Assessing Risk in Family Court Settings

Jeanette Bowden: Welcome, everyone. Welcome to the DV RISC Podcast Series on the use of intimate partner violence risk assessments and models in different settings. Today’s episode is focused on examining Risk in Family Court Cases. My name is Jeanette Bowden. I’m the Systems Engagement and Advocacy Manager at Esperanza United. I am your host for today’s episode. 

     Our guest speakers for today are Tracy Shoberg and Referee Mary Madden. Tracy Shoberg is the Deputy Director of the National Legal Center on Children and Domestic Violence with the Battered Women’s Justice Project, also known as BWJP. She has trained thousands of legal practitioners on enhancing their domestic violence practice, including the SAFeR Approach. Before joining BWJP, Tracy was a family law staff attorney at Southern Minnesota Regional Legal Services, serving low-income clients. Tracy has committed herself to this work since 2012, when she began working at End Domestic Abuse Wisconsin.

     Our other guest is Mary Madden, recently retired as a District Court Referee with Minnesota’s 4th Judicial District’s Family Court. She practiced family law exclusively for 20 years before joining the family court bench in 2008.  

     From 2013 through 2021, Referee Madden served as the lead judicial officer on three federal grants and spearheaded the development of the District’s Family Court Firearm Surrender Protocol in civil protective orders required under both state and federal law. In 2021, Referee Madden received the Fourth Annual ABA Commission on Domestic and Sexual Violence Judith S. Kaye Award for Judicial Excellence.  

     So, we’re going to get started with a broad discussion on examining risk in family court cases on a national technical assistance perspective with Tracy. So, Tracy, what does it mean to examine risk in family court cases, and why is this particularly important for child custody cases?     

Tracy Shoberg: Thanks, Jeanette and thank you so much for having me on the podcast. Examining risk in family court cases that have domestic violence or intimate partner violence is really based in safety, and safety for all members of the family. When we’re talking about safety, it’s not just physical safety, but we’re looking at emotional and mental safety, as well. And we know, based on research and other anecdotal evidence, that entering the family court system itself can increase risk of harm and elevate the severity of domestic violence. So it’s really important for all legal practitioners to be mindful of these domestic violence dynamics when working with victim survivors. 

     So, when looking particularly at child custody cases, it’s about addressing the full nature, context, and effects of the domestic violence in that individual family to ensure that custody decisions and parenting time schedules are really set up to protect the non-abusive parent, support their actions that are helping that child, and really keep any of their children safe.

     When discussing risk in family court cases, the question we need to be asking ourselves, as practitioners, is: “How can we structure relief in a way that supports both parties to safely parent and for children to feel safety, a sense of security, with both parents?” And realizing that looks really different for each family. And sometimes certain outcomes aren’t feasible based on abusive behaviors; the effects of those behaviors. 

Jeanette Bowden: Thank you, Tracy. Can you tell me about the SAFeR Approach? What is the SAFeR Approach? Why was it developed? And how does it work?

Tracy Shoberg: So, SAFeR offers a systematic, evidence-based approach to gather that full nature, context, and effects of domestic violence on an individual basis. And how did SAFeR come to be as we know it today?

     This work really started back in 2009, when my colleagues at BWJP received funding from the Office on Violence Against Women to answer this really broad question, which is, “Why were survivors entering the family court system and leaving with court orders that were really not helpful or not responsive to their own lived experience of domestic violence?” They would enter court, they would leave, they would take a look at that order, and they would really say, “This doesn’t actually help me in what I’m experiencing every day.”

     So, my colleagues and some project partners got some funding to really do the deep dive and try and figure out what was happening in family courts. They did an institutional analysis to figure out this disconnect, and they spent about five years gathering a whole lot of information. They talked to all sorts of practitioners, including judicial officers, attorneys, mediators, domestic violence advocates, and survivors. And they held listening sessions, they watched court hearings, and they even reviewed court pleadings. And what they found was that the courts weren’t getting the full picture of what was happening in these survivors’ lives. They weren’t getting the full nature, context, and effects, and without that information, you can imagine it’s pretty difficult to tailor a response based on the needs of that family.

     And that’s really where SAFeR comes in. It’s an approach in cases with domestic violence and intimate partner violence that helps practitioners gather this information about the nature, context, and effects in order to tailor relief that’s helpful for them. And it is truly multidisciplinary, so, attorneys or advocates, guardians ad litem, they can all utilize this approach in their work, but it might look just a little bit differently, depending on their role.

     The first letter, S, stands for screening, and, here, we’re just asking practitioners to answer, “Is abuse an issue here? Is it an issue in this case?” And if the answer to that is yes, they move on to the second piece of SAFeR.

     And that’s the A, and it stands for assessing the nature and context of the domestic violence. The question here to answer is, “What’s happening? What do the behaviors look like in this family?” 

     The third is the Fe, and that stands for focusing on the effects. We’re trying to answer, well, why does it matter? Really looking into those daily implications of all of those different abusive behaviors.

     And, fourth, the R stands for responding to intimate partner violence;what can we do about it? Now, we know what the behaviors look like, we know how they’re really impacting individual members of the family. Now, we’re going to tailor our response to mitigate all of those negative consequences.

     And if you look up the resources, one of the things you’re going to notice right away is that they’re really brightly colored, and that’s because they’re actually a color-coded system which really grounds the practitioner to answer one of those posed questions based on where they’re at in the approach. 

     So, let’s talk about, what does it actually inform? The creators of SAFeR really made this approach to guide the decision-making process, specifically in terms of things like custody labels, parenting time schedules, parental rights and responsibilities. SAFeR can really inform how to structure safe and workable custody labels and parenting time schedules. And, at the same time, it really informs how to keep the protective parent safe, how to support the protective parent in their parenting. So, for example, you can start to look at the questions, “How should the parties communicate?” Is it just over text messages? Is it one call a day? Or, “How should parenting exchanges take place?” Maybe it should be at the school, so the parties don’t have any contact, maybe that means utilizing a supervised exchange center. And all of these questions, of course, have those individual answers based on that person’s experience. And all of the information gathered while utilizing the SAFeR Approach helps parties make these important decisions. 

Jeanette Bowden: Thank you, Tracy. And how does the approach promote cultural responsiveness and trauma-informed practices?

Tracy Shoberg: One of the great things about SAFeR is that it is rooted in that individual analysis. So the information you’re gathering would ideally be reflective of any cultural values, expectations, norms of that survivor and their family. These issues of gathering this cultural information is really important when we’re talking about domestic violence behaviors and, particularly, coercive, controlling behaviors, because those take into account some of those social structures that can uphold abusive behaviors while keeping survivors further entrapped.

     And one exciting thing right now at BWJP in our current work at the National Legal Center on Children and Domestic Violence is that we’re always trying to improve SAFeR, and we currently have some additional Office on Violence Against Women funding to work with a few new project partners to really assess the cultural responsiveness of our resources and improve them.

Jeanette Bowden: Thank you, Tracy, for that information. So what can jurisdictions do to ensure fidelity and sustainability of the use of the SAFeR Approach?

Tracy Shoberg: So there are certainly a few things that jurisdictions can do to ensure fidelity and sustainability of using the SAFeR Approach. Some of this information is both anecdotal, from things that we’ve heard over the last 15 years. But we also have some information that is recently out of Cook County, Illinois, based on some empirically gathered information.

     One of the things we’ve learned is that it helps immensely when there is support and buy-in from the judicial officers on the bench in that jurisdiction. For example, we have seen this in La Crosse County, Wisconsin. We have been in that community for a little over five years now, trying to implement the SAFeR Approach on a countywide basis and we have a really supportive family court commissioner. And, so, the attorneys know, when they’re going into her courtroom, that they better be able to answer those questions about the nature, context, and effects of the domestic violence.

     This was further validated in Cook County, Illinois, where they did some research as part of the Family Court Enhancement Project, also known as FCEP. And FCEP was a large implementation that included some other interventions, as well as SAFeR training. And one of the impacts from FCEP in Cook County was related to training completed by judicial officers. And that actually registered two statistically significant changes in their practice from the bench. So, after they were trained in the SAFeR Approach, the judicial officers increasingly asked about children’s exposure to abuse, and about the impact of abuse on children. So having judges ask them questions about how their children experienced the violence in their home, asking about those effects and those daily implications is a really promising practice that we’ve seen based on an entire courthouse utilizing the SAFeR Approach.

     The second piece of sustainability we’ve really noticed is that practitioners tend to continue utilizing the SAFeR Approach. They grow their knowledge about domestic violence generally, based on continued access to technical assistance. We find that if folks know that there is technical assistance available, there’s a lot more success in continuing to get those better outcomes for survivors through utilizing SAFeR.

Jeanette Bowden: Thank you, Tracy. And, now, let’s discuss practical examples of family court examining risk in their cases from a site’s perspective. Mary, can you describe how you’ve been examining risk in family court cases in Minnesota?

Mary Madden, Ref: Certainly, and thanks for having me on this podcast, as well. We have a Domestic Abuse Bench Guide in Minnesota that was developed by our Minnesota State Supreme Court back in 2009. It was the Supreme Court Gender Fairness Implementation Committee that was based on the work of Jackie Campbell. It is not used just by family court; it is distributed to all of the judicial officers in all the divisions.

     My use in family court are both civil protective orders, because our family court in Hennepin County handles those civil protective orders, along with custody and parenting time issues and dissolution proceedings, as well as paternity cases and other never married parent custody and parenting time cases. 

     What I have found it useful for is, first, civil protective orders, which, in Minnesota, we call orders for protection or OFPs, for short. A petitioner seeking an order for protection is taking a huge risk. There’s all kinds of studies available that show it’s the most dangerous time for a victim of domestic violence to leave a relationship or attempt to leave a relationship with the risk that the perpetrator is going to find out. So, that period of time is extremely high risk. So it is helpful for me to review the Domestic Abuse Bench Guide to look for those high risk factors.  For example, “Is there a firearm that the perpetrator has access to? And does the perpetrator control most or all of the victim’s daily activities?” The thing about using it in terms of reviewing a petition for an order for protection is that the petition is ex parte, meaning the other party has no idea it’s being sought. And, so, the use of that guide is limited in terms of you’re not making a determination whether or not domestic abuse occurred yet. For me, it was most helpful in terms of those cases where the petition is more of a fear based petition rather than seeking safety from physical violence. When someone is being physically assaulted, by definition of our state statute, it’s domestic abuse in terms of seeking and obtaining an emergency order for protection.      There are other non-physical situations, and our statute does allow for an order for protection being issued in those situations where there is fear of imminent harm. And so the assessment tool can be used for reviewing those petitions and determining whether to issue an emergency order for that period of time.

     The SAFeR Approach, it has been equally useful as a judicial officer. Tracy mentioned the Family Court Enhancement Project that the 4th Judicial District, Hennepin County, was one of the four courts in the country that was a recipient of that grant. That grant allowed us to do a lot of work with community and business partners, including the Battered Women’s Justice Project as a technical assistance advisor. And one of the opportunities that we happened to have in Minnesota at the time is to participate in something called the Custody Dialogue Group in 2015;a group put together by the state’s governor after repeated disputes at the state legislature, about what presumptions should or should not be made in terms of custody and parenting time decisions by courts when parties are separated or no longer together. At the time that group was meeting, there were 17, what we call best interest factors that the court has to look at and attorneys have to present evidence, or parties have to present evidence on, in determining what custody and parenting time arrangements are in a child’s best interest.

     One of those factors has to do with domestic violence.  The domestic violence factor that existed was “The effect on a child of the actions of an abuser, if it was related to domestic violence, as defined by statute.” And so, after discussion with this large group, it was proposed that, that factor be changed to “Whether domestic abuse, as defined by statute, occurred in the parent’s home, or either parent’s household or relationship, the nature and context of that domestic abuse, and the implications, both for parenting and for the child’s safety, well-being, and developmental needs.” 

     There’s a distinct difference between those two factors. We don’t just look at the abuse and the effects on the child, but it’s a much more comprehensive and much more nuanced approach to examine what is going on. The beauty of this approach is that there are no assumptions made. If there’s domestic abuse, you go on to the next two steps, and, finally, the last step, which is: “What are the recommendations that could be made? What are the decisions that could be made to account for all of these different factors in families’ lives?”

     We looked at providing for custody and parenting time arrangements that protected the safety and well-being of both survivors and the children, holding the offending parent accountable for their abusive behavior, and then moving on to establishing the least restrictive parenting time arrangements. So we tried to look at the issue of the domestic violence more holistically in terms of the family. There’s no X happened, and so this is what you do, you do Y for every single case, because that’s not realistic and it doesn’t account for a party’s lived experiences.  

     So, after a trial or an evidentiary hearing where I have heard all of the evidence from everyone that’s involved, I have made a variety of decisions along a continuum, based on the information that I’ve obtained. There have been cases where domestic violence has occurred and there’s been a decision that the parties are now able, based on nature, context, and the effects on parenting and on the children, to share joint legal and joint physical custody and share an equal parenting time schedule. 

     There’s also been cases where there have been allegations of domestic abuse and, after hearing all of the evidence, I ultimately determined that it did not occur. There have been cases where there has been domestic violence and it’s impacted a decision about physical custody, where the kids live primarily, or legal custody. And there have been cases where there has needed to be a restriction on parenting time. There may be decisions about supervised parenting time, perhaps it’s at a facility in the presence of a family member, in conjunction with domestic violence programming.

     Mediation, that is certainly a role in the family court system that is important and that is impacted by domestic violence. Alternative dispute resolution is available to any family going through family court. In Minnesota, we cannot require someone who has alleged domestic violence participation in alternative dispute resolution (ADR), but there is nothing that prohibits a victim survivor from participating in that. The critical piece is that the providers of alternative dispute resolution are informed about the dynamics of domestic violence. They need to be trained in their own screening abilities. They need to understand the nature and context, and in helping parties form a durable agreement that considers safety and all of the impacts of violence on the children in the past and going forward. The court actually did training for ADR providers so they would be able to do this successfully.

     The court is not in a position to screen cases. We may not even know until the end of the case, we may not ever know that domestic violence was an issue because sometimes it’s not safe to disclose at any point in time. So we can’t do the work of screening, but there are other providers where it’s critical, and alternate dispute resolution providers is one of those roles.  

      The hope is that a lot of these issues from the person who is violent in the relationship can be examined individually, if not as a continued partner in the relationship, as a parent to their children.  And, so, it has been extremely useful for all of those reasons.

Jeanette Bowden: Thank you, Mary, for that information. So, can you tell me what have been some benefits and challenges of using these approaches in family court? 

Mary Madden, Ref: It really allows anyone working in the family court system to provide individualized responses tailored to children’s and families’ needs. It also provides a better path going forward if you have safeguards; steps in place that are adapted or are tailored to this family, whether the parents are going to continue to parent individually because they can’t co-parent well or it’s not safe to co-parent, or they do end up co-parenting going forward. 

     It also provides a clear pathway to repairing the parent-child relationship, which addresses the impact on kids. Once they turn 18, we’ve lost an opportunity to address this issue. If a court is involved, a tailored response can provide a clearer path to doing the work while your children are minors and repairing that relationship, whether it be through programming, individual therapy, increased parenting time over the course of time, all of those different issues. 

     There are certainly challenges. Getting the information is one challenge. The court is neutral so the court is not in a position to go out and gather information. We really need to get that information from those involved in a family court case; parties, attorneys, guardians ad litem, custody evaluators.

     In addition to that, it’s about all of those different roles involved in a particular case to be speaking the same language and to be looking at the same facts and implication of those facts. Working together in getting a case through court can really be a symbiotic relationship between all of those people involved to make a good decision. 

     That brings us back to training and technical assistance.  Training is a never ending process; people come and go, information changes, laws change, and from a court’s perspective, training on these issues is constantly necessary. We did a lot of training and it wasn’t just ourselves, but it was our business and community partners. Attorneys need to know what information to gather, what questions to ask their clients, how to put the pieces together to make an argument for the outcome that they want to have. And, so, everyone that can be trained to use the same language, look for the same facts, look at the list of implications, share the information with the court, is imperative. There’s a number of organizations that can provide the training and help develop in your community a coordinated community response to address this. And those aren’t easy things to do, but I think that helps overcome the challenges.

Jeanette Bowden: So, Mary, in addition to receiving training and ongoing training to the different disciplines that are working through the court system, what advice do you have for other family courts that are thinking of using the SAFeR Approach or the DA bench guide? 

Mary Madden, Ref: The Domestic Abuse Bench Guide that I talked about is a risk assessment tool. Risk assessment tools are used differently, depending on what your role is in the system. So, a court using a risk assessment guide is going to be very different than law enforcement using a risk assessment guide, and very different from something probation might use when making recommendations with respect to sentencing.

     It’s important to know how to use them properly. I would not recommend just finding a bench guide and start using it to make decisions. If your court has a bench guide, great, take a look at it. It may help guide you in analyzing situations and help identify risk, if for no other reason than advising you that you need to get more information. But I would definitely caution people against just using them in place of SAFeR or in place of something else.

Jeanette Bowden: Thank you for that. So, in closing – and this is for Mary and Tracy – are there any final thoughts that you would like to share with the listeners? 

Mary Madden, Ref: I want to acknowledge that working on these types of cases and making the findings that your courts are probably required to make under the law-it does take work to do that. It’s important work and there’s a reason that we do it. They take time, these impact people’s lives.

Tracy Shoberg: So, I think just a few points to summarize; we at BWJP are happy to meet with anyone who wants more information about the SAFeR Approach. And it’s important to know SAFeR is really easily tailored to meet your needs, to make work more effective and more efficient for their clients. 

     We have created state-specific guides with their own state statutory best interest factors. We have created guides for specific practitioners, like mediators. We’re really happy to work with you and make a tool or a resource that works best for you.

     To bring back to what Mary was saying, is that this is hard work. It does take time, it does take practice, but always remembering, at the end of the day, we are really working for survivors and their families to make their lives safer.

Jeanette Bowden: Thank you for that information. I want to thank Tracy and Mary for joining us today. I also want to thank the listeners for joining us today. For more information on the SAFeR Approach, please reach at BWJP.org. And for more information or to receive TA on an IPV risk assessment, please reach out to DV RISC, and that’s D-V-R-I-S-C.org.