SPECIALIZED COURTS AND DOMESTIC VIOLENCE
By Kristin Littel
In the 1970s, a movement began in the United States to raise public consciousness about domestic violence and its damaging impact, not only on victims, but also on families, and society at large. A concerted effort was made to encourage broad-based reform to alter the way communities and institutions thought about and responded to this crime.
Considerable attention was given to improving criminal justice system response to domestic violence. Activists in the movement labored to dispel the perception that domestic violence was a private family matter. They demanded the creation of laws that acknowledged the seriousness of this crime and practices to protect victims and to hold the abusers accountable. As Susan Keilitz noted in Specialization of Domestic Violence Case Management in the Courts: A National Survey, law enforcement was the first part of the justice system to change its approach to domestic violence cases, followed by prosecution, probation, and finally, the courts. A few localities-Philadelphia, Pennsylvania; Cook County, Illinois; and Quincy, Massachusetts-pioneered domestic violence court reform in the 1980s. States and other localities continued these reforms in earnest throughout the 1990s. Keilitz estimated that by 2000, over 300 judicial systems nationwide had specialized structures, processes, and practices to handle domestic violence cases. These structures, processes, and practices are commonly referred to as "domestic violence courts."
Around the time reforms were occurring in criminal justice response to domestic violence, a parallel initiative to improve court response to families and children was taking place. One concern was that it was not uncommon for a single family to be involved in several cases in multiple courts in one judicial system at the same time. Courts began to recognize that it was inefficient to handle each case separately. And, as Carol Flango, Victor Flango, and H. Ted Rubin indicated in How are Courts Coordinating Family Cases?, such a disjointed response could result in conflicting court orders. Courts also noticed juvenile and family law caseloads were increasing and becoming more complicated, with an underlying host of other difficulties. Yet, many judicial systems offered little in the way of services for families, and they were generally not coordinated across courts. The family court-one court or division, typically created as a result of consolidating juvenile and family law caseloads, that has jurisdiction over a wide range of family related matters-has emerged as one remedy for these problems. In many states and localities, these courts are helping to address family legal issues in a more coordinated, holistic, and efficient way.
In conjunction with domestic violence courts, family courts provide the judiciary with tools to improve response to domestic violence. This article explores the need for specialized court response to this crime, models of domestic violence courts, emergence and structure of family courts and the extent to which they address domestic violence, and the importance of coordinated judicial response to domestic violence that promotes victim safety and offender accountability.
Improved Judicial Response
Domestic violence courts and many family courts are positioned to improve judicial response to domestic violence. To be effective, however, these courts must be built on an understanding of the nature of this crime and the special concerns of its victims. For example, they should recognize the following:
Domestic violence is unlike other crimes in many ways. The violence is between intimates rather than strangers and typically progressive. Victims often fear, with justification, that justice system involvement will provoke increased threats and abuse by the batterer. This may make victims reluctant to seek court assistance. Victims may forgo court involvement in fear of being charged with failure to protect their children from abuse and the possibility of losing custody. To counter these roadblocks to safety and justice, victims and children may need enhanced protection during and after court involvement, including the close monitoring of their abusers. Mechanisms must be put in place to keep nonabusive parents and children together.
Domestic violence is also different from many problems facing families, as Billie Lee Dunford-Jackson, Loretta Frederick, Barbara Hart and Meredith Hofford noted in Unified Family Courts: How Will They Service Victims of Domestic Violence? For example, whereas courts typically seek to resolve family disputes in a manner agreeable to all parties, there can be no "win/win" outcomes in domestic violence cases. Although alternate dispute resolution methods such as mediation may be a useful tool to help families work out some of their problems, if domestic violence is involved, these methods may allow batterers to further manipulate victims and use children as pawns. And while preserving the family unit may be encouraged when dealing with many family disputes, if domestic violence is a factor, victims and their children often need to be shielded from abusers and assisted in gaining independence.
Treatment for perpetrators of domestic violence (often called a batterers' intervention program) is not, in and of itself, an appropriate intervention. Such a program may help abusers learn how to modify their behavior, but it does not guarantee that they will not reoffend. To effectively intervene in domestic violence, treatment coupled with sanctions, constraints, and conditions matching the seriousness of the crime are needed to deter further violence and restore victim independence.
Specialized Domestic Violence Courts
There are many forms of domestic violence courts, some of which were created under the rubric of, or operate in concert with, family courts. Yet, despite this diversity, a number of distinct models of domestic violence court specialization have emerged. In Creating a Domestic Violence Court: Guidelines and Best Practices, Emily Sack described the following models:
Civil Protection Order Docket. Many victims of domestic violence seek civil orders of protection from the courts. Such an order directs the abuser to refrain from assaulting or even contacting the victim or engaging in specific acts (for example, going to victims' place of work or their children's school). Protection order petitions and violation hearings usually represent the bulk of domestic violence caseloads, which make civil protection order dockets (a docket is a calendar of cases pending before a specific judge or court) a logical choice for specialization in many localities. Protection order dockets vary in the amount of time they devote to hearing cases, the number of judges that serve the docket, and whether enforcement of protection orders and violations is addressed. While this model is limited in that a court handling only civil protection orders cannot address all the related legal needs of the involved parties, dockets can facilitate a more accessible and streamlined protection order process. Civil protection order dockets promote victim safety, encourage full use of justice system remedies, and link litigants to community services.
Criminal Model. Criminal domestic violence courts deal with criminal cases. One or more judges may handle these cases. The majority of these courts have jurisdiction over only misdemeanors. A few localities have created courts that handle only felony domestic violence cases. In other localities, a specialized court handles both misdemeanor and felony domestic violence. A criminal model emphasizes the importance of appropriate sanctions and monitoring of batterers. One limitation of this model is that it does not address related civil matters; therefore, coordination across courts is vital to ensure consistent orders and proper provision of services.
Domestic Violence Courts with Related Caseloads. In comparison to protection order dockets or criminal courts, this court model is designed to address problems of families involved in domestic violence cases more comprehensively. Sack identified three variations of this model:
Integrated domestic violence court. Handles criminal domestic violence and related family matters, such as protection orders, child custody, support or divorce. It often provides an array of services to family members.
Unified family court. Typically allows one judge to handle all legal issues related to one family. This court can deal with civil and/or criminal domestic violence, although it more frequently focuses solely on civil matters.
Coordinated court. Criminal domestic violence and related civil issues are heard in the same court division, but on separate dockets.
Family Courts and Domestic Violence
Evolution. New Jersey enacted legislation in 1912 giving county juvenile courts jurisdiction over family legal disputes, according to Hunter Hurst, in Family Court in the United States. Hurst noted that this legislation was the first documented evidence of a family court. But it was not until the 1960s that family courts began to take hold and Hawaii, New York and Rhode Island established the first state systems of family courts. Numerous other states have since followed their example. Beyond the creation of formal statewide family courts, many states are encouraging their local justice systems to implement family courts. Hurst indicated that both the American Bar Association and National Council of Juvenile and Family Court Judges, among other national organizations, support efforts to establish these courts.
Structure. States and localities tailor family courts to fit their needs, the desired level of reform, and available resources. As was previously discussed, unified family courts dedicate one judge to handle all or most cases involving the same family. In other family courts, while information sharing, court orders, and services are coordinated, the one judge per family approach may not be observed. Some judges have long-term appointments to family courts as well as extensive experience and training in family case law, while others rotate more frequently into other courts and are less well versed on these issues.
Family courts differ in types of cases they handle. The American Bar Association recommended in Unified Family Courts: A Progress Report that family court jurisdiction include cases of juvenile delinquency; child abuse and neglect; termination of parental rights; guardianships for juveniles; intra-family criminal offenses, including all forms of domestic violence; divorce, separation, annulment, alimony, custody, and support of juveniles; paternity and child support enforcement; and those involving the need for emergency medical treatment. Despite this recommendation, many family courts are restricted to civil matters.
These courts also vary both in the extent that they partner with government and community-based service providers and offer direct services to families, and in how they use technology and personnel to facilitate information sharing and informed decision-making.
Domestic Violence as a Family Court Matter. At minimum, most family courts address divorce, custody and child support, and other civil issues that face families dealing with abuse. They may handle civil protection order petitions and related enforcement and violation hearings. Some family courts may hear intra-family criminal cases-most that do have jurisdiction only over misdemeanors. Family courts that process a large number of domestic violence cases or handle both civil and criminal aspects of these cases may choose to create a specialized division within their courts to address these issues.
Pros and Cons of Handling Domestic Violence in Family Court
Dealing with domestic violence and family matters simultaneously has its benefits. There is the opportunity for a coordinated and comprehensive response. If domestic violence is adjudicated in family court, court personnel often have expertise in addressing family matters associated with this crime. Family members are typically offered an array of related services to resolve problems. All legal issues facing a family may be adjudicated in one courtroom. Court ordered conditions tend to be compatible rather than conflicting, particularly in courts that handle both civil and criminal cases, because judicial decisions are informed by more complete family court histories.
However, there are potential disadvantages. Family court personnel, attorneys, and service providers may lack understanding of the distinct nature of domestic violence and inadvertently make decisions that put victims and their children at risk for further harm. Domestic violence may not receive adequate attention because it is one of many issues. And despite the focus of family courts on more holistic interventions, many do not handle all aspects of domestic violence. However, as pointed out in Creating a Domestic Violence Court: Guidelines and Best Practices, courts that do encompass both civil and criminal domestic violence matters may face their own set of challenges. For instance, they may have a tendency to focus on civil issues to the detriment of criminal issues or vice versa, may have difficulties in keeping case information separate, and/or may blur evidentiary standards applied to a case. A related problem is that courts may lack resources to foster appropriate information sharing, taking into account safety and confidentiality issues.
Coordinated Judicial Response
There is some obvious overlap in the way that family courts and domestic violence courts structure their response to domestic violence, as well as opportunity for the two types of courts to address collaboratively the myriad problems related to this crime. Clearly, how courts are structured to deal with domestic violence is an important factor in promoting a coordinated judicial response and service delivery. Regardless of the court approach used, however, it is most critical that judicial systems facilitate safety for domestic violence victims and their children and accountability for batterers. Achieving these two overarching goals is a complicated but absolutely essential task. Among the challenges at hand, as noted in Creating a Domestic Violence Court: Guidelines and Best Practices:
- Properly educating all professionals involved in domestic violence cases;
- Informing victims about their cases and options so they can make well-informed decisions;
- Designing court mechanisms that reduce safety risks facing victims and their children;
- Providing access to services that may help free victims and their children from abuse;
- Promoting appropriate sharing of information among justice system offices and service providers as needed for each case;
- Monitoring batterers and responding to noncompliance in a timely and consistent way;
- Explaining to judges that they can be involved in community domestic violence prevention efforts without negating their ability to be impartial in court; and
- Facilitating ongoing data collection and evaluation to improve court response to domestic violence.
Commitment to victim safety and batterer accountability can go a long way towards overcoming potential problems associated with any specialized court handling domestic violence. This commitment increases court capacity to truly help families experiencing abuse.
Kristin Littel is a consultant on "violence against women" issues for the Office on Violence Against Women at the U.S. Department of Justice.