WHAT DOES THE LAW CHANGE MEAN TO FAMILY LAW PROFESSIONALS?
Anecdotally, the majority of litigants in domestic violence cases are Self-represented (SRL’s). Further, if there is an attorney involved, it is not
uncommon for only one of the parties represented. The plight of SRL’s in family law is well known and well documented. In domestic
violence, especially coercive control and reproductive coercion, family law professionals need to be particularly vigilant to protect the legal
process. The recent Netflix show "Maid" is based on a true story of one woman’s experience with domestic violence and the court system. In
a courtroom scene, both the process and the courtroom language baffle the domestic violence victim. The script writers brilliantly illustrate
this as both the judge and opposing counsel simply substitute the word "legal" over and over instead of any understandable dialogue.
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Additionally, all the legal professionals, including the bench officer make no effort to make sure that she understands any part of the process.
Anna Carpenter, a law professor at Utah, with her colleagues Colleen F. Shanahan from Columbia Law School, Jessica K. Steinberg from
George Washington University Law School, and Alyx Mark from Wesleyan University, have done extensive work on SRL’s in the courtroom.
They note:
In America’s civil justice system, millions of low- to middle-income people without counsel or legal training must protect and
defend their rights and interests in courts designed by lawyers and for lawyers. Making matters worse, the issues at stake in these
courts are deeply connected to fundamental human needs such as safety, intimate relationships, housing, and financial security.
Many of those who find themselves pulled into civil court for issues ranging from medical debt to guardianship of an aging
parent are already suffering the consequences of America’s frayed social and economic safety nets. Too many people who
represent themselves in civil trial courts are already living at or nearing the edge of any person’s capacity for self-advocacy.
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Whether the parties are represented or not, recent appellate decisions serve to remind legal professionals to be aware of and account for biases
that may color the perception of a domestic violence litigant.
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Justice O’Leary in In Re Ma. V
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stated:
[T]his court has observed a recent, and troubling trend, of what we perceive as mothers being punished as victims of domestic
violence. (See In re I.B. (2020) 53 Cal.App.5th 133, 266 Cal. Rptr.3d 814 (I.B.); M.G. v. Superior Court of Orange County
(2020) 46 Cal.App.5th 646, 259 Cal.Rptr.3d 834.) We recognize issues of domestic violence often put children at risk. The cases
we refer to, however, are akin to this one, where children are brought into the dependency system because
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of domestic violence between the mother and a romantic partner. (Ibid.) Even after a mother manages to distance herself from the
abuser, however, SSA and the juvenile court continue to use the history of domestic violence as a basis to remove the children.
Indeed, it seems as if once a woman is battered, she will forever be faced with losing her children. This is not the legal test.
"When evaluating the complexity of domestic violence relationships, not every case will be the same. Unlike drug and alcohol
addiction, there are no Alcoholics Anonymous (AA) meeting cards, coins, or clean tests to measure success [as a victim of
domestic abuse]." (I.B., supra, 53 Cal.App.5th at p. 156, 266 Cal.Rptr.3d 814.)
We are also mindful of society’s preconceptions that often damage the "credibility of victim-witnesses who present on the stand
in atypical and non-paradigmatic fashions." (Kohn, Barriers to Reliable Credibility Assessments: Domestic Violence Victim-
Witnesses (2003) 11 Am. U. J. Gender Soc. Pol’y & L. 733, 734, fn. omitted.) We expect such victims to be "sweet, kind,
demure, blameless, frightened, and helpless" (id. at p. 734) and "not a multi-faceted woman who may or may not experience fear
or anger" (id. at pp. 743-744, fn. omitted). "These are the preconceptions that judges and jurors bring with them into the
courtroom when they assess the veracity of a victim-witness’s story." (Id. at p. 734, fn. omitted.) We encourage continued
diligence and education to guard against such preconceptions.
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These observations are particularly applicable in the area of sexual violence and reproductive coercion. The domestic violence litigant must
testify in a room full of strangers about some of the most intimate details of their life- what happened in their bedroom. For a litigant in a
same sex relationship, these challenges may be far greater.
Practitioners are charged with determining the facts of the case and making strategic determinations as to how best to proceed. Family Law
practitioners would be well advised to have a checklist that is used for every client, addressing all types of domestic violence, including
coercive control and reproductive coercion. Screening every client as a matter of course for all types of domestic violence will assure that any
potential bias is removed, and all facts are being developed to best protect not only the parties, but any children as well.
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For example, the American College of Obstetricians and Gynecologists recommends screening questions related to reproductive coercion,
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and also has suggested protocols that will facilitate the assessment process.
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• Has your partner ever forced you to do something sexually that you did not want to do?
• Has your partner ever refused your request to use condoms?
• Has your partner ever tried to get you pregnant when you did not want to be?
• Are you worried your partner will hurt you if you don’t follow their wishes regarding the pregnancy?
• Does your partner support your decisions about when or whether you want to become pregnant?
While these types of closed ended questions may be useful in a medical or legal screening setting, more open-ended questions are appropriate
in a courtroom setting. A courtroom is a significantly different environment for a Domestic Violence litigant than is the intimate setting of a
doctor’s examination room or a supportive counsel’s office. A bench officer may wish to consider less directive questions and seek
information in a more round about manner. This is especially true, because as Ross vs. Figueroa instructs: "the judge [is] necessarily expected