1. Chapter 13:
Family Violence
12
Family Law for the Paralegal
2nd Edition
Wilson
Class Name
Instructor Name
Date, Semester

2. LEARNING OBJECTIVES
After this lecture, you should be able to:
13.1 Explain what family violence is, and who the 12
victims and perpetrators are.
Identify remedies available to adult victims of
13.2 family violence, including criminal actions, civil
actions, protective orders, and guardianships.
Explain how to recognize and respond when a
13.3 client is a victim or perpetrator of abuse.
Class Name
Instructor Name
Date, Semester
Cont.

3. LEARNING OBJECTIVES
After this lecture, you should be able to:
13.4 Identify various kinds of child abuse and 12
neglect.
Describe who is required to report abuse and to
13.5 whom, and how the state responds.
Explain how abuse and neglect influence
13.6 custody decisions.
Class Name
Instructor Name
Date, Semester
Cont.

4. LEARNING OBJECTIVES
After this lecture, you should be able to:
13.7
12
Discuss the ethical duty of members of the family
law team in the family violence context.
Class Name
Instructor Name
Date, Semester

5. Learning Objective
After this lecture, you should be able to:
Explain what family violence is,
13.1 and who the victims and
perpetrators are.

6. 13.1 What is family violence?
• Family violence goes by many names: domestic
violence, domestic abuse, intimate partner abuse, and
spousal and child abuse among others.
• Generally it involves a pattern of coercive behavior
designed to exert power and control over a person in a
family relationship. It comes in no single form, but rather
may involve any combination of behaviors such as
threatening, intimidating, belittling, harassing, and
outright physical attacks.
• Legal definitions of various kinds of abuse differ from state
to state. Most focus on physical abuse that causes bodily
injury, compelled sexual activity, and fear of physical
assault. Some encompass abuse inflicted through
neglect, stalking, cyberstalking, and other psychological
tactics and behaviors.
6

7. Who are the victims and perpetrators
13.1 of domestic violence?
• Domestic violence crosses all geographic,
socioeconomic, racial, cultural, religious, educational,
and occupational boundaries.
• The overwhelming majority of domestic violence (85%) is
committed by men against women. One in every four
women will experience domestic violence in her lifetime.
• Incidence of domestic violence varies by race and
ethnicity with African American females experiencing
intimate partner violence at a rate 30% higher than white
females.
• Domestic violence occurs with about the same statistical
frequency in heterosexual and homosexual relationships.
• Approximately 90% of incidents of alleged elder abuse
occur in a domestic setting.
7

8. Learning Objective
After this lecture, you should be able to:
Identify remedies available to
adult victims of family violence,
13.2 including criminal actions, civil
actions, protective orders, and
guardianships.

9. 13.2 What are the four most common kinds of remedies
available to adult victims of family violence?
• Criminal prosecution: Abusive conduct may be
prosecuted under a variety of criminal statutes
ranging from murder and manslaughter in cases
involving deaths, to assault, aggravated assault,
battery, rape/sexual assault, domestic battery,
stalking and cyberstalking among others. When a
victim is unwilling or unable to assist in the
prosecution of an offender, the prosecutor can
choose to proceed with an evidence-based
prosecution.
• Civil actions: A victim may choose to sue an abuser
for damages in a tort action for assault, battery, or
intentional infliction of emotional distress.
9

10. 13.2 What are the four most common kinds of remedies
available to adult victims of family violence? (continued)
• Protective orders: Under civil domestic violence laws of
all states, a victim of family violence can seek a
protective order if he or she satisfies the threshold
requirements regarding standing and qualifying conduct
laid out in statutes that vary from state to state. Protective
orders may be of several kinds:
• Restraining order: a court order most commonly issued in
a domestic violence case restraining an individual from
threatening and/or harassing another individual or
individuals.
• Stay away order: a court order requiring a person to
keep away from another individual wherever he or she
may be (home, work, school, etc.)
• No-contact order: a court order prohibiting an individual
from having contact of any kind with a person he or she
has threatened or abused in some manner.
10

11. What are the four most common kinds of remedies
13.2 available to adult victims of family violence?
(continued)
• Guardianship: In some cases, an abused woman
may become so incapacitated by repeated abuse
that she cannot protect herself or escape from her
abuser. She may be incapable of arranging for her
own housing, medical care, or finances. The guardian
is appointed by the court and is granted the authority
to act on behalf of the “ward” for some or all
purposes until the court determines the ward has the
capacity to act on her own behalf.
11

12. Learning Objective
After this lecture, you should be able to:
Explain how to recognize and
13.3 respond when a client is a victim
or perpetrator of abuse.

13. 13.3 How can members of the family law team recognize
when the client is a victim or perpetrator of abuse?
• Many victims are afraid, ashamed, or embarrassed about
the abuse they experience and never report it to the
police, physicians, families, friends, or even their
attorneys. Some do not even recognize they are abused
and assume that any maltreatment they suffer is their own
fault based on what their abuser has told them.
• Many perpetrators are aware that their conduct is
criminal but they are unwilling to acknowledge it to
others and face the consequences. Some abusers do not
even recognize they are perpetrators especially if their
conduct is culturally condoned.
• As a result, it is important for members of the family law
team to watch and listen to clients carefully and be
sensitive to cues that suggest that they are abused or
perpetrators of abuse.
13

14. 13.3 How should members of the family law team respond
when the client is a victim of abuse?
• The most important issue to address when the client is a
victim is her safety. This may mean suggesting one or
more of the following options:
– Recommend that the client file for a comprehensive protective
order on an ex parte basis.
– Depending on the nature and severity of the abuse, file a criminal
complaint against the abusive spouse.
– Recommend that the client file a Complaint for Divorce (and
custody of the children, if applicable) and make arrangements to
be in a safe location when the Complaint is served on the spouse.
– Give the client a safety plan and offer assistance with its
completion. The plan will call for the client to locate contact
numbers for key resources (the police, shelters, etc.); identify
locations she can go to if forced to leave home; identify means of
increasing safety while at home, work and in the community; and
identify documents to copy and/or take with her when leaving
the abuser.)
14

15. 13.3 How should members of the family law team respond
when the client is a victim of abuse? (continued)
• The client ultimately must make the decisions concerning
his or her case and should not be pressured into filing for
divorce on the grounds of cruel and abusive treatment if
such an option is available no matter how appropriate
that course of action may seem. A victim is never at
greater risk than they are when they commit to leaving
and exposing the abuser.
• Although members of the team can listen sensitively and
reinforce the message that no one deserves to be
abused, they must recognize that the client needs to
make her own decisions even if it means deciding to not
leave the spouse and pursue a divorce before they are
ready. See Paralegal Application 13.1 “Why Do They
Stay? If Anyone Ever Hit Me, I Would Be Out the Door in a
Minute” on page 452 of the text.
15

16. 13.3 How can members of the family law team recognize
when the client is a perpetrator of abuse?
• Abusers come from all backgrounds and there is no
single mold into which they all fit. However, there are
some “red flags” to watch for, a cluster of
characteristics abusers commonly share such as:
– He believes in traditional, hierarchical sex roles
– He engages in jealous, possessive and controlling behaviors
– He is hypersensitive to criticism
– He is self-centered
– He is manipulative
– He engages in minimization and denial and blames the victim
for his behavior
– He has difficulty expressing feelings
– See Exhibit 13.2 Profile of an Abuser on page 462 of the text.
16

17. 13.3 How should members of the family law team respond
when the client is a perpetrator of abuse?
• In some cases, the client may not be able to conceal
their conduct if the abuse is a matter of public record,
documented in police reports, medical records,
photographs, and criminal complaints and convictions.
Copies of these documents should be obtained.
• Members of the team need to remain as objective and
nonjudgmental as possible to serve as zealous advocates
remembering that in this country everyone is entitled to
representation no matter how offensive or illegal their
behavior may be.
• The members of the team must balance the duty to
maintain client confidentiality with the responsibility to
prevent commission of a crime that could result in death
or serious injury.
17

18. Learning Objective
After this lecture, you should be able to:
Identify various kinds of child
13.4 abuse and neglect.

19. 13.4 What is child abuse?
• Under federal law, child abuse and neglect is defined as:
• “…at a minimum, any recent act or failure to act on the part of
a parent or caretaker, which results in death, serious physical
or emotional harm, sexual abuse, or exploitation, or an act or
failure to act which presents an imminent risk of serious harm.”
• Of the confirmed reports annually about 78.3% of child victims
suffer neglect, 17.8% physical abuse, 9.5% sexual abuse, 7.6%
psychological maltreatment, and 2.4% medical neglect. More
than 1500 children reportedly die as a result of abuse and
neglect each year.
• More than half the victims are seven years old or younger and
the highest rate of victimization is of children under one year of
age.
• Approximately 80% of the perpetrators of child maltreatment
are parents.
19

20. What are the six major types of
13.4 child abuse?
• Abandonment: Abandonment occurs when the
whereabouts of a child’s parent(s) are unknown, the
parent has left the child in unsafe circumstances,
and/or has failed to maintain contact with or provide
support for the child for an extended period of time.
• Neglect: Neglect is a type of maltreatment that
involves deliberate failure by a caregiver to provide
needed, age-appropriate care although financially
able or offered other means to do so. It usually
involves an ongoing pattern of inadequate care
falling into one or more categories: physical,
emotional, medical or educational neglect.
20

21. What are the six major types of
13.4 child abuse? (continued)
• Physical abuse: Physical abuse is commonly defined
as non-accidental, physical injury to a child that
may be caused by behaviors such as punching,
striking, kicking, biting, etc.
• Although the most visible form of abuse, it is less
common than neglect and involves varying degrees
of culpability (e.g. deliberate physical abuse by a
parent; severe punishment of the child by a parent
acting in the good faith belief he or she is acting in
the child’s best interest; abuse committed by parents
who have never developed effective parenting skills;
and accidental injuries of children at the hands of
their parents.
21

22. What are the six major types of
13.4 child abuse? (continued)
• The U.S. Supreme Court has held that parents have a
constitutionally protected right to direct their children’s
upbringing but the right to discipline is not unlimited.
• Common law recognized a “parental privilege” to use
reasonable force in disciplining children and today several
states have recognized some variation on the privilege by
statute, case law, or administrative rule.
• Emotional abuse: Emotional abuse is usually defined as injury
to the psychological capacity or emotional stability of a child
evidenced in an observable and/or substantial change in
behavior, emotional response or cognition, or in anxiety,
withdrawal or aggressive behavior.
• Emotional abuse usually encompasses a pattern of behavior
including verbally assaulting and belittling, terrorizing with
threats of harm and abandonment, and humiliating and
embarrassing among other behaviors.
22

23. What are the six major types of
13.4 child abuse? (continued)
• Sexual abuse: States define sexual abuse in various
ways generally including both touching offenses
(fondling or penetrating the child’s genitals or having
the child touch the caretaker’s sex organs etc.) and
nontouching offenses such as exposing a child to
sexual acts or to pornographic materials.
• Substance abuse: States address this topic in both
civil and criminal statutes that focus on exposing
and involving children in illegal drug abuse. Several
states have specifically criminalized prenatal
substance abuse.
23

24. Learning Objective
After this lecture, you should be able to:
Describe who is required to
13.5 report abuse and to whom, and
how the state responds.

25. Who is required to report abuse
13.5 and to whom?
• Approximately 3.3 million reports of abuse are made to
state child protective agencies annually of which
approximately 25% are substantiated. About 60% of the
reports are made by professionals (police, teachers,
medical and social services personnel, etc.), 9% by
anonymous persons, and the remainder by
nonprofessionals (relatives, neighbors, friends, etc.)
• Mandatory reporters: Every state identifies individuals who
are required to report suspected child abuse or neglect
to a designated child protective services agency (usually
a state social or human services agency). They typically
include at least law enforcement personnel, health
professionals, social workers, teachers, and day care
providers who are usually provided statutory immunity for
filing reports in good faith.
25

26. Who is required to report abuse
13.5 and to whom? (continued)
• Permissive reporters: Permissive reporters are
individuals who may, but are not required to, report
suspected abuse. They typically include friends,
neighbors, store personnel, and strangers who witness
incidents especially in public places such as stores,
playgrounds, and parking lots. They are not liable for
reports filed in good faith but in some states may be
penalized for knowingly filing a false report.
26

27. What is the role of a state’s child
13.5 protection agency?
• State child protection agencies are responsible for:
– Receiving reports of suspected abuse
– Promptly investigating reports usually by making a home visit
within twenty-four hours if the child is in imminent danger
otherwise within three to seven days
– Developing plans for families in need of services
– Providing services (counseling, homemaking, parent education,
etc.) directly or through third parties
– Removing children from homes where they are at risk of
immediate serious harm
– Scheduling court hearings
– Arranging for and monitoring foster care placements
– Initiating proceedings to terminate parental rights when
warranted
– Referring cases involving serious injury or harm to law
enforcement authorities for investigation and possible criminal
prosecution
27

28. How does the state respond to reports
13.5 of child abuse and neglect?
• When a report of suspected abuse is received and processed,
it customarily proceeds along one of four paths:
• If the report is found to be false or frivolous, it is deemed invalid.
• If the report was made in good faith but there is no reasonable
cause to believe the child is at risk, the report is deemed
unsubstantiated but remains in the agency’s files.
• When the report is substantiated and the abuse is not serious,
the agency develops a service plan with the caretaker(s) and
the child may remain in the home. If the abuse is serious or the
plan is not accepted, the agency may file a care and
protection petition seeking temporary removal or removal with
termination of parental rights, if appropriate.
• If necessary to ensure the child’s safety, the agency may
immediately remove the child and file a care and protection
petition to be heard by the court within 72 hours.
28

29. What basic principles guide the
13.5 agency’s efforts under federal law?
• The state has the authority under the legal doctrine of parens
patriae to protect those within its boundaries who cannot
protect themselves.
• Child protection agencies have a duty to keep families
together and if removal is necessary to make a reasonable
effort to reunite the family although priority must continue to be
given to the child’s health and safety.
• In an effort to place children in stable homes as soon as
possible, if a child is removed and placed in foster care, a
permanency planning hearing must be held no later than
twelve months after placement or sooner if reunification is not
possible or appropriate.
• When removal of an Indian child is at issue, the procedural
safeguards of the Indian Child Welfare Act designed to
promote the stability and security of Indian families are
triggered.
29

30. Learning Objective
After this lecture, you should be able to:
Explain how abuse and neglect
13.6 influence custody decisions.

31. 13.6 How does a history of abuse and neglect and
domestic violence influence custody decisions?
• All states require that evidence of child abuse and neglect be
considered in decisions concerning child custody and
visitation in some way:
• Some require consideration of a history of domestic violence
before joint custody can be awarded.
• Some states provide that batterers are presumed to be unfit
custodians of children.
• Some include documented abuse as a factor in their “best
interests” statutes
• Some mandate that the courts not award joint custody where
abuse has been documented.
• Some states also consider the impact of witnessing interspousal
domestic violence on a child when making custody decisions.
See Paralegal Application 13.3 Making the Case for Custody of
a Child Who Has Witnessed Family Violence on page 475 of the
text.
31

32. How does a history of abuse and neglect and
13.6 domestic violence influence custody orders?
(continued)
• Custody orders in abuse cases are designed to protect both
children and parents who have been victims of family
violence. Ideally they are carefully tailored to the facts of
each individual case. The court may order conditions on
custody and visitation such as the following:
– A restraint on the abusive parent’s communication with or proximity to
the child except in the context of authorized visitation.
– A requirement that the abuser successfully complete a batterer’s
program
– A requirement that the abusive parent not use alcohol or drugs during or
within a certain period prior to a visit
– Exemption of the victimized parent from any state required parenting
program
– Impounding/denial of access to school and other records containing
address and phone information
– Supervised visitation in a court approved location
32

33. Learning Objective
After this lecture, you should be able to:
Discuss the ethical duty of
13.7 members of the family law team
in the family violence context.

34. 13.7 What is the ethical duty of members of the family law
team in the family violence context?
• Domestic violence permeates many family law cases and
poses monumental ethical dilemmas for members of the
family law team. The legal community is divided between
those who believe lawyers should be required to disclose
serious threats to third parties and those who believe they
should not be required to do so given the duty to maintain
client confidences and zealously advocate on their
clients’ behalf.
• Confidentiality requirements are left to the discretion of the
states and the states are not uniform in their requirements.
Some specifically exclude attorneys from mandatory child
abuse reporting requirements. Others adopt the American
Bar Association’s Rule that a lawyer may disclose
information about abuse if disclosure is reasonably
necessary to prevent death or substantial bodily harm or
to comply with a law or court order. The remaining states
fall in between.
34

35. Chapter Summary
13.1 Explain what family violence is, and who the 12
victims and perpetrators are.
Identify remedies available to adult victims of
13.2 family violence, including criminal actions, civil
actions, protective orders, and guardianships.
Explain how to recognize and respond when a
13.3 client is a victim or perpetrator of abuse.
Class Name
Instructor Name
Date, Semester
Cont.

36. Chapter Summary
13.4 Identify various kinds of child abuse and 12
neglect.
Describe who is required to report abuse and to
13.5 whom, and how the state responds.
Explain how abuse and neglect influence
13.6 custody decisions.
Class Name
Instructor Name
Date, Semester
Cont.

37. Chapter Summary
13.7
12
Discuss the ethical duty of members of the family
law team in the family violence context.
Class Name
Instructor Name
Date, Semester