The Place for Custody Evaluations in Family Peacemaking

Custody evaluations can serve the dual purpose of providing neutral, objective information to the court while also contributing to the possibility of earlier settlement, which coincides with the therapeutic jurisprudence goal of more positive outcomes for children and families. Research suggests that most cases settle after custody evaluations. However, most of the literature is focused on the use of custody evaluations for litigation. Evaluators, attorneys, and mental health consultants can influence parents to focus more on children's needs and less on their conflict as they go through the evaluation process. This article urges family courts to develop processes and require professionals to learn skills needed for an interdisciplinary process to utilize evaluations in peacemaking.

Key Points for the Family Court Community:
• All custody evaluation processes should aim to reduce and/or shorten children's exposure to parental conflict.
• Evaluators, attorneys, and mental health professional consultants should use the evaluation process to influence parents to be more aware of their children's needs and less invested in their adversarial positions.
• Evaluators should learn to write and orally present information and state opinions with consideration of the parents themselves as consumers of the custody evaluation as well as the court.
• Attorneys and mental health professional consultants should help clients review the report, process their emotional reactions, and consider their options for settlement versus litigation in terms of emotional and financial costs to the family.
• Court processes should be developed to contain the time and cost of custody evaluations and provide dispute resolution after custody evaluations.

     

Forgotten Children of Immigration and Family Law: How The Absence of Legal Aid Affects Children in the United States

The absence of government‐appointed legal counsel in immigration proceedings adversely affects large numbers of children in the United States. Children born in the United States to parents without citizenship status (U.S.‐born children of noncitizen parents or UCNP) are harmed by a parent's detention and removal. Unaccompanied alien children (UAC) who have entered the country without legal status are adversely affected by their own detention and removal. The possibility of obtaining relief from removal is drastically diminished by the lack of legal representation. Currently UAC and immigrant parents are not entitled to court‐appointed attorneys. Any meaningful change in immigration law, such as a federal statutory amendment to provide UAC and immigrant parents with government‐appointed counsel is unlikely due to the present political dissension in Congress regarding this issue. Because UAC and immigrant parents are not entitled to government‐funded legal representation, a pro bono legal service system has developed, but is unable to meet the present need adequately. For immigrant parents, this Note proposes the adoption of a statute to allow the appointment of court liaisons in family court proceedings. The court liaison is a nonattorney who is familiar with the processes of the family court and ensures that immigrant parents are fully informed regarding all pertinent family court proceedings. For UAC, this Note proposes an amendment to the William Wilberforce Trafficking Victims Protection Reauthorization Act to mandate the appointment of a child advocate to all UAC. The child advocate is not a lawyer, but works with the UAC's attorney to provide the child with legal representation and advocacy.

Key Points for the Family Court Community:
• UCNP confront the loss of parents to detention and removal. Children are condemned to limbo, torn between absent biological parents and placement in foster care.
• The recent surge in the number of UAC who enter the United States by crossing the border from Mexico has been described as a humanitarian crisis. These children often remain alone without legal protection, vulnerable to detention and removal.
• Ideally, UAC and the immigrant parents would be provided with government‐funded legal representation in immigration proceedings. In the absence of the federal statutory reform necessary to make that a reality, state statutory reform to allow for the provision of court liaison programs for immigrant parents and federal statutory reform to allow the appointment of child advocates for UAC can begin to offer children and families needed legal support and advocacy.

     

Specialized Domestic Violence Courts

Abstract

The multimethod study assesses the perceptions of specialized domestic violence courts' processes with victims' experiences as the central focus. Perceptions of the traditional courts and specialized domestic violence courts are compared among victims, courtroom police, attorneys, judges and victim advocates. Domestic violence education among attorneys, judges, and victim advocates is also compared. Despite the intended improvements with the specialized court model, victims report similar problems in both court models. Safety and victims support among respondents is mixed. Professionals from the specialized court receive no more domestic violence education than those from the general court. Victims' and courtroom police recommendations are presented.     

ENSURING AUTHENTIC YOUTH PARTICIPATION IN DELINQUENCY CASES: CREATING A PARADIGM FOR SPECIALIZED JUVENILE DEFENSE PRACTICE

In delinquency courts, juvenile defense attorneys are essential for guaranteeing children's due process rights and encouraging their meaningful participation in the proceedings. Yet, indigent defense delivery systems are largely failing youth accused of committing crimes. This article highlights the importance of developing systems that support the highly specialized practice area of juvenile defense. To protect their clients’ rights and meet their ethical obligations, juvenile defense attorneys must zealously advocate for their clients’ expressed interests and must strategically address the biases and misunderstandings prevalent in delinquency courts. Specifically, defense attorneys must vigorously challenge systemic race, class, and gender injustices; incorporate expert knowledge of youth development into their advocacy; and protect clients’ mental health and educational interests. Such holistic representation promotes rehabilitation and reduces recidivism. Because of numerous obstacles that currently impede defense attorneys from engaging in such exemplary practice, systemic reforms are necessary to support high‐quality defense representation and, ultimately, ensure that youths’ rights are protected.     

The Organization of Child Representation Services in Child Welfare Cases: A Study of Washington State

To date no empirical studies have analyzed delivery of legal services to children and considered the implications of organizational structure for child representation practice. This study of 126 attorneys in Washington State compares children's lawyers working in solo practice, private law firms, and specialty staff attorney offices. The manner in which child representation is organized has lessons for the recruitment, training, and support of such lawyers. Staff attorney offices offer a number of advantages but rural areas with fewer cases may not be able to support such offices and the attorneys in specialty offices were less experienced and report lower incomes.     

Knowledgeable Judges Make a Difference: Judicial Beliefs Affect Juvenile Court Transfer Decisions

This study examined how judicial knowledge and attitudes about transfer affects transfer decisions by juvenile court judges. Participants included 232 juvenile court judges from around the country who completed a vignette survey that presented a prototypical case involving a serious juvenile offender. Participants were asked to decide whether the juvenile should be transferred and to rate his rehabilitative potential. Judges who believed in the deterrent effects of transfer were more likely to recommend that the juvenile be transferred and to rate him as having lower rehabilitative potential. More experienced judges saw greater rehabilitative potential in the juvenile and were less likely to transfer him to the criminal court. Overall, judges tended to think that transfer lacked general and specific deterrent effects, endorsed rehabilitative over punitive goals in sentencing, and felt positively about the juvenile justice system's effectiveness in handling serious offenders. Yet, a sizable minority of judges felt otherwise. The implications of the findings for judicial education and legal advocacy are discussed.     

Do Not Make their Trauma Your Trauma: Coping with Burnout as a Family Law Attorney

In the field of family law, attorneys frequently expose themselves to highly emotional and traumatized clients. Litigation is by nature a high‐stress occupation, demanding a high level of intellectual and emotional engagement from the contesting lawyers. Adding the burden of inherently distressing content to litigation can impair a lawyer's functioning. The effects are often referred to as “secondary trauma.” This Note proposes that state bar associations should take a more active role in providing mental health support to prevent burnout in family law attorneys by (1) offering voluntary classes to educate attorneys about the dangers of, and ways to cope with, the burnout that comes with working with traumatized clients in family law and (2) organizing support groups among local family law communities.

Key Points for the Family Court Community:
• Claims against family law practitioners account for the third highest percentage of all malpractice claims against lawyers.
• Burnout is a serious problem for family law attorneys.
• Programs sponsored by state bar associations are available and need to be expanded.
• The American Bar Association's Model Rules require that a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client.
• The unique nature of family law, centered on relationships and emotions, puts family law attorneys at a higher risk for experiencing the effects of secondary trauma than other areas of law.
• Lawyers at risk for secondary trauma can avoid its effects by educating themselves about such effects.

     

A Community‐Based Model for Remediating Juveniles Adjudicated Incompetent to Stand Trial: Feedback from Youth,Attorneys, and Judges

This study examined client satisfaction with a community‐based restoration services program for youth adjudicated incompetent to stand trial in Virginia. The sample consisted of 130 youth (ages 8‐21 years), 80 attorneys, and 43 juvenile court judges. Youth overwhelming found restoration services helpful to them, although some concepts were harder to learn than others. Both judges and attorneys were generally knowledgeable about juvenile competency law, although both were less knowledgeable about competency evaluators and the services provided to youth. Results will be used to improve teaching tools, training of Restoration Counselors, and communication between program providers and the legal community.     

Individualization,criminalization, or problem resolution: A factorial survey of juvenile court judges' decisions to incarcerate youthful felony offenders

Existing research on the criteria used by juvenile court judges in choosing dispositions is limited in two respects. First, the predictor variables included in most investigations have been limited either in number or in the quality of their measurement. Second, research has not focused on sentencing decisions for serious offenders. Using a factorial survey of juvenile court judges, the present study seeks to determine what factors shape disposition decisions for juvenile felony offenders. The results suggest that judges focus primarily on offense characteristics, and are influenced only marginally by the offender's social characteristics. These findings are more consistent with the view that juvenile courts are becoming “criminalized” than with the view that individualized treatment is the goal. An alternative interpretation—that judges may be problem solvers, trying to dispose of cases efficiently—also is proposed.     

Beliefs about child witnesses: A survey of professionals

This research addressed how professionals involved with the legal system evaluate children, primarily between 4 and 8 years old, as witnesses. In particular, we focused on professionals’ beliefs and opinions regarding children's memory, suggestibility, and behaviors as they relate to witness credibility. In addition, we surveyed professionals’ evaluations of investigative methods related to reliability. Four hundred and seventy-eight professionals working with children in the Norwegian legal system (i.e. judges, police detectives, psychologists, child psychiatrists, prosecutors, and defense attorneys) completed a questionnaire about child witness issues. Results indicated that psychiatrists as well as police officers expressed greater belief in children's capacities than did other groups, whereas defense attorneys and psychologists were more skeptical regarding children's general credibility. Psychiatrists and psychologists both, however, tended to favor, more than did legal professionals, the use of clinical techniques with children in abuse investigations. Implications are discussed in relation to professionals’ attitudes toward children as witnesses.     

A COMMENT. The road to court improvement in child protection cases

Judges are the key to court reform in child protection proceedings but legislative mandates cannot guarantee the requisite level of judicial commitment. Lack of full implementation of the Adoption Assistance and Child Welfare Act of 1980 demonstrates that rather than rely on statutory language, court reformers ought to increase judicial understanding of the provisions of federal law through initiatives such as cross-training. From December 1996 to June 1998, Kentucky's Court Improvement Project delivered 11 regional cross-training sessions to more than 550 judges, attorneys, social service personnel and other child advocates. Based on a statewide survey, cross-training increased significantly awareness of federal child protection objectives among the state's judges. Awareness of a policy among those expected to implement it is the first step toward implementation.     

Perspectives on Therapeutic Jurisprudence in Dependency Court in Cases Involving Battered Mothers

A qualitative study was conducted involving clients, victim advocates, and judges participating in one of Miami‐Dade County's (Florida) “therapeutic” juvenile court based programs, the Dependency Court Intervention Program for Family Violence (DCIPFV). The primary objective of this study was to assess how battered mothers’ perceptions of the dependency court judges’ actions impacted the women's motivation to take appropriate actions to promote their own, and their child(ren)'s safety.     

Family Values: How Children's Lawyers Can Help Their Clients by Advocating for Parents

Children's lawyers too often view themselves as standing in opposition to parents in dependency proceedings. In this article, the authors argue that child advocates do a disservice to their clients by not using their considerable skills, role advantages, and moral authority to actively help parents. Noting that areas of common ground far exceed those places where the children's bar and the parents' bar might part company, the authors contend that children's lawyers have an obligation to actively fight for parents' rights. In particular, spending time early in a case to ensure that appropriate reunification services are being offered is well worth the investment, as it redounds to the benefit of all parties. Several concrete practice tips are offered regarding how children's lawyers can better serve their clients by regularly advocating for parents.     

Family‐Centered Practice in Florida: Family Court Actions and Perceptions

Family and dependency courts can become valuable partners in efforts to stem the tide of child maltreatment using a family‐centered strategy. Florida's response to a 2008 federal Child and Family Services Review included a commitment to implement family‐centered practice in child protection services and the courts that hear these cases. Evidence of this implementation was documented in a formative evaluation conducted in 2010 and 2011. Findings based on interviews with dependency judges, Children's Legal Services attorneys, and Guardian ad Litem volunteers provide useful insights on how these practices were perceived and implemented.     

EXAMINATION OF THE IMPACT OF INCREASED COURT REVIEW ON PERMANENCY OUTCOMES FOR ABUSED AND NEGLECTED CHILDREN

This article provides a brief history of a federally funded court improvement program, describes the Dane County Court Improvement Project, and discusses the implications of the project evaluation's findings. As part of Wisconsin's efforts under the federally funded state court improvement program, Dane County developed and evaluated a form of accelerated review of selected juvenile court cases. The accelerated review intended to expedite permanency outcomes for abused and neglected children in out-of-home care. The evaluation's findings of the initiative suggest that more frequent court reviews than those mandated by law may increase the likelihood of adopting children entering out-of-home care with no decrease in the likelihood of family reunification. However, because many of the children whose parental rights had been terminated had yet to be placed for adoption at the time of the study's conclusion, the encouraging early findings of the initiative should be regarded with some caution.     

THE “EYE OF THE BEHOLDER”: PROFESSIONAL OPINIONS ABOUT THE BEST INTERESTS OF A CHILD

Child custody evaluations (CCEs) are a central feature of parenting litigation in many North American jurisdictions. However, there has been little recent research comparing CCE decisions about children's interests with decisions made by judges. This article presents empirical research about the extent to which Ontario judges accept custody and access recommendations from CCEs employed by Ontario's Office of the Children's Lawyer. The central finding was that the judges fully agreed with the CCEs only about half of the time. Possible explanations for this finding are explored, the most salient of which is the effect of delay in Ontario family litigation. In conclusion, the article suggests that a more efficient synthesis of the judicial and CCE decision‐making processes might be more consonant with the best interests of children involved in these disputes.     

Judges’ Perceptions of Screening,Assessment, Prevention,and Treatment for Substance Use, Mental Health,and HIV among Juveniles on Community Supervision: Results of a National Survey

Juvenile Justice‐Translational Research on Interventions for Adolescents in the Legal System (JJ‐TRIALS) National Survey was funded in part to describe the current status of screening, assessment, prevention and treatment for substance use, mental health, and HIV for youth on community supervision within the US juvenile justice system. Surveys were administered to community supervision agencies and their primary behavioral healthcare providers, as well as the juvenile or family court judge with the largest caseload of youth on community supervision. This article presents the findings from the judges’ survey. Survey results indicated juvenile and family court judges were open to innovations for improving the court's performance, rated their relationships with collaborators highly, and appreciated the impact of screening, assessment, prevention, and treatment on judicial practices.     

Knowledge and perceptions of juvenile justice officials about selection bias

This study examined the knowledge and perceptions of juvenile justice officials about selection bias and other causes associated with minority overrepresentation. In-depth interviews were conducted with officials working at major decision-making levels in the juvenile justice system of the Commonwealth of Kentucky. Almost half of the officials did not perceive selection bias to be present in the system. The other officials were divided in their beliefs about the possibility that selection bias could be the result of isolated incidents of discrimination as opposed to systematic race and class biases in the society and juvenile justice system. The study concluded that most judges, county attorneys, police officials, and some court designated workers thought that the system was fair and equitable.     

PROTECTING CHILDREN'S RIGHTS IN CONTACT DISPUTES: THE ROLE OF CHILDREN'S CONTACT SERVICES IN AUSTRALIA*

This article explores the role of Children's Contact Services (CCSs) in protecting children's right to express, and have heard, their wishes in contact disputes. The findings presented are drawn from the Australian Children's Contact Services Project and were based on 142 interviews with representatives from the government, the courts and legal profession who refer families to CCSs, service staff, as well as the parents and children who use the services. An analysis of client data from 396 families who had used one of six contact services in Victoria and Queensland during the month of August 2003 was also conducted. The findings suggested that CCSs successfully engaged children in a “dynamic self‐deterministic” process where children were able to explore their own wishes in relation to contact visits over time as their relationship goals changed. John Eekelaar described this process as being central to making decisions that are in children's best interests.     

Donald Davidson and section 2.01 of the model penal code

Abstract

In a 1967 article that is considered a classic of criminal justice scholarship, Abraham Blumberg portrayed defense attorneys for accused offenders as more responsive to the demands of the court entourage for smooth and expeditious functioning than to the needs of their clients for a stalwart representation. The article suggests that Blumberg's view, while provocative and with a considerable element of accuracy, may have reflected a somewhat jaundiced and overstated perspective when he was on the verge of leaving law practice for academia. The article also speculates about the current accuracy of Blumberg's observations.