists and other mental health professionals seek the relevant education, professional training, postdoctoral training, and continuing education. They turn to ethical standards and principles to guide their practice. Professional organizations develop guidelines for practice. Guidelines have been written specifically for the subspecialty of forensic assessment and consultation in care and protection matters. Guidelines relevant to cultural competence are particularly important because of the broad diversity of families that come to the attention of the care and protection system. Advocacy organizations for child welfare sometimes develop their own suggested practice guidelines.

Child Maltreatment

Legal definitions of child maltreatment are drawn from statutes, child protective service regulations, and case law. Social science definitions and nosologies of child maltreatment may not be fully consistent with the legal standards because of differing classification schemes and thresholds for maltreatment. Research on the etiology and impact of child maltreatment is complicated by differences in the definitions of maltreatment, differing standards for quantifying the scope and impact of maltreatment, and differing classification and diagnostic schemes. Theories of child maltreatment are drawn from sociobiology, the emerging field of genetics and human behavior, the psychology of human attachment, and the psychology of the inner life of the individual. Such theories may also take into account violence in the individual and society, parental attribution style, parental intellectual and social support resources, the impact of mental illness and substance abuse on parenting, intergenerational transmission or desistance of child maltreatment (i.e., whether parents who were victimized by child abuse become abusers or set about making sure they do not become abusers), social isolation, youthful parenting, and macrosocial issues such as neighborhood quality or the stress of parental impoverishment. Scholars are careful to point out that parents may parent competently even when they face multiple challenges. Parental factors such as mental illness, parental substance abuse, or intellectual limitations must be linked directly to the maltreatment to be considered legally relevant. Parental violence and neglect involve multiple complex factors that result in child maltreatment by some but not all parents. Research usefully illustrates the features that are common in cases of child maltreatment, but none of the features or combinations of features is isomorphic with maltreatment per se. Although much is known about the factors that predict child maltreatment, the relative weight of individual factors is less clear. Cumulative risk and chronicity of risk are not well researched, in part because of the inherent ethical and methodological challenges of conducting relevant empirical research in applied settings.

Parenting and Child Development

Theories of parenting and child development provide a framework for considering multiple styles of parenting, multiple forms of family structure, and child development trajectories. Theory serves as an organizing framework for understanding the inner life of individuals, family dynamics, the social biological context, and the cultural context of cases. It facilitates the use of logic and reasoning in the integration of evaluation data. Research provides a basis for understanding family relationships, understanding the family system from the child’s perspective, recommending relevant interventions, understanding and interpreting parental risk of harm, and placing parameters around interpretations and recommendations based on limitations in the state of the science. A forensic assessment report with legal utility has probative value based on the science of psychology as it is applied to and interpreted within specific legal standards.

Forensic Assessment in Care and Protection Matters

Evaluation methodology and forensic assessment reports in care and protection matters vary with the breadth and comprehensiveness of the referral questions(s). A typical evaluation involves an interview with the caregiver(s), an interview with the child, caregiverchild observations, collateral information, relevant records, and psychological assessment and/or risk assessment measures when indicated. Multimodal assessment is the most optimal approach. Focus is placed on hypothesized factors that potentiated family distress and child maltreatment, the viability and treatment utility of the service plan, whether conditions have changed or have been adequately addressed, and whether positive changes might be stable over time. Evaluation methodology might alternatively focus on the child’s attachment to substitute caregivers and the child’s readiness for adoption. Depending on the referral question, the interpretation section of a report might address the parent’s level of functioning; the strength and quality of the parent-child relationship; child maltreatment risk and the mediators of risk; parental amenability to treatment; accommodations that might contribute to parental amenability to treatment; the expected intervention outcome for a parent or a child; specific changes (or lack thereof) in a parental condition, such as mental illness or substance abuse; support services that would allow a parent with intellectual limitations to parent adequately; the description of a particular child’s special needs and their bearing on the child’s parenting needs; and the matter of whether a positive intervention outcome might be expected within statutory time limits. Meaningful reports and testimony answer the referral question(s) with scientific integrity, within the parameters of the legal standards and context, in a tone respectful of all parties to the case and the judiciary, and with appropriate caveats.

—Lois Oberlander Condie

Entry Citation:

Condie, Lois Oberlander. “Termination of Parental Rights.” Encyclopedia of Psychology and Law. 2007. SAGE Publications.