Family Court Proceedings Research Articles

Psychiatric disorders in children and adolescents in family law proceedings. Empirical analyses from psychological expert assessment

This study examined the frequency and distribution of mental health problems in children and adolescents who had previously been psychologically evaluated in family law proceedings. The data stem from psychological evaluations (N=298) conducted between 2008 and 2012 at an evaluation institute in Bremen, Germany. The reports included were analyzed for indications of mental health problems by means of a content analysis. The total sample consisted of 496 children and adolescents. At least one mental health problem (according to ICD-F) was found in 39.5% of the children and adolescents. The comorbidity rate was 38.7%. Developmental deficits appeared in 12.3%, emotional or conduct problems in 22.8% of the sample. Furthermore, 11.5% were reported as having been victims of violence. Frequency distributions of mental health problems with respect to the juridical issues in question are given. These results provide a first empirical overview of mental health problems in psychologically evaluated children and adolescents. Our findings highlight the need for future studies to further examine mental health problems of children and adolescents in family court proceedings with respect to the juridical issues in question.

Domestic Violence and Private Family Court Proceedings: Promoting Child Welfare or Promoting Contact?

Despite improved understanding regarding domestic violence, child welfare and child contact, and related policy developments, problems persist regarding how the family courts deal with fathers' violence in contested contact/residence cases. In the study reported here, analysis was undertaken of welfare reports prepared for the courts in such cases to investigate how and to what extent issues of domestic violence and children's perspectives on these issues were taken into account when making recommendations to the courts. Analysis found that despite evidence of domestic violence and child welfare concerns, contact with fathers was viewed as desirable and inevitable in the vast majority of cases.

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.

Indirect Abuse Involving Children During the Separation Process.

Separation is believed to be an antidote to risk abusers pose to their partners and children and underlines many interventions in family, juvenile, and criminal court proceedings. Countering this belief is the claim that many abusers respond to the felt loss of power and control occasioned by separation by changing or escalating abusive tactics. This study complements research on post-separation by asking whether separation is associated with an increase in threats of indirect abuse, which relies on third parties to manipulate the victim. Children, and threats made against them, can be used as a proxy to control or intimidate the victim. Using data from the Chicago Women Health Risk Study ( N = 339), the current study examined whether mothers who were separated were at greater risk of abuse through threats against the children when compared with mothers who were still in a relationship with their abuser. Results indicated that separated mothers were four times more likely to report threats to take and threats to harm the children, Exp(B) = 4.05, p < .05; Exp(B) = 3.93, p < .05, than non-separated mothers. Findings can be used to inform child custody procedures and the design of Family Justice Centers.

Using Judicial Notice to Inform the Legal System in New York Family Court Proceedings Where Domestic Violence is Alleged

There seems to be a fundamental disconnect between what we know and what we do. That is, between what we, as a society, know and what we, in our family courts, actually do. Throughout domestic violence literature and cases there is a trend of courts falling prey to misleading appearances and making assumptions based upon those appearances with disastrous results for victims of domestic violence. For advocates and attorneys specializing in domestic violence issues the situation is heartbreaking and frustrating. In some cases perhaps the court and attorneys involved all fall prey to the misleading appearances. Many attorneys and judges may simply be well meaning but unaware. What can be done to make courts and attorneys aware? Requiring education on domestic violence issues would require legislation that may be slow-moving or impossible to enact. Some judges and attorneys may seek out education while others may not. This paper explores how judicial notice may be used to inform judges and attorneys in New York Family Courts. In section II, the types of judicial notice will be discussed along with applicable rules, standards and examples. In section III a series of 15 domestic violence “facts” that likely meet the standard of judicial notice are presented. Section IV will argue that judicial notice of certain “facts” concerning domestic violence will 1) inform judges and attorneys, 2) further judicial economy by reducing the need for expert witnesses in some cases, 3) promote a more just approach and resolution in family court proceedings, and 4) provide expert-like information that may be otherwise unavailable to victims. Finally, section V will address the criticisms that may be directed at judicial notice of the types of facts cited in section III.

Increase in the use of McKenzie friends

An increase of litigants in person in family court proceedings has led to a rise in the use of McKenzie friends to support these litigants

Cooperation of the social welfare center and the court in family court proceedings new Croatian Family Law framework

The jurisdiction and roles of the social welfare center in family court proceeding are analysed in the context of family law protection of chil- dren pursuant to the new Family Act of the Republic of Croatia from 2014 (hereinafter: FARC 2014). First, the role of the social welfare center as a party in family court proceedings is considered. Then, in the paper follows the analysis of the provisions of the FARC 2014 on the social welfare center as a (temporary) legal representative of the child and the body of assistance of the court. In analysing the role of the social welfare centre as a body of assistance of the court, the position of children in family court proceedings according the new Croatian Family Act is taken into account. In the separate, sixth part of the paper the methods are discussed of alternative dispute resolution of family matters (mandatory counselling and family mediation) according to the new FARC 2014, as well as the task of the social welfare center in their implementation. In the final part of the paper, the author indicates the summary of research results and some of the de lege ferenda projections on cooperation of the social welfare center and the court, as well as on jurisdiction and roles of the center in family court proceedings. These projections are aimed to pragmatically regulation of procedures in family matters involving children and, consequently, better substantial-procedural protection of the welfare of the child. Although the (new) third Family Act of the Republic of Croatia (2014) since its independence made significant changes in quality of the family law protection of children, the author's suggestion is that further steps should be made in the field of the organization of family justice. First, the provisions on the social welfare center as a (temporary) le gal representative of the child should be left. The representation of the child in family court proceedings in cases when there is a conflict of interest between him/her and his/her parents and when is necessary to ensure the representation of the child regardless of his/her parents should be fully provide through changes of the jurisdiction of the institution for representing children the Center for Special Guardianship which should develop in the special attorney for children. Secondly, we should think about changes of the jurisdiction in family matters in a way that only certain first instance courts in Croatia have this jurisdiction, as it is proposed for the courts at the seat of the county courts (family departments at first instance courts). In addition, the matters of adoption and guardianship should be transferred from the jurisdiction of the social welfare center in the jurisdiction of the court, whereby the procedure of preparing for the adoption will remain under the competence of the social welfare center (and other social welfare institutions and NGOs which are authorised to provide the program of professional training for adoptive parents). The service for judicial assistance to young people should be organised (and this service should be composed of social workers, social pedagogues, psychologists, therapists, lawyers, etc). To this service should be transferred most of the tasks of the social welfare center as a body of assistance of the court. Thirdly, the author welcomes the regulation on family mediation as an appropriate forum for the amicable resolution of family disputes. However, prescribing and strengthen family mediation (only) in the framework of the social welfare system, in other words, in the social welfare centers which employees should complete the postgraduate specialist study of family mediation is restrictive to the development of family mediation alone. The author suggests that is necessary to examine the conditions under which the family mediators may be registered in the Register of Family Mediators and provide family mediation, as well as which qualifications must have family mediators to provide family mediation in individual cases, taking into account the cases of property relations within the family. Fourthly, it is necessary to work on a systematic, interdisciplinary training of judges, special guardian/child representatives, employees of social welfare centers and family mediators, in particular on improving of professional knowledge and skills to communicate with children and enabling children to express their views.

The Automatic Stay In Family Law Proceedings: Do We Really Have to Stop?

AbstractSince family disasters often come in clusters, many family court judges aren't sure what can continue in their court and what cannot after one of the parties to the family court action files a bankruptcy case. The 2005 Act amendments expanded the exceptions to the automatic stay, so much will remain unaffected. However, a few proceedings still require bankruptcy considerations and perhaps an order for relief from the stay. This article is intended to remove some of the mystery of how the automatic stay affects family court proceedings.

Assessing attachment for family court decision making

Purpose – Attachment has long been considered relevant to child care proceedings. However, compared to other forms of evidence, it has been limited by the lack of consistent methods of assessment, training of experts, and empirical evidence. To reduce these limitations, The International Association for the Study of Attachment (IASA) has developed a Family Attachment Court Protocol for assessment and formulation of attachment issues. The purpose of the Protocol is to act as a guide to good practice and to begin a process of improving the application of attachment to family court proceedings. Design/methodology/approach – The Dynamic-Maturational Model of Attachment and Adaptation (DMM) and its associated assessments were adapted for forensic use. The resulting Family Attachment Court Protocol was trialed in cases before 15 judges in five countries and modified based on feedback. Findings – The judges and most of the professionals working for the court expressed approval of the new Protocol. Research limitations/implications – Implementation of the Protocol will require additional authorised experts. Practical implications – The primary practical implication is that the courts will receive verifiable evidence on attachment can be tested and, thus, validated or disproven. Social implications – If accepted, the IASA Protocol will reduce the idiosyncratic nature of child care proceedings and increase the rigour of professional qualification to address attachment. Originality/value – The IASA Protocol is new and valuable because its theoretical underpinnings in the DMM are based on both clinical and also neurological evidence about protection from danger, and it can replace untestable expert opinion about attachment with evidence-based assessment and transparent formulation of recommendations.

Ethical Advocacy for Immigrant Survivors of Family Crisis

The involvement of family courts in the lives of youth and families creates significant opportunities for advocates to assist their clients with immigration‐related issues. Informed and effective advocacy on these issues in family court can make life‐changing, and even life‐saving, differences for immigrants. More specifically, immigration issues are germane to family court because certain vital avenues of immigration relief available to survivors of abuse, neglect, abandonment, and other forms of family crisis explicitly depend on findings, orders, and certifications that are issued in the context of family court proceedings. After describing these forms of relief, and the family court's role in immigrants’ access to them, this essay analyzes how ethical mandates related to client counseling, representational goals, and competence affirmatively require family court practitioners to provide advice and advocacy related to these collateral benefits to family court proceedings. Key Points for Family Court Community: The involvement of family courts in the lives of youth and families creates significant opportunities for advocates to assist their clients with immigration‐related issues Certain vital avenues of immigration relief available to survivors of abuse, neglect, abandonment, and other forms of family crisis explicitly depend on findings, orders, and certifications that are issued in the context of family court proceedings The substance of immigration‐related findings in family court, and their ultimate affect on family stability, are consistent with the core family court goal of supporting safety, well‐being, and permanency for children and families Ethical mandates related to client counseling, representational goals, and competence affirmatively require family court practitioners to provide advice and advocacy related to these collateral benefits to family court proceedings

Domestic Violence and Immigrants in Family Court

ABSTRACTImmigrants, particularly women and children, are at greater risk for domestic violence not only because of their immigration status, but because of the way U.S. immigration law is structured. This article explores important aspects of the link between domestic violence and immigration law. First, it analyzes the way in which U.S. immigration law frameworks enable domestic violence and empower abusers. Second, it outlines the current relief options available in immigration law that use domestic violence as a factor. The article discusses the ways in which these issues may arise in family court proceedings and suggests approaches for addressing these issues to prevent the further victimization of vulnerable women and children.

How Children’s Voices Were Heard ‘Above the Din’ in Family Court Proceedings in Cases Where There Were Allegations of Child Sexual Abuse: The Importance of Judicial Orientation and Professional Evidence in the Discernment of the Child’s Voice

This article examines how children’s voices can be heard in Family Court hearings when there are allegations of child sexual abuse. Using a case study approach, three judgements are examined to see how judicial determination centralised the information from and about children. In these three purposively selected cases the voices of children was identified from conflicting evidence presented by professional assessors and counsellors. These three cases were selected because of the primacy given to evidence that was presented from and about children. In these cases allegations were not assumed to be artifacts of a parental dispute, instead, the Judge who heard them worked actively to discern the child’s voice within the conflicting evidence. Further, these three cases were also distinguished by the range of evidence available that included family reports and assessments from professionals as a result of Court Orders, but also evidence from those who had ongoing involvement with the children in counseling roles. These counsellors were located outside the Family Court, in the child protection sector. The evidence from counsellors was preferred by the Judge as it provided a higher level of detail about the children and their allegations. The ‘voice of the child’ was constructed by the Judge in their interpretation of professional evidence.

HOFSTRA'S FAMILY LAW WITH SKILLS COURSE: IMPLEMENTING FLER (THE FAMILY LAW EDUCATION REFORM PROJECT)

The Family Law Education Reform Project (FLER) Final Report documented that the current doctrinally oriented family law curriculum at most law schools does not adequately prepare students for modern family law practice. FLER recommended that law school courses move from the study of cases to the study of the legal system's effect on families, and integrate the study of alternative dispute resolution and interdisciplinary knowledge. In response, Hofstra Law School has made a comprehensive attempt to implement FLER's curricular recommendations. This article discusses one major innovation – the Family Law with Skills course. Family Law with Skills is the basic course in Hofstra's revised curriculum and is designed to integrate doctrinal teaching with professional skills development. In addition to studying legal doctrine, students are required to engage in structured field observation of family court proceedings; interviewing, counseling, negotiation, and mediation representation exercises in a divorce dispute; direct and cross examination of a social worker in a child protection dispute; and drafting of a surrogacy agreement. The article describes each exercise and discusses its rationale, student reaction to the course, and lessons learned.

Implacably Hostile or Appropriately Protective?

The United Kingdom has seen conflicting developments in safeguarding women's and children's safety when there has been domestic violence. Although criminal justice responses have improved, child contact arrangements following parental separation remain dominated by pro-contact models that fail to take full account of the impact of domestic violence. Drawing on qualitative research in U.K. child contact (visitation) centers, this article presents women's perspectives to demonstrate how family court proceedings and welfare practices marginalized violence and exposed women and children to further abuse. This builds on previous articles in the journal to show how, in the post-separation family, contact now constitutes a significant site for continuing violence.

EVIDENCE OF A DIFFERENT NATURE: THE CHILD‐ RESPONSIVE AND LESS ADVERSARIAL INITIATIVES OF THE FAMILY COURT OF AUSTRALIA

This article charts the constellation of vision and research that underpin a new era in the Family Court of Australia, focusing on the development and outcomes of two programs that have attempted to meaningfully reinforce the centrality of children's rights and needs in family court proceedings. The Less Adversarial Trial and its front‐end Child Responsive Program (CRP) both aim to minimise the potentially negative effects on parents of a litigation process by application of a more intensive case management model adopted with the intention of altering the parents’ experience of the journey. Key features of this approach include the adoption of inquisitorial techniques, which include direct consultation with children through the CRP, modified application of the rules of evidence, and strong judicial management rather than being party driven. Findings from two studies into the pilot Children's Cases Program (now the Less Adversarial Trial) and the CRP are discussed. Significantly, evidence is outlined around the capacity of the new processes to impact on both the co‐parenting and parent–child relationships and to influence short‐term adjustment of complex families in high‐conflict dispute. In encouraging a more active focus on children's needs and views and by facilitating a stronger voice for children in proceedings that affect them, both initiatives advance Australia's commitments under the United Nations Convention on the Rights of the Child.

INVISIBLE PARTIES: LISTENING TO CHILDREN

This article discusses how children are involved in family court proceedings in New Zealand. On July 1, 2005, the Care of Children Act 2004 came into force. One of the changes brought about by this Act is an increased expectation that children will participate in proceedings involving them, by the court giving the child a reasonable opportunity to express his or her view. Children may participate in three ways, the primary mechanism being through the lawyer for the child. Children's views can also be elucidated through a specialist report, and direct participation can be achieved through judicial interviews. As each child is different, it is important that the unique circumstances of the case are accounted for. This article will discuss how each of the three methods can be combined to tailor an approach that gives every individual child a reasonable opportunity to express his or her view. There are a number of examples given of this approach in practice, showing how the court has adapted the process to accommodate the child's situation and personality.

A CRITICAL EXAMINATION OF THE SUITABILITY AND LIMITATIONS OF PSYCHOLOGICAL TESTS IN FAMILY COURT

Psychologists are frequently consulted by the courts to provide forensic evaluations in a variety of family court proceedings. As part of their evaluations, psychologists often use psychological tests to assess parents, guardians, and children. These tests can have profound effects on how psychologists arrive at their opinions and are often cited in their reports to the court. However, psychological tests vary substantially in their suitability for these purposes. Most projective tests in particular appear to possess little scientific merit for evaluations within family court proceedings. Despite these serious limitations, expert testimony derived from evaluations using both projective and objective tests is often admitted uncontested. This article reviews the psychometric properties of psychological tests that are widely used in family court proceedings, cautions against their unfettered use, and calls upon attorneys to inform themselves of the limitations of evaluations that incorporate these tests.

Establishing Children's Wishes and Feelings for Family Court Reports

Current UK government policy is to promote mediation as a way of avoiding family court proceedings and there is a risk, therefore, that welfare report-writing practice may receive less critical attention than it merits. A largely unstudied aspect of this practice is the significance given by practitioners to the child's age. More widely, across a broad academic and policy canvas, preoccupying concerns with children's rights, their ability to participate and their individuality have shifted attention away from questions about the age relatedness of competence. Two sets of findings from recent research are presented in this article: first, statistical data relating to the age of children involved in welfare report enquiries; and, second, data drawn from a qualitative study of how private lawpractitioners establish the wishes and feelings of children of different ages.

The Representation of the Legal Interests of Children and Adolescents in Germany: A Study of the Children’s Guardian from a Child’s Perspective

In 1998, the children's guardian was introduced into German law as a new legal institution to represent interests of children and young people in certain family and guardianship court proceedings. Until now, there has not been realized any comprehensive investigation about the perception of children and young people themselves about the new figure. This study focuses on the understanding of 52 children and young people concerning the guardian's role and their satisfaction with the representation. To a large extent, most children formulated appropriate and differentiated conceptions of the role and duty of the children's guardian even if there were a few uncertainties. Furthermore, most children reported on many positive and satisfying aspects, although individual aspects were designated as problematic.

Confidentiality and the Juvenile and Family Courts

ABSTRACTCourt proceedings and court records are traditionally open to the public. The courts are public institutions, and openness serves a number of important purposes including protection of the free discussion of governmental affairs and the enhancement of the quality and integrity of the fact finding process. But court proceedings also address family matters including adoptions, juvenile delinquency, child protection, and domestic relations cases. These types of cases often involve personal issues, and many family members would prefer that they remain private. In most states, many of these proceedings have been closed to the public.Strong policy reasons support both openness of family court proceedings and privacy considerations for family members, particularly children. This article addresses confidentiality in the context of juvenile and family court proceedings. It takes the position that the tension between these conflicting policies can be reduced if most family court proceedings are presumptively open, but judges are given the authority to place conditions on the information that can be revealed by observers outside the courtroom. Additionally, the article asserts that if the courts and the media take steps to change their practices and their relationship with one another, both the public interest and the confidentiality interest of the parties can be better served.