Relevant Law
One of the factors the GAL must consider pursuant to the best interest of the
child standard is "the existence of domestic abuse between the parents,
in the past or currently, and how that abuse affects . . . the child emotionally;
and . . . the safety of the child." 19-A M.R.S.A. § 1653(3)(L).
Abuse v. High Conflict
In many high conflict family law cases, there are allegations of domestic violence.
Sorting through these allegations can be difficult. Domestic violence, because
it often happens in private, can be hard to "prove" in a way lawyer-GALs
are comfortable with. Nonetheless, a lack of clear and convincing evidence does
not mean that abuse did not occur. So even if you are unsure as to the existence
or severity of the domestic violence, you can err on the side of caution and
take steps to protect children from witnessing conflict or possible abuse.
Recommendations
Recommend neutral drop off and pick up locations so the parents can have little
to no contact with each other. If there are no neutral professional sites available,
schools or daycare can be a good place for a transition. If possible, find a
third party to coordinate the transfers. You may also want to consider limiting
the number of transfers to limit the possibilities for contact. The more transitions
between high conflict parents or parents with a history of violence, the greater
the likelihood of conflict. By minimizing opportunity, you can protect the children
from witnessing violence and or high conflict stressful situations.
The best interest statute expects parents to be able to communicate about their
children. In a domestic violence situation, communication is another way for
the batterer to control the victim. Again, even if you are not sure there is
a past or present dynamic of abuse, you can err on the side of caution and strictly
structure communication so that the child's needs are met but you do not increase
the risk of violence. For example, you can recommend a structured schedule for
phone calls so the phone cannot become a vehicle to harass a possible victim.
Recommend e-mail - and ask that they copy you on all correspondence. Recommend
a traveling notebook in lieu of direct conversation. Parents can use the notebook
to convey necessary information about the children without having to talk directly
to each other.
In general, in high conflict or domestic violence situations, you want to make
as specific recommendations as possible. Ambiguity is fertile ground for conflict
and abuse. So, recommend specific contact schedules, the time, place and manner
of the drop off/pick up, contact numbers if visits cannot go as planned, backup
plans for missed visits, vacation schedules (even if the child is not in school
yet), all holidays, birthdays. Remain aware of any resulting patterns i.e. repeated
no shows, being late and document for reference. Manipulation of visitation
and exchanges is a frequent and covert form of intimidation.
Child Support
Although GALs do not normally get involved in child support issues, economic
issues can be an area of conflict or attempted control. If you are concerned
about this, make sure child support orders are in place and make recommendations
about who pays for what. For example, Mom will pay for tuba lessons and Dad
will pay for summer recreation camp. The more detailed your recommendations,
the fewer areas for possible conflict. Remember, you are probably involved because
this family cannot make joint decisions or past abuse makes it unsafe to require
a victim to negotiate these basic life issues.
PFA Orders
In cases where Protection from Abuse orders are in place, it is important that
you review the court records. Often times, PFAs are entered "without a
finding of abuse." This means the parties agreed to a no contact order
without addressing whether or not the abuse actually occurred. Although tempting
to assume that these orders are less persuasive or useful to concluding that
domestic violence occurred (because you do not have a court order finding the
abuse), be cautioned that some of the most violent abusers agree to an order
without a finding. Abusers may do this for a variety of reasons including the
desire to avoid a hearing while criminal charges are pending or avoid having
a finding against them in court papers. The victim may not want to proceed with
a full hearing because of the trauma associated with court hearings or, if there
are children involved, may not want to subject them to the risk of examination.
Dismissal/Modification of PFAs
When a PFA is in effect, it can limit the ability of the parents to communicate
about the needs of the children. Nonetheless, do not advise the victim to dismiss
the PFA. The PFA is an important means of protecting families from conflict
and violence. If, as GAL, you are concerned that the PFA is so restrictive that
it makes parenting impossible, and you believe that some modification is necessary,
discuss ideas about safety planning options with the non-offending parent and
consider contacting the local DV outreach office for technical support regarding
dynamics and safety issues before asking for a modification of the PFA. above.
GAL Role as Mediator
In some cases, it is appropriate for a GAL to sit down with both parties simultaneously
and try to help them negotiate a solution for their family. Oftentimes, these
meetings happen without the parties' attorneys. In cases where you are concerned
about domestic violence, this is strongly discouraged for safety reasons. Without
full knowledge of the context and impact of the abuse, you may increase risk
to the non-offending parent. Such a setting can be intimidating and despite
the GAL's best efforts, the victim may feel coerced into making agreements. Such
agreements may result in the increased risk to children. Although the GAL as
mediator is a very important role, in domestic violence situations, this is not
appropriate. It is never the role of the GAL or any mediator to mediate the
abuse.
Finally, remember that there is enormous pressure by the court for the parties
to work together for the best interests of their children. The GAL is expected
to report on the parties' relative abilities to encourage a relationship with
the other parent. In most cases, this is a valuable benchmark for evaluating
a family. In cases with a history of abuse (emotional, verbal or physical),
these standards are inappropriate and unsafe and can punish a victim and potentially
place children at risk.
Appearance of Parties
Victims of violence often appear unstable, nervous and rigid. They are often
uncompromising in their views about the other parent. By contrast, an abuser
can be charming, charismatic and very reasonable. Obviously, many parents you
will work with are simply unreasonable and obstructive because they are unable
get beyond the pain of the familial separation. But be cautioned that this can
also be a red flag for you to consider what has led to this attitude.
It is critical for you to remain focused on your role representing the best
interests of the child. In cases where domestic abuse is a concern or suspicion,
it is important to remain very cognizant of power imbalances. Abusive partners
are obviously controlling and manipulative. While we may all feel it would never
happen to us-as an authority figure you may be targeted yourself by the perpetrator
of the abuse.
It is in the abusive person's best interest that you believe he is the better
parent, more stable both emotionally and perhaps financially, and that the non-offending
parent is less than…i.e.-less stable and/or bad parent and/or lying and/or
manipulative and/or non-compliant. Collusion with the batterer whether intended
or not, sends frighteningly clear messages to both the child and non-offending
parent. Even the perception of collusion, i.e. sitting with alleged perpetrator
and his attorney can cause safety concerns for the victims.
