CFCC Journal6

JOURNAL OF THE CENTER FOR FAMILIES, CHILDREN & THE COURTS
VOLUME 6 ❖ 2005
COURTS CONFRONTING THE ISSUE OF GUN SEIZURE IN DOMESTIC VIOLENCE CASES

RESPONDING Emily J. Sack
TO DOMESTIC THE COURT’S ROLE IN SUPPORTING AND PROTECTING CHILDREN EXPOSED
VIOLENCE TO DOMESTIC VIOLENCE
Hon. Donna J. Hitchens & Patricia Van Horn
ADDRESSING THE CO-OCCURRENCE OF DOMESTIC VIOLENCE AND SUBSTANCE
ABUSE: LESSONS FROM PROBLEM-SOLVING COURTS
Lisa Lightman & Francine Byrne
FROM BEHIND CLOSED DOORS: SHEDDING LIGHT ON ELDER ABUSE AND
DOMESTIC VIOLENCE IN LATE LIFE
Mary Twomey, Mary Joy Quinn & Emily Dakin
PARENTING ARRANGEMENTS AFTER DOMESTIC VIOLENCE: SAFETY AS A PRIORITY
IN JUDGING CHILDREN’S BEST INTEREST
Peter G. Jaffe, Claire V. Crooks & Hon. Frances Q. F. Wong
PARENTAGE ISSUES WHAT IS A FAMILY? A FRED FRIENDLY SEMINAR

CHALLENGING Charles J. Ogletree, Moderator
CALIFORNIA’S A BRIEF PRIMER ON CASE LAW ADDRESSING PARENTAGE ISSUES FOR
JUDICIAL SYSTEM NONBIOLOGICAL PARENTS BEFORE 2005
Frank H. Free
PARENTAGE BY INTENTION FOR SAME-SEX PARTNERS
Diana Richmond
LEGITIMATE PARENTS: CONSTRUING CALIFORNIA’S UNIFORM PARENTAGE ACT
TO PROTECT CHILDREN BORN INTO NONTRADITIONAL FAMILIES
Jenny Wald
PERSPECTIVES AN OPEN LETTER TO THE CALIFORNIA JUDICIARY: ADMINISTRATION OF JUSTICE

IN DOMESTIC VIOLENCE CASES
Hon. Laurence D. Kay (Ret.)
ENGAGING MEN AND BOYS IN DOMESTIC VIOLENCE PREVENTION STRATEGIES:
AN INVITATION TO THE COURTS
Hon. Ronald Adrine & Michael W. Runner
JUDICIAL COUNCIL OF CALIFORNIA ❖ ADMINISTRATIVE OFFICE OF THE COURTS

JOU R NA L OF T HE CENTER FOR
FA M I L I E S , C H I L DR E N & THE C OU RTS

M I S S I O N S TAT E M E N T
The Journal of the Center for Families, Children & the Courts is a periodical
dedicated to publishing a full spectrum of viewpoints on issues
regarding children, families, and the interplay between these parties
and the courts. Focusing on issues of national importance, the journal
encourages a dialogue for improving judicial policy in California.
The preparation of this publication was financially assisted through Grant Award
No. CW04031535 from the Governor’s Office of Homeland Security/Emergency
Services (OHS/OES). The opinions, findings, and conclusions presented in this
publication are those of the authors and do not necessarily represent those of OHS/OES.
OHS/OES reserves a royalty-free, nonexclusive, and irrevocable license to
reproduce, publish, and use materials and authorize others to do so.
This project was supported by Grant No. 2004-VA-GX-0009, awarded by the

Office on Violence Against Women, Office of Justice Programs, U.S. Department of
Justice. Points of view presented in this publication are those of the authors and do not
necessarily represent the official position of the U.S. Department of Justice.
JOURNAL OF THE CENTER FOR FAMILIES, CHILDREN & THE COURTS
VOLUME 6 ❖ 2005
JUDICIAL COUNCIL OF CALIFORNIA ❖ ADMINISTRATIVE OFFICE OF THE COURTS

The Journal of the Center for Families, Children & the Courts welcomes submissions addressing contempo-
rary issues in family and juvenile law, the administration of family and juvenile courts, and the provision
of court-connected services to children and families. The journal seeks to foster dialogue among various
practical and academic disciplines, and so invites contributions from the fields of law, court administration,
medicine and clinical psychology, the behavioral and social sciences, and other disciplines concerned with
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Manuscripts submitted for publication should be sent to Christine Cleary, Editor in Chief, Journal of the
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The Journal of the Center for Families, Children & the Courts (ISSN 1532-0685), formerly the Journal of the
Center for Children and the Courts (ISSN 1526-4904), is published annually by the Judicial Council of Califor-
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v
JU D I C I A L C O U N C I L O F CA L I F O RN I A
A D M I N I S T R AT I V E O F F I C E O F T H E C O U R T S
CHIEF JUSTICE RONALD M. GEORGE

Chair, Judicial Council of California
WILLIAM C. VICKREY MICHAEL BERGEISEN DIANE NUNN

Administrative Director General Counsel and Director, Center for Families,
of the Courts Deputy Administrative Director Children & the Courts
JOURNAL OF THE CENTER FOR

FAMILIES, CHILDREN & THE COUR TS
E D I T O R I A L S TA F F
❖
CHRISTINE CLEARY AUDREY FANCY FRAN HASELSTEINER
Editor in Chief Managing Editor Senior Editor
SUZANNE BEAN Copy Editors Article Editors

Art Director CHRISTINE MIKLAS IONA MARA-DRITA
ELAINE HOLLAND CORBY STURGES JULIA WEBER
Graphic Design MARK WOODWORTH BOBBIE WELLING
& Production CHRISTOPHER WU
EDITORIAL REVIEW BOARD
MS. ROBIN ALLEN MR. HUNTER HURST III

California CASA Association National Center for Juvenile Justice
DR. JILL DUERR BERRICK DR. JOAN KELLY
University of California at Berkeley Northern California Mediation Center
School of Social Welfare
HON. ARTHUR G. SCOTLAND
DR. DONALD C. BROSS California Court of Appeal,
C. Henry Kempe National Center Third Appellate District
for the Prevention and Treatment of
Child Abuse and Neglect MR. LARRY SIPES (RET.)
National Center for State Courts
HON. LEONARD P. EDWARDS
Superior Court of California, MR. RUSSELL VAN VLEET
County of Santa Clara University of Utah Graduate School of Social Work
MS. MARGARET CAMPBELL HAYNES HON. LYNN WOOLSEY

Tier Technologies U.S. House of Representatives
vi
JUDICIAL COUNCIL OF CALIFORNIA
HON. RONALD M. GEORGE HON. DENNIS E. MURRAY

Chief Justice of California and Presiding Judge of the Superior Court of California,
Chair of the Judicial Council County of Tehama
HON. MARVIN R. BAXTER HON. WILLIAM J. MURRAY, JR.

Associate Justice of the Supreme Court Judge of the Superior Court of California,
County of San Joaquin
MR. ANTHONY P. CAPOZZI
Attorney at Law, Fresno HON. MICHAEL NASH
Judge of the Superior Court of California,
HON. CANDACE D. COOPER County of Los Angeles
Presiding Justice of the Court of Appeal,
Second Appellate District, Division Eight MS. BARBARA J. PARKER
Chief Assistant City Attorney,
HON. J. STEPHEN CZULEGER Office of the City Attorney, Oakland
County of Los Angeles
HON. RICHARD E.L. STRAUSS
HON. JOSEPH DUNN County of San Diego
Member of the Senate
HON. MICHAEL T. GARCIA

A DV I S O RY M E M B E R S
County of Sacramento HON. RONALD E. ALBERS
MR. THOMAS V. GIRARDI Commissioner of the Superior Court of California,
County of San Francisco
Attorney at Law, Los Angeles
MR. REX S. HEINKE MS. TAMARA LYNN BEARD

Executive Officer, Superior Court of California,
Attorney at Law, Los Angeles
County of Fresno
HON. RICHARD D. HUFFMAN
MS. DEENA FAWCETT
Associate Justice of the Court of Appeal,
Clerk/Administrator,
Fourth Appellate District, Division One
Court of Appeal, Third Appellate District
HON. DAVE JONES HON. TERRY B. FRIEDMAN
Member of the Assembly California Judges Association President and
HON. SUZANNE N. KINGSBURY Judge of the Superior Court of California,
Presiding Judge of the Superior Court of California, County of Los Angeles
County of El Dorado HON. FREDERICK PAUL HORN
Presiding Judge of the Superior Court of California,
HON. CHARLES W. MCCOY, JR.
County of Orange
Supervising Judge of the Superior Court of California,
County of Los Angeles MR. ALAN SLATER
HON. BARBARA J. MILLER
County of Orange
Presiding Judge of the Superior Court of California,
County of Alameda MS. SHAROL STRICKLAND
HON. DOUGLAS P. MILLER County of Butte
County of Riverside
HON. EILEEN C. MOORE MR. WILLIAM C. VICKREY

Associate Justice of the Court of Appeal, Administrative Director of the Courts and
Fourth Appellate District, Division Three Secretary of the Judicial Council
vii
F A M I LY A N D J U V E N I L E L AW A D V I S O R Y C O M M I T T E E
HON. JERILYN L. BORACK, CO-CHAIR HON. LEONARD P. EDWARDS

Judge of the Superior Court of California, Judge of the Superior Court of California,
County of Sacramento County of Santa Clara
HON. SUSAN D. HUGUENOR, CO-CHAIR MS. ANA ESPAÑA

Judge of the Superior Court of California, Supervising Attorney, Dependency Section,
County of San Diego San Diego County Department of the Public Defender
MS. ANTONIA W. AGERBEK HON. JANET M. FRANGIE

Senior Staff Counsel, Judge of the Superior Court of California,
California Department of Child Support Services County of San Bernardino
HON. SUE ALEXANDER MS. KERI L. GRIFFITH

Court Program Manager, Superior Court of California,
Commissioner of the Superior Court of California,
County of Ventura
County of Alameda
HON. MARY ANN GRILLI
HON. BRIAN JOHN BACK Judge of the Superior Court of California,
Judge of the Superior Court of California, County of Santa Clara
County of Ventura
HON. DAVID L. HAET
HON. PATRICIA BAMATTRE-MANOUKIAN Commissioner of the Superior Court of California,
Associate Justice of the Court of Appeal, County of Solano
Sixth Appellate District
MS. FRANCES HARRISON
MS. ELIZABETH A. BARRANCO Family Law Facilitator, Superior Court of California,
Attorney at Law, El Cajon County of San Diego
HON. AVIVA K. BOBB MR. VAHAN HOVSEPIAN

Judge of the Superior Court of California, Administrator, Family and Children Services,
County of Los Angeles Superior Court of California, County of Butte
MS. JUDY LYNN BOGEN MS. SHARON KALEMKIARIAN

Attorney at Law, Beverly Hills Attorney at Law, San Diego
MR. BRYAN BORYS, PH.D. MS. MIRIAM ARONI KRINSKY

Executive Director, CASA of Los Angeles Executive Director,
Children’s Law Center of Los Angeles
HON. CHARLES W. CAMPBELL, JR.
MS. PATRICIA LEE
Managing Attorney,
County of Ventura
San Francisco Office of the Public Defender
HON. NORMA CASTELLANOS-PEREZ
HON. JAN G. LEVINE
Commissioner of the Superior Court of California,
County of Tulare
County of Los Angeles
MR. L. MICHAEL CLARK MR. RICK LEWKOWITZ
Lead Deputy County Counsel, Office of the County Counsel, Juvenile Division Supervisor,
Santa Clara County Sacramento County District Attorney’s Office
MS. JUDITH A. COX HON. JAMES M. MIZE
Chief Probation Officer, Judge of the Superior Court of California,
Santa Cruz County Probation Department County of Sacramento
HON. BECKY LYNN DUGAN HON. ARNOLD D. ROSENFIELD

Judge of the Superior Court of California, Judge of the Superior Court of California,
County of Riverside County of Sonoma
viii
FA M I LY A N D J U V E N I L E L AW A DV I S OR Y C OM M I T T E E , continued
HON. FRANCES ROTHSCHILD MR. DALE WELLS

Judge of the Superior Court of California, Family Law Facilitator, Superior Court of California,
County of Los Angeles County of Riverside
MR. DAVID SANDERS MS. SHANNAN L. WILBER

Director, Los Angeles County Department of Staff Attorney,
Children and Family Services Legal Services for Children
HON. ROBERT ALAN SCHNIDER MS. KATE YAVENDITTI

Judge of the Superior Court of California, Senior Staff Attorney,
County of Los Angeles San Diego Volunteer Lawyer Program
HON. B. TAM NOMOTO SCHUMANN

County of Orange A DV I S O RY M E M B E R
HON. DEAN STOUT MS. CAROLINE HUFFMAN
Presiding Judge of the Superior Court of California, Court Appointed Special Advocate,
County of Inyo San Diego County
ix
Contents
xii Editor’s Note
xiv Contributors
3 Confronting the Issue of Gun Seizure in

Domestic Violence Cases
COURTS
RESPONDING
TO DOMESTIC
Emily J. Sack VIOLENCE
Professor Sack reviews federal firearms laws relating to domestic violence, discusses issues affecting their
interpretation, and examines difficulties that have arisen in their enforcement. She then analyzes state
laws designed to address firearms and domestic violence and discusses legal issues that have arisen in
their implementation. She concludes with several recommendations to state judges, law enforcement
officials, and prosecutors for effective policies and procedures gleaned from the lessons of jurisdictions
in other states.
31 The Court’s Role in Supporting and Protecting

Children Exposed to Domestic Violence
Hon. Donna J. Hitchens & Patricia Van Horn
The authors summarize literature on the effects on children of witnessing domestic violence, the impact
of violence on parenting behavior, and factors that have been found to influence children’s safety with
offending parents. They describe barriers to the application of the literature, recommend specific ways
that courts can work together to serve children and families, and propose policies that protect children’s
interests.
53 Addressing the Co-occurrence of Domestic Violence

and Substance Abuse: Lessons From Problem-Solving Courts
Lisa Lightman & Francine Byrne
Recognizing that crimes related to both substance abuse and domestic violence place an enormous
burden on society, the authors explore the challenges and potential benefits involved in addressing the
co-occurrence of substance abuse and domestic violence through the model of problem-solving courts.
They include examples of best practices for developing similar programs in other courts.
x
Contents, continued
COURTS
RESPONDING 73 From Behind Closed Doors: Shedding Light on
Elder Abuse and Domestic Violence in Late Life
TO DOMESTIC
VIOLENCE Mary Twomey, Mary Joy Quinn & Emily Dakin
California’s burgeoning elderly population presents a significant challenge to the courts to address the
anticipated increase in elder abuse and domestic violence late in life. The authors provide background
information on elder abuse, including its incidence and prevalence, theories about why it occurs, bar-
riers to providing services specific to older victims, and issues for the courts to address, along with
discussion of promising practices.
81 Parenting Arrangements After Domestic Violence:

Safety as a Priority in Judging Children’s Best Interest
Peter G. Jaffe, Claire V. Crooks & Hon. Frances Q.F. Wong
Acknowledging the growing role of the family court in domestic violence cases, particularly in deter-
mining parental contacts following allegations of domestic violence, the authors outline some of the
controversies that arise in postseparation parenting plans where one parent has a history of perpetrating
domestic violence against the other parent. They provide strategies for courts to limit the opportunities
for children to be exposed to parental conflict and violence.
PARENTAGE
ISSUES
CHALLENGING
99 What Is a Family? A Fred Friendly Seminar
CALIFORNIA’S Charles J. Ogletree, Moderator
JUDICIAL A renowned panel of experts discusses parentage issues challenging California’s courts in this edited
SYSTEM and abridged transcript of a Fred Friendly Seminar presented at the December 2004 Beyond the Bench
Conference, sponsored by the Administrative Office of the Courts, Center for Families, Children &
the Courts.
121 A Brief Primer on Case Law Addressing Parentage

Issues for Nonbiological Parents Before 2005
Frank H. Free
The author introduces and discusses the primary California cases that conferred full legal rights and
responsibilities on nonbiological “presumed parents” before 2005.
xi
125 Parentage by Intention for Same-Sex Partners

PARENTAGE
ISSUES
Diana Richmond CHALLENGING
The author explores the different modes that the California courts have used in determining parentage CALIFORNIA’S
and advances the premise that the court’s existing test of determining parenthood in assisted reproduc- JUDICIAL
tive technology cases — the parties’ intention at conception — is the most preferable. She discusses the SYSTEM
California Supreme Court’s recent decisions in three same-sex parentage cases in an afterword.
139 Legitimate Parents: Construing California’s Uniform

Parentage Act to Protect Children Born Into Nontraditional Families
Jenny Wald
The author provides legal background and context for three recent California Supreme Court decisions
involving same-sex parents, analyzes the Uniform Parentage Act (UPA) in the context of its protection
of this state’s children, and discusses additional bases under the UPA for establishing legal parentage.
163 An Open Letter to the California Judiciary:

Administration of Justice in Domestic Violence Cases
PERSPECTIVES
Hon. Laurence D. Kay (Ret.)

Justice Kay, chair of a new Judicial Council task force focused on improving court practice and pro-
cedure in domestic violence cases, shares his personal observations on the essential ingredients needed
to ensure the fair, efficient, and accessible administration of justice in this critical area. He highlights
recommendations of concern to the courts from Keeping the Promise: Victim Safety and Batterer
Accountability: Report to the California Attorney General From the Task Force on Local Criminal Justice
Response to Domestic Violence (June 2005).
175 Engaging Men and Boys in Domestic Violence Prevention

Strategies: An Invitation to the Courts
Hon. Ronald Adrine & Michael W. Runner
The authors focus on the prevention of domestic violence, particularly efforts to engage men and boys
in prevention strategies. They outline the importance of prevention and how it contrasts with traditional
intervention, describe early public awareness and prevention strategies, review research on men’s attitudes
toward domestic violence, and introduce some recent research-based initiatives to engage men and boys.
xii
Editor’s Note
T he Judicial Council of California and the Administrative

Office of the Courts are pleased to present Volume 6 of the
Journal of the Center for Families, Children & the Courts,
which focuses on court responses to domestic violence. The Judicial Council has signaled its
ongoing concern about the significant issues presented in domestic violence cases by recently
naming a statewide task force to study ways to improve court practice and procedure in
those cases. The task force, in collaboration
The council’s overarching goal is to ensure with expert and innovative judges and court
fair, expeditious, and accessible justice for administrators, will consider recommenda-
tions to improve protective-order forms,
domestic violence litigants while promoting both develop procedural guidelines, and improve
victim safety and perpetrator accountability. the accurate and timely entry of restrain-
ing orders into the statewide database. The
council’s overarching goal is to ensure fair, expeditious, and accessible justice for domestic
violence litigants while promoting both victim safety and perpetrator accountability.
The articles in the focus section cover a broad range of domestic violence issues that confront
our courts. Professor Emily J. Sack leads off by providing background on federal and state
gun seizure laws and suggesting best practices on the issue of gun seizure in domestic
violence cases. Then Judge Donna J. Hitchens and Dr. Patricia Van Horn discuss the effects of
witnessing domestic violence on children and make specific recommendations about ways
that the courts can work together to better serve children and families, including proposed
policies to protect children’s interests. Next, Lisa Lightman and Francine Byrne grapple with
the challenges and potential benefits of addressing the co-occurrence of substance abuse and
domestic violence through the model of problem-solving courts. Mary Twomey, Mary Joy
Quinn, and Dr. Emily Dakin shed light on elder abuse and domestic violence in late life by
providing background information: the incidence and prevalence of elder abuse, theories
xiii
on the reasons elder abuse occurs, and barriers to services specific to older victims. Finally,
Dr. Peter G. Jaffe, Dr. Claire V. Crooks, and Judge Frances Q.F. Wong tackle the role of
the family court in domestic violence cases, particularly in determining parental contacts
following allegations of domestic violence. They provide strategies for courts to limit the
opportunities for children to be exposed to parental conflict and violence.
We have devoted our issues forum section to parentage issues challenging California’s judicial
system. First we introduce the subject through an edited and abridged transcript of a Fred
Friendly Seminar on parentage presented at the Administrative Office of the Courts, Center
for Families, Children & the Courts’ annual Beyond the Bench conference held in December
2004. With Professor Charles J. Ogletree as moderator, a panel of well-known experts wrestle
with the issue “What Is a Family?” Then Frank H. Free provides a brief primer on pre-2005
case law addressing nonbiological “presumed parents.” Diana Richmond advances the prem-
ise that parentage should be determined by using the “intention-of-the-parties” method
employed in assisted reproductive technology cases, and she discusses California Supreme
Court decisions in three same-sex parentage cases decided in August 2005. Jenny Wald closes
with an analysis of California’s Uniform Parentage Act, its protection of this state’s children,
and its place in the discussion about the three recently decided same-sex parentage decisions.
Our Perspectives section features some thoughts by Justice Laurence D. Kay (Ret.) on the
essential elements needed for courts to be fair, efficient, and accessible in domestic violence
cases. And Judge Ronald Adrine and Michael W. Runner discuss prevention strategies,
review research on men’s attitudes toward domestic violence, and introduce some research-
based initiatives to engage men and boys.
We welcome your comments and suggestions on how we can improve the journal to ensure
that it continues to feature a full spectrum of viewpoints on issues regarding the interplay
between children, families, and the courts in order to encourage a dialogue for improving
judicial policy in California.
—Chris Cleary
xiv
Contributors
HON. RONALD ADRINE has served on the bench of the Cleveland (Ohio) Municipal Court since 1981. He served as a member
of the Governor’s Task Force on Family Violence in Ohio, the Ohio Attorney General Victims Assistance
Advisory Board, the Domestic Violence Task Force of the Ohio Victims Assistance Advisory Board, and the
Supreme Court of Ohio’s Domestic Violence Task Force. He also serves as chair of the board of directors of
the Family Violence Prevention Fund and was elected to serve as the first chair of Cleveland’s Domestic Vio-
lence Coordinating Council. Judge Adrine has lectured extensively on domestic violence issues for a host
of organizations, associations, and governmental agencies, and he chairs the faculty of the National Judicial
Institute on Domestic Violence, a joint initiative of the National Council of Juvenile and Family Court
Judges and the Family Violence Prevention Fund financed by the U.S. Department of Justice.
FRANCINE BYRNE, M.A., has been a senior research analyst with the AOC Center for Families, Children & the Courts since
September 2004. Before joining the CFCC, she was a project coordinator for the Center for Health Care
Evaluation in Palo Alto. She has collaborated on projects related to Court Appointed Special Advocates and
the area of guardianship and recently completed a multiphase, statewide cost-benefit evaluation of drug
courts. She received a master’s degree in sociology from the University of Massachusetts in Boston and a
bachelor’s in international relations from California Lutheran University.
CLAIRE CROOKS, PH.D., C.PSYCH., is associate director of the Centre for Addiction and Mental Health, Centre for Prevention
Science. She is also an assistant professor at the Centre for Research on Violence Against Women and Children
and an adjunct professor in the Psychology Department at The University of Western Ontario. In February
2005, Crooks provided testimony on understanding the intersection between domestic violence and divorce
as an issue relevant to the U.N. Convention on the Rights of the Child to the Senate Committee on Human
Rights for the Canadian federal government. She co-founded the Caring Dads program, a parenting interven-
tion for men who have maltreated their children. Crooks has co-authored numerous articles and chapters on
topics including children’s exposure to domestic violence, child custody and access, adolescent dating violence
and risk behavior, intervening with fathers who maltreat their children, and trauma.
EMILY DAKIN, M.S.S.A., PH.D., is a National Institutes of Health postdoctoral research fellow at the University of California
at San Francisco, where she is evaluating the use of multidisciplinary teams and geriatric assessments in
elder abuse cases. Dakin previously was coordinator of the Institute on Aging’s information and referral
program and was assistant director of its elder abuse prevention program. She received a bachelor’s degree
in psychology from Oberlin College and a master of science in social administration and a Ph.D. in social
welfare from Case Western Reserve University.
xv
FRANK H. FREE is an attorney in private practice in Oakland, emphasizing juvenile dependency, family, and criminal law in both
the trial and the appellate courts. He is a graduate of the University of California at Berkeley and Golden Gate
University School of Law. He represented the presumed father in In re Nicholas H., discussed in his article. Free
is a member of the Amicus Committee of the Northern California Association of Counsel for Children.
HON. DONNA J. HITCHENS was the presiding judge of the Superior Court of California, County of San Francisco from 2003 to 2005,
after many years of serving as the presiding judge of the unified family court. In 2001 she was awarded the Benjamin
Aranda III Access to Justice Award. Sponsored by the Judicial Council, the State Bar, and the California Judges Asso-
ciation, the award is presented annually to a trial judge or appellate justice whose activities demonstrate a long-term
commitment to improving access to the courts for low- and moderate-income Californians. Judge Hitchens was
instrumental in securing federal grants that assisted San Francisco County’s selection as a demonstration site for the
SafeStart Initiative and the Greenbook Project, both projects dealing with issues of family violence.
PETER G. JAFFE, PH.D., C.PSYCH., is a member of the clinical adjunct faculty for the Departments of Psychology and Psy-
chiatry at The University of Western Ontario and academic director at the university’s Centre for Research on
Violence Against Women and Children. He was the founding director of the Centre for Children and Fami-
lies in the Justice System (London, Ontario, Canada), a children’s mental health center specializing in issues
that bring children and families into the justice system, and the founding chair of the London Coordinating
Committee to End Woman Abuse. He is currently actively involved in research on the impact of family vio-
lence on children. He serves as a faculty member of the family violence department of the National Council
of Juvenile and Family Court Judges’ “Enhancing Judicial Skills in Domestic Violence Cases” workshops. Jaffe
has co-authored several books on domestic violence, including Children of Battered Women, 21 Developmental
Clinical Psychology and Psychiatry (with David A. Wolfe and Susan Kaye Wilson, Sage Publ’ns 1990), and
edited Working Together to End Domestic Violence (Nancy K.D. Lemon et al., Mancorp Publ’g 1996).
HON. LAURENCE D. KAY recently retired as presiding justice of the Court of Appeal, First Appellate District, Division Four (San
Francisco). Justice Kay was appointed in September 2005 by Chief Justice Ronald M. George to chair a new
statewide task force that will study ways to improve practice and procedure in domestic violence cases. While
serving on the appellate court, Justice Kay authored more than 40 published opinions and participated in
hundreds of other cases. Appointed to the Judicial Council of California in 2002, he served as vice-chair of
the council’s Policy Coordination and Liaison Committee and is outgoing chair of the Rules and Projects
Committee. He received the Trial Judge of the Year award from San Francisco Trial Lawyers Association in
1994 and the Appellate Justice of the Year award in 2004 from Consumer Attorneys of California.
xvi
Contributors, continued
LISA LIGHTMAN, M.A., is a court services analyst with the AOC Center for Family, Children & the Courts’ Family Dispute
Resolution unit, where she organizes training and education programs for family court mediators and evalu-
ators. In her former position with the Collaborative Justice Programs unit of the AOC’s Executive Office
Programs Division, she was responsible for developing communications strategies and training and educa-
tional outreach about innovative court programs for court staff and key stakeholders. Lightman is a current
faculty member for the National Drug Court Institute’s adult drug court training initiative. She began her
career in drug courts as the statewide director of drug courts at New Mexico’s Administrative Office of the
Courts. She has a liberal arts degree from Hampshire College and a master’s degree in public policy from
Tufts University in Medford, Massachusetts.
MARY JOY QUINN, R.N., M.A., served as a conservatorship investigator for 12 years and has been the director of the Superior
Court of San Francisco County’s probate court since 1989. She received a B.S. degree from the University
of Oregon and an M.A. from the University of San Francisco. She has written and lectured extensively
in the fields of elder abuse and neglect, undue influence, and conservatorship of adults. She serves as a
commissioner on the American Bar Association’s Commission on Law and Aging and is a member of the
Judicial Council’s Probate and Mental Health Advisory Committee. In 2004, the U.S. General Accounting
Office recognized the work of San Francisco County’s probate court by designating it as one of four exem-
plary probate courts in the United States.
DIANA RICHMOND is a partner in the law firm of Sideman & Bancroft LLP in San Francisco and was trial and appellate counsel
for E.G. in the case of K.M. v. E.G. decided by the California Supreme Court. A certified family law special-
ist since 1980, she is co-editor (with Kathryn Kirkland and Ira Lurvey) of California Family Law Practice
and Procedure, Second Edition (LexisNexis/Matthew Bender 1994 & updates).
MICHAEL W. RUNNER is the Family Violence Prevention Fund’s (FVPF) director of legal programs, which includes the FVPF
partnership in the National Judicial Institute on Domestic Violence, a joint project with the U.S. Depart-
ment of Justice Office on Violence Against Women and the National Council of Juvenile and Family Court
Judges. Since 1999, the National Judicial Institute has presented a three-day, comprehensive domestic
violence workshop, “Enhancing Judicial Skills in Domestic Violence Cases,” to more than 800 state court
judges nationwide. For 10 years, Runner was the assistant director for programs of the AOC Center for
Judicial Education and Research.
xvii
EMILY J. SACK, M.A., M.PHIL., J.D., is an associate professor of law at Roger Williams University School of Law, where she
teaches criminal law, domestic violence law, and family law. She helped develop the first domestic violence courts
in New York State and the Manhattan Family Treatment Court, which handles cases of parents charged with
child neglect due to substance abuse. The Manhattan court received an Innovations in American Government
Award from the Ford Foundation and Harvard University. Sack continues to be interested in the development of
specialized courts and court reform initiatives, and her research focuses on the tensions in areas where family law
and criminal law intersect, such as domestic violence and child neglect. She received her juris doctor from New
York University School of Law and her master’s degrees in European history from Columbia University.
MARY TWOMEY, M.S.W., is the director of the San Francisco Consortium for Elder Abuse Prevention, a program of the Institute
on Aging. Twomey was formerly director of social services at the Volunteer Legal Services Program of the
Bar Association of San Francisco. She spent 11 years with the national office of the American Association
of Retired Persons in Washington, D.C., where she coordinated the National Guardianship Monitoring
Project, a program that worked with judges and court staff throughout the country to improve the courts’
oversight of adults under conservatorship and guardianship.
PATRICIA VAN HORN, PH.D., J.D., is a licensed clinical psychologist, a staff psychologist, and assistant clinical professor in the
Department of Psychiatry at the University of California at San Francisco and the director of training of
the UCSF Child Trauma Research Project located at San Francisco General Hospital. Van Horn received her
J.D. in 1970 from the University of Colorado School of Law and her Ph.D. in 1996 from the Pacific
Graduate School of Psychology. Her current work at the Child Trauma Research Project is with children
under age 6 who have witnessed domestic violence. Van Horn was the lead planner for the San Francisco
SafeStart Initiative and is a member of the steering committee of the Youth Family Violence Court in San
Francisco’s unified family court. She has lectured widely on the subjects of early childhood development and
the impact on young children of witnessing domestic violence.
JENNY WALD is a managing associate at the Hersh FamilyLaw Practice in San Francisco, where her practice focuses on trial and
appellate work and she specializes in complex legal issues and cases involving same-sex parentage. She com-
pleted mediation training with the Northern California Mediation Center and has mediated dissolutions
and other family law disputes. From May 2002 to June 2003 Wald was a child custody attorney with the
Administrative Office of the Courts, Center for Families, Children & the Courts. She is also on the faculty
of San Francisco Law School, where she has taught legal writing and community property. She graduated
from University of California, Hastings College of the Law in 1997.
xviii
Contributors, continued
HON. FRANCES Q.F. WONG serves in the First Judicial Circuit of the State of Hawai‘i and is currently assigned as a deputy chief
judge and senior judge of the family court. Judge Wong has also presided over the O‘ahu Drug Court and
the felony criminal motions calendar. She was first appointed as a district family judge in 1983 and was
subsequently appointed to the circuit court in 1992. She is currently planning a girls’ court and recently
received a three-year Juvenile Accountability Block Grant from the U.S. Department of Justice, Office of
Juvenile Justice and Delinquency Prevention, to further her efforts. Judge Wong obtained her juris doctor
from the University of Southern California Law Center.
COURTS
RESPONDING
TO DOMESTIC
VIOLENCE
Illustration, page 1:
“MY LIFE”
DEANNA
Age 10
2004 Children’s Art & Poetry Contest

3
Confronting the Issue of Gun Seizure

in Domestic Violence Cases
F
irearms caused 44 percent of the 61 homicides related to domestic EMILY J. SACK, M.A., M.PHIL., J.D.
violence in California’s San Diego County between 1997 and 2003.¹ Roger Williams University School of Law
The New York State Commission on Domestic Violence Fatalities
concluded in the late ’90s that firearms were used in more than half of the Despite the clear goal of federal and
domestic violence homicides it investigated.² In Washington State, almost
state firearms laws—to protect victims—
60 percent of the 209 victims of domestic violence homicides from Janu-
confronting the issue of guns and domestic
ary 1997 to August 2002 were killed with a firearm.³ Nationally, the U.S.
Department of Justice reported that more than two-thirds of spouse and ex- violence raises complex legal and practical
spouse homicide victims were killed by guns.⁴ As the police chief in one New concerns for the courts and law enforce-
Hampshire town, who is also a member of the state’s domestic violence fatal- ment agencies that are grappling with the
ity review committee, put it, “[T]he fact is that the vast majority of domestic laws’ implementation. Yet the numbers
violence homicides are committed by firearms . . . . And half of all homicides make it clear that communities working
are domestic violence–related. I don’t know what people don’t understand
together to improve their response to
about that.”⁵
domestic violence cannot afford to put
Federal firearms laws passed in the last decade provide authority to ban
firearm possession by many domestic violence perpetrators. But despite the off addressing these concerns.
obvious risk created by the availability of firearms to abusers, most jurisdic- This article briefly reviews the federal
tions have not developed effective strategies for addressing the problem. This firearms laws relating to domestic violence
is, in part, because the federal laws have proven difficult to implement and and discusses issues regarding their inter-
have created confusion among state and federal law enforcement agencies pretation, then examines the difficulties
and the courts about their proper roles in enforcing the laws. And while a
that have arisen in their enforcement.
growing number of states have enacted laws barring firearm possession by
Next it analyzes state laws designed to
domestic violence offenders, many of the state laws have significant gaps
and create inconsistencies between state and federal law. Moreover, in some address firearms and domestic violence
jurisdictions, there is basic resistance to the concept of taking guns away and discusses legal issues that have arisen
from private citizens. Even assuming that appropriate laws are in place and in their implementation. Finally, it
agencies stand willing to enforce them, the actual procedures for surrender- concludes with several recommendations
ing or confiscating weapons, storing them, and returning them have proven to state judges, law enforcement officials,
difficult to develop and implement.
and prosecutors for effective policies and
procedures gleaned from the lessons of
F E D E R A L L AW O N D O M E S T I C V I O L E N C E
other jurisdictions. ■
A ND FIR E A R M POSSESSION
In recognition of the heightened risk created by access to guns in domestic
violence situations, Congress added a new provision to the Gun Control Act
of 1968 as part of the Violence Against Women Act of 1994.⁶ That provision, © 2005 Emily J. Sack
4 JOU R N A L OF T H E C E N T E R FOR FA M I L I E S , C H I L DR E N & T H E C OU RT S ❖ 2 0 05
18 U.S.C. § 922(g)(8), prohibits possession of a dant must have been represented by counsel and, if
firearm or ammunition by any person subject to entitled to a jury trial, must have received one (or
a protection order that meets certain criteria. The waived that right).¹⁵ The crime must
respondent must have received both actual notice
■ have included the use or attempted use of physical
and the opportunity to participate at a hearing held
force or the threatened use of a deadly weapon;
before the order was issued.⁷ The order must restrain
and
the respondent from harassing, stalking, or threaten-
ing an intimate partner or a child of the intimate ■ have been committed by a defendant who
partner or respondent, or from engaging in conduct
that would place an intimate partner in reasonable – was the current or former spouse, parent, or
fear of bodily injury to either the partner or the guardian of the victim, or
child.⁸ In addition, the order must either include – shared a child in common with the victim, or
a finding that the respondent represents a “credible
threat” to the physical safety of the intimate partner – was cohabiting with or had cohabited with the
or child or, by its terms, must explicitly prohibit the victim as a spouse, parent, or guardian, or
use, attempted use, or threatened use of physical – was similarly situated to a spouse, parent, or
force that would reasonably be expected to cause guardian of the victim.¹⁶
bodily injury.⁹ The firearm prohibition lasts only as
long as the protection order itself is in effect. The federal provision, 18 U.S.C. § 922(g)(9), is
Congress also defined intimate partner in the law applicable when the defendant has been convicted
to mean the respondent’s spouse, former spouse, par- of a misdemeanor crime of domestic violence under
ent, or child or “an individual who cohabitates or federal or state law and the defendant thereafter
has cohabited with the respondent.”¹⁰ The provision knowingly receives or possesses a firearm or ammu-
contains an “official-use” exception, which exempts nition and the firearm or ammunition is transported
from the law police, military personnel, and other in interstate or foreign commerce. The firearm pro-
government employees who must use weapons in hibition for those convicted of a misdemeanor crime
connection with their official duties.¹¹ of domestic violence is permanent.¹⁷ Unlike section
In 1996, Congress again amended the Gun Con- 922(g)(8), this section has no “official-use” excep-
trol Act to prohibit anyone previously convicted of tion, so law enforcement officers, military personnel,
a “misdemeanor crime of domestic violence” from and other government employees who require weap-
possessing any firearm or ammunition.¹² At that ons to perform their duties are not exempted from
time, the Gun Control Act already contained a pro- the weapon prohibition.
vision barring all convicted felons from possessing
firearms.¹³ The provision included domestic violence LEG A L CH A LLENGE S TO THE
felonies, together with all other felony crimes. But
F E D E R A L F I R E A R M S L AW S
in many jurisdictions domestic violence crimes were
undercharged or pleaded down to misdemeanors Numerous constitutional challenges have been
more frequently than other felonies. The 1996 law, mounted to both sections 922(g)(8) and 922(g)(9)
known as the Lautenberg Amendment and codified on several different grounds. All have ultimately
at 18 U.S.C. § 922(g)(9), was designed to address failed at the federal appellate level, and they are men-
this fact by expanding the firearm prohibition to tioned only briefly here. More significant in terms of
domestic violence misdemeanors.¹⁴ shaping the law at both the state and federal levels
A conviction must satisfy several requirements to have been legal challenges based on statutory inter-
trigger the federal weapon prohibition. The defen- pretation.
Confronting the Issue of Gun Seizure in Domestic Violence Cases 5
C ON S T I T U T ION A L A RGU M E N T S Does the crime fit the federal requirement that it

Constitutional challenges to section 922(g)(9) have be a “misdemeanor crime of domestic violence,”
been made on equal protection grounds because the and is the protection order a “qualifying protection
statute applies only to defendants convicted of domes- order” under the federal law? The following review
tic violence misdemeanors and not to any other mis- examines some state and federal decisions addressing
demeanants. However, the courts have held that a those questions.
rational basis exists to distinguish domestic violence
misdemeanors from other misdemeanors, and that The “Misdemeanor Crime of Domestic
therefore there is no equal protection violation.¹⁸ Violence” in Section 922(g)(9)
Defendants have argued that section 922(g)(9) vio- The firearm prohibition in section 922(g)(9) applies
lates the Ex Post Facto Clause, because it applies ret- only when a defendant has been convicted of a quali-
roactively to convictions that occurred before the law fying “misdemeanor crime of domestic violence,”
was enacted. But because the law makes illegal only which must satisfy several criteria. But many states
firearm possession that occurred after the law was have no specific domestic violence crimes in their
enacted, there is no ex post facto issue.¹⁹ Commerce penal codes, so a domestic violence offender may
Clause challenges have been made, particularly in the be convicted under general assault, harassment, and
wake of United States v. Morrison, where the Supreme other criminal statutes. In those cases, what makes a
Court struck down another provision of the Violence crime a “domestic violence crime” is the relationship
Against Women Act on these grounds.²⁰ Yet, unlike between the defendant and victim, determined from
the provision at issue in Morrison, the firearms laws the underlying facts of each case, but that is not an
contain an explicit jurisdictional element requiring actual element that must be proven for conviction.
that the weapons have been in or have affected inter- The question then arises whether these convictions
state or foreign commerce.²¹
qualify as “misdemeanor crimes of domestic vio-
Several cases have challenged the statutes on
lence” under the federal law, which requires a certain
Tenth Amendment grounds, arguing that firearm
relationship between the parties. Must the relation-
regulation is a right reserved to the states. The courts,
ship between the defendant and victim be an ele-
however, have held that the federal government is
ment of the state criminal statute to meet the federal
not usurping state law or state officers by enact-
requirements, or would proof of such a relationship
ing these federal laws that are prosecuted federally.²²
There have also been some challenges on Second in the facts of the case satisfy these criteria?
Amendment grounds, arguing that the restrictions In City of Cleveland v. Carpenter,²⁴ the defendant
on firearms violate an individual’s right to bear arms. pled no contest to misdemeanor assault under Ohio
This argument, too, has been rejected by the courts, law for punching his ex-wife and threatening to kill
which have held that the Second Amendment does her.²⁵ The police had seized eight weapons from the
not prohibit regulation of firearms.²³ defendant’s home at the time of his arrest. The lower
While challenges to the federal firearms statutes court held that the firearms should not be returned
have occurred quite frequently, particularly in the to the defendant because he had been convicted of a
years just after the laws’ enactment, it has become misdemeanor crime of domestic violence and there-
clear that no constitutional impediment bars enforce- fore was prohibited under 18 U.S.C. § 922(g)(9)
ment of these laws. from possessing firearms. The defendant argued that
the crime of assault for which he was convicted did
S TAT U TORY I N T E R PR E TAT ION S not meet the federal definition of misdemeanor crime
Case law interpretations of federal and state firearms of domestic violence, because it contained no element
laws primarily center on two separate questions: of relationship between the defendant and victim.
The Ohio appellate court held that the federal defini- In Nobriga, the defendant pled guilty to “physi-
tion did not require that the relationship be an element cally abus[ing] a family or household member.”³³
of the crime of which the defendant was convicted. But the court record did not establish that the defen-
Because there was no dispute that the conviction was dant and victim had ever cohabited, nor did the
a misdemeanor under state law and that it contained parties meet any of the other relationship categories
an element of use or attempted use of physical force, of the federal statute.³⁴ With no record to provide
the definition was satisfied if the conviction included the evidence of a qualifying relationship, the court held
use or threat of force and if the defendant and victim that the defendant’s motion to dismiss his indict-
actually did have one of the connections identified ment for possessing a firearm after being convicted
in the federal statute.²⁶ The court affirmed the lower of a misdemeanor crime of domestic violence should
court’s ruling denying the defendant’s request for return have been granted.³⁵
of his eight weapons.²⁷ This case law demonstrates that, while the pre-
Similarly, a New Jersey appellate court held that dominant interpretation of section 922(g)(9) does
a person convicted of a simple assault offense under not require that the relationship between the parties
state law was convicted of a “misdemeanor crime of be an actual statutory element of the misdemeanor
domestic violence,” as required by the federal statute, crime, state prosecutors and judges nevertheless must
when the assault involved the use or attempted use be careful to put the relationship between the parties
of physical force against that person’s current or for- on the record as well as in court documents when the
mer spouse or domestic partner.²⁸ Still, state case law case involves a misdemeanor crime involving domes-
is not uniform on this issue. At least one Pennsylva- tic violence. Doing so will establish the necessary
nia court recently came to the opposite conclusion, predicate for a qualifying conviction in any future
holding that to qualify as a “misdemeanor crime federal prosecution for illegal possession of firearms
of domestic violence,” the required relationship by a person convicted of a misdemeanor crime of
between defendant and victim must be an element domestic violence. Moreover, in states where the
of the crime, not just part of the underlying facts of courts have found that a relationship must be an
a particular case.²⁹ element of the crime to qualify, prosecutors and oth-
The federal courts have been more consistent in ers should consider advocating legislation that will
concluding that, for the crime to qualify under sec- create specific domestic violence crimes where this
tion 922(g)(9), the relationship between the parties relationship element will be included.
does not have to be an element of the crime for
which the defendant was convicted.³⁰ This does not A Qualifying Protection Order
mean, though, that the courts can look at all facts in Under Section 922(g)(8)
a case to determine whether the qualifying relation- For the firearm prohibition of section 922(g)(8) to
ship exists. Most recently, the Ninth Circuit Court apply, the respondent must have both notice and
of Appeals in United States v. Nobriga confirmed the an opportunity to be heard before the underlying
courts’ use of the “modified categorical approach” to protection order is issued—a basic requirement of
determine whether the criminal conviction satisfied due process. But, in most states, the protection order
the definitional requirements of the federal statute.³¹ process includes an opportunity for petitioners to
Under this approach, the court looks only to formal obtain a temporary ex parte order that lasts for sev-
court records, such as the charging instrument and eral days, until the court holds a full hearing on a
the judgment of conviction, along with the statutory final protection order. The ex parte order must then
elements, to determine whether the defendant in fact be served on the respondent, with notice of the hear-
was convicted of a “misdemeanor crime of domestic ing date. This suggests that Congress intended for
violence” as defined under the federal law.³² section 922(g)(8) to exclude temporary orders from
the firearm prohibition and to impose the weapons statute comport with the requirements of due pro-
bar only when a final order has been issued, after the cess, we . . . declin[e] to embellish the hearing require-
defendant has had an opportunity to contest the alle- ments explicitly set forth in [section] 922(g)(8).”⁴⁶
gations. But, given the variety of protection orders In United States v. Bunnell,⁴⁷ the defendant
and procedures for obtaining them under state laws, challenged his conviction under section 922(g)(8)
questions have arisen about what kind of due process because he had not appeared at the hearing on the
is required to establish a qualifying order for pur- final order of protection, nor had counsel represented
poses of that section. him.⁴⁸ But the court rejected defendant’s argument,
In United States v. Calor, the Sixth Circuit Court noting that the federal law only required the order
of Appeals addressed the validity of the underly- to be issued after a hearing of which the defendant
ing protection order for purposes of a conviction had had both notice and an opportunity to partici-
under that section.³⁶ A domestic violence victim had pate.⁴⁹ Although the defendant had been served and
obtained an ex parte emergency protection order received actual notice of the hearing, he had chosen
against her husband that included provisions not to not to appear and avail himself of the process to
possess any firearms and to turn any firearms into which he was entitled.⁵⁰ This is not a violation of
the local law enforcement agency.³⁷ It was served due process, so the order was a valid predicate for the
on the defendant with notice of a hearing on the federal firearms charge.⁵¹
final order to be held a few days later.³⁸ On the The Bunnell case follows the traditional rule that
day of the scheduled hearing, defendant’s counsel when a defendant receives notice and opportunity to
requested an adjournment of the hearing for several be heard but voluntarily defaults, any ruling by the
days.³⁹ The court granted the adjournment and did court satisfies due process requirements. The Calor
not take testimony from sworn witnesses or receive case, by contrast, reveals a quite liberal reading of due
other evidence. But because the ex parte order had process and may even demonstrate the courts’ will-
expired on the day of the hearing, the court issued ingness to broadly interpret section 922(g)(8)’s due
a second temporary order that was effective through process requirements for a protection order so that the
the adjourned date.⁴⁰ A few days later, before the firearm prohibitions will be more likely to apply.
adjourned hearing date, the defendant violated
the temporary order and was arrested.⁴¹ A search
I M PL E M E N TAT ION OF T H E
of his vehicle revealed several handguns, so he was
F E D E R A L F I R E A R M S L AW S
charged under section 922(g)(8) for possession of a
firearm while subject to a valid protection order.⁴² The new firearms laws significantly expanded the
The defendant argued that the protection order protections available to victims of domestic violence
was not a valid predicate for the federal charge and made available to law enforcement additional
because it did not occur after a hearing that afforded tools to hold batterers accountable. Despite these
the required due process.⁴³ The court rejected this improvements, these laws have not lived up to their
argument, finding that though the hearing on the promise, and several years after their enactment they
final order was adjourned, the defendant had been remain severely underenforced.
given notice of the original hearing date and had One important reason is the lack of guidance that
had an opportunity to participate before the court the laws provide on implementation or enforcement.
entered the second order extending the protection Although violation of the provisions is a federal
until the adjourned date.⁴⁴ This second order pro- crime, their central underlying predicates, a protec-
vided the predicate order for the defendant’s pros- tion order or a misdemeanor conviction, are most
ecution under section 922(g)(8).⁴⁵ The court stated, likely to be based on state law, and thus cases are han-
“Given that the minimum requirements of the dled in state courts. This dichotomy has blurred the
line of whether state or federal authorities possess of coordination and communication between the
the power and the responsibility to ensure that the state and federal systems of law enforcement and
laws are enforced. While obviously federal prosecu- prosecution, the lack of clarity of state and federal
tors must pursue violations of federal laws, knowl- roles, and some state jurisdictions’ resistance to get-
edge about violations is more likely to reside with ting involved with federal law enforcement.
local law enforcement officials and judges who are Some state and local law enforcement agencies
aware of existing protection orders or misdemeanor view the federal laws as an infringement on state
convictions. And questions arise: Because a misde- police power because those agencies are needed to
meanor conviction or the issuing of a protection enforce the federal law.⁵⁸ Moreover, the federal gov-
order occurs in state court, do state judges then have ernment provided no additional resources to the
the responsibility or authority to confiscate weapons, states to help them carry out their role in enforcing
and should local law enforcement be responsible for federal law.⁵⁹ Certain state and local agencies have
follow-up with abusers who are in violation of federal even argued that they should create and enforce their
law because they have not surrendered weapons? own firearms laws in this area, rather than spend
Federal prosecutors have not pursued these cases their own resources enforcing federal laws.⁶⁰ The
aggressively, and prosecutions under both sections 1996 Lautenberg Amendment, which did not exempt
922(g)(8) and (9) remain relatively rare.⁵² One com- law enforcement officers themselves from the ban on
mentator has calculated that from the time section
firearms for anyone convicted of a domestic violence
922(g)(8) took effect in 1995 through 2001, only
misdemeanor, has been particularly unpopular in the
187 federal prosecutions were filed under the stat-
law enforcement community.⁶¹
ute.⁵³ This represents a minuscule 1 percent of the
Some state courts have resisted involvement in the
approximately 6,000 federal gun possession charges
federal ban on weapon possession. Substantial anec-
filed each year.⁵⁴ This level of prosecution does not
dotal evidence suggests that some judges are attempt-
come close to reaching the number of eligible cases.
ing to evade the federal law or are directly refusing to
Judge Richard A. Posner of the Seventh Circuit
comply with it, particularly section 922(g)(8), through
Court of Appeals has estimated that approximately
their direct involvement in setting the terms of a pro-
40,000 people violate section 922(g)(8) each year
by possessing firearms while subject to a protection tection order.⁶² Because the order must satisfy certain
order.⁵⁵ Prosecutions under section 922(g)(9) are requirements to qualify as a predicate for a firearm
only slightly higher. Since that statute took effect in prohibition under the code, some judges have refused
1996, 379 cases have been filed, representing only 2 to make the specific findings that would meet these
to 3 percent of total federal gun law prosecutions.⁵⁶ requirements. Others have crossed out the language
Likely explanations for this low level of prosecu- on protection order forms that notifies the defendant
tion include both the structure of U.S. Attorneys’ of the federal prohibition on weapon possession while
offices, in which domestic violence crimes may not the order is in effect,⁶³ have written on the protec-
fall naturally within a prosecution unit, and their tion order that the federal law does not apply, or have
culture, where prosecutions that rely on state-based failed to check a box on the order noting a firearm
convictions or orders may not be as prized as the prohibition.⁶⁴ Commentators have speculated that
more traditional white-collar criminal investigations this refusal may sometimes be due to judges’ personal
and prosecutions. Given these traditional priorities, beliefs in the right to own guns and their reluctance to
federal authorities may have limited resources avail- limit such access to respondents.⁶⁵ It may be particu-
able to enforce the federal firearms laws.⁵⁷ Perhaps larly relevant in jurisdictions where hunting is a popular
the most important explanations for the underpros- pastime, because the federal law prohibits hunting
ecution of the firearms laws, however, lie in the lack rifles, along with handguns.⁶⁶
State judges can certainly affect whether protec- if “the owner is unfit.”⁷⁵ A defendant convicted of
tion orders qualify for the federal firearm ban by a misdemeanor crime of domestic violence is, by
making (or failing to make) specific findings that fed- definition, “unfit” under the state statute and barred
eral law requires.⁶⁷ Still, a determination of whether from possessing any firearms under state law, as well
a protection order meets the requirements of a fed- as under section 922(g)(9).⁷⁶ Therefore, the federal
eral statute is made exclusively under federal law. and state statutes were consistent and the federal pre-
State judges cannot control the application of federal emption doctrine was not relevant.⁷⁷
law. Therefore, if a protection order by its terms does The Ohio appellate court in Conkle v. Wolfe also
meet the requirements under federal law, the federal made this point.⁷⁸ The Ohio protection order statute
firearm prohibition will apply, notes or crossed-out permitted a court to include in a protection order
text or unchecked boxes notwithstanding.⁶⁸ such “other relief that the court considers equitable
Some state courts, however, have more funda- and fair.”⁷⁹ Under this provision, the state court had
mental concerns with the role of the state in imple- enjoined the respondent from possessing weapons.
menting federal laws, particularly where differences The court considered whether this state law con-
may exist between state and federal law in this area. flicted with section 922(g)(8), which requires a find-
The New Jersey appellate court considered this issue ing in a protection order that the subject “represents
in State v. Wahl.⁶⁹ The defendant was convicted of a a credible threat to the physical safety of an intimate
domestic violence misdemeanor, and under state law partner or child” to qualify for a prohibition on
his weapons were confiscated. Following state proce- weapon possession.⁸⁰ The state court had made no
dures regarding return of weapons seized in domestic such finding, which was not required under state law
violence cases, the state judge later ordered return to invoke the catchall provision permitting the bar
of the weapons after finding that the victim did not on weapon possession.⁸¹
feel threatened and did not object to the return. The appellate court held that because Congress’s
The state argued that federal law mandates a per- intent was to assist states in regulating firearms, not
manent ban on weapons possession for an offender to provide obstacles against such regulation, there
convicted of misdemeanor domestic violence,⁷⁰ and was no conflict between the federal and state law,
it contended that this federal law preempted the and thus the federal preemption doctrine did not
state provision and therefore the weapons should not apply.⁸² The state court was able to follow its own
be returned.⁷¹ law to enjoin the defendant from possessing weap-
The appellate court noted that under the Suprem- ons without making the “credible-threat” finding
acy Clause, the laws of the United States “shall be required under federal law.⁸³ In Benson v. Muscari,⁸⁴
the supreme law of the land.”⁷² Therefore, state laws the Vermont Supreme Court also noted that the fed-
that “‘interfere with, or are contrary to the laws of eral preemption doctrine did not preempt the state’s
congress, made in pursuance of the constitution,’ are power to “impose a parallel restriction.”⁸⁵
invalid.”⁷³ Under preemption doctrine, federal law The Ninth Circuit Court of Appeals recently
will preempt a state statute if it is impossible for a addressed the potential conflict between state and
court to comply with both the federal and state laws federal laws regarding weapon prohibition for
or where the state law poses an obstacle to the intent domestic violence misdemeanants.⁸⁶ In United
of Congress.⁷⁴ States v. Brailey, a defendant was convicted in Utah
But the court found that the state and federal of a misdemeanor crime of violence, which, under
firearms laws in this area did not conflict and that that state’s law, did not bar him from possessing a
the federal law was incorporated into the state stat- weapon.⁸⁷ Brailey argued that the federal law must
ute, because state law provided grounds for barring give this state law “full effect,” and therefore he could
the return of weapons in domestic violence cases not be prosecuted under section 922(g)(9).⁸⁸ But
the Ninth Circuit held that federal law, not state method for weapon seizure and weapon return, and
law, controlled the right of a defendant to possess on the definition of the “intimate relationship” that
a weapon under a federal statute.⁸⁹ Because under makes a party eligible for a protection order.⁹⁵ They
federal law a conviction for a misdemeanor crime of also vary considerably on whether the weapons must
domestic violence makes firearm possession a federal have been used in the domestic violence incident in
crime, Brailey was properly charged with violating order to permit their seizure, on the amount of time
the federal law. In effect, the state and federal laws provided to the state to petition for forfeiture of the
were two independent provisions, and neither con- weapons, and on the balance of the burden placed
trolled the other’s application. on law enforcement and the defendant regarding
As these cases illustrate, the differing state and return of the weapons.⁹⁶
federal laws on firearms do not pose a Supremacy
Clause issue, because the federal law is not preempt- R E S I S TA NC E TO S TAT E F I R E A R M S
ing state law.⁹⁰ Rather, the laws are “parallel restric- L E G I S L AT ION : PE N N S Y LVA N I A
A N D DE L AWA R E
tions,” both of which remain applicable. If in a certain
circumstance a defendant would be subject to firearm Several states have not passed any legislation on
prohibition under federal law but not state law, the the issue. Perhaps not surprisingly, proposed state
federal law does not supersede the state statute.⁹¹ Both firearms laws in these states have met with signifi-
laws would, however, be applied to the situation, with cant resistance.⁹⁷ For instance, proposed legisla-
the conclusion that the defendant would not be in tion in Pennsylvania was designed to expand police
violation of state law but would be violating federal authority to seize weapons, not only in situations
law by possessing weapons.⁹² where a protection order is issued after an incident
involving use or threat of use of the weapon, but
in any situation after issuance of a protection order.
S TAT E F I R E A R MS L E G I S L AT ION
A national organization, Gun Owners of America,
IN DOME STIC V IOLENCE C ASE S
contested the legislation, arguing that the protection
Considering the myriad issues that have arisen in orders resulted from ex parte proceedings where the
implementation of the federal firearms laws, several respondent had no due process right, and stated that
states that do not already have similar gun laws have “[e]ven in the Orwellian world of leftist feminism,
moved to enact them. Although domestic violence where legislators do what they’re told to do by the
offenders are already subject to the federal law, state politically correct, the lack of fundamental due pro-
legislation makes it straightforward that the state courts cess embodied in this legislation is breathtaking.”⁹⁸
must implement the law and thereby prevents resistant While some firearms legislation did ultimately
judges from failing to enforce firearms laws in domes- pass in Delaware, proposed legislation to prohibit
tic violence cases. In addition, states can enact laws that firearm possession for five years by anyone who was
broaden the definitions of eligible parties, the terms in convicted of a domestic violence misdemeanor or
protection orders, and other elements that can make it who violated a protection-from-abuse order encoun-
easier to prosecute firearms cases under state law. Local tered years of resistance by gun rights advocates.⁹⁹
law enforcement officials are most familiar with han- The proposed law was narrower in scope than its
dling domestic violence cases and are also better able to federal counterpart, which prohibits firearm pos-
enforce state laws on firearms.⁹³ session permanently on conviction of a domestic
Yet the state laws vary tremendously on central violence misdemeanor. However, the Delaware State
issues—both from each other and from federal law.⁹⁴ Sportsmen’s Association argued that a cause-and-
For example, the laws differ on whether weapon sei- effect relationship should be shown between a pro-
zure is mandatory or discretionary, on the authorized tection order violation and the possession of a gun
that indicated a risk of violence before the gun could threat of use of a deadly weapon, or behavior con-
be seized.¹⁰⁰ Another bill that passed the Delaware stituting a violent felony offense.¹⁰⁷ The court also
Senate in 1998 would have made it a felony to vio- may suspend the defendant’s firearms license when it
late a protection order that included a prohibition finds a substantial risk that the defendant may use or
against firearm possession, but gun-rights groups threaten to use a firearm unlawfully against the per-
derailed the bill in the House.¹⁰¹ son for whose protection the order is issued.¹⁰⁸
The definition of intimate relationship in section
S TAT E L E G I S L AT ION MOR E 922(g)(8) is quite narrow and does not include, for
L I M I T E D T H A N F E DE R A L L AW: example, partners who have never lived together.¹⁰⁹
OK L A HOM A , MON TA N A , A N D OH IO
But in New York the state firearms laws apply to
Much of the state legislation is considerably nar- protection orders obtained in either family or crimi-
rower than sections 922(g)(8) and (9). For example, nal court and can include a broader definition of
Oklahoma law requires officers to seize a weapon in relationship.¹¹⁰ On the other hand, New York has
a domestic violence incident, but this requirement no law comparable to the prohibition on firearm
applies only “when such officer has probable cause to possession for a person convicted of a misdemeanor
believe such weapon or instrument has been used to crime of domestic violence in section 922(g)(9).¹¹¹
commit an act of domestic abuse . . . provided an arrest is Some differences may also be noted between the
made, if possible, at the same time.”¹⁰² The statute also federal and state laws in the weapons included in
requires the prosecutor to file a notice of the seizure the definition of firearms.¹¹² In addition, impound-
and forfeiture within 10 days, or the weapons must ment of a weapon when a protection order is issued
be returned.¹⁰³ Montana law mandates that an offi- is discretionary under New York law, while such
cer seize weapons when responding to a call relating prohibition is mandatory under the federal statute
to assault on a partner or family member, but only if all the statutory elements are met for a qualifying
if they have been “used or threatened to be used in protection order.¹¹³
the alleged assault.”¹⁰⁴ Similarly, Ohio law permits
seizure of weapons in alleged incidents of domestic S TAT E L E G I S L AT ION MOR E
violence or of violating a protection order but limits C OM PR E H E N S I V E T H A N F E DE R A L
the seizure to those weapons used or threatened to be L AW: N E W J E R S E Y A N D A R I Z ON A
used or brandished during or in connection with the One of the most comprehensive firearms laws relat-
incident.¹⁰⁵ ing to domestic violence was passed in New Jersey.
Under that state’s Prevention of Domestic Violence
S TAT E L E G I S L AT ION W I T H Act, a court may issue a search warrant for weap-
DI F F E R E N T B OU N DA R I E S T H A N ons to accompany an ex parte temporary protec-
F E DE R A L L AW: N E W YOR K tion order, and a warrant form is a physical part of
Some state laws are broader in some respects than the temporary protection order form.¹¹⁴ The law
the federal laws, though narrower in others. In New also provides a detailed procedure for forfeiture after
York, for example, criminal and family courts have weapons have been seized following issuance of a
the power to suspend or revoke a firearms license domestic violence protection order prohibiting such
when either a temporary or a final protection order weapons. Prosecutors must petition within 45 days
is issued.¹⁰⁶ The suspension of a firearms license is to obtain title to the weapons or revoke all licenses
mandatory when the court issues a protection order and permits for them, on the ground that “the owner
if it finds that the defendant has previously failed is unfit or . . . poses a threat to the public in general or a
to comply with a protection order and the failure person or persons in particular.”¹¹⁵ If the prosecutor
involved infliction of serious physical injury, use or fails to act within the required 45 days the weapons
must be returned.¹¹⁶ The statute requires that after the judge could also order surrender of firearms to the
hearing to determine title, the court “shall order local police station, but only if the victim proved by
the return” of the weapons in one of the following a preponderance of the evidence that the defendant
circumstances: (1) when the complaint has been dis- had a likelihood of using, displaying, or threatening
missed at the victim’s request and the prosecutor has to use a firearm in a future act of violence against the
determined that there is insufficient probable cause victim.¹²⁶ This was often difficult to prove, as infor-
to indict, (2) if the defendant is found not guilty of mation about the use or threat of use of a firearm
the charges, or (3) if the court determines that the was not routinely noted in police reports.¹²⁷ Judges
domestic violence situation no longer exists.¹¹⁷ also had the discretion to limit the gun restriction
Arizona’s law also provides a detailed mechanism to a shorter period.¹²⁸ As one author stated, before
to seize weapons from a defendant in a domestic passage of the Domestic Violence Prevention Act,
violence case.¹¹⁸ At the scene of a domestic violence “unless clear and convincing evidence existed that
incident, a law enforcement officer may question the offender would act violently in the future, courts
anyone present to determine if there are firearms remained reluctant to confiscate guns from domestic
on the premises.¹¹⁹ The statute then provides that violence offenders.”¹²⁹
“[u]pon learning or observing that a firearm is pres- In 1999, domestic violence law enforcement was
ent on the premises, the peace officer may temporar- strengthened and assistance to victims was broad-
ily seize the firearm if the firearm is in plain view or ened¹³⁰ when the state amended the Domestic Vio-
was found pursuant to a consent to search and if the lence Prevention Act, a 1993 law that consolidated
officer reasonably believes that the firearm would a number of statutes that had been duplicated in
expose the victim or another person in the house- various parts of California law.¹³¹ Its firearms sec-
hold to a risk of serious bodily injury or death.”¹²⁰ tion was specifically drafted to be consistent with the
The weapons must be held for at least 72 hours, and federal provisions under 18 U.S.C. § 922(g)(8).¹³²
the victim must be notified before the firearms are The 1999 law makes it illegal to possess, purchase, or
released.¹²¹ The statute also provides a procedure receive a firearm while subject to a restraining order
to retain the firearms if there is reasonable cause to and requires the court to notify a defendant that
believe that returning them may endanger the vic- such acts will violate the terms of the order.¹³³ The
tim, the person who reported the incident, or others law no longer requires the court to issue a separate
in the household.¹²² order regarding firearms, based on a finding that
firearm use or threat of firearm use in future violence
T H E E VOLU T ION OF S TAT E is likely.¹³⁴ Instead it eliminates the court’s discretion
L E G I S L AT ION : C A L I F OR N I A on the issue and makes mandatory the relinquish-
The law in California has seen significant development of all firearms.¹³⁵ Nor may the judge deter-
ments on this issue over the past several years. In mine the length of time that the weapons must be
1990, the state Legislature passed an act that pre- confiscated: the time period is automatically equal
vented a person who was the subject of a domestic to the period for which the protective order remains
violence protective order from purchasing or obtaining effective.¹³⁶
a gun.¹²³ But the law did not address confiscation of The 1999 law also provided a procedure for relin-
firearms already owned or possessed by the subject quishing weapons. If the respondent is present at the
of the order.¹²⁴ In 1994, new legislation passed that protective order hearing, he or she must immediately
attempted to remedy this gap and included a section relinquish any firearms possessed and has 24 hours
on removing firearms from domestic violence abus- to relinquish any other firearms, either by turning
ers subject to restraining orders.¹²⁵ Under that law, at them in to local law enforcement or by selling them
the hearing when a protective order was issued, the to a licensed dealer.¹³⁷ Within 72 hours of receiving
the order, the respondent must file a receipt with the son reporting the assault or threat.¹⁴⁸ If the court
court that proves that any firearms were either relin- does not return the weapon, the original possessor
quished to police or sold.¹³⁸ Local law enforcement or owner has one year to petition for a second hear-
may also charge a storage fee for the weapons.¹³⁹ ing.¹⁴⁹ At that hearing, barring clear and convincing
When the protective order expires, the 1999 law evidence that the return would endanger the victim
requires law enforcement to return the weapons to or person reporting the assault or threat, the court
the respondent within five days, unless the court must order the weapon to be returned.¹⁵⁰ If there is
finds that a firearm was stolen, the respondent is no second hearing or it is unsuccessful, the weapon
prohibited from gun ownership for other reasons, or may be disposed of.¹⁵¹
a new protective order has been issued.¹⁴⁰ The court While some states have begun to enact detailed
may exempt a specific weapon from the relinquish- firearms laws pertaining to domestic violence, most
ment requirement if the respondent can show that a have laws more limited than the federal law or have
particular weapon is necessary for his or her employ- no laws in this area. At least for the time being,
ment.¹⁴¹ we cannot rely on state laws to address the critical
California law also requires that a law enforce- problem of abusers’ access to firearms. States must
ment officer take temporary custody of any firearm enforce and implement the federal firearms laws if
discovered in plain view or during a consensual or those laws are to achieve their purpose of promoting
warranted search at the scene of a domestic vio- the safety of victims of domestic violence.
lence incident involving a threat to human life or a
physical assault, as necessary to protect the officer or
PROCEDU R A L ISSU E S I N
other persons present.¹⁴² The officer must provide
I M PL E M E N TAT ION OF
the owner with a receipt that lists and provides iden-
F I R E A R M S L AW S
tifying information about the firearms and notes the
time and place that the weapons can be recovered.¹⁴³ A number of procedural issues have challenged the
Unless a weapon is being held for use as evidence, successful implementation of firearms law, including
was possessed illegally, or is retained pending a deci- procedures for weapon search and seizure—both at
sion by the court as to whether the weapon should the scene of an incident of domestic violence and
be returned, the police must make the weapon avail- when a domestic violence protection order is in
able to the owner or possessor within 48 hours to 5 place—and procedures for the return of weapons. A
business days after its seizure.¹⁴⁴ If law enforcement brief review of some legal challenges to firearms laws
has reasonable cause to believe that the return of the based on those procedural issues is instructive.
weapon is “likely to endanger the victim or person
reporting the threat or assault,” the law enforcement W E A P ON S E A RC H E S A N D S E I Z U R E S
agency can petition the court within 60 days to deter- I N D OM E S T IC V IOL E NC E C A S E S
mine whether the weapon should be returned.¹⁴⁵ There is significant debate over whether a warrant
The law enforcement agency must notify the person is necessary to search for and seize weapons after
who originally possessed the weapon about the court a defendant either has been convicted of a misde-
proceeding, and, if he or she fails to respond, the meanor domestic violence crime or is subject to a
court will issue an order forfeiting the weapon.¹⁴⁶ protection order, as well as what standard of suspi-
If the person desires a hearing on the issue, the case cion, if any, is necessary for a “reasonable” search
must be heard within 30 days of the request.¹⁴⁷ The under the Constitution. This issue arises in two situ-
court must order a return of the weapon unless it is ations: in a criminal context, when an officer is at the
shown by a preponderance of the evidence that the scene of a domestic violence incident, and in a civil
weapon’s return would endanger the victim or the per- context, when a protection order is issued.
Weapon Searches and Seizures at the what the U.S. Supreme Court has termed “special
Scene of a Domestic Violence Crime needs” searches; because they are not conducted for
In New Jersey, the Prevention of Domestic Violence the purpose of a criminal prosecution, they need not
Act permits a law enforcement officer to seize weap- meet the usual standards of a warrant and probable
ons when there is probable cause to believe that an cause. These searches are still subject to the Fourth
act of domestic violence has been committed in the Amendment, but they must only be “reasonable” in
following circumstances: order to be constitutional.
The New Jersey court noted that the language of
(1) In addition to a law enforcement officer’s
the statute distinguishes this type of search from a
authority to seize any weapon that is contra-
criminally focused search, stating that it is “in addi-
band, evidence or an instrumentality of crime, a
tion to a law enforcement officer’s authority to seize
law enforcement officer who has probable cause
to believe that an act of domestic violence has any weapons that are contraband, evidence or an
been committed may: instrumentality of crime.”¹⁵⁴ Here, the state’s inter-
est in seizing the weapons is to ensure the safety of
(a) question persons present to determine
domestic violence victims, so search and seizure are
whether there are weapons on the premises;
and
reasonable, though law enforcement had neither a
warrant nor probable cause to conduct the weapons
(b) upon observing or learning that a weapon is
search.¹⁵⁵
present on the premises, seize any weapon
In State v. Perkins,¹⁵⁶ another New Jersey appellate
that the officer reasonably believes would
case, officers responded to a 911 call from a woman
expose the victim to a risk of serious bodily
injury.
who said that her husband had hit her in the head
with the telephone, that he had been drinking, and
(2) A law enforcement officer shall deliver all weap-
that he had a lot of weapons in the home.¹⁵⁷ When
ons seized pursuant to this section to the county
the officers arrived, they saw the victim, who was
prosecutor and shall append an inventory of
visibly upset and had a red mark on the right side of
all seized weapons to the domestic violence
report.¹⁵² her face. They located the defendant, who confirmed
the wife’s story. The officers then conducted a search
The statute authorizes a warrantless search for of the house, where they found multiple firearms, as
weapons once the officer has probable cause to well as ammunition and other weapons, which they
believe that an act of domestic violence has occurred. seized.¹⁵⁸
The weapons need not have been used in the crime The court found that the 911 call, the demeanor
or illegally possessed. Nor is it clear whether the offi- of the victim, and the mark on her face gave the
cer must have probable cause to believe weapons are officers probable cause to believe that the defendant
present before beginning a search. Once the officer had committed an act of domestic violence.¹⁵⁹ They
“observes or learns” that a weapon is present, the also had “reasonable cause” to believe, first, that the
officer may seize it on reasonable belief that it would defendant had access to weapons, based on the 911
put the victim at risk of serious bodily injury. call and, second, that the weapons posed a “height-
The courts have considered whether this type of ened risk of injury to the victim.”¹⁶⁰ The court spe-
search and seizure is constitutional under the Fourth cifically noted that finding risk of injury did not
Amendment. The New Jersey appellate court has held require proof that the defendant had used or threat-
that the law is constitutional because it is “under- ened to use a weapon against the victim; the focus
taken to promote legitimate state interests unrelated was on the threat of future use: “[T]he absence of the
to the acquisition of evidence of criminality or in use or threatened use of a weapon is not necessarily
furtherance of a criminal prosecution.”¹⁵³ This is a useful barometer or predictor of future behavior
vis-à-vis the future use of weapons by a defendant (4) Any police officer with or without a warrant,
against the victim.”¹⁶¹ The court also found that may take the following course of action where
the officers acted reasonably, by searching only the the officer has reasonable grounds to believe that
areas of the home where the victim informed them there was physical abuse or harm inflicted by
that weapons might be found.¹⁶² ¹⁶² The court stated that one person upon a family or household mem-
ber, regardless of whether the physical abuse or
“like any special needs search, [the search for weap-
harm occurred in the officer’s presence:
ons under the act] is not based upon suspicion that
a crime has been committed, but instead counte- ....
nanced by a State interest, civil in nature, to protect (f ) The officer may seize all firearms and ammu-
potential victims, thereby going beyond the normal nition that the police officer has reasonable
purview of law enforcement.”¹⁶³ grounds to believe were used or threatened
By contrast, the Pennsylvania Supreme Court has to be used in the commission of an offense
held that the state statute mandating the seizure of under this section.¹⁷⁴
weapons used in certain domestic violence offenses First the court found that the statute, which con-
does not authorize a warrantless search for such cerned seizure, did not apply to searches. Moreover,
weapons.¹⁶⁴ In Commonwealth v. Wright,¹⁶⁵ police the court noted that the statute “may not be executed
responded to the home of the defendant after receiv- at the expense of [the defendant’s] constitutional
ing a report that he had shot his wife.¹⁶⁶ The police right against unreasonable searches and seizures.”¹⁷⁵ It
entered the residence, arrested the defendant, and found that a warrantless search of a mattress, which
proceeded to search the home without a warrant. met no recognized exception to the warrant require-
Two weapons, one of them the weapon used in the ment, was unconstitutional and that the gun evi-
shooting, were found during the search.¹⁶⁷ The trial dence obtained must be suppressed.¹⁷⁶
court denied the defendant’s motion to suppress the
weapons, holding that the state statute involving Weapon Searches and Seizures Under a
confiscation of weapons used in domestic violence Domestic Violence Protection Order
offenses required seizure of all weapons used by the New Jersey also authorizes weapon searches and sei-
defendant.¹⁶⁸ zures in a civil context after a protection order has
But the Pennsylvania Supreme Court observed been issued. As part of a temporary ex parte restrain-
that, because the statute involves weapon seizure but ing order, the court may forbid the defendant from
does not address the means that may be used to locate possessing any firearm, and it may further order “the
the weapons,¹⁶⁹ the search for weapons must meet search for and seizure of any such weapon at any
either the usual Fourth Amendment requirement of location where the judge has reasonable cause to
a warrant or one of the recognized exceptions to a believe the weapon is located.”¹⁷⁷ If a final restrain-
warrant.¹⁷⁰ Because there was no warrant and the ing order is issued, the firearm prohibition becomes
court found that the search was not justified by exi- mandatory.¹⁷⁸ At the hearing for the final order the
gent circumstances, consent, or as a search conducted judge may also order the search for and seizure of
incidental to arrest,¹⁷¹ it held that the weapons should the firearms under this provision, again “at any loca-
have been suppressed and remanded the case for a tion where the judge has reasonable cause to believe
new trial.¹⁷² the weapon is located.”¹⁷⁹
The Hawai‘i Supreme Court reached a similar New Jersey’s case law regarding weapon searches
conclusion, ruling that a state statute authorizing and seizures under the terms of a civil protection order
seizure of firearms in domestic violence situations is consistent with its court rulings regarding these
does not permit warrantless searches.¹⁷³ The relevant searches and seizures in the criminal context. In State
Hawai‘i statute states that v. Johnson,¹⁸⁰ the state appellate court considered the
constitutionality of a warrant to search for firearms The defendant argued that the court had no
issued under the temporary restraining order stat- authority to issue search-and-seizure orders under
ute.¹⁸¹ The court again found that this type of search the protection order statute, which discussed only
is subject to the restrictions of the Fourth Amend- relinquishment and not seizure of weapons.¹⁸⁸ The
ment, but because the purpose of the warrant was court agreed that the relinquishment provision did
to protect the domestic violence victim from further not grant the court authority to order search and
violence, and not to discover criminal evidence, the seizure of the weapons but found that the trial judge
warrant did not need to meet a probable cause stan- was justified in believing that the plaintiff was in
dard. Instead, “to support issuance of a search warrant serious danger based on the defendant’s threats to
pursuant to [the temporary restraining order statute], use the weapons against her.¹⁸⁹ Therefore the court
the judge must find there exists reasonable cause to concluded that “the law as expressed . . . is sufficiently
believe that, (1) the defendant has committed an act explicit and broad to deal with weapons, once ade-
of domestic violence, (2) the defendant possesses or quately described under oath, to the same degree
has access to a firearm or other weapon . . . and (3) the that an affidavit of probable cause would have been
defendant’s possession or access to the weapon poses a permissible to authorize a search and seizure.”¹⁹⁰
heightened risk of injury to the victim.”¹⁸² The search-and-seizure order was within the “general
Juxtaposed with other states, Pennsylvania may intent” of the statute to confiscate the weapons.¹⁹¹
Still, this is only a single case, and the Pennsylva-
have made a distinction between searches and seizures
nia Supreme Court has not yet ruled on the issue of
in the criminal and civil context. In a case after its
searches and seizures of weapons in the protection
Supreme Court decided Commonwealth v. Wright, a
order context. Moreover, the Kelly decision has been
lower court ruled, in Kelly v. Mueller, that a judge had
highly controversial.¹⁹²
authority to order a warrantless search and seizure of
guns in a protection order context.¹⁸³ The defendant
PRO C E DU R E S F OR T H E
did not appear at the hearing for a final protection R E T U R N OF W E A P ON S
order; the plaintiff testified that the defendant had
Disputes have arisen in jurisdictions across the coun-
threatened to kill her while pointing at her a loaded
try on the procedures and responsibilities of law
handgun owned by his father. She also listed several enforcement personnel for returning weapons seized
weapons kept in the defendant’s home.¹⁸⁴ either during a domestic violence incident or while a
The court entered an order requiring the defen- domestic violence protection order was in effect.
dant to surrender all weapons he had used or threat- Often there is simply no procedure in place and
ened to use in an act of abuse against the plaintiff, confusion abounds over the proper means to handle
and it identified all such weapons. But when a return of weapons. In an Ohio case, Golden v. Bay
sheriff went to the defendant’s home to retrieve the Village Police Dep’t,¹⁹³ law enforcement had confis-
weapons listed in the order, the defendant signed cated 14 weapons from the plaintiff’s home, under
a statement saying there were no weapons.¹⁸⁵ The a temporary protection order issued in connection
plaintiff returned to court the same day to request with an allegation of criminal domestic violence. A
a supplemental order, testifying that she had seen few months later the order was dissolved when the
weapons in the defendant’s home. So the court criminal charge was dismissed, and Golden subse-
entered an order directing the sheriff to search both quently demanded that the police department return
the defendant’s residence and the father’s hunting his weapons.¹⁹⁴ The police department told him that
cabin.¹⁸⁶ The order also directed the sheriff to seize he would need a directive from the chief of police for
any weapons and use whatever force necessary to release of the weapons, so he wrote a letter request-
enforce the order.¹⁸⁷ ing such a directive. In response, the police chief
told Golden that he would need to file an action for R E C OM M E N DAT IONS F OR
replevin¹⁹⁵ and obtain a court order.¹⁹⁶ EFFEC T I V E ENFORCE MENT
Golden took no immediate action, but when OF F E DE R A L A N D S TAT E
police informed him a few months later that his F I R E A R M S L AW S
weapons would be destroyed unless he filed an action Review of both the state and federal legislation and
for replevin, he did so. At a pretrial hearing, the case law on its implementation gives guidance on
police department agreed to an order returning how to provide effective enforcement of the state and
the weapons to Golden, and the magistrate granted the federal firearms laws. The following recommenda-
replevin order.¹⁹⁷ tions derive from the above review.
In Golden, the Ohio appellate court considered
whether an award of attorney fees to Golden was 1. Draft domestic violence protection order forms to con-
in order on the ground that the police department’s form to federal requirements under section 922(g)(8).
failure to return the weapons to him after his crimi- Protection order forms that track the federal require-
nal charges were dismissed was in bad faith.¹⁹⁸ The ments serve at least two critical functions. First, if
appellate court rejected the request for fees, finding a violation of section 922(g)(8) is alleged, it will be
that “at all times, the onus was on Golden to seek easy to ascertain whether the protection order meets
the necessary court order for the release of his prop- the requirements of the federal statute and facilitates
erty.”¹⁹⁹ According to the court, because the police prosecution. Currently, while many orders do meet
seized the weapons under court order, it was reason- the requirements, this can only be discovered through
able for them not to return the property except by close reading of the order, any court records from
court order, and the dissolution of the temporary the case, and the petition. Second, an order tracking
protection order was not relevant.²⁰⁰ The court also federal language and clearly demonstrating eligibility
noted that Golden could have requested such a court under the federal firearms laws enables it to be entered
order at the time the temporary protection order accurately into the national protection order regis-
was dissolved. Because he had failed to do that and try. Those orders meeting the requirements receive a
the criminal case had already been dismissed, the “Brady Indicator.”²⁰² All gun dealers are required to
replevin action suggested by police was a reasonable submit identifying information about each potential
alternative.²⁰¹ gun purchaser to a national database maintained by
The actual procedures necessary for the search, the FBI. Any orders bearing a Brady Indicator trigger
seizure, and return of firearms in domestic violence a finding that the potential purchaser is not eligible
situations, as well as the legal standards required to purchase a weapon.²⁰³ Conversely, without this
for these processes, are only now beginning to be indicator there is no such response. Therefore, amend-
developed among the states. Moreover, the limited ing the forms to facilitate both the notation of perti-
case law available demonstrates a focus on enforce- nent criteria and the accurate entry of data into the
ment of state laws rather than federal firearms database is an important first step toward improving
laws. States definitely need to enact legislation that enforcement of the federal firearms law.
provides clear standards and protocols for imple- For example, Pennsylvania has changed its stan-
menting both the federal and any state firearms dard protection order form by tracking the federal
laws. Without the guidance of such legislation, the statute’s language, adding the criteria that establish
correct method for implementation of these laws a qualifying domestic violence protection order for
remains uncertain, and, unfortunately, the uncer- purposes of federal law section 922(g)(8).²⁰⁴ The
tainty constrains jurisdictions from attempting any state’s judges now can easily indicate on the form
implementation at all. whether the criteria have been met, which then
makes it clear whether or not firearm possession is For a number of reasons, diversion programs and
prohibited under federal law.²⁰⁵ other sentencing models that ultimately result in
dismissals of domestic violence convictions are not
2. Provide notification on all protection orders that fire- recommended.²⁰⁶ This is particularly relevant in the
arm possession may violate federal law and any relevant context of firearms laws, because without a domes-
state law. tic violence misdemeanor conviction on the record,
Although notification on protection orders that section 922(g)(9) will not apply. Although abusers
firearm possession may violate federal law is not without the recorded conviction may be guilty of the
required for the law to be effective, it can be helpful same behavior as those with the record, they will not
for several reasons. It prevents any later argument be subject to the federal weapons prohibition.
that the defendant was ignorant of the law. And, as
above, it facilitates later federal prosecution of a vio- 5. Develop a specific and detailed procedure for the sur-
lation of the federal law, as well as accurate entry into render, storage, and return of all firearms. This includes
the national registry. Furthermore, for full-faith-and- designating specific personnel at each involved agency to
credit purposes, it alerts law enforcement in other be responsible for these tasks, as well as developing forms
states that the order is subject to the federal firearms to ensure a “paper trail” of the handling of all weapons.
laws. Many states already have language on their After an order to surrender firearms is issued, often
protection order forms noting that the orders are little follow-up is done to determine whether the
entitled to full faith and credit in all other states. weapons were actually relinquished.²⁰⁷ The develop-
Language concerning federal firearms laws could be ment of a protocol for the handling of firearms is
added to strengthen enforcement of the federal law. essential, so that court orders for weapon surrender
are enforced, weapons are accounted for, and the
3. At a hearing on the protection order, the judge should procedure for weapon return is both clear and effec-
inquire if the respondent has firearms. And, where tive. Designating personnel in each agency strength-
authorized under state law, a clause prohibiting weap- ens the likelihood that procedures will be followed
ons should be included on the protection order form. and also enables a partnership to help hold agencies
If there are firearms, the judge can arrange for their accountable for performing their assigned roles.
surrender under the procedure described below and While developing a detailed protocol can be daunt-
can take the opportunity to inform the defendant ing, some models do exist. The Domestic Violence
of the federal law. If state law authorizes making a Division of the Circuit Court in Miami–Dade County,
weapons ban a direct term of a protection order, this Florida, has one of the most developed protocols for
should be done. If the defendant remains in posses- the handling of firearms.²⁰⁸ At every protection order
sion of any weapons after issuance of such an order, calendar, the bailiff gives each respondent a form,
he or she will then be in violation of both the federal “The Respondent’s Sworn Statement of Possession of
law and any state firearms law, as well as the protec- Firearms and/or Ammunition,” before the respondent
tion order under state law, which may impose a more has been heard. The form is available in Spanish and
severe penalty than a state firearms law alone. If state Creole, in addition to English, and clearly states that
law authorizes a weapons ban on an ex parte order, “[i]f a Respondent remains in possession of a firearm
the judge should make the firearms inquiry at both or ammunition after a Final Judgment of Injunction
an ex parte hearing and a final order hearing. is entered he or she would be in violation of 18 U.S.C.
§ 922(g)(8), which is punishable by a maximum of ten
4. Courts should not order diversion programs, deferred (10) years imprisonment and or a $250,000.00 fine.”
sentencing, or any other process that fails to result in the Court personnel collect the form and provide it to the
recording of a misdemeanor domestic violence conviction. judge with the court file when the case is called.
The judge then makes an “on-record” inquiry weapons are stored. The information sheet notes that
of each respondent concerning the form, to ver- some police department policies require that weap-
ify relevant information such as the current status ons and ammunition not be returned at the same
of weapons. The judge may issue an order to sur- time, for safety reasons. Unless the owner claims the
render firearms, which is handed to the respon- surrendered weapons within eight months of receipt
dent at the conclusion of the hearing.²⁰⁹ The order of the court order providing for their return, the
includes detailed instructions to the respondent on weapons are forfeited to the state and there can be no
surrendering the weapons at the local police station, further action for their recovery.
obtaining a receipt, and faxing this documentation King County, Washington, also has developed spe-
to the court within 24 hours of the order’s issu- cific procedures to improve enforcement of firearms
ance.²¹⁰ The court also provides a detailed infor- laws. Since 1993, Washington State has had laws that
mation sheet that includes the federal laws against prohibit people convicted of certain domestic violence
firearm possession when a permanent injunction is misdemeanors—including assault, stalking, coercion,
in effect or when a person has been convicted of a and violating a no-contact order—from possessing
misdemeanor crime of domestic violence. a firearm, and that require law enforcement agen-
The case manager, a court employee at the Miami cies to seize weapons from such domestic violence
domestic violence court, is responsible for monitor- perpetrators.²¹² But initially the laws were not widely
ing the respondent’s compliance with the order and implemented, because there was neither a procedure
for providing proof of surrender. The procedures for enforcement nor sufficient financial resources
direct the case manager to maintain a firearms sur- provided to local law enforcement to implement the
render log book for this purpose, and in the event of laws.²¹³ Courts did not issue weapon surrender orders
noncompliance the case manager notifies the judge, consistently, the justice system did little follow-up to
who issues an “Order to Show Cause Why Respon- hold defendants accountable, and agencies lacked the
dent Failed to Surrender Firearms and/or Ammuni- facilities to store the surrendered weapons.²¹⁴
tion,” which orders the respondent to appear at a But in 2003, judges from the district court and
particular time at the court for a hearing on the issue. the King County Sheriff’s Office initiated a fire-
The information sheet provided to respondents also arm forfeiture program to improve enforcement
explains court procedures on the return of firearms or of the state law.²¹⁵ The program developed a form
ammunition if the protection order is no longer in for the sheriff’s office that provides deputies with a
effect.²¹¹ In this situation, the respondent must either detailed procedure to follow when removing weap-
file a motion or write a letter to the court that includes ons in domestic violence cases.²¹⁶ The deputies must
the weapons’ identifying information, a copy of the attempt to determine if an existing protection order
bills of sale evidencing the respondent’s ownership is in effect. Because the federal law bars the subject
of the weapons, and a signed affidavit providing all of a valid protection order from possessing a firearm,
relevant information. If the judge determines that the the deputies can remove any weapon found when
weapons should be returned, he or she will enter a an order is in effect.²¹⁷ If there is no existing order,
court order providing for their return. A copy of this the deputies record identifying information about
order is sent to the petitioner. If the judge determines weapons available to the suspect.²¹⁸ This record pro-
that there is no a legal basis for return of the weapons, vides the prosecutor with information to present in
the court will set a hearing on request. court later about the defendant’s ability to access
If the respondent receives a court order providing weapons.²¹⁹ Under the new program, judges who
for the return of the weapons, he or she can take the are presented with this information may even order
order, together with the police property receipt, and defendants to surrender weapons as a condition
proofs of ownership, to the police station where the of bail.²²⁰
The sheriff’s office now designates a particular discuss specific methods of coordinating the investiga-
officer to handle all surrendered weapons. This offi- tion, enforcement, and prosecution of firearms crimes in
cer follows a specific procedure for recording and domestic violence cases.
storing the weapons so that they can be identified In many jurisdictions, a chasm seems to separate
and accessed quickly.²²¹ state and federal justice agencies. They may have little
In Seattle, the municipal court has also effected the need for interaction and tend by habit to enforce and
changes in policy regarding weapon surrender.²²² The prosecute the law independently of one another. In
court’s probation unit routinely screens defendants some jurisdictions, some rapprochement has already
jailed on misdemeanor charges and now notes those occurred between the two systems, owing to other fed-
who are arrested for domestic violence crimes.²²³ The eral criminal laws enacted under the Violence Against
screeners check for existing protection orders against Women Act, including interstate stalking, interstate
defendants and ask about firearms. They then relay violation of a protection order, and interstate domes-
this information to municipal court commissioners, tic violence. The U.S. Department of Justice has also
who can order the surrender of weapons.²²⁴ required each U.S. Attorney’s Office to designate a
In New York State, when the court orders the specific prosecutor to handle VAWA crimes and act as
surrender of firearms, the order of protection must liaison with state prosecutors. Yet the impact of these
specify the date, time, and location where they changes on improved federal-state coordination and
must be surrendered and also must direct the author- communication remains to be proven.
ity receiving the firearms to immediately notify the This kind of coordination in firearms cases is criti-
court of the surrender.²²⁵ The law also includes cal, for two reasons. First, the federal firearms laws
directives for notification of local law enforcement depend on state law predicates—protection orders
by the court when an order has been issued for sur- or misdemeanor convictions—to be enforceable.
render of firearms or ineligibility for license.²²⁶ In Second, as more states develop their own laws on
addition, the court must notify the statewide registry firearms and domestic violence, the potential for
of protection orders.²²⁷ conflicts in prosecution becomes greater. While,
As this description of sample protocols demon- technically, both a state and a federal prosecution
strates, development of an effective firearms protocol can proceed simultaneously, in practice this is often a
must involve, at a minimum, judges, courtroom per- waste of time and resources.²²⁸
sonnel, and all local law enforcement agencies, along One project to encourage this kind of federal-
with prosecutors and defense counsel. An effective state coordination has gained national attention.
protocol is also very detailed, so that the respondent Although it is not focused specifically on domestic
knows precisely what steps he or she must take to violence cases, it may provide some lessons for such
comply with the law. Numerous practical consid- coordination in the domestic violence area.
erations must be dealt with, such as determination In 1997, Richmond, Virginia, initiated Project
of available storage space for the weapons and des- Exile, a partnership among federal, state, and local
ignation of police and court personnel to perform prosecutors and law enforcement agencies to coordi-
specific tasks. nate prosecution of illegal gun possession or use.²²⁹
It is critical that the protocol include personnel The goal of the project is to reduce gun violence by
responsible for monitoring the defendant’s compliance encouraging federal prosecution of firearms charges
with the process and notifying the judge about non- where possible.²³⁰ Under the project, Richmond
compliance to enable quick and consistent follow-up. police officers receive special training to identify state
firearm violations that also can be charged as federal
6. Local prosecutors and law enforcement should reach crimes.²³¹ When an arrest is made by local police on
out to federal counterparts in their jurisdiction to state firearms charges that could be charged feder-
ally, the local police immediately notify a designated enforcement of the federal firearms laws in the arena
agent from the federal Bureau of Alcohol, Tobacco, of domestic violence. Law enforcement personnel
Firearms and Explosives. Federal and state law have developed a paging system so a designated fed-
enforcement work together to determine whether it eral law enforcement officer can immediately confer
is an appropriate case for federal prosecution, and, on the appropriateness of a federal charge. At least
if so, they refer it to the U.S. Attorney’s Office.²³² If one state Commonwealth’s Attorney has been cross-
the federal prosecutor is able to obtain an indictment designated as a federal prosecutor to prosecute these
on the federal charge, the Commonwealth’s Attorney cases, and additional federal prosecutors have been
voluntarily drops the state charges.²³³ assigned to the project. A publicity campaign has
Project Exile focuses on three groups of firearms also improved public awareness of the problem while
law violators: felons, drug offenders, and domes- helping to create an atmosphere of “zero tolerance”
tic violence offenders.²³⁴ The project imposes tough for firearms offenders.
penalties for violations, such as a mandatory federal
prison sentence of several years served at out-of-state 7. Mandate judicial training specifically on firearms
facilities.²³⁵ The project also included a widespread and domestic violence, federal firearms laws, and any
publicity campaign to deter would-be violators while state firearms laws.
gaining the support of the community.²³⁶ Project The importance of training judges in domestic vio-
Exile was expanded statewide in Virginia and has lence issues has become a familiar mantra, because
now been adopted in several cities in other states.²³⁷ the judicial role is so central to any domestic violence
The U.S. Department of Justice has also become justice initiative. After strenuous efforts across the
an official supporter of the project and has insti- country over several years, the knowledge, sensitiv-
tuted grants to fund development of similar projects ity, and effectiveness of judges who handle domestic
around the country.²³⁸ Its proponents argue that violence cases have improved. The intersection of
Project Exile has resulted in a significant drop in domestic violence and firearm possession, however,
homicide rates.²³⁹ appears to be one in which significant confusion or
The project has been controversial. Some argue resistance remains on the part of judges. Many court
that the project is “overenforcing” firearms laws, systems now have mandatory domestic violence
giving defendants significantly more severe sanc- training for the judiciary. This topic should be a
tions than they would receive under state law. There high priority for training and can also be combined
have also been legal challenges contending that the with related issues, such as full faith and credit, the
federal-state alliance of Project Exile infringes on national registry on protection orders, and other
a state’s sovereignty in enforcing its own laws.²⁴⁰ federal domestic violence laws.
These challenges have been unsuccessful, yet they do
demonstrate some resistance on both the state and 8. Investigate the development of specialized or inte-
federal sides to this type of coordination. In dicta, grated domestic violence court models.
a federal district court criticized state law enforce- The recommendations to improve firearms law
ment authorities for their involvement in Project enforcement can be implemented in any justice sys-
Exile, arguing that these charges could be brought tem. But a specialized domestic violence court will
under state law; “[h]owever, instead of bringing facilitate these initiatives perhaps more expeditiously
the resources of the Commonwealth to bear, local and effectively.²⁴² As a basic matter, such specialized
authorities have abdicated their responsibility to the courts maintain a well-developed justice partnership,
federal government.”²⁴¹ having created strong working relationships with all
Despite all the objections, Project Exile incor- key justice players, including law enforcement agen-
porates important strategies that could be useful in cies, prosecutors, the defense bar, probation officials,
and pretrial release officials. Specific personnel from This same kind of effort is required for imple-
the court and several agencies are often designated mentation of the federal firearms laws relating to
to the specialized court, so that they can focus domestic violence. While certainly the federal gov-
entirely on domestic violence cases and so that they ernment has funded and promoted some training on
will be both experienced and knowledgeable about this issue, most of the training has merely explained
domestic violence issues. Moreover, the concentra- the laws, not assisted on the issue of enforcing them.
tion of domestic violence cases in one court makes There has not yet been the strong focus required
it easier to track any firearm surrender protocols and for broad state implementation. The firearms laws
to monitor for violations. An integrated domestic present many of the same complexities generated
violence court, which handles both protection order by the full-faith-and-credit law, such as confusion over
cases as well as domestic violence misdemeanors, will the correct legal standards, the existence of several
have easy access to information on the underlying practical obstacles to enforcement, and the need for
state predicates for federal firearms laws. federal and state officials to coordinate their efforts.
Model state implementation laws, intensive and
CONCLUSION practical training, and targeted conferences devoted
to enforcement of the laws are needed. These efforts
The states are increasingly becoming aware of the should include gatherings that bring together federal
necessity to remove firearms from domestic violence and state prosecutors and law enforcement leaders
perpetrators. However, the local firearms laws that to discuss their concerns and how best to coordinate
do exist vary in their clarity and comprehensive- efforts. Judicial training is required on the definition
ness, even as methods for their enforcement remain of federal terms and the federal requirements for the
confusing. Worse yet, many jurisdictions have no predicate crimes and protection orders necessary to
enforcement procedures in place. trigger the firearms laws. Effective legislation and
In many ways this situation is similar to the one procedures from states that have moved forward in
that existed after Congress enacted a provision in this area should be shared with other states. Local
the Violence Against Women Act that required each jurisdictions, too, bear the responsibility of educat-
jurisdiction to give full faith and credit to domestic ing their judiciary and law enforcement personnel
violence protection orders from other jurisdictions. about the importance of enforcing the firearms laws
The law was passed without any direction about its and of bringing together the requisite agencies to
implementation, and for some years many states develop a clear and effective implementation plan.
failed to address it. However, the federal government Unquestionably, the seizure of weapons in domestic
eventually recognized its failure to provide guidance, violence cases raises a set of difficult and complex issues.
and by the late 1990s federally funded training and Yet the lethal mix of batterers and firearms is too critical
regional conferences became available to help the for jurisdictions to avoid. Both the states and the federal
states enforce the full-faith-and-credit provision. Clear government have an obligation to confront and solve
informational pamphlets for targeted audiences, such the confounding challenges of gun seizure.
as law enforcement officials and victim advocates,
were developed to assist these groups in understand-
ing and implementing the law. A National Center on
NOTES
Full Faith and Credit was created with federal funds
to focus entirely on providing training and technical 1. Holes in System: Abusers Are Supposed to Surrender Fire-
assistance on the provision’s enforcement, including arms, SAN DIEGO TRIB., Apr. 6, 2004, at B6.
development of model implementation statutes to 2. N.Y. STATE COMM’N ON DOMESTIC VIOLENCE FATALI-
guide states in enacting such legislation. TIES, REPORT TO THE GOVERNOR 16 (1997).
3. Hector Castro, County Moves to Seize Guns in Domestic F.3d 394 (6th Cir. 2000) (holding that section 922(g)(8) NOTES
Violence Cases, SEATTLE POST-INTELLIGENCER, Mar. 16, 2004. does not violate the Commerce Clause or the Due Process
Clause); United States v. Hemmings, 258 F.3d 587, 594
4. BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE,
(7th Cir. 2001); United States v. Pfeifer, 371 F.3d 430,
HOMICIDE TRENDS IN THE U.S.: “INTIMATE HOMICIDE,”
436–37 (8th Cir. 2004).
available at www.ojp.usdoj.gov/bjs/homicide/intimates.htm.
This figure is from the period between 1990 and 2002. Id. 20. United States v. Morrison, 529 U.S. 598 (2000).
5. Legislator Calls for Study of Gun Seizures, UNION LEADER 21. See, e.g., United States v. Gallimore, 247 F.3d 134,
(Manchester, N.H.), Jan. 2, 2005, at A18 (quoting Hen- 138 (4th Cir. 2001); United States v. Pierson, 139 F.3d
niker, N.H., Police Chief Timothy Russell). 501 (5th Cir. 1998) (finding section 922(g)(8) constitu-
6. 18 U.S.C. § 922(g)(8) (2000). tional under the Commerce Clause); Napier, 233 F.3d at
399, 402 (holding that section 922(g)(8) does not violate
7. 18 U.S.C. § 922(g)(8)(A). the Commerce Clause or the Due Process Clause); United
8. 18 U.S.C. § 922(g)(8)(B). States v. Wilson, 159 F.3d 280, 284–89 (7th Cir. 1998)
(holding that section 922(g)(8) is constitutional under the
9. 18 U.S.C. § 922(g)(8)(C). Commerce Clause and the Fifth and the Tenth Amend-
10. 18 U.S.C. § 921(a)(32). ments); United States v. Lewis, 236 F.3d 948 (8th Cir.
2001) (holding that section 922(g)(9) does not violate
11. 18 U.S.C. § 925(a)(1). the Commerce Clause, the Equal Protection Clause, the
12. 18 U.S.C. § 922(g)(9) (“[I]t shall be unlawful for any Second Amendment, or the Eighth Amendment); United
person . . . who has been convicted . . . of a misdemeanor States v. Jones, 231 F.3d 508, 514–15 (9th Cir. 2000)
crime of domestic violence, to . . . possess in or affecting (rejecting a Commerce Clause challenge to 18 U.S.C.
commerce, any firearm or ammunition . . . .” Id. This pro- § 922(g)(8)); United States v. Cunningham, 161 F.3d
vision is commonly known as the Lautenberg Amend- 1343, 1345–47 (11th Cir. 1998); (rejecting a Commerce
ment to the Gun Control Act of 1968. The amendment is Clause challenge to section 922(g)(8)).
named after Senator Frank Lautenberg of New Jersey, the 22. See, e.g., United States v. Meade, 175 F.3d 215,
bill’s leading sponsor).
224–25 (1st Cir. 1999) (rejecting a Tenth Amendment
13. 18 U.S.C. § 922(g)(1). challenge to section 922(g)(8)); United States v. Bostic,
168 F.3d 718, 723–24 (4th Cir. 1999) (rejecting a Tenth
14. Jason M. Fritz, Comment, Unintended Consequences: Amendment challenge to 18 U.S.C. § 922(g)(8)); United
Why Congress Tossed the Military Family Out of the Fry-
States v. Hemmings, 258 F.3d 587, 594 (7th Cir. 2001)
ing Pan and Into the Fire When It Enacted the Lautenberg
(holding that neither the Second nor the Tenth Amend-
Amendment to the Gun Control Act of 1968, 2004 WIS. L.
ment bars federal firearms regulation).
REV. 157, 165.
23. United States v. Emerson, 270 F.3d 203, 260–63 (5th
15. 18 U.S.C. § 921(a)(33)(B)(i)(I).
Cir. 2001) (rejecting a Second Amendment challenge to
16. 18 U.S.C. §§ 921(a)(33)(A)(ii), 922(g)(9). section 922(g)(8)); United States v. Jackubowski, 63 F.
App’x 959, 961 (7th Cir. 2003) (holding that federal
17. In some limited circumstances the firearm ban may
law barring gun possession after a felony conviction, 18
be lifted, such as when the conviction is “expunged or
U.S.C. § 922(g)(1), does not violate the Second Amend-
set aside” or the defendant has been pardoned for the
offense or has had his civil rights restored. 18 U.S.C. ment, and noting that all federal appellate courts to con-
§ 921(a)(33)(B)(ii). sider the issue have held that federal regulation of firearms
is constitutional).
18. See, e.g., United States v. Lewitzke, 176 F.3d 1022,
1024 (7th Cir. 1999); United States v. Barnes, 295 F.3d 24. City of Cleveland v. Carpenter, No. 82786, 2003 WL
1354, 1368 (D.C. Cir. 2002); United States v. Hancock, 22976619, at *1 (Ohio Ct. App., Dec. 18, 2003).
231 F.3d 565–67 (9th Cir. 2000); United States v. Smith, 25. Id. at *1.
171 F.3d 617, 623–26 (8th Cir. 1999).
26. Id
Id. at *3–*4.
19. See, e.g., United States v. Mitchell, 209 F.3d 319,
323–24 (4th Cir. 2000); United States v. Napier, 233 27. Id. at *5.
NOTES 28. State v. Wahl, 839 A.2d 120, 122 (N.J. Super. Ct. 45. Id.
App. Div. 2004). The court did remand to the Family
46. Id.
Part judge to determine whether the seized firearms had
ever been shipped or transported in interstate commerce, 47. United States v. Bunnell, 106 F. Supp. 2d 60 (D.
another required element of the federal statute. Id. at 134. Me. 2000).
The court noted, however, that “the market in firearms is
48. Id. at 66.
heavily interstate in nature . . . and it would be indeed rare
that a firearm, or at least some of its component parts, 49. Id.
would have never moved across state lines.” Id.
50. Id.
29. See, e.g., Hesse v. Pennsylvania State Police, 850 A.2d
51. Id.
829, 832 (Pa. Commonw. Ct. 2004).
52. See Tom Lininger, A Better Way to Disarm Batterers, 54
30. See, e.g., United States v. Smith, 171 F.3d 617, 620
HASTINGS L.J. 525, 530–31 (2003).
(8th Cir. 1999) (both the statute’s plain language and
legislative history demonstrate that the predicate offense 53. Id. at 531. This information was provided to Lininger
need not contain a domestic relationship between the by the Executive Office for United States Attorneys on
parties as an element); United States v. Meade, 175 F.3d July 24, 2002. Id. at 530 n.18. The report also predicted
215, 218–19 (1st Cir. 1999) (similarly); United States that 58 additional cases would be filed by the end of
v. Barnes, 295 F.3d 1354, 1360–61 (D.C. Cir. 2002) 2002. Id. at 531.
(similarly).
54. Id.
31. United States v. Nobriga, 408 F.3d 1178, 1181–83
55. Id. at 531 & n.23 (citing United States v. Wilson,
(9th Cir. 2005).
159 F.3d 280, 294 (7th Cir. 1998) (Posner, J., dissent-
32. The “modified categorical approach” is based on the ing)). Judge Posner estimated that approximately 100,000
U.S. Supreme Court’s approach in Taylor v. United States, domestic violence protection orders are issued each year
495 U.S. 575, 602 (1990) and reaffirmed in Shepard and that, since 40 percent of U.S. households own guns,
v. United States, 125 S. Ct. 1254 (2005). Under this approximately 40,000 people would be in violation of sec-
approach, courts may consider only “the terms of the tion 922(g)(8). Id.
charging document, the terms of a plea agreement or
56. Lininger, supra note 52, at 532 (relying on report
transcript of colloquy between judge and defendant in
from Executive Office for United States Attorneys).
which the factual basis for the plea was confirmed by the
defendant, or to some comparable judicial record of this 57. Comment, Domestic Violence and Guns: Seizing Weap-
information.” Shepard, 125 S. Ct. at 1263. ons Before the Court Has Made a Finding of Abuse, 23 VT.
L. REV. 349, 364 (1998) (referring to report from Ver-
33. Nobriga, 405 F.3d at 1181. mont’s U.S. Attorney that it is rare for the U.S. Attorney’s
34. Id. at 1181–83. Office to enforce the federal firearms laws against persons
subject to domestic violence protection orders, because of
35. Id. at 1183. limited resources).
36. United States v. Calor, 340 F.3d 428 (6th Cir. 2003). 58. See Melanie L. Mecka, Note, Seizing the Ammunition
37. Id. at 429. From Domestic Violence: Prohibiting the Ownership of Fire-
arms by Abusers, 29 RUTGERS L.J. 607, 643–44 (1998).
38. Id. For example, in 1997, the president of the Salt Lake
39. Id. County, Utah, Sheriff’s Association said that the federal
law provides no penalty if states choose not to “mirror
40. Id. the federal law.” Id. at 644 n.211 (citing Judy Fahys,
41. Id. at 430. House Battles Over Gun Bill that Disarms Domestic Abusers;
Gun Bill Would Disarm Domestic Abusers, SALT LAKE CITY
42. Id. TRIB., Jan. 31, 1997, at A1).
43. Id. 59. Id. at 645.
44. Id. at 431. 60. Id. at 644–45.
61. Id. at 637–38. 76. Wahl, 839 A.2d at 122 (finding that weapons forfei- NOTES
ture provisions contained in N.J. STAT. ANN. § 2C:25-
62. See Carrie Chew, Domestic Violence, Guns, and Min- 21g[9] and 18 U.S.C. § 922(g)(9) are “in harmony”).
nesota Women: Responding to New Law, Correcting Old
Legislative Need, and Taking Cues From Other Jurisdictions, 77. Id.
25 HAMLINE J. PUB. L. & POL’Y 115, 149 & nn.166–67
78. Conkle v. Wolfe, 722 N.E.2d 586, 593–94 (Ohio Ct.
(2003) (citing correspondence from domestic violence
App. 1998).
victim advocates in Minnesota and Texas); Lisa D. May,
The Backfiring of the Domestic Violence Firearm Bans, 14 79. Id.
COLUM. J. GENDER & L. 1, 1–2 (2005) (describing case in
rural Missouri jurisdiction where judge denied protection 80. Id.
order despite substantial evidence of physical injury and 81. Id. at 593.
later in court cited the approach of quail-hunting season
as one reason not to issue another protective order). May 82. Id. at 594.
also describes a case in Hennepin County (Minneapolis) 83. Id.
where the judge expunged a police department employee’s
domestic violence record, to avoid the consequences of 84. Benson v. Muscari, 769 A.2d 1291 (Vt. 2001).
the federal firearms law. Id. at 1. This observation is also
85. Id. at 1298.
based on discussions between the author and victim advo-
cates in such jurisdictions as Maine and Montana. 86. United States v. Brailey, 408 F.3d 609 (9th Cir.
2005).
63. See Michelle N. Deutchman, Note, Getting the Guns:
Implementation and Enforcement Problems With Califor- 87. Id.
nia Senate Bill 218, 75 S. CAL. L. REV. 185, 209 (2001)
(quoting Mary Malefyt, then senior attorney at the Penn- 88. Id.
sylvania Coalition Against Domestic Violence). 89. Id.
64. Darren Mitchell & Susan B. Carbon, Firearms and 90. Mitchell & Carbon, supra note 64, at 38.
Domestic Violence: A Primer for Judges, CT. REV. 32, 38
(Summer 2002). 91. Id.
65. Chew, supra note 62, at 149 & nn.166–67. 92. Id.
66. Id.; Deutchman, supra note 63, at 209. 93. Sharon Gold, Note, Why Are Victims of Domestic Vio-
lence Still Dying at the Hands of Their Abusers? Filling the
67. Chew, supra note 62, at 149 & nn.166–67; Deutch- Gap in State Domestic Violence Gun Laws, 91 KY. L.J. 935,
man, supra note 63, at 209. 952–53 (2002–03).
68. Id. 94. See Mitchell & Carbon, supra note 64, at 34 (col-
lecting state statutes and noting differences in firearm
69. State v. Wahl, 839 A.2d 120 (N.J. Super. Ct. App.
prohibitions in domestic violence cases). Mitchell and
Div. 2004).
Carbon note that, as of 2002, in at least nine states a
70. 18 U.S.C. § 922(g)(9) (2000 & Supp. 2004). civil protection order meeting certain criteria creates
a mandatory prohibition on firearm possession, while in a
71. Wahl, 839 A.2d at 128 (N.J. Super. Ct. App. Div. 2004). greater number of states judges have discretion whether
72. U.S. CONST. art. VI, cl. 2. to include a term prohibiting firearms in the protection
order. Id. Mitchell and Carbon also note differences
73. Wahl, 839 A.2d at 130 (quoting Wisconsin Pub. in state law regarding criminal cases. In some states, a
Intervenor v. Mortier, 501 U.S. 597, 604 (1991) (quoting domestic violence conviction triggers a mandatory firearm
Gibbons v. Ogden, 22 U.S. 1, 211 (1824))). prohibition, while in other states such a prohibition is
74. Id. discretionary, and the law may require the judge to make
specific findings. Id. Some states permit a firearm prohibi-
75. Id. at 133 (quoting N.J. STAT. ANN. § 2C:25-21d(3) tion to be imposed as a condition of bail or probation. Id.
(West 2005)). In addition, some states limit the weapon ban to those
NOTES weapons actually used or threatened to be used in the law includes partners who are cohabiting or have formerly
offense. Id. cohabited. The Connecticut statute’s definition of family
or household member is broader because it does include
95. See Chew, supra note 62, at 132–37 (providing
“persons in, or [who] have recently been in, a dating rela-
examples of inconsistencies among state laws and their
tionship,” but it does not define the meaning of recent, so
variation from federal law); Timothy Johnson, Domestic
that former intimate partners may not necessarily be cov-
Violence and Federal Firearms Laws, 33-SEP COLO. LAW.
ered by the law. CONN. GEN. STAT. § 46b-38a(2) (2004).
61, 63 (2004) (discussing the differences between federal
See also State v. Logan, No. 18CR020108012, 2003 WL
law and Colorado law in areas such as the definitions of
22413490, at *1, *2 (Conn. Super. Ct., Oct. 6, 2003)
domestic violence and intimate relationship).
(noting the limitations of the definition of relationship
96. See Mecka, supra note 58, at 622–23. under the statute).
97. See, e.g., Proposed PFA Rules Rattle Gun Owners; Seizure of 111. Nicolais, supra note 106, at 45.
Weapons Is Focus of Debate, INTELLIGENCER J. (Philadelphia,
112. Id.
Pa.), Apr. 24, 2004, at A1. (proposed revision to Pennsylvania’s
domestic violence law, which would give judges explicit discre- 113. Id. at 45–46.
tion to take all guns from individuals under protection-from-
114. N.J. STAT. ANN. § 2C:25-28j (West 2005) (authoriz-
abuse orders, is subject of controversy).
ing ex parte order to include “forbidding the defendant
98. Paul Carpenter, Some See PFA Bill as an Expansion to possess any firearm or other weapon . . . , ordering the
of Gun Control, MORNING CALL (Allentown, Pa.), May search for and seizure of any such weapon at any loca-
23, 2004, at B1 (quoting Gun Owners of America press tion where the judge has reasonable cause to believe the
release). weapon is located . . .”). See also State v. Cassidy, 843 A.2d
1132, 1134 (N.J. 2004) (discussing warrant portion of
99. Nancy Charron, Legislation Targets Guns of Domestic order form).
Violence Offenders, NEWS J. (Wilmington, Del.), Feb. 18,
1999, at 3B. The proposed law would also have prohib- 115. N.J. STAT. ANN. § 2C:25-21d[3].
ited weapon possession while a protection order was in
116. Id. Despite what appears to be the plain language
effect. Id.
in the statute, the New Jersey appellate court has held
100. Id. that the 45-day period in which the prosecutor must
file a forfeiture petition runs not from the actual seizure
101. Id. of the weapon but instead from the date on which the
102. OKLA. STAT. tit. 22, § 60.8 (2003) (emphasis added). prosecutor either came to possess the weapon or learned
of its seizure. State v. Saavedra, 647 A.2d 1348, 1350–51
103. Id. (N.J. Super. Ct. App. Div. 1994). See also In re the Seized
104. MONT. CODE ANN. § 46-6-603(1) (2005). Firearms Identification Card of Peter Hand, 700 A.2d
904, 907–08 (N.J. Super. Ct. Ch. Div. 1997) (noting
105. OHIO REV. CODE ANN. § 2935.03(B)(3)(h) (West the conflict between the legislation’s clear language and the
Supp. 2005). statutory construction by the appellate division, to which
106. N.Y. C.P.L.R. 530.14 (McKinney Supp. 2005); N.Y. the lower court must adhere).
FAM. CT. ACT § 842-a (McKinney Supp. 2005). See Robert 117. N.J. STAT. ANN. § 2C:25-21d[3]. There has been
F. Nicolais, State and Federal Statutes Affecting Domestic Vio- substantial case law in New Jersey on this statute, par-
lence Cases Recognize Dangers of Firearms, 71-NOV N.Y. ST. ticularly the apparent conflict between the mandatory
B.J. 39, 40 (1999). language requiring return upon dismissal of the complaint
107. Nicolais, supra note 106, at 40–43; N.Y. C.P.L.R. and the discretionary language permitting the court to
530.14; N.Y. FAM. CT. ACT § 842-a. order that weapons be retained if the owner is “unfit.”
See In re Return of Weapons to J.W.D., 693 A.2d 92,
108. Nicolais, supra note 106, at 42–43. 93 (N.J. 1997) (overruling earlier case law and holding
that the mandatory language did not trump the court’s
109. Id. at 45.
discretionary power, so that despite the dismissal of the
110. Connecticut law also has a definition of intimate complaint, a court may still retain the seized weapons
relationship that differs from the federal law. The federal if it determines that the defendant continues to “pose a
threat”). See also State v. Volpini, 677 A.2d 780, 785–87 128. CAL. FAM. CODE § 6389(g). NOTES
(N.J. Super. Ct. 1996) (earlier lower-court case using
129. Cook, supra note 126, at 331.
reasoning later employed in J.W.D. to find that, since
the clear legislative purpose of the New Jersey statute was 130. Id. at 335; Deutchman, supra note 63, at 190–91.
to offer the maximum protection to domestic violence
victims, the inconsistency between parts of the statute 131. CAL. FAM. CODE §§ 6200–6390; Deutchman, supra
should be resolved in favor of permitting the court to con- note 63, at 190 n.34.
sider additional grounds to retain the weapons even where 132. Cook, supra note 126, at 342 n.131.
a domestic violence complaint has been withdrawn).
A New Jersey appellate court considered a related issue 133. CAL. FAM. CODE § 6304.
under the same statute. In a situation in which the pros- 134. CAL. FAM. CODE § 6389; Cook, supra note 126, at
ecutor had failed to file a petition to retain the seized 335–36; Deutchman, supra note 63, at 191.
weapons within the 45-day time period required in sec-
tion 2C:25-21d[3], the defendant argued that the weap- 135. Id.
ons must be returned to him. State v. S.A., 675 A.2d 678, 136. Deutchman, supra note 63, at 191.
681–82 (N.J. Super. Ct. App. Div. 1996). However, the
court found that this provision must be read together 137. CAL. FAM. CODE § 6389(c); Deutchman, supra note
with the part of subsection d[3] that finds that no weap- 63, at 192. If the respondent is not at the hearing, he or
ons shall be returned if the court finds that “the owner she has 48 hours after being served with the order to fol-
is unfit or that the owner poses a threat to the public in low this procedure. Id.
general or a person or persons in particular,” unless “the 138. CAL. FAM. CODE § 6389(c). This requirement is the
domestic violence situation no longer exists.” Id. at 682. same for defendants who were not present at the hearing
Therefore, the state has the right to retain the weapons but were served with the order. Id.
as long as the court finds the owner to be a threat to the
victim of domestic violence. The right to petition for for- 139. CAL. FAM. CODE § 6389(e).
feiture within 45 days of seizure is an additional right, but
140. CAL. FAM. CODE § 6389(g); Deutchman, supra note
“failure of the state to seek a forfeiture does not give the
63, at 192.
defendant the automatic right under New Jersey law to
the return of the seized weapons so long as the domestic 141. CAL. FAM. CODE § 6389(h). This exception was also
violence restraining order is outstanding.” Id. at 683. in the 1994 legislation. Deutchman, supra note 63, at
192–93. The law places several restrictions on possession
118. ARIZ. REV. STAT. § 13-3601 (West 1994 & Supp. 2005). of a weapon under this exception. Id.
119. ARIZ. REV. STAT. § 13-3601C. 142. CAL. PENAL CODE § 12028.5(b) (West 1994 &
120. Id. Supp. 2005). The Penal Code also requires that each law
enforcement agency track and report the total number
121. ARIZ. REV. STAT. § 13-3601D, E. of domestic violence cases involving weapons to the state
122. ARIZ. REV. STAT. § 13-3601F. Attorney General on a monthly basis. CAL. PENAL CODE
§ 13730(a). The Attorney General, in turn, will compile
123. Deutchman, supra note 63, at 189. this information and provide an annual report to the
124. Id. Governor, the Legislature, and the public. CAL. PENAL
CODE § 13730(b). The Penal Code also requires that
125. CAL. FAM. CODE § 6389(a) (West 1994 & Supp. each law enforcement agency develop a domestic violence
2005) (“A person subject to a protective order . . . shall not incident report form that includes a notation of whether
own, possess, purchase, or receive a firearm while that the officer inquired as to the presence of a firearm or other
protective order is in effect”). deadly weapon and whether that inquiry disclosed the
presence of such firearm or weapon. CAL. PENAL CODE
126. Cynthia D. Cook, Triggered: Targeting Domestic
§ 13730(c)(3).
Violence Offenders in California, 31 MCGEORGE L. REV.
328, 331 (2000) (describing the firearm surrender order 143. CAL. PENAL CODE § 12028.5(b).
process).
144. Id. Prior to a 2002 amendment that provided a
127. Deutchman, supra note 63, at 190. maximum of five business days after the seizure in which
NOTES the weapon must be returned, the statute permitted a 161. Perkins, 817 A.2d at 370 (quoting Johnson, 799 A.2d
shorter maximum of 72 hours. See CAL. PENAL CODE at 611).
§ 12028.5, Notes.
162. Id. at 370. However, in the earlier case of State v.
145. CAL. PENAL CODE § 12028.5(f ). The law origi- Younger, 702 A.2d 477, 480 (N.J. Super. Ct. App. Div.
nally provided law enforcement with only 10 days to file 1997), a New Jersey appellate court found that a warrant-
the petition, but this was changed to 30 days in a 2000 less search of a change purse under the domestic violence
amendment. Deutchman, supra note 63, at 195 n.70. A statute violated the Fourth Amendment. The consent by
2002 amendment further extended this time period to 60 the defendant’s grandmother to search in the defendant’s
days. CAL. PENAL CODE § 12028.5, Notes. bedroom was limited to a search for a handgun, which
could not possibly be in a small change purse. Id. at 480.
146. CAL. PENAL CODE § 12028.5(g). The court noted that the state statute is subject to the
147. CAL. PENAL CODE § 12028.5(h). U.S. Constitution under the Supremacy Clause and so is
subject to the limits on searches imposed by the Fourth
148. Id. A 2002 amendment changed the standard of Amendment. Id. at 481. The court found that “[t]he
proof to “preponderance of the evidence” from the previ- authority granted by the Domestic Violence Act does not
ous, higher standard of “clear and convincing evidence.” constitute a license for the officer to conduct a general and
CAL. PENAL CODE § 12028.5, Notes. intensive search beyond what is reasonable to locate the
weapon the officer believes is on the premises.” Id.
149. CAL. PENAL CODE § 12028.5(j).
163. Perkins, 817 A.2d at 370–71.
150. Id. This language was added in a 2002 amendment.
164. Commonwealth v. Wright, 742 A.2d 661 (Pa. 1999).
151. CAL. PENAL CODE § 12028.5(j). The relevant Pennsylvania statute is 18 PA. CONS. STAT.
152. N.J. STAT. ANN. § 2C:25-21d[1], [2] (West 2005). ANN. § 2711(b) (West Supp. 2005).
153. State v. Johnson, 799 A.2d 608, 610–11 (N.J. Super. 165. Commonwealth v. Wright, 742 A.2d at 661.
Ct. App. Div. 2002) (citing several U.S. Supreme Court 166. Id. at 662.
cases discussing the “special-needs” exception to Fourth
Amendment requirements). 167. Id. at 662–63.
154. N.J. STAT. ANN. § 2C:25-21d[1]; State v. Perkins, 168. Id. at 663. The defendant was convicted, and the
817 A.2d 364, 370–71 (2003). superior court affirmed. Id.
155. State v. Saavedra, 647 A.2d 1348, 1349 (N.J. Super. 169. Id. at 664.
Ct. App. Div. 1994) (“Protection of the victim [is] the 170. Id.
clear and unequivocal message. Law enforcement person-
nel and the courts [are] encouraged to insure, indeed 171. Id. at 664–65.
charged with insuring, the safety of all victims exposed to 172. Id. at 666.
actual or potential acts of domestic violence or abuse”);
Perkins, 817 A.2d at 370; State v. Masculin, 809 A.2d 882 173. State v. Rodriguez, No. 22978, 86 P.3d 1000, 2004
(N.J. Super. Ct. Ch. Div. 2002). WL 605318 (Haw. 2004).
156. Perkins, 817 A.2d at 364. 174. HAW. REV. STAT. § 709-906(4)(f ) (West 2004)
(emphasis added).
157. Id. at 366.
175. Rodriguez, 2004 WL 605318, at *8 (citing State
158. Id. at 366–67. v. Peseti, 65 P.3d 119, 128 (Haw. 2003) (finding that a
statutory privilege must defer to the defendant’s constitu-
159. Id. at 369.
tional rights in the context of cross-examination)).
160. Id. at 369–70 (quoting State v. Johnson, 799 A.2d
176. Rodriguez, 2004 WL 605318 at *8.
608, 611 (N.J. Super. Ct. App. Div. 2002)). The court
noted that “reasonable cause,” the words used in the stat- 177. N.J. STAT. ANN. § 2C:25-28j (West 2005). The court
ute, were equivalent to “reasonable suspicion,” a lesser must specify the reasons for and the scope of the search
standard of suspicion than “probable cause.” Id. and seizure authorized by the order. Id.
178. N.J. STAT. ANN. § 2C:25-29b (“In addition to any 197. Id. NOTES
other provisions, any restraining order issued by the court
198. Id.
shall bar the defendant from purchasing, owning, possess-
ing or controlling a firearm . . . during the period in which 199. Id. at *2.
the restraining order is in effect or two years whichever is
200. Id.
greater”).
201. Id.
179. N.J. STAT. ANN. § 2C:25-29b[16]. The judge must
also specify the reasons for and scope of the search and 202. Dragani v. Dragani, 42 Pa. D. & C.4th 295, 304
seizure authorized. Id. (Ct. Common Pleas 1999).
180. State v. Johnson, 799 A.2d 608 (N.J. Super. Ct. App. 203. Id.
Div. 2002).
204. Id. at 302–03.
181. Id. at 611.
205. Id. at 303–04. Section 922(g)(8) prohibits firearm
182. Id. “Reasonable cause” is identical to the “reasonable possession by persons subject to a final protection order,
suspicion” standard. which meets the following criteria: (1) the order must
have been entered after the defendant had notice and an
183. Kelly v. Mueller, 861 A.2d 984 (Pa. Super. Ct. opportunity to be heard; (2) the plaintiff or protected
2004). person is an “intimate partner” within the definition of
184. Id. at 988. the federal statute, or a child of an intimate partner or
child of the defendant; (3) the terms of the order restrain
185. Id. the defendant from harassing, stalking, or threatening the
186. Id. plaintiff or protected person; and (4) the order includes
a finding that the defendant represents a credible threat
187. Id. to the physical safety of the intimate partner or child or
188. Id. at 990. The provision of the statute referred to by its terms explicitly prohibits the use, attempted use,
is 23 PA. CONS. STAT. ANN. § 6108(a)(7) (West Supp. or threatened use of physical force against the intimate
2005). partner or child that would reasonably be expected to
cause bodily injury. 18 U.S.C. § 922(g)(8) (2000). See also
189. Kelly, 861 A.2d at 991. Dragani, 42 Pa. D. & C.4th at 303–04.
190. Id. at 993. 206. See EMILY J. SACK, FAMILY VIOLENCE PREVENTION
191. Id. FUND, CREATING A DOMESTIC VIOLENCE COURT: GUIDE-
LINES AND BEST PRACTICES 22–23 (2002) (discussing
192. The Pennsylvania chapter of the American Civil Lib- the negative impact of diversion models on defendant
erties Union criticized the decision: “The court can cer- accountability for domestic violence crimes).
tainly order that weapons be turned in, but to actually
go and authorize a search and seizure without a warrant 207. Deutchman, supra note 63, at 200–01. (providing
of probable cause being issued seems to me a stretch of examples across the country of very low surrender rates
the Protection from Abuse Act.” No-Warrant Searches for despite legislation requiring firearm relinquishment).
Guns OK’d, EVENING SUN (Hanover, Pa.), Nov. 9, 2004 208. These “Procedures for Firearm and/or Ammunition
(quoting Larry Frankel, legislative director of ACLU’s Surrender” are on file with the author. All of the informa-
Pennsylvania chapter). tion in this paragraph is taken from these procedures.
193. Golden v. Bay Village Police Dep’t, No. 79379, 2002 209. All of the forms discussed in this paragraph are con-
WL 253878, at *1 (Ohio Ct. App. 2002). tained in an information packet from the Miami–Dade
County Circuit Court (11th Jud. Dist. of Fla.), on file
194. Id.
with the author.
195. A specific court action filed to regain possession of
210. The court also developed a form Affidavit of a Third
personal property. See BRYAN A. GARNER, A DICTIONARY OF
Party for Sale/Transfer of Firearm and/or Ammunition, to
MODERN LEGAL USAGE 757–58 (2d ed. Oxford 1995).
provide documentation for the respondent that he or she
196. Golden, 2002 WL 253878, at *1. will be transferring the weapon to a third party legally
NOTES allowed to own it, and a form Order Releasing Firearms 233. Id.
and/or Ammunition to Third Party.
234. Gold, supra note 93, at 946.
211. This information sheet is contained within the infor-
235. EDWIN E. HAMILTON, POLICE FOUNDATION REPORTS,
mation packet discussed supra note 209, on file with the
PRELUDE TO PROJECT SAFE NEIGHBORHOODS: THE RICH-
author. All of the information in this paragraph is taken
MOND, VIRGINIA EXPERIENCE 1–2 (Jan. 2004; Gold, supra
from this information sheet.
note 93, at 947.
212. Castro, supra note 3.
213. Id.
237. Id. at 948.
214. Id.
238. The federal project, launched by President Bush in
215. Id. May 2001, is called Project Safe Neighborhoods. HAMIL-
TON, supra note 235, at 1–2.
216. Id.
239. Gold, supra note 93, at 947 (during the first year
217. Id.
of Project Exile’s operation in Richmond, murder rates
218. Id. dropped 33 percent).
219. Id. 240. See, e.g., United States v. Taylor, 240 F.3d 425,
427–28 (4th Cir. 2001) (rejecting defendant’s argument
220. Id.
that local police were acting as federal officers when they
221. Id. arrested him, so that federal speedy-trial provisions should
control); United States v. Nathan, 202 F.3d 230 (4th Cir.
222. Id. Though the city of Seattle is located within King 2000) (rejecting defendant’s argument that Project Exile
County, it has its own law enforcement agency and court interfered with state criminal proceedings and violated
system. principles of federalism).
223. Castro, supra note 3. 241. United States v. Jones, 36 F. Supp. 2d 304, 313
224. Id. (E.D. Va. 1999).
225. Nicolais, supra note 106, at 43. 242. For an extensive discussion of the principles of spe-
cialized domestic violence courts and of various models,
226. Id. see SACK, supra note 206, passim. See also May, supra note
227. Id. Another example is the sheriff’s department in 62, at 33 (discussing how integrated domestic violence
Contra Costa County, California, which has designated courtroom would ensure judicial and court personnel
one officer to be responsible for filing the petitions and expertise in domestic violence issues).
acting as department representative at hearings on the
petition. One commentator reports that Contra Costa
County now has a far higher rate of filed petitions for
forfeiture of weapons than other counties in California.
Deutchman, supra note 63, at 199–200.
228. There is no double jeopardy problem with state and
federal prosecutions for the same conduct, because they
are “dual sovereigns.”
230. United States v. Jones, 36 F. Supp. 2d 304, 307
(E.D. Va. 1999).
231. United States v. Taylor, 240 F.3d 425, 426–27 (4th
Cir. 2001) (describing Project Exile).
232. Id.
31
The Court’s Role in

Supporting and Protecting Children
Exposed to Domestic Violence
M
ark and Sue are fairly typical of the hundreds of self-represented liti- HON. DONNA J. HITCHENS
gants that appear yearly on the family law domestic violence calendar. Superior Court of California, County of
A month before the court date, Mark had come home drunk and was San Francisco
enraged because, when he tried to call Sue, the line was busy. He entered their
apartment screaming accusations of infidelity. When Sue denied having a boyfriend, PATRICIA VAN HORN, PH.D., J.D.
Mark slapped her across the face, causing her to trip over a chair and fall to the San Francisco General Hospital
floor. Sitting motionless and terrified at the kitchen table were their two children,
ages 3 and 5. When Mark stormed off to the bedroom, Sue grabbed the crying The effects on children of witnessing
children and ran to a neighbor’s apartment, where she called the police. The police
domestic violence has been the subject of
came, arrested Mark, and interviewed Sue and the traumatized children. Sue got
a growing and increasingly sophisticated
an emergency protective order and a referral to an agency that would help her get a
restraining order. By the time she got her temporary restraining order, Mark was out scientific literature. This article summarizes
of jail and staying with his mother. Mark’s mother called Sue, berated her for get- that literature as well as literature describ-
ting Mark arrested, and demanded that the children come to her house to see their ing the impact of violence on parenting
father. Sue informed her mother-in-law that this was not the first time Mark had behavior and factors that have been found
hit her. Sue also asked that Mark give her some money for groceries. Mark’s mother to influence children’s safety with offending
told Sue she could get some money when she brought the children over to visit.
parents. It describes barriers to the applica-
Before they appeared in front of the judge, Mark and Sue each met separately
tion of the literature, including traditional
with a family court mediator. Sue talked about how controlling and violent Mark
could be and complained about how aggressive the children were when they returned attitudes that conflict with the growing
from visits with their father. Sue told the mediator it would be okay for the children available knowledge about the impact of
to see their dad, and she knew she wouldn’t get any money unless she allowed visits. violence on children, inefficient commu-
When Mark talked to the mediator, he accused Sue of overreacting and trying to nication between departments of the court,
poison the children against him. Mark wanted joint physical and legal custody. laws and policies that sometimes conflict
Because no agreement was reached, the case went before the judge for a decision on
with the needs of children, and conflict-
the restraining order and temporary custody. Neither Sue nor the judge knew that the
ing values about judicial activism. Finally,
criminal court had issued a stay-away order that included the children.
the article recommends specific ways that
courts can work together to serve children
Portions of this hypothetical will be familiar to anyone who has encountered
and families, and policies that protect
domestic violence cases. The initial reaction is to evaluate the situation from
children’s interests. ■
the perspective of the parents—the batterer and the victim. But what about the
children? What trauma have they experienced? How do we address the physical
and psychological safety of these children? Should the court system do more to © 2005 Donna J. Hitchens & Patricia Van Horn
understand and protect the best interest of children violent homes.¹ Studies have found that witnessing
who witness domestic violence in the home? domestic violence has an impact on children’s lives,
Every day, in cases involving domestic violence, whether it is the only major stressor they suffer² or
family law judges and commissioners make deci- it compounds the effects of child abuse³ or commu-
sions that shape the lives of parents and children, nity violence.⁴ Although the possible consequences
often with only the conflicting testimony of the of exposure to violence are complex, there are some
parties, unsupported by independent evidence, to general principles upon which courts and other sys-
guide them. Many cases involve children who have tems that work with families can rely. The next sec-
witnessed violence between the adults in their lives, tions discuss those principles under the following
and there is ample evidence that witnessing fam- headings:
ily violence can have a powerful negative impact
■ What kinds of problems do children experience?
on a child, both psychologically and behaviorally.
The family court thus has an opportunity to assume ■ Which children are the most vulnerable?
a legitimate role in breaking the cycle of violence
■ What are the mechanisms by which violence
with every family that comes before it. This article
affects children?
proposes that it is crucial for courts to advance this
effort, despite the inherent difficulty of these cases, ■ What do we know about domestic violence and
by intervening to protect children in families experi- parenting?
encing violence in the home.
When a family with domestic violence issues
To offer courts concrete assistance in meeting the
comes before the court, knowledge of these prin-
challenges posed by these families, the article briefly
ciples can guide a judge’s thinking about whether
reviews some key literature on the impact of witness-
referrals for evaluation are needed, what the referral
ing domestic violence on children’s development,
questions should be, and what orders will best strike
on the risk and resilience factors that mediate and
the balance between protecting the children’s right to
moderate the effects of witnessing violence, on the
have relationships with both parents and guarantee-
impact of violence on parenting behaviors, and on
ing the safety of the children and the nonoffending
factors that influence children’s safety with offend-
parent.
ing parents. Next the article reviews relevant law on
domestic violence and describes some of the chal-
W H AT K I N D S OF PROBL E M S D O
lenges that courts face in these cases. Finally, it con-
C H I L DR E N E X PE R I E NC E ?
cludes with recommendations informed by law and
literature that can help courts structure procedures Studies generally describe children’s problems in
and programs that both comply with the law and terms of behavior problems or diagnostic categories.
protect children. Many studies discuss so-called externalizing behavior
problems in children who witness domestic violence.
In fact these aggressive, destructive behaviors, which
W H AT D O W E K NOW A B OU T
may include bullying, destruction of property, or
CHILDHOOD E X POSUR E TO
assault, are probably the most frequently reported
DOME STIC V IOLENCE ?
problems among children of battered women.⁵
In recent years the scientific literature on the impact Child witnesses also suffer from internalizing prob-
of exposure to violence on children’s development lems (anxiety, withdrawn behaviors, depression, low
has become more sophisticated, and there are now self-esteem).⁶
excellent sources that describe developmental threats The most common psychiatric diagnosis that has
and resilience factors common to children from been studied in children of battered women is post-
The Court’s Role in Supporting and Protecting Children Exposed to Domestic Violence 33
traumatic stress disorder (PTSD). To be diagnosed cent boys exposed to father-to-mother violence are
with PTSD, the child must have experienced an event more likely than nonexposed peers to run away, to
that was threatening to the life or bodily integrity of report suicidal behavior, and to be aggressive with
the child or someone else, and the event must have their mothers.¹⁸ In addition, their academic and
inspired feelings of fear, helplessness, and horror.⁷ social functioning is compromised compared to peers
After the event, the child must develop symptoms of who have not witnessed domestic violence.¹⁹
three different kinds: (1) reexperience of the trauma Not all child witnesses suffer these consequences.
(e.g., nightmares, intrusive thoughts of the trauma), Two studies assessed behavior problems in children
(2) emotional numbing and avoidance (e.g., avoid- living in battered women’s shelters. They relied on
ing reminders of the trauma, amnesia for important self-report from children (who were at least 6 years
parts of the trauma, being unable to experience some of age in one study and 8 years of age in the other)
emotions), and (3) hyperarousal (e.g., difficulty with and on reports from their mothers and found that
sleeping, inability to concentrate, feelings of irrita- 26 to 31 percent of the shelter residents were doing
bility, exaggerated startle response).⁸ Children with well. Their externalizing and internalizing behaviors
symptoms in all three groups meet diagnostic cri- were within normal limits for children their age, and
teria for PTSD.⁹ Studies assessing children living in they had high levels of self-esteem.²⁰ How is it possi-
domestic violence shelters for posttraumatic stress ble to predict which children will suffer the dramatic
disorder have found incidence rates ranging from 13 consequences described above and which children
percent¹⁰ to more than 50 percent.¹¹ will emerge relatively unscathed from the experience
The kinds of problems that child witnesses to of witnessing domestic violence? This is the question
domestic violence suffer differ sometimes depending that the next section will discuss.²¹
on the developmental stage of the child. Babies and
very young children can be expected to express their W H IC H C H I L DR E N A R E T H E
distress behaviorally: they may develop interruptions MO S T V U L N E R A BL E ?
in sleeping or eating, cry more, or lose developmen- Although results of the studies are not unanimous
tal skills such as toileting or language. They may also on this point, there is a great deal of evidence that
develop fear of separation or other new fears.¹² children 5 years old and younger may be dispropor-
Preschool-age children who witness domestic vio- tionately exposed to domestic violence²² and that
lence have been shown to perform less well on tests they may suffer more than older children as a con-
of verbal intelligence than comparison children who sequence of witnessing it.²³ Indeed, one study indi-
have not been exposed¹³ and to be less empathic and cates that children under 4 years of age have more
less able to make accurate social inferences than chil- symptoms of anger and aggression if they witness
dren from nonviolent homes.¹⁴ These children mis- threats to their caregiver’s well-being than they do
read the intentions of others. They may, for example, from any other kind of trauma.²⁴
interpret a gesture intended as an invitation to play In addition to age, several factors predict resilience
as threatening and respond with aggression. In their in children who witness violence. Some of these are
play with peers, preschoolers exposed to domestic contextual or relational, and others are internal to
violence are more likely to express negative feelings, the child. First, it is generally the case that children
to play aggressively, to withdraw from others, and to do better if they are exposed to one or, at the most,
insult or name-call than nonexposed children.¹⁵ two major risk factors. When children must cope
School-age children who witness domestic vio- with three or more negative factors (e.g., exposure
lence have more academic difficulties than their peers to violence, parental substance abuse or mental ill-
from nonviolent homes¹⁶ and are also compromised ness, poverty, or racism), the risk for poor outcome is
in their ability to judge right from wrong.¹⁷ Adoles- multiplied.²⁵ Therefore, children from families with
multiple problems are especially vulnerable and in tissue.²⁹ In fact, one theorist believes that exposure to
need of protection from the courts. Their coping traumatic events during the first two years of life per-
capacities are stretched to the limit, and their parents manently changes the structure of the brain, enriching
may be too burdened with their own life difficulties connections in parts of the brain that are devoted
to fully appreciate their children’s plight. to dealing with emergency, depleting connections in
Children who are intelligent and who have easy parts of the brain that are devoted to planning and
temperaments generally fare better in the face of regulation of emotion, and destroying cells in areas of
risk, as do children with a strong relationship with at the brain central to memory formation and memory
least one parent or a strong relationship with another retrieval.³⁰ But a less deterministic view of the data
adult.²⁶ For children exposed to domestic violence it is also possible. Many years of research confirm that
is critical, therefore, that at least one strong parent- traumatized individuals do better with time and treat-
child relationship be preserved and protected. As will ment, suggesting that there are corrective experiences
be discussed in a later section, one predominant char- that can follow traumatic ones and help the brain
acteristic of batterers is a tendency to undermine the “rewire” and reregulate.³¹ Nevertheless, well-designed
children’s relationship with the other parent. Courts studies have demonstrated that in both animals and
should do what they can to prevent this, and one humans high and continuing levels of stress dysregu-
important way they can do so is to make orders that late the stress hormone system and cause certain por-
support the strongest possible relationship between tions of the brain to atrophy³² and that these physical
the children and the nonoffending parent. changes are associated with behavioral changes. Overly
Parental factors have also been linked to children’s stressed animals have been found to be more clingy to
resilience. Parental competence, sound maternal their mothers, more aggressive with their peers, more
mental health, low levels of hostility toward chil- prone to behave defensively in situations that others
dren, and low levels of psychological aggression in may not perceive as threatening, less likely to explore,
the household are all associated with children who and less able to concentrate and learn.³³ Traumatized
have fewer problems.²⁷ children with stress hormone dysregulation have been
found to have deficits in verbal memory and intel-
W H AT A R E T H E M E C H A N I S M S BY ligence,³⁴ to have less positive relationships with their
W H IC H V IOL E NC E A F F E C T S C H I L DR E N ? primary caregivers,³⁵ and to pay selective attention to
Four major theoretical models explain why exposure negative stimulation.³⁶ It is entirely possible that the
to domestic violence has such a profound impact aggressive and destructive behaviors, and the cogni-
on children’s behavior and functioning. The first is tive and social deficits that are so frequently observed
physiological; the other three are psychological. It in child witnesses of domestic violence, are related to
seems likely that all four interact with each other and dysregulations in their central nervous systems that
that for any particular child affected by violence each follow repeated exposure to frightening behavior. This
of these theories may explain a bit of the puzzle. seems even more likely if the children were very young
when the exposure began. If this is the case, interven-
Neurophysiological Responses: Trauma tion may be needed to help the children reregulate
Affects the Developing Brain their systems before their behavior and functioning
Children’s brains develop rapidly, especially in the first can be expected to improve.
three years of life.²⁸ Because the brain develops at Example: Tony’s mother was pregnant with him the
a pace that will never again be equaled, it may be first time Tony’s father beat her. He continued to hit her
especially vulnerable to assault from stress. Scientists after Tony’s birth, and Tony was almost always nearby
now understand that certain hormones secreted by crying when his parents fought. When Tony came for
the body in times of extreme stress are toxic to brain treatment, he was 3 years old. He had been expelled
from two different preschools because of his aggres- Behavioral Models: Children Learn
sion toward other children and toward the teachers. What They See
In therapy, Tony learned some ways to help himself Social learning theory teaches that behavior is
feel relaxed and calm. He learned to take deep breaths learned by modeling or observational learning: both
and to turn his body into a “wet noodle” when he felt children and adults imitate behavior that they see,
too excited. More important, his mother learned some particularly if the actor is someone who is appealing
ways to help him. She learned that rubbing his hands to or has power over the observer, or if the behavior
or shoulders could calm him down, and that having leads to outcomes that are desirable to the observer.³⁹
predictable routines helped him feel calmer in general. Parents, who provide children’s initial schemas of
As Tony more frequently had experiences of going from relationship behavior, are likely to be particularly
an excited internal state to a calm one, he learned what potent models. They are inherently attractive to their
children, especially their young children, who want
it felt like to calm himself and he began to use what he
nothing more than to please and be like their par-
had learned when he was at preschool. His aggression
ents. They have seemingly boundless authority over
diminished, and he made two friends whom he enjoyed
their children. When a parent models aggression,
playing with.
children are very likely to follow the example. Not
only is the parent a powerful model, but children
Cognitive-Affective Models: Violence Changes also see some outcomes of parental aggression as
the Way That Children Think and Feel desirable. They may be simultaneously terrified of the
If children are exposed to violence between the peo- physical harm that their violent parents cause and
ple on whom they depend for protection, that expe- thrilled by and attracted to the amount of power
rience will change the way they view the world.³⁷ and control their parents exert. During an incident
Theoretical models that focus on children’s thoughts of parental violence, when the child is feeling most
and feelings propose that children are motivated by weak and vulnerable, power and a sense of control
a wish for emotional security and that their secu- over the situation are valuable outcomes.
rity is threatened by hostile, poorly resolved conflict Social learning theory also teaches us that when
between their parents. The models propose that chil- children are emotionally aroused— for example,
dren, especially if they have been long exposed to experiencing anxiety in a novel situation—they are
anger, perceive adult anger as aggressive and threat- most likely to rely on information that they previ-
ously learned by modeling.⁴⁰ A child in a violent
ening and cope with this threat by taking action to
home learns by modeling that aggression is effective
end the discord and restore a sense of security.³⁸ The
in controlling situations and making people do what
action may or may not be useful. For example, chil-
he or she wants them to do. A child who is anxious in
dren may show distress when faced with their parents’
a new situation — for example, approaching a group
arguing and aggression; they may blame themselves
of unfamiliar children or starting school—may use
for the argument; they may engage in a fantasy about the aggressive behavior learned at home to gain a
how they can stop or prevent future fights; they sense of mastery over anxiety.
may feel guilty for not having been able to stop past Aggressive behavior is not the only behavior that
fights. The proponents of these models assert that it children in violent homes learn through modeling.
is the less-than-effective means of coping with their Children may also model submissive behaviors, par-
loss of emotional security and their appraisals of ticularly if they see that these may be a way to avoid
threat and danger that lead to children’s aggressive, getting hurt or to avoid feeling helpless. Neither
destructive, anxious, and depressed behaviors and to aggression nor submission, however, are suitable in
their other social and relational problems. most situations children face, and overreliance on
these behavioral schemas can lead to the kind of dys- ing emotional relationships. When the perpetrator
function noted in many children exposed to domes- is also an attachment figure, as is the case when one
tic violence. parent assaults the other, the child’s mental represen-
tations of who is safe and who is dangerous suffer
Disordered Attachments: Children an additional profound split between love and fear.
Become Unable to Trust Relationships
Under these circumstances, children develop pro-
According to attachment theory, one of every infant’s found insecurities and disorganizations in their men-
primary developmental tasks is to establish a relation- tal and emotional schemas of relationships. These
ship with a caregiver.⁴¹ John Bowlby, author of semi- kinds of insecurities have been strongly linked with
nal works explicating attachment theory, envisioned conduct problems in childhood, of the kind seen in
the attachment relationship as one essential to the sur- children exposed to domestic violence.⁴⁴
vival of the individual and of the species and asserted But it would be a distortion of attachment the-
that children are as strongly motivated to seek, and ory to use it to support the position that a victim
adult caregivers as strongly motivated to provide, this of domestic violence is, by virtue of having been
bond as they are to seek food. Under his theory, the assaulted, somehow endangering children by failing
attachment system is designed to protect younger, to uphold the responsibility to protect them. From
weaker members of a species in times of stress or the children’s point of view, their security is further
threat. Bowlby asserted that children’s drive for attach- shaken if they are removed from their important
ment is expected to be activated under conditions in attachment figures. Children have their best chance
which children feel (consciously or unconsciously) to achieve good outcomes after exposure to violence
that their safety is threatened. He also believed that if they can rely on the presence of a caregiver who
when child-rearing conditions or relationships are can care for them, help them sort out their mixed
threatening, as they would be in a violent family, the and sometimes confusing feelings, and help restore a
attachment system is in a relatively constant state of sense of calm. Courts have an important role to play
activation, overwhelming other behavioral systems, in ensuring that relationships between victims of
such as the urge to explore.⁴² When children are violence and their children are not further disrupted
inhibited in their exploration, their learning and their and in guiding families to the supportive services
mastery over the environment are also limited, leading that they need.
to the cognitive deficits that have been noted in chil-
dren exposed to violence. W H AT D O W E K NOW A B OU T D OM E S T IC
Attachment theory, as postulated by Bowlby, V IOL E NC E A N D PA R E N T I NG ?
holds that it is essential to a child’s healthy develop- Violence in the relationship between parents is not
ment that the child have an attachment to at least limited in its effects on the two adults but has a
one caregiver whom the child can trust to provide direct impact on their children as well. It is well
protection at times of threat or insecurity. To witness established empirically that the quality of the rela-
this caregiver being attacked and wounded is a pro- tionship between parents is directly linked both to the
found assault on the child’s trust. In the moment of quality of the parent-child relationship and to chil-
assault, when the child most needs to be close to and dren’s outcomes.⁴⁵ And in the context of family court,
reassured by the caregiver, the caregiver is too hurt, we must directly confront the reality that violence
frightened, and angry to provide for the child.⁴³ does not end when the parents separate. The period
When violent assaults on the caregiver are ongo- after the separation is often especially dangerous for
ing, the co-occurrence of intense need and complete both the adult victim and the children.⁴⁶ As perpetrator
helplessness leads to a chronic state in which the parents feel the other parent and the children slip-
child feels at a loss to make and maintain satisfy- ping away from their control, they may escalate their
violence to regain a sense of control in the situation. women in the two groups were equally affectionate
It is also important to realize that abusive parents with their children.⁵⁰
may attempt to use the family court as a way to con- One conception about battered women as parents
tinue to maintain power and control over the victim is that they are more violent with their children than
and the children, even after separation. For example, women who are not victimized by domestic violence.
men who have been alleged to be violent with their This commonly held belief has only minimal sup-
partners are more likely to seek custody of their chil- port in the literature. One study found that battered
dren than are nonviolent men.⁴⁷ women are more aggressive with their children while
It is critical to keep these general characteristics they are in the violent relationship,⁵¹ but analysis
of domestic violence cases in mind as we examine of follow-up data with these women revealed that
the parenting behavior of nonoffending parents, the within six months of leaving the violent relationship
parenting behavior of offending parents, and the co- their levels of aggression toward their children had
occurrence of domestic violence and violence against returned to normal.⁵² Other studies have found no
children. Most studies that examine the impact of difference in the level of corporal punishment used
domestic violence on parenting have studied families by battered women and comparison women.⁵³ It
in which the mother was the nonoffending parent appears that most battered women deal with the
and the father was the offending parent. There- stress of violence to themselves without resorting
fore the following discussion assumes that dynamic to physical punishment or other acts of aggression
except when a particular study makes a different against their children.
assumption. Women’s violence against their partners is an area
that deserves more attention. Indeed, the literature
Parenting Characteristics of Battered Women on the impact of domestic violence on children
It is well established that battered women experience can be criticized because it generally does not take
more parenting stress than do nonbattered women into account the impact of violence perpetrated by
in comparison groups.⁴⁸ In spite of this increased mothers. The few studies that do examine moth-
stress, there is relatively little difference between ers’ violence have one unanimous finding, however:
the actual parenting behaviors of battered and non- where mothers have engaged in violent acts against
battered women when one considers studies that the father, those violent acts are not associated with
rely on observational data as well as self-report. In increased behavior problems in children. This is true
one study, battered women and their children were whether the children’s behavior problems are mea-
observed to be involved in conflict more often than sured by self-report, parent report, or observation.⁵⁴
were the comparison women and their children, and
the battered women attended less frequently to their Parenting Characteristics of Violent Men
children’s play. In spite of this diminished atten- While mothers’ aggression against fathers has not
tion, the battered women and their children did turn been associated with increased child behavior prob-
to one another and attempt to maintain contact. lems, fathers’ aggression against mothers decidedly
They initiated interactions with one another more has. As is shown below, both research and clinical
frequently than did the comparison mothers and literature report the significant impact of fathers’
their children.⁴⁹ Battered women do, however, see aggression on their children, even when the aggres-
themselves differently from comparison women. In sion is not directed at the child, and that fathers who
one study, battered women reported that they were are aggressive toward their children’s mothers parent
less affectionate with their children than comparison differently from nonaggressive fathers.
women. This self-report was not borne out in the In one study that asked battered women and a
observational data, however, which revealed that the comparison group of women from the community
to report on the parenting behaviors of their husbands, homes with domestic violence, children who had little
the battered women reported that their husbands were contact with their fathers after separation had more
more irritable with their children, spanked their chil- symptoms of anxiety and depression than children
dren more, and were less affectionate with their who saw their fathers frequently.⁶² The level of vio-
children than did the comparison women. The bat- lence in the home was less predictive of children’s
tered women also reported that they altered their own anxiety and depression than the amount of con-
parenting behaviors in the presence of their hus- tact they had with their fathers. From an attach-
bands in order to appease them or to control the ment perspective, it is worth maintaining an existing
children’s behavior and keep the husband from father-child relationship even in the face of domestic
becoming angry.⁵⁵ Two studies that rely on observa- violence if that can be done safely for the children
tion of father-child interactions found that fathers and the mother.
who were violent with their partners were also more
physically and emotionally aggressive in interactions Predicting Child Abuse From
Domestic Violence
with their children, that they were more authoritarian,
and that they displayed more negative emotion.⁵⁶ It is difficult to predict whether a parent who per-
These parenting behaviors were more evident with petrates partner violence will become violent with
boys than they were with girls. In response to their the children. Some authors suggest that instruments
father’s authoritarian style, the boys became more sub- used to assess the level of danger for a woman can
missive in their behavior during the study tasks. Boys also be used to assess danger for her children.⁶³
living with aggressive fathers made fewer suggestions These authors also point out that generally a bat-
and took a less active role in relating to their fathers tered woman is the best predictor of how dangerous
than did boys whose fathers were not aggressive. a particular violent partner will be, suggesting that
The clinical literature cites a number of ways in which courts give added weight to concerns that battered
the parenting behavior of violent men puts their chil- women voice about their safety and the safety of
dren at risk. Men who are aggressive with their intimate their children.
partners frighten their children with their acts of vio- Even in the absence of formal measures, however,
lence; they risk undermining mother-child relationships; there are some empirically based factors that can be used
to predict, in families with domestic violence, whether
they are poor role models; their parenting behaviors
a parent is likely to abuse a child. One study analyzed
may be alternately rigid/authoritarian and neglectful/
data from a representative sample of the national pop-
irresponsible.⁵⁷ Beyond these behaviors, man-to-woman
ulation and identified the following factors:⁶⁴
partner violence is associated with other increased risks
for children: increased risk of abduction by the violent ■ Frequency of acts of violence against the spouse or
parent,⁵⁸ risk of psychological abuse and manipula- partner was the strongest predictor of child physi-
tion (especially postseparation in connection with vis- cal abuse. For men, each additional act of violence
itation),⁵⁹ increased risk of sexual abuse or physical against the partner increases the odds that he will
abuse,⁶⁰ and continuing risk of violence in the father’s physically abuse his children by 12 percent; for
new relationship.⁶¹ women, each act of physical violence toward her
With all the problems for children attendant to partner increases the likelihood that she will abuse
father-to-mother violence, it is fair to ask whether her children by 4 percent.
continued contact with a violent father is ever in the
■ Male children are more likely to be physically abused.
best interest of the child. But where contact can be
physically and emotionally safe, it is important for ■ Men and women who sustained corporal punish-
children to have a continuing relationship with their ment as adolescents are more likely to physically
fathers. In one study of preschool-age children from abuse their children.
Other studies using smaller, nonrepresentative sam- list a number of factors that the court should con-
ples have also found that boys are more often abused sider. These factors include “[t]he health, safety and
and that frequency and severity of marital violence welfare of the child,” any history of domestic vio-
are the strongest predictors of child abuse.⁶⁵ lence or child abuse by a parent, contact between
the child and each parent, and substance abuse.⁶⁸
W H AT C A N C OU RTS D O TO If a court orders sole or joint custody to a parent
BE T T E R SE RV E C H I L DR E N E X P O SE D with a history of perpetrating abuse, the court must
TO DOME STIC V IOLENCE ? state the reasons for the decision in writing or on
the record,⁶⁹ unless the parties stipulate to custody
Our evaluation of the literature to determine its or visitation orders.⁷⁰ Children are not parties to the
implications for court practices and judicial decision proceedings, and the court receives its awareness of
making with respect to child custody and placement their needs primarily through the lens of a parent. In
reveals several guiding principles. If we are to serve fact, courts assume that parents, even during times
the best interest of children exposed to domestic of great conflict and stress, will know what their
violence, intervention is required and it should be children need and will agree to arrangements that
based on the research. Family court systems need to promote the best interest of their children. Media-
identify those families where there is partner abuse; tion is required in contested child custody and visi-
parents need to be aware of the effects of the violence tation cases⁷¹ for the purpose of assisting parents in
on their children; court orders, procedures, and reaching an agreement, ensuring continued contact
referrals need to support and strengthen the nonof- with both parents, and avoiding continued conflict
fending, custodial parent; children need to continue between the parents.⁷² In general, courts seek to
an existing relationship with the offending parent avoid proceedings on custody and visitation issues
if it can be done in a safe and meaningful setting; because of the manner in which they escalate paren-
and therapeutic services need to be available. The tal conflict and the devastating effects they have on
actual implementation of these proposed court prac- children.⁷³
tices requires judicial education, a review of service
delivery systems, and court leadership. Most signifi- A S S U M P T ION : PA R E N T S C OM E I N TO
cant, it also requires a reexamination of some of the C OU RT W I T H E QUA L P OW E R
assumptions that form the basis of traditional child Another assumption that guides California’s approach
custody proceedings in light of what we now know to child custody proceedings is that parents come
about domestic violence. into the judicial system with equal authority, power,
and ability to advocate for themselves and their chil-
A SSU MP T ION : PA R E N TS W I L L dren. Included within this assumption is a belief that
A LWAYS AC T I N T H E I R C H I L DR E N ’ S a parent who is a victim of domestic violence will
BE S T I N T E R E S T inform the court of the situation and will be able to
The law requires child custody and visitation deci- prove it.
sions to be made based on the best interest of the
child.⁶⁶ The only significant limitation to this basic A S S U M P T ION : D OM E S T IC V IOL E NC E I S
standard is a relatively recent statute that sets forth a I R R E L E VA N T TO C U S TODY I NQU I R I E S
rebuttable presumption that a parent who has per- Judicial officers may be influenced by their own val-
petrated domestic violence is not entitled to sole ues regarding parenting and misconceptions about
or joint custody of a child.⁶⁷ While it does not set the dynamics of domestic violence. For example, the
forth a presumption regarding custodial preferences, legislative scheme places a high value on frequent
another section of the California Family Code does and consistent contact with both parents.⁷⁴ With
this comes an assumption that the parent most will- equal standing in the judicial process.⁷⁹ As a result,
ing to provide liberal contact with the other par- violence within the parental relationship will often
ent is promoting the best interest of the children.⁷⁵ be unreported or underreported.⁸⁰ Even where it
Common misconceptions include assumptions that is disclosed, a victim may be too traumatized to
domestic violence ends when the parents separate, present an organized, persuasive case to a trier of
that it is behavior between adults and not relevant to fact. The victim is also more likely to be pressured
custody inquiries, and that mere exposure to domes- into a visitation or custody settlement or minimize
tic violence is not damaging to children.⁷⁶ the extent of the violent behavior in order to secure
some level of future safety and security.⁸¹ Finally,
A S S U M P T ION : T H E ROL E OF T H E there are limits to what mediators and judicial offi-
C OU RT I S TO R E S OLV E C ON F L IC T S cers can do, in isolation, to protect children exposed
F R A M E D BY T H E PA RT I E S
to domestic violence. There are, however, strategies
The final assumption relevant to this inquiry con- that can be implemented to vastly improve the cur-
cerns the role of the court. The assumption is that the rent system.
judiciary exists solely to resolve conflicts presented
by those unable to reach their own resolution. It is S T R AT E G I E S TO I M PROV E
the responsibility of the litigants to frame the issues C OU RT H A NDL I NG OF DOM E ST IC
and present the evidence that will enable a judicial V IOL E NCE C A SE S
officer to make a wise and reasoned decision. Every judicial officer making custody and visita-
tion decisions carries an enormous responsibility to,
FA L L AC Y OF A S S U M P T ION S I N minimally, do the least amount of damage possible
C A S E S OF D OM E S T IC V IOL E NC E and, optimally, make decisions that truly serve the
There is nothing inherently wrong with the above physical, emotional, and intellectual best interests of
assumptions except that, in the context of domestic the child. This responsibility carries with it the need
violence, they fail to promote judicial decisions that to evaluate one’s own biases, values, and assump-
serve the best interest of children. One reason is that the tions about parenting. But there is little training
literature revealing the effects of domestic violence on for the enormity of this role and little encourage-
children is relatively recent, and even mental health ment and time for self-evaluation. We now have
professionals are just beginning to appreciate the the opportunity to utilize the research on children
scope of the problem and implications for interven- exposed to domestic violence as a mechanism of
tion and treatment.⁷⁷ And it is unrealistic to expect self-reflection and program development that can
parents to understand the damage they perpetuate by enhance our decision making and service to children
exposing their children to violence within the family and families.
when professionals are just beginning to understand
it. Nor do victims of domestic violence come to court Education and Training
with power and ability equal to that of the perpetra- The greatest barrier to providing a judicial system
tors. These assumptions do not reflect the dynamics that addresses the best interest of children who are
of domestic violence. By its very nature, domestic vio- exposed to domestic violence is a lack of informa-
lence is “[o]ne intimate partner’s attempt to control, tion. It is critical that judicial officers, mediators,
dominate, and humiliate the other partner through evaluators, family law facilitators, self-help center
a variety of means, including physical, sexual, psy- staff, and parents receive training with a focus on the
chological, financial, and spiritual abuse.”⁷⁸ So fear, dynamics of domestic violence, its effects on chil-
degradation, shame, and economic dependence are dren, and interventions that promote future safety
substantial and common impediments to achieving and ameliorate the damage of past exposure. While
the judicial system is designed to be reactive to the knowledge, mediators were better able to struc-
conflicts presented, a more thorough understanding ture the mediation to protect the victimized par-
of the dynamics and effects of domestic violence can ent, educate the parents about the effects of the
empower us to become more creative and proactive violence on their children, facilitate a custody and
in implementing constructive changes in court pro- visitation plan that was child-focused, and make
cedures and services. appropriate service referrals.
Quite simply, there has been insufficient time for
■ Working in collaboration with community and
this new learning to have had a uniform impact on
public agencies to change police response to
the education, understanding, and practice of pro-
fessionals, even those specializing in family dynamics domestic violence incidents where children were
or the children of divorce. The integration of this present. This included changing police reporting
new knowledge into the practices of mental health procedures to include the names and ages of all
professionals is as incomplete, and as urgent, as its children who were present in the residence where
integration into the practices of family court practi- the violence occurred. This change in procedure
tioners and judges.⁸² provided a means by which information regarding
Success in these efforts requires judicial leadership the children could come to the attention of both the
and commitment by court staff to better serve these criminal and family law departments.
children and their families. Judicial officers can take ■ Requesting those who provide assistance to self-
the lead by obtaining relevant training for them- represented litigants, both court-based and com-
selves and demanding that court staff and attorneys munity providers, to include the names and ages of
also receive training. children on applications for temporary restraining
orders. This procedure provided information to
Identifying Relevant Family Groupings
both the judicial officer and mediator that assisted
Obviously, we cannot serve children exposed to
in appropriate procedures, inquiry, court orders,
domestic violence unless they are identified. The
and referrals.
most prevalent means currently available in most
courts is self-reporting by a parent. However, because Evaluating and Restructuring
domestic violence is significantly underreported, Court Procedures
other procedures should be implemented. Efforts There is no specific set of procedures appropriate
implemented in San Francisco have resulted in the for all courts to address children’s issues in domes-
identification of more than double the number of tic violence cases. Courts vary enormously in the
families that self-reported. These efforts included the size and structure of their family law departments.
following methods: Significant differences result depending on whether
■ Utilizing a confidential questionnaire, distributed a county has a confidential mediation program or
during a mandatory parent orientation held prior one where mediators provide specific information
to child custody mediation, that asked parents to and recommendations to the judicial officer. What is
indicate whether certain behaviors had occurred important is an individualized evaluation of whether
in the relationship (see Appendix A). When asked the procedures and programs within a given court
directly whether domestic violence had occurred address the needs of children exposed to domestic
in the relationship, many parents responded in the violence. To do this effectively, the court must also
negative but submitted questionnaire responses address the safety and needs of the nonoffending,
indicating significant threats, controlling behav- custodial parent. The following questions are key in
iors, slapping, and other violent acts. With this conducting such an evaluation:
■ Is the court adequately identifying those fami- each county to develop a local rule of court to
lies where children are being exposed to domestic establish a protocol for the sharing of informa-
violence? tion between the criminal and family law divisions
regarding domestic violence orders.⁸⁴ (See Appendix
■ If the court offers parenting programs or parent
B for an example of a local rule.) Establishing such
orientation sessions, does the curriculum include
a protocol is especially important for children who
information on the effects of domestic violence
have been witnesses to domestic violence. While the
on children?
criminal justice system may have domestic violence
■ Are judicial officers, mediators, evaluators, and advocates available to assist the nonoffending par-
other staff adequately trained in domestic violence ent, they generally lack the expertise or awareness of
issues, including its effect on children? Are they resources to address the needs of the children. The
aware of resources available in the community such family law division is better positioned to address
as supervised visitation, batterers’ intervention, vic- those needs but cannot do so unless an appropriate
tim support, and child therapy programs? protocol is developed for referrals from the crim-
inal division and permission to modify stay-away
■ Are court calendars structured to minimize the
orders.⁸⁵
number of required appearances and the potential
for further conflict and violence? For example, are Identifying Community Resources
parents able to come to court at different times
A critical task in the process of improving service to
for orientation, mediation, child support orders,
children exposed to domestic violence is to identify
and custody/visitation hearings?
services, both public and private, available within
■ Are courts able to identify other proceedings the community. Because information regarding the
involving the same family? Is there a protocol or trauma suffered by children exposed to domestic
local rule of court enabling the criminal and fam- violence, as well as successful interventions to ame-
ily law courts to share information? liorate those effects, is relatively new, the available
services must also be assessed for their expertise in
On the specific issue of other proceedings involv-
working with these children and their families.⁸⁶ The
ing the same family, it is not unusual for families to
identification and assessment of such services inform
have a variety of matters pending at the same time
the court for the purpose of making appropriate
or in close proximity, such as a criminal domestic
referrals and court orders.⁸⁷ Some relevant inquiries
violence case, a child support matter, and a custody
include the following:
dispute. There may even be conflicting orders issued
because judicial officers are not aware of a preexist- ■ Is a supervised visitation program available? If
ing order. A criminal court may issue a stay-away so, how closely monitored are the interactions
order of which the judicial officer in family court has between the offending parent and the child?
no knowledge. The family law judicial officer may Because it is common for offending parents to use
issue an order allowing the defendant supervised the children in ongoing conflict and to disparage
visitation in violation of a previously issued stay- and blame the nonoffending parent, it is impor-
away order. California law expects judicial officers tant for the judicial officer to understand the level
to have access to existing restraining orders.⁸³ How- of service provided before ordering supervised vis-
ever, most courts do not have computer systems that its between a child and an offending parent.⁸⁸
easily provide such information from within their This, of course, assumes that any visitation is safe
own counties, much less access to orders from other and appropriate. Interventions, such as supervised
counties. The California Rules of Court require or therapeutic visitation, can be effective but are
not always safe. For example, if there is sexual parent and child? As the literature indicates, a par-
abuse in the family, an intervention to enhance ent who has been a victim of domestic violence is
the parent-child relationship should not be used likely to be experiencing a high level of fear and
because it may make the child more trusting of stress that impedes his or her ability to be attuned
and vulnerable to a predator.⁸⁹ In cases involv- to the child’s needs and respond appropriately to
ing family violence, a small number of perpetra- behaviors that indicate distress. Support for the
tors will be psychopathic and outside the reach nonoffending parent and assistance in developing
of treatment.⁹⁰ Courts should heed the advice of parenting skills specifically directed at interacting
service providers and not insist on interventions
with a traumatized child are essential to enabling
that involve the offending parent and the child in
the child to develop the emotional, behavioral,
treatment together in these cases because to do so
and cognitive resources necessary to healthy devel-
will increase the risk to the child.
opment and relationships.
■ Are batterers’ intervention programs available?
If so, do they cover the effects of domestic vio- Court and Community Collaborations
lence on the children and cover parenting with- Our judicial system has gained considerable experi-
out violence? Do they provide regular reports to ence in developing collaborations with other agen-
the court regarding a parent’s participation? This cies with the goal of achieving more lasting and
information assists the court in understanding positive outcomes for litigants and criminal defen-
what to expect from such a program and may be dants. Developing such collaborations to assist the
helpful in determining when, if at all, supervised courts in providing better service to child witnesses
visitation can be implemented.
of domestic violence will result in improved judicial
■ Are parenting programs available? If so, does the decisions and healthier children. People from public
curriculum include information on domestic vio- agencies, academia, advocacy groups, and commu-
lence, its impact on children, and strategies to nity service organizations are extremely receptive to
assist children who have been exposed to such working with the judiciary on efforts to improve
violence? Again, this information is valuable to a service delivery. As observed by FitzGerald et al.,
judicial officer in determining appropriate refer- “[j]udges can set expectations, rally the community
rals or court orders. and others around the creation of needed services, and
■ Is there an individual professional or organization bring collaborations together . . . .”⁹² Collaborative part-
available with the expertise to assess the needs of ners can be especially helpful in providing education
the family members? Obviously, not all domestic programs for court staff and service providers, iden-
violence situations are the same, nor do all family tifying and assessing currently available resources,
members need the same interventions. The extent identifying gaps in available services, and work-
and duration of the violence, the offending par- ing together to develop new programs responsive
ent’s amenability to treatment, whether there has to the needs of children from violent homes. For
been child abuse, the resilience of the child, and example, groups providing child and family therapy,
the coping and parenting abilities of the nonof- supervised visitation, domestic violence advocacy,
fending parent are some of the characteristics that batterer intervention, parent education, and public
should be considered in developing a visitation or health services can offer important perspectives on
treatment plan.⁹¹
the effects of violence within the home and are likely
■ Are there victim advocacy and mental health pro- to have great interest in working with the court on
grams available to work with the nonoffending intervention strategies.
CONCLUSION al., Domestic Violence and Children: Prevalence and Risk in

Five Major U.S. Cities, 36 J. ACAD. CHILD & ADOLESCENT
Much has been written about adult domestic violence PSYCHIATRY 116 (1997); John W. Fantuzzo & Wanda K.
victims and the need for the courts to be informed Mohr, Prevalence and Effects of Child Exposure to Domestic
and responsive. As a result, legislation, court rules, Violence, 9 FUTURE OF CHILD. 21 (1999); George W.
mediation procedures, and judicial education have Holden & Kathy L. Ritchie, Linking Extreme Marital Dis-
focused on the court’s role in protecting and serving cord, Child Rearing, and Child Behavior Problems: Evidence
From Battered Women, 62 CHILD DEV. 311 (1991).
domestic violence victims. We now possess informa-
tion that assists our understanding of the degree to 6. Ernest N. Jouriles et al., Physical Violence and Other
which children who witness domestic violence are Forms of Marital Aggression: Links With Children’s Behavior
Problems, 10 J. FAM. PSYCHOL. 223 (1996); Gabriel Ybarra
also victims. It provides us with the opportunity to
et al., Domestic Violence’s Specific Effects: A Comparison
engage the judiciary in services and procedures that Between Exposed and Non-Exposed Mother-Child Dyads,
address the best interest of the children whose future Poster, ANN. CONF. AM. PSYCHOL. SOC’Y (2001); McClos-
is dramatically affected by our decisions. key et al., supra note 5; O’Keefe, supra note 5.
7. AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL
MANUAL OF MENTAL DISORDERS, TEXT REVISION (DSM-
IV-TR) 424–29 (4th ed. 2000).
NOTES 1. CHILDREN EXPOSED TO DOMESTIC VIOLENCE: CUR- 8. Id.
RENT ISSUES IN RESEARCH, INTERVENTION, PREVENTION,
9. Id.
AND POLICY DEVELOPMENT (Robert A. Geffner et al. eds.,
Haworth Maltreatment & Trauma Press 2000); B.B. 10. Sandra A. Graham-Bermann & Alytia A. Levendosky,
ROSSMAN ET AL., CHILDREN AND INTERPERSONAL VIO- Traumatic Stress Systems in Children of Battered Women, 9
LENCE: THE IMPACT OF EXPOSURE (Brunner/Mazel 2000); J. INTERPERSONAL VIOLENCE 111 (1998).
PROTECTING CHILDREN FROM DOMESTIC VIOLENCE:
11. Peter Lehmann, The Development of Post-Traumatic
STRATEGIES FOR COMMUNITY INTERVENTION (Peter G.
Stress Disorder (PTSD) in a Sample of Child Witnesses to
Jaffe et al. eds., Guilford Press 2004).
Mother Assault, 12 J. FAM. VIOLENCE 241 (1997); Kym
2. See generally PETER G. JAFFE ET AL., CHILDREN OF BAT- L. Kilpatrick et al., Post-Traumatic Stress Disorder in Child
TERED WOMEN (Sage Publ’ns 1990). Witnesses to Domestic Violence, 67 AM. J. ORTHOPSYCHIA-
TRY 639 (1997); Kym L. Kilpatrick & Leanne M. Wil-
3. Kathleen J. Sternberg et al., Effects of Domestic Violence
liams, Potential Mediators of Post-Traumatic Stress Disorder
on Children’s Behavior Problems and Depression, 29 DEVEL-
in Child Witnesses to Domestic Violence, 22 CHILD ABUSE &
OPMENTAL PSYCHOL. 44 (1993).
NEGLECT 319 (1998).
4. See generally Joy D. Osofsky et al., Chronic Community
12. Joy D. Osofsky, The Impact of Violence on Children, 9
Violence: What Is Happening to Our Children, in D. REISS
FUTURE OF CHILD. 33 (1999); Betsy M. Groves & Barry
ET AL., CHILDREN AND VIOLENCE (Guilford Press 1993).
Zuckerman, Interventions With Parents and Caregivers of
5. Maura O’Keefe, Linking Marital Violence, Mother-Child/ Children Who Are Exposed to Violence, in CHILDREN IN A
Father-Child Aggression, and Child Behavior Problems, 9 J. VIOLENT SOCIETY 183 (Joy D. Osofsky ed., Guilford Press
FAM. VIOLENCE 63 (1994); Kathy L. Ritchie & George 1997); Joy D. Osofsky & Michael S. Scheeringa, Commu-
W. Holden, Parenting Stress in Low Income Battered and nity and Domestic Violence Exposure: Effects on Development
Community Women: Effects on Parenting Behavior, 9 EARLY and Psychopathology, in DEVELOPMENTAL PERSPECTIVES
EDUC. & DEV. 97 (1998); B.B. Rossman, Descartes’ Error ON TRAUMA: THEORY, RESEARCH, AND INTERVENTION 155
and Posttraumatic Stress Disorder: Cognition and Emotion (Dante Cicchetti & Sheree L. Toth eds., Univ. of Roches-
in Children Exposed to Marital Violence, in GEORGE W. ter Press 1997).
HOLDEN ET AL., CHILDREN EXPOSED TO MARITAL VIO-
13. Ybarra et al., supra note 6.
LENCE: THEORY, RESEARCH, AND APPLIED ISSUES (Am.
Psychological Ass’n 1998); Laura A. McCloskey et al., 14. Frances S. Hinchey & James R. Gavelek, Empathic
The Effects of Systemic Family Violence on Children’s Mental Responding in Children of Battered Mothers, 6 CHILD
Health, 66 CHILD DEV. 1239 (1995); John W. Fantuzzo et ABUSE & NEGLECT 395 (1982).
15. Sandra A. Graham-Bermann & Alytia A. Levendosky, 26. Michael Rutter, Resilience in the Face of Adversity: NOTES
The Social Functioning of Preschool-Age Children Whose Protective Factors and Resistance to Psychiatric Disorder,
Mothers Are Emotionally and Physically Abused, 1 J. EMO- 147 BRIT. J. PSYCHIATRY 598 (1985); Michael Rutter,
TIONAL ABUSE 59 (1998). Psychosocial Resilience and Protective Mechanisms, 57 AM. J.
ORTHOPSYCHIATRY 316 (1987).
16. Honore M. Hughes, Psychological and Behavioral Cor-
relates of Family Violence in Child Witnesses and Victims, 58 27. Graham-Bermann & Levendosky, supra note 10;
AM. J. ORTHOPSYCHIATRY 525 (1988); Peter G. Jaffe et Hughes & Luke, supra note 20; JAFFE ET AL., supra note
al., Similarities in Behavioral and Social Adjustment Among 16; Honore M. Hughes et al., Resilience in Children
Child Victims and Witnesses to Family Violence, 56 AM. J. Exposed to Domestic Violence, in DOMESTIC VIOLENCE IN
ORTHOPSYCHIATRY 142 (1986); JAFFE ET AL., supra note 2. THE LIVES OF CHILDREN: THE FUTURE OF RESEARCH,
INTERVENTION & SOCIAL POLICY 67 (Honore M. Hughes
17. JANET R. JOHNSTON & VIVIENNE ROSEBY, IN THE
et al. eds., Am. Psychological Ass’n 2001).
NAME OF THE CHILD: A DEVELOPMENTAL APPROACH
TO UNDERSTANDING AND HELPING CHILDREN OF CON- 28. NAT’L RESEARCH COUNCIL & INST. OF MED., FROM
FLICTED AND VIOLENT DIVORCE (Free Press 1997). NEURONS TO NEIGHBORHOODS: THE SCIENCE OF EARLY
CHILDHOOD DEVELOPMENT (Jack P. Shonkoff & Debo-
18. Bonnie E. Carlson, Adolescent Observers of Marital
rah A. Phillips eds., Nat’l Academy Press 2000).
Violence, 5 J. FAM. VIOLENCE 285 (1990).
29. Rachel Yehuda et al., Hypothalamic-Pituitary-Adrenal
19. Tracy Kempton et al., Dimensions of Interparental
Dysfunction in Posttraumatic Stress Disorder, 30 BIOLOGI-
Conflict and Adolescent Functioning, 4 J. FAM. VIOLENCE
CAL PSYCHIATRY 1031 (1991).
297 (1989).
30. Bruce Perry & Ronnie Pollard, Homeostasis, Stress,
20. Honore M. Hughes & Douglas A. Luke, Heterogene-
Trauma, and Adaptation: A Neurodevelopmental View of
ity in Adjustment Among Children of Battered Women, in
Childhood Trauma, 7 CHILD & ADOLESCENT PSYCHIATRIC
CHILDREN EXPOSED TO MARITAL VIOLENCE: THE FUTURE
CLINICS OF N. AM. 33 (1998); Bruce Perry et al., Child-
OF RESEARCH, INTERVENTION & SOCIAL POLICY 185
hood Trauma, the Neurobiology of Adaptation, and ‘Use-
(George W. Holden et al. eds., Am. Psychological Ass’n
Dependent’ Development of the Brain: How ‘States’ Become
1998); John H. Grych et al., Patterns of Adjustment Among
‘Traits,’ 16 J. INFANT MENTAL HEALTH 271 (1995).
Children of Battered Women, 68 J. CONSULTING & CLINI-
CAL PSYCHOL. 84 (2000). 31. THE NEUROBIOLOGICAL AND DEVELOPMENTAL BASIS
FOR PSYCHOTHERAPEUTIC INTERVENTION (Michael Mos-
21. It is important to note that the studies cited in this
kowitz et al. eds., Jason Aronson 1997).
section do not prove that domestic violence is the cause
of children’s behavior problems. They are correlational 32. Michael D. De Bellis et al., Developmental Traumatol-
studies that show that domestic violence is associated with ogy Part I: Biological Stress Systems, 45 BIOLOGICAL PSY-
certain emotional and behavioral problems. The studies CHIATRY 1259 (May 15, 1999); Michael D. De Bellis et
are consistent, however, in finding that children exposed al., Developmental Traumatology Part II: Brain Develop-
to domestic violence have higher levels of difficulty than ment, 45 BIOLOGICAL PSYCHIATRY 1271 (May 15, 1999);
nonexposed children. Yehuda et al., supra note 29.
22. Fantuzzo et al., supra note 5. 33. Yehuda et al., supra note 29.
23. Michael S. Scheeringa & Charles Zeanah, Symptom 34. J. Douglas Bremner et al., Magnetic Resonance Imaging
Expression and Trauma Variables in Children Under 48 –Based Measurement of Hippocampal Volume in Posttrau-
Months of Age, 16 INFANT MENTAL HEALTH J. 259 (1995); matic Stress Disorder Related to Childhood Physical and
ROSSMAN ET AL., supra note 1. Sexual Abuse—A Preliminary Report, 41 BIOLOGICAL PSY-
CHIATRY 23 (1997); J. Douglas Bremner et al., Deficits
24. Scheeringa & Zeanah, supra note 23.
in Short-Term Memory in Posttraumatic Stress Disorder,
25. Michael Rutter, Family Discord and Conduct Disorder: 150 AM. J. PSYCHIATRY 1015 (1993); Yutaka Ito et al.,
Cause, Consequence, or Correlate?, 8 J. FAM. PSYCHOL. 170 Increased Prevalence of Electrophysiological Abnormalities
(1994); Michael Rutter, Resilience Concepts and Findings: in Children With Psychological, Physical, and Sexual Abuse,
Implications for Family Therapy, 21 J. FAM. THERAPY 119 5 J. NEUROPSYCHIATRY & CLINICAL NEUROSCIENCES 401
(1999). (1993); Arthur H. Green et al., Neurological Impairment
NOTES in Maltreated Children, 5 CHILD ABUSE & NEGLECT 129 45. Osnat Erel & Bonnie Burman, Interrelatedness of Mar-
(1991); Ybarra et al., supra note 6. ital Relations and Parent-Child Relations: A Meta-Analytic
Review, 118 PSYCHOL. BULL. 108 (1995).
35. Joan Kaufman et al., The Corticotropin-Releasing Hor-
mone Challenge in Depressed Abused, Depressed Nonabused, 46. Jennifer L. Hardesty & Jacquelyn C. Campbell, Safety
and Normal Control Children, 42 BIOLOGICAL PSYCHIATRY Planning for Abused Women and Their Children, in PRO-
669 (1997). TECTING CHILDREN FROM DOMESTIC VIOLENCE: STRATE-
GIES FOR COMMUNITY INTERVENTION 89 (Peter G. Jaffe et
36. Seth D. Pollack et al., Cognitive Brain Event–Related al. eds., Guilford Press 2004).
Potentials and Emotion Processing in Maltreated Children,
68 CHILD DEV. 773 (1997); W. Brian McPherson et al., 47. Joan Zorza, How Abused Women Can Use the Law to
An Event-Related Brain Potential Investigation of PTSD Help Protect Their Children, in ENDING THE CYCLE OF
and PTSD Symptoms in Abused Children, 32 INTEGRATIVE VIOLENCE: COMMUNITY RESPONSES TO CHILDREN OF BAT-
PHYSIOLOGICAL & BEHAV. SCI. 31 (1997). TERED WOMEN 147 (Einat Peled et al. eds., Sage Publ’ns
1995); Marsha B. Liss & Geraldine B. Stahly, Domestic
37. Alicia F. Lieberman & Patricia Van Horn, Attachment, Violence and Child Custody, in BATTERING AND FAMILY
Trauma, and Domestic Violence: Implications for Child Cus- THERAPY 175 (Marsali Hansen & Michele Harway eds.,
tody, 7 CHILD & ADOLESCENT PSYCHIATRIC CLINICS OF N. Sage Publ’ns 1993).
AM. 423 (1997).
48. Holden & Ritchie, supra note 5; Ritchie & Holden,
38. E. Mark Cummings & Patrick T. Davies, Emotional supra note 5; Graham-Bermann & Levendosky, supra note
Security as a Regulatory Process in Normal Development 10.
and the Development of Psychopathology, 8 DEV. & PSY-
CHOPATHOLOGY 123 (1996); Patrick T. Davies & E. Mark 49. Holden & Ritchie, supra note 5.
Cummings, Exploring Children’s Emotional Security as a
50. Ritchie & Holden, supra note 5.
Mediator of the Link Between Marital Relations and Child
Adjustment, 69 CHILD DEV. 124 (1998); John H. Grych & 51. Holden & Ritchie, supra note 5.
Frank D. Fincham, Marital Conflict and Children’s Adjust-
ment: A Cognitive-Contextual Framework, 108 PSYCHOL. 52. HOLDEN ET AL., supra note 5.
BULL. 267 (1990); John H. Grych, Children’s Appraisals 53. Ritchie & Holden, supra note 5; McCloskey et al.,
of Interparental Conflict: Situational and Contextual Influ- supra note 5.
ences, 12 J. FAM. PSYCHOL. 437 (1998).
54. Gayla Margolin et al., Family Interaction Process: An
39. ALBERT BANDURA, AGGRESSION: A SOCIAL LEARNING Essential Tool for Exploring Abusive Relations, in FAMILY
ANALYSIS (Prentice Hall 1973). ABUSE: A COMMUNICATION PERSPECTIVE 37 (D.D. Cahn
40. N.R. Crick & Kenneth A. Dodge, A Review and & S.A. Lloyd eds., Sage Publ’ns 1997); Gayla Margolin &
Reformulation of the Social Information–Processing Mecha- Richard S. John, Children’s Exposure to Marital Aggression:
nisms in Children’s Social Adjustment, 115 PSYCHOL. BULL. Direct and Mediated Effects, in OUT OF DARKNESS: PER-
74 (1994). SPECTIVES ON FAMILY VIOLENCE (G.K. Kantor & J.L.
Jasinski eds., Sage Publ’ns 1999); Kempton et al., supra
41. JOHN BOWLBY, ATTACHMENT AND LOSS, VOL. I: note 19.
ATTACHMENT (Basic Books 1982).
55. Holden & Ritchie, supra note 5.
42. John Bowlby, Violence in the Family as a Disorder of
the Attachment and Caregiving Systems, 44 AM. J. PSYCHO- 56. Margolin et al., supra note 54; Margolin & John,
ANALYSIS 9 (1984). supra note 54.
43. Lieberman & Van Horn, supra note 37; Joy D. Osof- 57. LUNDY BANCROFT & JAY C. SILVERMAN, THE BAT-
TERER AS PARENT: ADDRESSING THE IMPACT OF DOMESTIC
sky, The Effects of Exposure to Violence on Young Children,
VIOLENCE (Sage Publ’ns 2000); Lundy Bancroft & Jay C.
50 AM. PSYCHOLOGIST 782 (1995).
Silverman, Assessing Abusers’ Risks to Children, in PROTECT-
44. Mark T. Greenberg et al., The Role of Attachment in the ING CHILDREN FROM DOMESTIC VIOLENCE: STRATEGIES
Early Development of Disruptive Behavior Problems, 5 DEV. FOR COMMUNITY INTERVENTION 101 (Peter G. Jaffe et al.
& PSYCHOPATHOLOGY 191 (1993). eds., Guilford Press 2004).
58. G. GREIF & R. HEGAR, WHEN PARENTS KIDNAP (Free Into Family Court Practice, 54 JUV. & FAM. CT. J. 35, NOTES
Press 1993). 36–37 (Fall 2003).
59. J. Erickson & A. Henderson, Diverging Realities: 76. Peter G. Jaffe et al., Common Misconceptions in Address-
Abused Women and Their Children, in EMPOWERING SUR- ing Domestic Violence in Child Custody Disputes, 54 JUV. &
VIVORS OF ABUSE: HEALTH CARE FOR BATTERED WOMEN FAM. CT. J. 57 (Fall 2003).
AND THEIR CHILDREN 138 (Sage Publ’ns 1998).
77. Clare Dalton et al., High Conflict Divorce, Violence,
60. C. MCGEE, CHILDHOOD EXPERIENCES OF DOMESTIC and Abuse: Implications for Custody and Visitation Deci-
VIOLENCE (Jessica Kingsley Publishers 2000). sions, 54 JUV. & FAM. CT. J. 11, 17 (Fall 2003).
61. DONALD DUTTON, THE DOMESTIC ASSAULT OF 78. PETER G. JAFFE ET AL., CHILD CUSTODY AND DOMES-
WOMEN: PSYCHOLOGICAL AND CRIMINAL JUSTICE PER- TIC VIOLENCE: A CALL FOR SAFETY AND ACCOUNTABILITY
SPECTIVES (Univ. of British Columbia Press 1995); S. 14 (Sage Publ’ns 2002).
Woffordt et al., Continuities in Family Violence, 9 J. FAM.
VIOLENCE 195 (1994). 79. See discussions in Dalton et al., supra note 77, at
15–22; Jaffe et al., supra note 76, at 59; and Farney &
62. Carla Stover et al., The Effects of Father Visitation on Valente, supra note 75, at 39.
Preschool Aged Witnesses of Domestic Violence, 18 J. INTER-
PERSONAL VIOLENCE 1149 (2003). 80. Dalton et al., supra note 77, at 16; Farney & Valente,
supra note 75, at 39.
63. Hardesty & Campbell, supra note 46.
81. See Farney & Valente, supra note 75, at 42.
64. S.M. Ross, Risk of Physical Abuse to Children of Spouse
Abusing Parent, 20 CHILD ABUSE & NEGLECT 589 (1996). 82. Dalton et al., supra note 77, at 17.
65. Ernest N. Jouriles & William D. Norwood, Physical 83. CAL. FAM. CODE § 3031 (West 1994 & Supp. 2005).
Aggression Toward Boys and Girls in Families Character- 84. CAL. R. CT. 5.500 (2005).
ized by the Battering of Women, 9 J. FAM. PSYCHOL. 69
(1995); Ernest N. Jouriles & S.H. LeCompte, Husbands’ 85. See Julia Weber, Domestic Violence Courts: Components
Aggression Toward Wives and Mothers’ and Fathers’ Aggres- and Considerations, 2 J. CENTER FOR FAM. CHILD. & CTS.
sion Toward Children: Moderating Effects of Child Gender, 23 (2000), for a discussion on domestic violence courts.
59 J. CONSULTING & CLINICAL PSYCHOL. 190 (1991); 86. For information on successful therapeutic interventions,
O’Keefe, supra note 5; Maura O’Keefe, Predictors of Child see PROTECTING CHILDREN FROM DOMESTIC VIOLENCE:
Abuse in Maritally Violent Families, 10 J. INTERPERSONAL STRATEGIES FOR COMMUNITY INTERVENTION (Peter G. Jaffe
VIOLENCE 3 (1995). et al. eds., Guilford Press 2004) [hereinafter PROTECTING
66. CAL. FAM. CODE § 3040 (West 1994 & Supp. 2005). CHILDREN]; YOUNG CHILDREN AND TRAUMA: INTERVEN-
TION AND TREATMENT (Joy D. Osofsky ed., Guilford Press
67. See CAL. FAM. CODE § 3044. 2004) [hereinafter YOUNG CHILDREN].
68. See CAL. FAM. CODE § 3011. 87. Section 3190 of the California Family Code specifi-
69. See CAL. FAM. CODE § 3011(e)(1). cally authorizes court orders requiring parents and chil-
dren to participate in counseling.
70. See CAL. FAM. CODE § 3011(e)(2).
88. Maureen Sheeran & Scott Hampton, Supervised Visi-
71. CAL. FAM. CODE § 3170 (West 1994 & Supp. 2005). tation in Cases of Domestic Violence, 50 JUV. & FAM. CT. J.
13 (1999).
72. See CAL. FAM. CODE § 3161.
89. KAUFFMAN BEST PRACTICES PROJECT, CLOSING
73. Janet R. Johnson et al., The Long Shadow of Marital
THE QUALITY CHASM IN CHILD ABUSE TREATMENT:
Conflict: A Family Process Model of Children’s Adjustment
IDENTIFYING AND DISSEMINATING BEST PRACTICES (Kauff-
Postdivorce, 53 J. MARRIAGE & FAMILY 297 (1990).
man Found. 2004).
74. CAL. FAM. CODE §§ 3020(b), 3161.
90. Amy Holtzworth-Munroe & Gregory L. Stuart, Typol-
75. Andrea C. Farney & Roberta L. Valente, Creating ogies of Male Batterers: Three Subtypes and the Differences
Justice Through Balance: Integrating Domestic Violence Law Among Them, 116 PSYCHOL. BULL. 467 (1994).
NOTES 91. For additional information on such assessments, see

Dalton et al., supra note 77, at 20–26; Jaffe et al., supra
note 76, at 59; PROTECTING CHILDREN, supra note 86;
YOUNG CHILDREN, supra note 86.
92. Richard FitzGerald et al., Using Reasonable Efforts
Determinations to Improve Systems and Case Practice in
Cases Involving Family Violence and Child Maltreatment,
54 JUV. & FAM. CT. J. 97, 102 (Fall 2003).
APPENDIX A APPENDIX
CONFIDENTIAL SCREENING FORM FOR FAMILY COURT SERVICES

Please fill out this questionnaire. This information will remain confidential with Family Court Services. Thank you.
NAME: _______________________________________ DATE: _______________________________________
CHILDREN AND AGES: _______________________________________________________________________

Are you and the other parent residing together? _________ Date of separation if applicable: __________________
1) Has the other parent ever been responsible for any incidents of violence against you? Have you ever
experienced any of the following by the other parent? (Circle any letter that applies.)
a) Yelling/name calling g) Choking, strangling, smothering
b) Threats h) Threats to use a gun, knife or other weapon
c) Breaking, throwing things i) Use of guns, knives or other weapons
d) Hurting pets j) Forced sex
e) Pushing, shoving k) Other: __________________________________________
f) Slapping, hitting, kicking, biting
2) Have you ever received bruises or scrapes during these incidents? ____________________________________
3) Have you ever received other injuries from these incidents? _________________________________________
4) When was the most recent incident? ____________________________________________________________
5) Have the children ever witnessed these incidents? _________________________________________________
6) Were Child Protective Service Reports made? ____________________________________________________
7) Were the police called? _______________________ Were police reports made? _______________________
8) Were there arrests or convictions? _____________________________________________________________
9) Were medical reports made? __________________________________________________________________
10) Does the other parent possess weapons at this time? _______________________________________________
11) Is there currently a restraining order against either parent? __________________________________________
Expiration date of the current order: ____________________________________________________________
12) Has there ever been a restraining order against the other parent? _____________________________________
When? ___________________________________________________________________________________
13) Do you think that you have problems with drugs or alcohol? _________________________________________
Does the other parent have problems with drugs or alcohol? _________________________________________
14) Are you afraid of the other parent? _____________________________________________________________
15) Do you have a plan to protect yourself and/or your children? ________________________________________
Pursuant to Family Code section 6303, the party protected by a restraining order has the right to have a support
person with him or her during mediation.
Pursuant to Family Code section 3181, where there has been a history of domestic violence or where a
protective order is in effect, at the request of the person alleging domestic violence in a written declaration
under penalty of perjury, or at the request of the person protected by the order, the mediator shall meet with the
parties separately and at separate times.
© 2005 Superior Court of California, County of San Francisco

APPENDIX APPENDIX B
This local rule is adopted in compliance with rule 5.500 of the California Rules of Court,
requiring a court communication protocol for domestic violence and child custody orders.
COURT COMMUNICATION PROTOCOL FOR

DOMESTIC VIOLENCE AND CHILD CUSTODY ORDERS
Modifications of Criminal Protective Orders
Referrals from Criminal to Unified Family Court
Procedures in Juvenile and Probate Courts
I. Statement of Principles and Goals

A. This protocol is adopted to reflect the joint goals of protecting all victims of domestic violence
and promoting the best interests of children. Exposure to violence within the home and between
parents can result in long term emotional and behavioral damage to minor children. Severing
all contact between an offending parent and the children may exacerbate the harm and not be
in the best interests of the children or family unit. The Unified Family Court has programs and
services, such as supervised visitation and parenting education programs, that enable children
to have visitation with an offending parent in a safe and constructive setting. At the discretion of
the judge presiding over a domestic violence criminal case, a referral can be made to the Unified
Family Court, giving the latter court the authority to modify a criminal protective order as to minor
children.
B. This protocol recognizes the statutory preference given to criminal protective orders. Such orders
will not be modified by the Unified Family Court unless specifically authorized by the judge in the
criminal proceeding.
C. A plea or conviction of domestic violence in the Criminal Division triggers the presumption
regarding physical and legal custody set forth in Family Code section 3044.
D. Services and programs are available through the Unified Family Court to provide and facilitate safe
parent-child contact and assist people in providing violence-free parenting to their children.
E. Courts hearing cases involving child custody and visitation will take every action practicable to
ensure that they are aware of the existence of any protective orders involving the parties to the
action currently before them.
II. Procedure in Criminal Court

A. When the Criminal Court does or has issued a protective order covering the minor children of the
defendant:
1. The Court may, at the judge’s discretion:
a. Allow the protective order, as to the minor children, to be modified by the Unified Family
Court;
b. MAIL a copy of its order to the Unified Family Court case manager. A copy of the order
shall be given to the defendant and the victim by the Criminal Court;
APPENDIX
c. Advise the defendant and victim that the Unified Family Court may be able to provide
services that will assist them in meeting the needs of their children in a safe and supportive
way and advise the defendant and victim of the right to seek visitation through the Unified
Family Court; and
d. Provide the defendant with the Judicial/Information letter, which shall inform the defendant
that the protective order, with respect to the minor children, will not be modified unless he
or she files a motion and participates in all programs required by the Unified Family Court.
The Information letter will also advise defendant that the Unified Family Court will be
informed of all court dates in the criminal department and any violations of the protective
order or other probation conditions.
2. The District Attorney’s Office will:
a. Provide the victim with the Information letter; and
b. Advise the victim of the right to seek a restraining order, child support and supervised
visitation through the Unified Family Court.
3. Upon receipt of the Unified Family Court orders, the Criminal Court shall either give the order
to the appropriate department (if there is a future date) or place the order in the case file (if the
case has been adjudicated).
B. At Other Hearings: The Criminal Court will inform the Unified Family Court of any changes in
court orders or violations of probation.
III. Procedure in Unified Family Court

A. The Court will:
1. Set all cases referred from the Criminal Court on the Domestic Violence Calendar;
2. Include the criminal case number as a cross-reference on all orders that result in a modification
of the criminal protective order;
3. Specify the fact, on any Visitation Order, that the criminal protective order is being modified
and have the order registered on the CLETS network; and
4. Schedule periodic appearances for progress reports.
B. Family Court Services will:
1. Provide a parent orientation program specific to domestic violence issues;
2. Provide mediation services to the parents in conformance with safe practices in domestic
violence cases; and
3. Provide a referral to a Parenting Without Violence education program that highlights the effects
of domestic violence on children.
C. The Unified Family Court case manager will:
1. Track Unified Family Court hearings involving custody and visitation issues and
cross-reference orders from both the Criminal Court and Unified Family Court;
2. Send a copy of Unified Family Court orders to the Adult Probation Department and to the
Criminal Court; and
APPENDIX
3. Assist both parents in accessing the following services when ordered by the Court:
a. Parent Orientation
b. Mediation
c. Supervised Visitation
d. Parent Education
e. Child Trauma Project
f. SafeStart
g. Family Law Facilitator (when there are child support issues).
D. The Self-Help Center will:
1. Provide legal assistance to both defendant and/or victim, to properly place the matter on
calendar; and
2. Include a copy of the protective order from the criminal proceedings in the motion with all
requests to modify a criminal protective order.
IV. Procedure in Juvenile Dependency Court

A. The San Francisco Department of Human Services:
1. Will perform a search for criminal and civil court protective orders involving a prospective
custodian when filing a dependency petition and recommending a minor’s change of custody to
that person; and
2. Must not place a minor with a prospective custodian who is restrained by a protective order, but
must inform the Dependency Court of the existence and terms of the protective order.
V. Procedure in Juvenile Delinquency Court

A. The San Francisco Juvenile Probation Department:
1. Will perform a search for criminal and civil court protective orders involving a prospective
custodian other than the minor’s regular legal custodian before releasing a minor to that person; and
2. Must not release a minor to a prospective custodian who is restrained by a protective order, but
must inform the Delinquency Court of the existence and terms of the protective order.
VI. Procedure in Probate Court

The Probate Court will cross-check petitions for probate guardianship for cases in juvenile and
family court. The Probate Court will also search for criminal and civil protective orders involving the
proposed guardian and other adults living in the proposed guardian’s household.
53
Addressing the Co-occurrence of

Domestic Violence and Substance Abuse
Lessons From Problem-Solving Courts
I
n January 2004 the Judicial Council, recognizing the high co-occurrence of LISA LIGHTMAN, M.A.
substance abuse and domestic violence, hosted a teleconference roundtable Center for Families, Children & the Courts
discussion on developing a coordinated approach to these issues in both court
operations and the provision of services to substance abusers and batterers. Several FRANCINE BYRNE, M.A.
California judges, along with legal practitioners, treatment professionals, and Center for Families, Children & the Courts
academics, discussed existing problems in the current approach to the two issues,
identified obstacles to change, and debated best practices for a more comprehensive Crimes related to both substance
and coherent approach to these issues. Participants were selected based on diversity
abuse and domestic violence place an
of experience, academic and legal expertise in the area, and judicial leadership.
enormous burden on society. While
The objective of the roundtable was to elicit a focused discussion on the mounting
evidence of associations between domestic violence and substance abuse and the courts throughout the country have
intricacies of addressing concurrent treatment from a programmatic, legal, and established innovative problem-solving
philosophical point of view. Comments of roundtable participants are quoted approaches designed to address these
throughout this article.¹ issues, the criminal justice system rarely
applies them concurrently. This article
Crimes related to both substance abuse and domestic violence place an enor- explores the challenges and potential
mous burden on society. Research indicates a strong and well-documented benefits of addressing the co-occurrence
correlation between these two social problems, with estimated rates of of substance abuse and domestic violence
co-occurrence ranging from 40 to 92 percent.² Although these issues are
by means of the problem-solving-court
correlated, they arise in different legal and social contexts and have provoked
model. The authors include examples
distinct criminal justice approaches and service interventions. Yet the criminal
justice system rarely addresses these problems concurrently, despite their high of best practices for developing similar
rate of co-occurrence among the defendant population. The authors argue programs in other courts.
that the extant data require that the criminal justice system and community- The authors would like to acknowledge
based service providers develop effective interventions that recognize the and thank Professor Emily Sack for her
coexistence of substance abuse and domestic violence while maintaining valuable contributions to this article. ■
appropriate distinctions in theory and approach. The problem-solving court
may offer an effective model for approaching this challenge.
In recent years, jurisdictions throughout the United States have estab-
lished specialized calendars to address just such issues as substance abuse and
domestic violence through the application of intensive judicial oversight
© 2005 Judicial Council of California/
and services provided by community-based organizations. These innova- Administrative Office of the Courts, Center for
tive courts, often called “problem-solving courts,” emphasize partnerships Families, Children & the Courts
among courts, attorneys, and community agencies to alcohol or other drugs.⁴ Research also shows that
to coordinate interventions and ensure defendant alcohol and drug abuse are related to an increased
accountability. While evidence suggests that problem- risk of violent death in the home.⁵ Early onset of
solving courts have successfully reduced recidivism, drug- and alcohol-related problems is strongly corre-
the tested models have generally focused on a single lated to domestic violence.⁶ In addition, alcohol and
specialized area, such as substance abuse or domes- drug use has been associated with greater severity of
tic violence. But the close judicial monitoring and injuries and increased lethality rates when present
strong partnerships with service providers that define in conjunction with domestic violence.⁷ Although
such specialized courts offer a promising opportunity neither alcohol use nor drug use has, by itself, been
to effectively address the co-occurrence of substance proven to cause domestic violence, and though the
abuse and domestic violence. cessation of alcohol or substance abuse is no guaran-
This article first explores the challenges and tee that batterers will change their abusive behavior,
potential benefits of addressing the co-occurrence research does suggest that, overall, domestic violence
of substance abuse and domestic violence both in is reduced through the treatment of alcohol abuse.⁸
the justice system and among service providers, and Despite this research, the criminal justice system
then investigates possible methods for coordinat- and community-based services do not routinely rec-
ing interventions by courts and service programs. ognize or contend with the frequent co-occurrence
Because much of the philosophy and practice in of these problems in cases that may present solely as
these two areas has been in tension, coordination domestic violence or as substance abuse. Domestic
among courts and services is likely to be complex. violence convictions that do not result in incarcera-
Any successful coordination must respect the dis- tion generally lead to batterers’ intervention pro-
tinct concerns that substance abuse and domestic grams, with substance abuse treatment being ordered
violence present. This article does not propose a spe- only for offenders with obvious substance addiction
cific model of problem-solving court to address the issues.⁹ Similarly, battering behavior in defendants
two issues; rather, it invites dialogue on issues of charged with substance abuse is rarely identified or
co-occurrence and potential responses to it. Increas- acted on.¹⁰ Roundtable participants confirmed that
ing understanding of the co-occurrence of domestic the current approach did not address both issues and
violence and substance abuse will lead to heightened stated that the courts and service providers needed to
defendant accountability, enhance the health and develop a coordinated approach. Judge Susan Finlay,
safety of both defendants and victims, and improve a domestic violence court judge in San Diego County
public confidence in our justice system. who formerly presided over a drug court, said that in
the 26 batterers’ intervention programs used by her
court, the average time spent on substance abuse was
T H E C OR R E L AT ION BE T W E E N
8 hours out of the 104 hours mandated for defen-
SU B S TA NC E A BUSE A N D
dants. She commented that the failure to address
DOME STIC V IOLENCE
substance abuse problems among domestic violence
High rates of co-occurring substance use and domes- defendants was “totally self-defeating because the
tic violence are well established. A recent study found people are not going to change their behavior unless
that fully 92 percent of domestic violence perpetrators they have dealt also with their addiction.” Moreover,
had used alcohol or drugs on the day of a domestic failure to address domestic violence can affect recov-
violence assault, and 72 percent had a record of prior ery from drug addiction.¹¹ Judge Finlay referred to
arrests related to substance use.³ Other studies have research indicating that “unless you address both of
shown that between one-fourth and one-half of men the issues—substance abuse as well as violent behav-
who commit acts of domestic violence are addicted iors—neither gets any better. In fact both can get
Addressing the Co-occurrence of Domestic Violence and Substance Abuse: Lessons From Problem-Solving Courts 55
worse.” She noted that in “[e]very single failure that Instead of simply moving cases through the system,
I look at, with rare exception, on the probation revo- problem-solving courts focus on strong collabora-
cation calendar, a person who cannot do the domes- tions with service providers and legal partners to
tic violence program, it’s because of alcohol or other address the underlying issues in these cases. Judicial
drug issues.” leadership is critical to promote defendant compli-
Because of the different causes and behaviors asso- ance and to ensure effective relationships among the
ciated with domestic violence and substance abuse, a court and its partners, including prosecutors, defense
single type of service intervention will never be ade- attorneys, law enforcement and probation officials,
quate to address both problems. As Patti Bland, state- and service providers in a variety of community-
wide training coordinator for the Alaska Network on based agencies. Judicial oversight appears to have
Domestic Violence and Sexual Assault, explained, significant impact in motivating behavioral change,¹⁵
“Substance abuse treatment can help make it possible thereby improving outcomes for victims and defen-
for batterers to recover from alcohol and other drug dants while increasing public safety. The positive
dependence but does not adequately address domes- results of specialized courts have resulted in public
tic violence and cannot be substituted for batterer and political recognition of their efficacy and an
accountability or intervention programs designed increase in financial support to the courts from exec-
to stop violence.” The question then becomes how utive agencies, legislators, and county governments.
best to approach the coexistence of these issues. Spe- As we enter the second decade of problem-solving
cialized problem-solving courts could provide the courts,¹⁶ and as our knowledge and sophistication
judicial attention and service coordination necessary about the complexities of comprehensive interventions
to address the co-occurrence of substance abuse and grow, the justice system will continue to refine and
domestic violence. expand these innovative initiatives. Drug courts
and domestic violence courts are well positioned to
consider new methods that advance the coordina-
T H E E MERGENCE OF
tion of substance abuse and domestic violence inter-
P R O B L E M - S O LV I N G C O U R T S :
ventions.¹⁷
DRUG COU RT A N D DOM E S T IC
The first problem-solving court, a drug court,
V IOLENCE COURT MODEL S
opened in Miami in 1989 to cope with the prolif-
In recent years, policymakers, courts, and practitioners eration of drug offenders during the height of the
have supported the development of problem-solving crack cocaine epidemic.¹⁸ Before the development
courts as a response to increasing caseloads and the of the drug court, a typical offender charged with a
growing frustration of “business-as-usual” case process- low-level nonviolent drug offense would receive a jail
ing.¹² These innovative court models evolved from a or probation sentence with no linkage to substance
recognition that the legal system, in its inability to stem abuse treatment and would quickly cycle through
the tide of drug usage or stop the violence, is “doomed the Dade County justice system. It was likely that a
if it remains static.”¹³ As New York State Chief Judge drug-addicted offender would repeat the offense, so
Judith S. Kaye has written, “In many of today’s cases, the process would recycle, with no attempt made to
the traditional approach yields unsatisfying results. The address the underlying substance abuse.
addict arrested for drug dealing is adjudicated, does One important feature of the drug court model
time, then goes right back to dealing on the street. The is that both court and case management person-
battered wife obtains a protective order, goes home and nel quickly assess the type and severity of addic-
is beaten again. Every legal right of the litigants is pro- tion of each defendant and provide opportunities for
tected, all procedures followed, yet we aren’t making a placement in appropriate substance abuse treatment
dent in the underlying problem.”¹⁴ with providers maintaining close contact with the
court. Structures for pleas, sanctions, and sentences ority. Advocates for battered women also successfully
have been worked out beforehand, so that a defen- worked for changes in criminal justice policy, such
dant can plead quickly and enter treatment soon as mandatory arrests on probable cause and more
after arrest, with the understanding that failure to aggressive prosecution policies in domestic violence
complete the program will result in criminal sen- cases. The resulting rise in domestic violence case-
tencing. The court, prosecutors, and defense attor- loads and increased attention by law enforcement
neys, together with court case management staff, and prosecutors led to calls for specialized domes-
probation officers, and service providers, operate as tic violence courts, supported by specialized court
a team to focus on the defendant’s successful reha- and partner staff, to ensure educated and consistent
bilitation from substance abuse, which will result judicial decision making.²³ The structure of these
in reduction or dismissal of the charges. The judge domestic violence courts was often influenced by
closely monitors the defendant’s progress by requir- elements of the existing drug court model, including
ing frequent status reports from service partners on strong judicial involvement and monitoring as well
program participation and drug test results and by as close collaboration with multiple partners from
mandating frequent court appearances by the defen- the court and community.
dant. The judge imposes immediate consequences Unlike drug courts, however, domestic violence
for the defendant’s noncompliance with the court’s courts handle cases with targeted victims, and the
orders through a series of graduated sanctions and defendants are, by definition, alleged to be violent
recognizes the defendant’s success through court- offenders. As a result, the primary goals of domestic
mandated rewards. violence courts have always been to ensure victim
Although every drug court has unique character- safety and defendant accountability.²⁴ Many services
istics, most adhere to uniform principles based on linked to the domestic violence court focus on vic-
10 key components defined by the U.S. Department tims’ needs, including victim advocacy, safety plan-
of Justice’s Office of Drug Court Programs.¹⁹ The ning, access to shelter, and children’s counseling, all
use of judicial authority, early assessment and access of which are voluntary. Such courts also mandate bat-
to treatment, and consistent monitoring of defen- terers’ intervention programs for defendants, but this
dants has proven effective in addressing substance is part of the effort to increase defendant account-
abuse and reducing recidivism.²⁰ The encouraging ability and these programs are not substitutes for the
results of the adult criminal drug court model have imposition of criminal sentences. Some states require
led to its widespread replication and its adaptation convicted domestic violence defendants to attend bat-
to juvenile and family court settings.²¹ By January terers’ programs with specific components. In Cali-
2005, some 16 years after that groundbreaking drug fornia, for example, convicted batterers must attend a
court opened in Miami, the total number of adult, state-approved, 52-week intervention program.²⁵
juvenile, and family drug courts had reached 1,262 Defendants ordered to participate in batterers’
nationwide.²² intervention programs and other services return to
Domestic violence courts developed somewhat court regularly for compliance reviews before the
later than drug courts and were rooted in dramatic domestic violence judge, and failures to comply with
changes in domestic violence policy in other parts of court orders result in swiftly imposed sanctions. Such
the justice system throughout the 1980s and 1990s. sanctions might include additional group sessions,
Through significant efforts by the battered-women’s community service, referral back to court for specific
movement, the justice system began to focus atten- legal sanctions, or even termination from the group.
tion on domestic violence. Ensuring access to civil Service providers, probation, and other agencies
protection orders for battered women was an early working with defendants coordinate closely with
focus of the movement and remains an ongoing pri- court personnel and furnish regular status reports.
Victim advocates link with domestic violence vic- co-occurrence of these problems, while their design
tims early in the cases to offer services and serve as allows them the potential for instituting a coordi-
liaisons with the criminal justice system.²⁶ Intensive nated approach to address both issues. As momen-
judicial monitoring, partnerships with court- and tum toward dealing with co-occurring problems in
community-based partners, and voluntary services a coordinated manner increases, it becomes essential
for victims are all focused on keeping victims safe for the courts and their community partners to fully
and holding batterers accountable for their crimes.²⁷ understand the common elements of drug courts
Unlike drug courts, domestic violence court mod- and domestic violence courts.
els have developed for both the civil and criminal
justice systems. Civil domestic violence courts usu- J U DIC I A L L E A DE R S H I P
ally focus on protective-order calendars, but some Drug courts and domestic violence courts each
also address custody and visitation issues.²⁸ Criminal require strong judicial leadership. The judge’s author-
domestic violence courts may focus solely on domes- ity is pivotal in ensuring defendant accountability in
tic violence charges or may incorporate additional both courts; defendants return to court frequently
charges facing the defendant. A recent development for compliance monitoring and are subject to swift
is an integrated domestic violence court model that consequences for any failures. In addition, judges
addresses both criminal domestic violence charges use their authority to foster communication among
and related civil issues, including civil protection partners, seek additional court resources, or pro-
orders, custody, visitation, and divorce, and that may mote education within the court system and among
handle cases involving other family members as well community members. A problem-solving approach
as the defendant.²⁹ Each type of drug court and to domestic violence and substance abuse “posits
domestic violence court model involves some dis- several new roles for judges: active case manager, cre-
tinctions in the exercise of judicial authority and ative administrator and community leader.”³⁰
operation of court proceedings. This article focuses
on the criminal drug court and criminal domestic DE F E N DA N T AC C OU N TA BI L I T Y
violence court models, where coordination of sub- Drug courts and domestic violence courts share a
stance abuse and domestic violence interventions common focus on defendant accountability, which is
may be at the same time the most urgently needed strengthened when the court strictly monitors defen-
and the most difficult to accomplish. dants’ compliance with court orders. In drug courts,
this accountability can lead to successful recovery from
drug abuse, while in domestic violence courts it can
COMMON ELEMENTS IN
help keep domestic violence victims safe. But when
DRUG COU RTS A N D DOM E S T IC
defendants fail to comply with judicially monitored
V IOLENCE COURTS
substance abuse treatment or batterers’ intervention
Drug courts and domestic violence courts have dif- programs, they face immediate sanctions, including
ferent roots, goals, and challenges. Still, both models increased frequency of court appearances, community
have achieved some success by directing the attention service obligations, or even incarceration.
of judges, court professionals, and community part-
ners to these issues. Because of these courts’ specialized C OL L A B OR AT ION A MONG
caseloads, a substantial proportion of their defendant J U S T IC E S Y S T E M PA RT N E R S
populations are involved in both substance abuse Both drug courts and domestic violence courts
and domestic violence. Their dedicated caseloads emphasize ongoing collaboration among diverse
give drug courts and domestic violence courts strong partners, including judges, court staff, prosecutors,
incentive to investigate methods for dealing with the defense attorneys, and law enforcement person-
nel, along with probation, treatment, and service PRO G R A M A N D C OU RT

professionals. The particular composition of the AC C OU N TA BI L I T Y
collaborations in each court differs; for example, Because drug and domestic violence courts empha-
victim advocates are prominent in any domestic vio- size coordination with service providers and rely on
lence court partnership, though they are not likely providers’ information to monitor defendant compli-
to be involved in typical drug court collaboration. ance, the quality of program operations and report-
The relationship among these partners also varies. ing is critical to these courts’ success. Therefore, both
Defense attorneys often eagerly participate in drug models closely monitor not only defendant compli-
courts that can offer their clients beneficial case dis- ance but also the performance of the programs that
positions as well as access to treatment. In contrast, the court utilizes. This focus helps ensure that court-
the defense bar is less likely to enthusiastically sup- mandated programs employ consistent procedures,
port specialized domestic violence courts, because provide high-quality services, and transfer reliable,
they typically promote greater defendant monitoring up-to-date information to the court.
and accountability than do other courts. Specialized courts’ focus on accountability goes
Yet in both models collaboration is critical, and the beyond individual program quality, however. These
two feature frequent partnership meetings to coordi- court models are innovations that must define clear
nate procedures, share information when appropri-
guidelines for measuring success, by identifying and
ate, and handle operational challenges. Both drug
tracking appropriate outcome measures that are
courts and domestic violence courts dedicate court
both qualitative and quantitative. As Chief Judge
and partner personnel to the court so that they can
Kaye has written, “[O]utcomes — not just process
promote a consistent and knowledgeable response to
and precedents—matter.”³¹ Both court-focused and
cases. In addition, each of the court models incorpo-
program-focused outcome measures are critical
rates a case manager or resource coordinator who acts
to the long-term success of the two court models.
as a liaison between the community-based partners
Although drug courts and domestic violence courts
and the court. This person ensures that defendants
enter appropriate programs; that these programs face quite different issues in defining and tracking
provide up-to-date, accurate, and comprehensive outcome measures, most specialized court models,
information on defendants’ participation; and that unlike traditional courts, require and train court and
community-based providers receive information partner staff to document accomplishments along
about court actions and defendant status. with failures. This shared culture of accountability
in courts and programs alike is key to problem-solving
S TA F F T R A I N I NG A N D E DUC AT ION courts’ achieving success.
Drug and domestic violence courts’ emphasis on Specialized drug courts and domestic violence
continuing education and training for all partners courts share certain key principles that could serve
enhances the collaboration necessary to ensure the as a foundation for addressing substance abuse and
effectiveness of both these court models. It is criti- domestic violence in a coordinated fashion. Judicial
cal for the multiple system players involved in each leadership, defendant accountability, collaboration
specialized court to receive ongoing training on rel- with community-based partners, intensive training,
evant case issues. This training, as well as the culture and accountability of programs and court opera-
of continuing education, is an accepted component of tions—all make these specialized courts well situated
both domestic violence and drug courts. The train- to focus on both issues in a responsible manner that
ing gives court and partner staff the tools to identify would improve outcomes while also respecting the
promising practices to improve court and program important differences in the problems of substance
operations. abuse and domestic violence.
CH A L L E NGE S I N DE V E LOPI NG and clinical staff have identified as necessary for suc-
A C O OR DI N AT E D R E SP ONSE cessful completion after an initial assessment. Once
TO SU B S TA NC E A BUSE A N D the defendant is participating in drug court, the
DOME STIC V IOLENCE court, the prosecutor, and the defense attorney are
all focused on the defendant’s success, so they adopt
Despite its potential for developing a coordinated
a “team approach” to handling issues that arise. Drug
response to substance abuse and domestic vio-
courts promote a supportive atmosphere where
lence, the specialized-court approach faces serious
participants are applauded and rewarded for good
challenges. Significant differences exist in drug and
behavior and progress in treatment.
domestic violence courts’ philosophies, goals, case-
In contrast, domestic violence courts focus on vio-
processing styles, and program operations that make
lent perpetrators who have hurt their targeted victims.
responsible coordination difficult and raise the ques-
These courts see domestic violence not as an illness
tion whether such coordination is preferable or even
but as a learned and voluntary behavior, making an
possible. But it does not seem that the courts or their
illness and treatment model inapplicable. “Relapse” in
service provider partners can continue to ignore the
domestic violence is not tolerated. Moreover, unlike
high co-occurrence of substance abuse and domestic
treatment programs for substance abuse, batter-
violence if they hope to reduce defendant recidi- ers’ intervention programs are largely untested, and
vism and enhance victim safety in the long term. no approach has clearly proven successful in reduc-
This section focuses on the different ways in which ing long-term battering behavior. For practitioners
courts and service providers address the two prob- familiar with the dynamics of domestic violence, the
lems, with special attention to identifying areas of concepts of rehabilitation and being powerless over
conflict in methodology. Progress in developing an addiction, familiar ideas in drug courts, are inappro-
effective method of intervening in cases where both priate in domestic violence courts.
problems exist demands a deep understanding of Instead, the highest priority of domestic vio-
both approaches. lence courts is victim safety, and therefore the court
focuses on procedures and outcomes that will pro-
DI F F E R E NC E S I N PH I L O S OPH Y
mote it. The court emphasizes victim services, which
A N D PR IOR I T I E S
are voluntary and centered on assisting the victim
Fundamental differences can be noted in the phi- and the children to achieve safety both in the short and
losophy and goals of drug courts and domestic long term. These services can include links to shelter
violence courts that reflect the distinct causes and and food, counseling, safety planning, health care, and
dynamics of substance abuse and domestic violence job training. For the defendant, the court’s focus
as well as appropriate interventions for them. Drug is on accountability and punishment rather than
courts generally rely on a medical model of treat- rehabilitation. The court routinely imposes criminal
ment—approaching the addiction as a disease—and sentences, including incarceration and intensive pro-
though they require accountability, they operate bation supervision.
on the assumption that relapse is a natural part of While community partnerships are important in
recovery. Drug courts typically handle only non- a domestic violence court, the court maintains the
violent offenders and focus on their rehabilitation, traditional adversarial process and does not rely on
an achievable goal because successful methods of the “team approach” used in drug court. Defendants
promoting recovery from substance abuse are well do not choose whether to participate in domestic
established. Defendants voluntarily opt to have their violence court. All defendants who are charged with
cases heard in drug court by agreeing to accept both certain defined crimes or who are in a close relation-
a plea and the conditions of treatment that the court ship with the victim are prescreened to assess their
appropriateness for the specialized court. The court’s must simultaneously treat the addiction and provide
intensive monitoring and coordination with other support for recovery while maintaining a constant
agencies are distinctive to the domestic violence focus on victim safety and defendant accountability.
court, but other features of the court’s operations, Roundtable participant Emily Sack, a law pro-
such as discovery procedures, hearings, and the plea fessor who was involved in the development of
process, follow traditional case processing, though domestic violence courts in New York, noted that
they are likely to be more efficient than in a typical practitioners in domestic violence courts are con-
court. Most domestic violence courts utilize batter- cerned that addressing substance abuse in this setting
ers’ programs and do not view successful completion could change the courtroom tone and jeopardize
as a sign that a defendant will not reoffend. Further, its effectiveness with domestic violence defendants:
domestic violence charges are not dismissed on pro- “[T]here’s a real resistance to having the . . . nonad-
gram completion. Unlike the supportive atmosphere versarial [atmosphere], applauding for substance
and celebratory tone of drug courts, domestic vio- abuse success in treatment the way drug courts do
lence courts retain the adversarial atmosphere of a it.” She asked whether there might be a way to deter-
criminal court and do not reward defendants for mine which issue should be the predominant focus
not reoffending, since that behavior is considered a of the court, so that the other problem could be
minimum expectation. addressed without undermining the tone and atmo-
Given these differences, court personnel and ser- sphere most appropriate for the case. Judge Pamela
vice providers in these fields often view their coun- Iles, who was presiding over a domestic violence
terparts with suspicion, as they use approaches that calendar in Orange County, California, noted that
seem alien to their own training and values. Drug if the defendant were in court to answer a domestic
court personnel and substance abuse treatment pro- violence charge, the court could indeed address the
viders alike may be uncomfortable around violent substance abuse while adhering to domestic violence
offenders. In fact, federal funding guidelines for court procedure and tone: “I don’t applaud. I don’t
drug courts prohibit offenders charged with a violent run a drug court here. People are sent to alcohol or
crime from participation in drug courts.³² Because drug treatment as part of their conditions of proba-
drug courts focus on rehabilitation and support for tion. This is not a deferred entry of judgment. This
defendants, they may find it difficult to develop an isn’t a situation where they’re getting approval for
effective approach that addresses and penalizes the doing what they should’ve done in the first place.
violence shown by defendants who are both sub- Drug and alcohol abuse in my court is often used
stance abusers and batterers. Such courts may view as an excuse for the violence, and it is neither an
the approach used by domestic violence practitioners excuse nor a license to commit violence. So I don’t
as overly punitive and unlikely to create the support- count that as a reason to reduce accountability or
ive environment necessary for recovery from drug violence.”
addiction. A deep philosophical divide separates the approaches
Conversely, domestic violence court personnel to substance abuse and domestic violence that dic-
and service providers may be concerned that sub- tate the distinct goals and practices of drug courts
stance abuse treatment programs tend to relieve the and domestic violence courts, as well as their varying
defendant of responsibility for his or her abusive service interventions. It may never be possible, or
actions, and that the risks to victims associated with even appropriate, to attempt to merge these practices
domestic violence are ignored if drug treatment takes into a single approach to both issues. But it may be
precedence. Domestic violence court personnel and feasible to identify the primary issue before the court
batterers’ program providers may also find it difficult and maintain the procedures suited to that problem
to address substance addiction in batterers when they while also recognizing and addressing other existing
problems. The development of such a coordinated not undertake an assessment of defendants. Because
approach to the co-occurrence of substance abuse entry into the domestic violence court is involuntary
and domestic violence would be a sensitive and com- and determined by objective criteria, screening for
plex project, yet it deserves further consideration. the level of domestic violence inflicted, as well as
for any substance abuse or mental illness, is rarely, if
DI S T I NC T TA RG E T P OPU L AT ION S ever, done at the court itself. If a convicted defendant
A N D C H A L L E NG E S TO is not incarcerated, he or she will likely be ordered to
C OM PR E H E N S I V E A S S E S S M E N T
participate in a batterers’ intervention program as
In drug courts, most programs limit participation to part of the sentence. In contrast to substance abuse
low-level, nonviolent offenders with demonstrated treatment, research on batterers’ programs is not well
problems of substance abuse. Defendants seeking developed, and little differentiation can be noted in
entry to the drug court undergo screening by the the approaches to batterers’ intervention. Usually
court, including an assessment of whether and how a judge will not have distinct choices in batterers’
they abuse substances like drugs or alcohol. Assess- programs nor will the judge know whether one or
ment is designed to identify the specific substances another program is likely to be a better “fit” for a
being used and the potential presence of coexisting particular defendant. At the batterers’ program itself
health problems, such as mental health disorders. defendants usually undergo a brief psychosocial
On the advice of a court clinical team, the judge assessment that may indicate mental illness or sub-
selects from a number of modes of available treat- stance abuse, though this assessment is typically
ment, such as residential or outpatient programs, far less developed than its counterpart in substance
and may suggest programs that focus on particu- abuse treatment.
lar addictions as conditions for the defendant. The These different defendant populations and
treatment plan is typically structured and responsive assessment methods would pose a challenge in any
to the needs of the individual defendant. While the attempt by drug courts and domestic violence courts
Addiction Severity Index (ASI) is used by most drug to seriously address the co-occurrence of substance
courts and includes domestic violence as a factor abuse and domestic violence. Drug courts would
in the assessment, it is unusual for drug courts to need to focus on domestic violence issues within
focus on battering when sobriety is the prime moti- their existing population and would have to consider
vation. As noted earlier, arrests for domestic violence expanding their population to include offenders
crimes generally exclude offenders from drug court charged with violent crime. Assessment tools used by
eligibility. The substance abuse treatment programs drug courts would need to address domestic violence
themselves perform additional assessments once more comprehensively. Domestic violence courts
a defendant has entered a program. Like the drug would have to explore a more comprehensive assess-
court itself, a program may identify domestic vio- ment for substance abuse problems, performed ear-
lence as an issue, but it is typically used to make a lier in the process, so that substance abusers could be
defendant ineligible for treatment mandated by the identified before placement in batterers’ programs.
drug court and is not addressed directly. The substance abuse treatment and batterers’ inter-
In contrast, violent perpetrators make up the vention programs also would need to perform more
population of domestic violence courts. These defen- comprehensive assessments and act on cases where
dants target their victims and attempt to exert power substance abuse and domestic violence co-occur.
and control over them, making victim and child Developments such as these would require signifi-
safety a primary concern. In addition, batterers can cant changes in the assessment processes now being
be highly manipulative and recalcitrant in adher- used by both drug courts and domestic violence courts.
ing to court orders. Typically, the court itself does They would also require that court and program staff
possess the necessary expertise to assess substance of different levels of substance abuse, different levels of
abuse and domestic violence. Today, however, the mental health issues.”
courts and the programs rarely have staff with exper- However, Judge Iles questioned whether detailed
tise in both issues, and neither is well equipped to defendant assessments were a realistic possibility
address the two issues at the same time. Roundtable in view of the limited time and resources available in
participants strongly agreed both that defendants many criminal courts: “I don’t have a police report
must be assessed for each issue and that currently in my case. I get a couple of minutes of discussion
assessments are often left to program staff who lack with the attorneys . . . . And then I make an assess-
the expertise to adequately screen in both areas. ment based on that [of ] what the sentence is going
Larry Bennett, a researcher whose work focuses to be.” Judge Mary Ann Grilli, who presides over a
on batterer characteristics as well as the intersection unified domestic violence family court calendar in
of substance abuse and battering, pointed out that the Superior Court of Santa Clara County, echoed
screening for both issues could also help identify these concerns: “I agree with the concept in general
the domestic violence defendants who were most about assessment. I’m also a realist in the sense that
likely to reoffend. Citing the research of Edward assessment requires funding. Assessment requires
Gondolf, Bennett said, “Ninety percent of the re- somebody to do it . . . . [I]f you look around the state,
offense[s] . . . [were] committed by about 20 percent you’re going to find that those programs are very,
of the batterers and . . . these people could be identi- very limited because there is no resource available to
fied. Substance abuse, not at intake but during the fund it.”
program, was one of five major predictors of reof- Judge Deborah Andrews, who oversees a misde-
fense.” Bennett stressed the importance of using sub- meanor domestic violence calendar in Los Angeles
stance abuse and other factors to distinguish among County and previously presided over a drug court in
domestic violence offenders, something that is rarely Long Beach, pointed out that an additional differ-
accomplished presently. Domestic violence offend- ence in performing assessments in drug courts versus
ers “are sentenced as if there’s such a thing as a bat- domestic violence courts is the drug courts’ greater
terer; there is not really—one is not distinguished. availability of comprehensive information about the
In other words, [the courts are] not looking at sub- defendant. This can affect the judge’s ability to con-
stance abuse. They’re not looking at perniciousness duct effective assessments and develop appropriate
where [perpetrators have] reoffended in the past. sentences. “[W]e’re often handicapped by having
They’re not looking at severity of offense, how bad very little empirical information in a domestic vio-
was the injury or whatever. Looking at those kinds lence court as opposed to drug court, where there’s
of things which could actually help us come up with a team approach,” Judge Andrews noted. “[In drug
different sentencing options, different treatments as a court,] [e]verybody is fairly open about what has
matter of fact for different men.” Williams Downs, transpired with this individual. You know a lot about
a researcher who has studied the linkage between their history. You know the amount of drugs that
women who have been victims of domestic violence they were found with, their drugs of choice, et cetera,
and who are in substance abuse treatment programs, as opposed to a domestic violence case, where, in my
agreed with Bennett’s conclusions: “[W]hen it comes court at least, it’s not really a team approach. It’s defi-
to domestic violence, it’s a crime. The person is nitely adversarial.”
responsible. I think we have to always keep that in The different legal dynamics in drug courts and
mind. But when it comes to the intervention above domestic violence courts also affect the judge’s ability
and beyond that, I think we need to go to the next to do effective assessments. In drug court, defendants
step when it comes to batterers as to what differential choose to enter the court and want to participate in
programs should we be developing based on assessments its program because they can obtain access to treat-
ment and other services. A further inducement is that if substance abuse issues in the early stages of a crimi-
they succeed in treatment their criminal charges will be nal case would permit more effective interventions.
reduced or dismissed. For these reasons, most potential But several hurdles must be overcome before such a
drug court defendants voluntarily and quickly submit plan could be implemented, including better train-
to assessments to determine if they are eligible and to ing for court officials conducting dual assessments
identify an appropriate treatment plan. They are then and securing appropriate resources to support the
told the details of the proposed plan before having to anticipated needs for additional staff. Finally, pol-
decide whether to take a plea and submit to the drug icymakers must address legal incentives to ensure
court program. that assessments do not have the unintended con-
However, comprehensive assessments made early sequence of discouraging pleas and participation in
in the domestic violence court process are likely to necessary interventions.
be resisted by defense attorneys. Defendants can-
not choose whether to participate in the domestic S E N T E NC I NG I S S U E S
violence court, and their charges are neither reduced The sentencing structures of drug courts and domes-
nor dismissed if they complete batterers’ programs or
tic violence courts also vary because of the courts’
other interventions. Therefore, they are not likely to
differing philosophies and populations. Generally,
welcome more intensive assessments that may result
defendants must be charged with offenses that are
in additional court-ordered conditions beyond the
nonviolent and low-level to be eligible for drug
batterers’ intervention program, such as participa-
court, so the court accepts pleas that do not include
tion in an intensive substance abuse treatment pro-
incarceration. The court’s focus is on offering defen-
gram. Emily Sack noted that in the more adversarial
dants the opportunity to enter drug treatment and
setting of a domestic violence court, this resistance
ultimately recover from addiction. A drug court typ-
to assessments could take the form of a legal chal-
ically proffers a deferred sentence. Defendants enter
lenge by the defense “if you were going to make
drug treatment with the understanding that if they
certain determinations of bail or sentencing based
on assessments with unproven, predictive qualities.” successfully complete the program their charges may
Judge Andrews pointed out that because of the tra- be dismissed or reduced. But if they are unsuccessful,
ditional adversarial nature of these courts, “defense they know that a criminal sentence will be imposed.
counsel’s commitment is not for long-term change Domestic violence courts concentrate on keeping
and growth” and that defense counsel are under- victims safe and holding defendants accountable for
standably concerned about referrals to multiple pro- their behavior. Incarceration is a definite alternative
grams that create additional barriers for defendants for convicted defendants, depending on factors such
to complete probation without violations: “[T]heir as severity of the offense and criminal history. Defen-
worry is, ‘[t]his is one more way for my guy to screw dants who are not incarcerated may still be subject to
up.’” Judge Iles added that the legal dynamics of intensive probation and other methods of strict moni-
sending a case out for an assessment before sentenc- toring. Importantly, practitioners and experts in the
ing could result in far fewer guilty pleas in domestic field disapprove of any diversion option—for exam-
violence court. This could have a dramatic effect on ple, where batterers’ intervention programs are used as
a criminal justice system already severely stressed, a substitute for incarceration. Batterers’ programs are
where case turnover is necessarily rapid and in which not equivalent to substance abuse treatment, nor does
individual judges such as Judge Iles handle thou- the research indicate that completion of an interven-
sands of cases every year. tion program results in “recovery” from domestic vio-
There is a consensus that comprehensive assess- lence. Because victim safety is of prime concern, these
ments that can identify both domestic violence and programs should not be used either to substitute for
incarceration or other close monitoring or to excuse T R A I N I NG A N D E DUC AT ION

batterers from punishment. Although their specialized caseload requires drug
Judges must understand these distinctions if they court judges to understand addiction issues and
are to handle cases with domestic violence issues. As judges in domestic violence court to be informed
Emily Sack commented, “[Y]ou can’t just . . . trans- about the dynamics of intimate partner violence,
late that type of [drug court sentencing model] to few judges are sufficiently knowledgeable about the
domestic violence court. Incarceration is not a bad complex web of domestic violence and substance
thing for many of these guys; and, at least from my abuse. Cases involving abuse of an intimate part-
perspective, often it’s the thing that makes them ner coupled with chemical addiction are far more
wake up. So I don’t want to . . . say that we should complex than most drug court cases, because they
all be talking about putting them on probation and include a threat to the victim’s safety, something
going into treatment programs immediately.” Patti not at issue in a typical drug case. Judges need to
Bland noted that incarceration also can be impor- understand the potential risks to victims that the
tant in domestic violence cases because it provides a court process involves. Arrest of a perpetrator can
victim with the opportunity to establish a safer envi-
present “a particularly high risk for continuing, even
ronment. Bland added that “on-site prison services
escalating violence . . . . [B]attered women often have
addressing both domestic violence and addiction
compelling reasons—like fear, economic dependence
may be useful to consider.”
or affection—to feel ambivalent about cooperating
Larry Bennett agreed that incarceration is appro-
with the legal process.”³³ Judges and court person-
priate for some batterers but emphasized the need to
nel who have not had domestic violence training
differentiate among domestic violence defendants
may exhibit an anti-victim bias because they simply
to determine appropriate sentencing options, and to
do not understand why a victim would choose to
consider the effect that particular sentences will have
remain in a violent relationship.
on the victim. Judge Grilli pointed out that domes-
Drug court judges, though familiar with ways to
tic violence cases can also be particularly complex
because the defendant and victim may have children monitor defendant progress, must also learn to incor-
together: “I think that one of the things that gets porate victim advocates into their court process and
overlooked in sentencing is a very basic question, ensure that victims themselves are informed about
‘Do you have children with the alleged victim?’ And the defendant’s compliance with court-ordered pro-
I think that asking that question and really following grams. In addition, they must state clearly that their
up with knowing whether there are orders regard- support for a defendant’s recovery from substance
ing the children . . . and really looking at how can abuse does not excuse the violence. And they must
the criminal court integrate better with family, and coordinate with substance abuse treatment programs
juvenile, and probate, to really have an appropriate to make certain that the programs do not use pro-
response for the kids, not just the perpetrator.” cedures such as requiring spousal involvement in a
Any court that addresses issues of both substance treatment plan that could endanger a domestic vio-
abuse and domestic violence must develop a sentenc- lence victim. Achieving an appropriate courtroom
ing structure that incorporates the concerns reflected atmosphere and making victim safety a priority
in the distinct sentencing models of drug courts and requires that a drug court judge handling cases that
domestic violence courts as well as particular con- include domestic violence be highly knowledgeable
cerns arising from the dynamics of substance abuse about the dynamics of intimate partner violence.
and domestic violence. This task is daunting, and it The drug court judge must also know the effect that
has yet to be the focus of discussion among practitio- substance abuse and treatment for substance abuse
ners and policymakers. can have on those dynamics. Few drug court judges
are currently trained to identify and deal with these ing domestic violence victims participating in sub-
complexities. stance abuse treatment. The providers “inadvertently
Conversely, domestic violence judges unfamil- were doing practices that might prove dangerous for
iar with addiction and substance abuse treatment women. For example, they were including abusive
research may have difficulty in effectively addressing partners in the treatment plans for the women, and
the substance abuse of a domestic violence defen- they didn’t know any better.” Victims can also be
dant. Relapse, though unfortunate, is generally con- placed at risk when the abuser is in substance abuse
sidered a common element in the process of recovery treatment and the program presses the victim part-
from substance abuse. Judges trained to adopt zero- ner to participate.
tolerance policies in regard to violence may find it Judge Susan Finlay pointed out that other key
difficult to adjust their expectations for substance partners in the justice system also must be educated
abuse and to deal constructively with relapse. Sub- about both issues. In her jurisdiction in San Diego
stance abuse treatment relies on rewarding clients County, where the probation department oversees
for periods of successful sobriety, while domestic service providers, probation staff may not assign dif-
violence defendants are expected to refrain from vio- ferent interventions to domestic violence offenders
lence completely and are not rewarded for doing so. who have substance abuse problems. Larry Bennett
As discussed above, few judges are familiar with the agreed that probation officers can play a crucial role,
dynamics of both domestic violence and substance calling them “the linchpins of batterers’ programs,”
abuse and trained to address their co-occurrence because they often are responsible for placing defen-
effectively. dants in programs and monitoring program opera-
Additionally, staff from both substance abuse tions. Therefore, training of these officers as case
treatment providers and batterers’ intervention pro- managers who understand both substance abuse and
grams require effective cross-training to deal with domestic violence is critical. Nevertheless, this kind
the co-occurrence of substance abuse and domestic of training is not common in all jurisdictions.
violence. At present this cross-training is rare or min- Patti Bland remained optimistic that ongoing
imal when it does occur. Alyce LaViolette, who has comprehensive training and cross-training can help
worked at a battered-women’s shelter and founded a to develop service interventions that ensure both
batterers’ intervention program in California, noted safety and sobriety. William Downs agreed that pro-
that only 4 hours of the 40-hour training mandated viders had good intentions and that on-the-ground
for staff of court-approved batterers’ programs in cross-training could greatly ameliorate the problems
California are devoted to substance abuse. created by providers’ lack of knowledge: “[W]e have
LaViolette cited a recent development: that many had domestic violence advocates from the shelters
substance abuse programs are beginning to provide going into substance abuse treatment programs and
batterers’ intervention services to make up for the training and educating providers in regard to domes-
loss of some traditional funding sources. She noted tic violence. We’ve had folks from the substance
that staff at many of these programs lack adequate abuse treatment programs educating the advocates
training in domestic violence dynamics, and some in the shelters in regard to substance abuse . . . . And
are even purveying outdated and inaccurate infor- so we had quite a bit of cross-training, and because
mation, including “the old party line” that “if the we had the shelters training the substance abuse
substance abuse dries up, the battering dries up,” and treatment providers and vice versa, instead of us
that “[t]he woman, the co-dependent, is sicker than as university ‘experts’ coming in and doing it, that
the alcoholic.” Inadequate training can directly place resulted in some really strong collaboration between
domestic violence victims at risk. William Downs the two different treatment programs; and they’ve
observed that effect in a program he studied, involv- continued.” Bland points out that training programs
have the additional benefit of enhancing collabora- tus in both areas and can coordinate interventions as
tion among diverse agencies and programs: “[T]he well as appropriate responses.
goal of this training is not merely to share informa- But reliance on a single program to provide inte-
tion but to create a climate where relationships can grated services, while promising, also raises some
develop.” concerns. Larry Bennett pointed out that a pro-
The lack of education and cross-training of court gram of integrated services “reduces accountabil-
and service provider personnel in issues of sub- ity,” because, first, it is difficult to ensure that the
stance abuse and domestic violence remains a glar- program staff have appropriate expertise in both
ing gap in the current system’s approach to dealing fields and, second, assessments and placement into
with co-occurrence, yet it can be resolved relatively dual services are necessary for particular defendants:
easily. Both the justice system and service profes- “[U]nless you’ve got an in-house domestic violence
sionals themselves should work to develop training advocate, someone who knows how to hold people
involving experts and practitioners in each area. This accountable for the kind of practice they’re engaging
straightforward action could have a significant posi- in, I think it puts victims at risk to have integrated
tive impact in the effectiveness of interventions with agencies, and I don’t think we need to do it.”
defendants and could minimize practices that place This accountability is of particular concern because
victims at risk. the development of batterers’ intervention programs
is not well regulated in many jurisdictions, mak-
ing it relatively easy for practitioners without neces-
PROM ISI NG PR AC T IC E S I N
sary training to enter the field. Bennett commented
A DDR E S SI NG T H E C O - O C C U R R E NC E
that some substance abuse programs have “suddenly
OF DOME STIC V IOLENCE
discovered a growth industry that is exempt from
A N D SU B S TA NC E A BUSE
managed care in batterers’ programs, and many of
Roundtable participants generally agreed that both these proprietary substance abuse agencies are begin-
substance abuse and domestic violence must be ning to want to do batterers’ intervention and even
addressed in cases where they co-occur. However, working with victims, and they’re selling it under the
experts are still grappling with the best strategy for guise of integrated services.”
treatment and service intervention in these cases. The alternative to an integrated program is a coor-
dinated approach in which the two types of programs
I N T E G R AT E D V S . remain separate but communicate and coordinate
C O OR DI N AT E D A PPROAC H their interventions. Judge Iles agreed that multiple
A primary issue is which would be more effective—a programs were better because the court would not
single program that integrates both substance abuse have to rely on a single program to provide the ser-
treatment and batterers’ intervention or two coor- vices as well as provide information to the court:
dinated yet independent programs? The integrated “I want more than one person seeing this person
approach has the benefit of requiring a defendant to . . . because what happens if you send them to a bad
attend only one program to address the two issues. program?” Judge Finlay also observed that there
This alleviates the concern that asking a defendant could be “a conflict of interest if the same provider
to participate in multiple programs may be difficult is recommending additional treatment. . . . [I]t then
financially, may take a great deal of time, and may could be argued, ‘Well, sure they’re going to say that
affect his or her ability to find and keep a job, an he needs substance abuse treatment. They’re going to
important element in a person’s ability to function make more money.’ So there’s a basic conflict.”
well in the community. An integrated approach also With a coordinated approach, substance abuse
ensures that program staff know the defendant’s sta- and batterers’ intervention professionals are cross-
trained, so that each is knowledgeable about the in domestic violence interventions, is also important in
other field. Larry Bennett noted that the coordina- treating substance abuse.
tion can go beyond cross-training to actual staff shar-
ing. In Illinois, he noted, “[w]e have shelter people C ONC U R R E N T V S . S E QU E N T I A L
going into the substance abuse treatment agencies A PPROAC H E S
. . . and likewise substance abuse people going into If the courts were to adopt a coordinated approach
the DV [domestic violence] agencies, actually put- to addressing substance abuse and domestic violence,
ting in four to six hours a week doing various things, they would also have to determine the best method
including assessments.” William Downs also favored of mandating services. They could order substance
the coordinated approach, which is the structure abuse treatment and batterers’ intervention either
of the program he has studied in Iowa: “We don’t concurrently or sequentially. While little support is
have substance abuse treatment programs by them- evident for requiring batterers’ intervention before
selves providing domestic violence services either to substance abuse treatment, experts dispute whether
men or to women. . . . What we have is people from it is more appropriate to mandate both interventions
the shelter going into the substance abuse treatment concurrently or to require drug treatment before
program and vice versa, and that would be the model entry into a batterers’ intervention program.
that I would also support when it comes to providing Proponents of the approach that requires sub-
stance abuse treatment before batterers’ intervention
services to batterers who have substance abuse prob-
emphasize that it is futile to mandate participation in
lems.” This approach permits each of the two types
a batterers’ program when the defendant is not sober.
of programs, which involve contrasting approaches
For a batterer to have even a possibility of changing
and philosophies, to continue in the practice spe-
his or her behavior, he or she must not be currently
cific to its area, while also improving both programs’
abusing drugs or alcohol. But this approach raises
awareness of the co-occurrence of these issues.
concerns about the length of time it may take for
Some roundtable participants were optimistic that
the defendant to complete both interventions. In
this coordination could be achieved because, despite
particular, some experts are troubled that substance
important differences in substance abuse treatment
abuse treatment could take a substantial period of
and batterers’ intervention programs, the programs time—a period during which the defendant will not
do share certain elements in common. Larry Ben- be held accountable for the domestic violence. This
nett remarked, “We are not all that good at treating gap could unnecessarily put the victim at greater risk.
substance abuse. We are good at treating substance Larry Bennett pointed out that, while proponents of
abuse in men who are motivated to change and in sequencing substance abuse treatment before batter-
helping them to become motivated. In that sense ers’ intervention assume that sobriety is necessary
it’s like domestic violence, which is widely assumed to absorb batterers’ intervention, “[n]ot as much
to have a social causation, but intervention is not attention is paid to the importance of nonviolence
societal (we can’t change patriarchy), but behavioral. as a possible precondition for sobriety. Safety and
Social learning, motivation, and power are all key sobriety are intimately linked.”
factors in substance abuse and domestic violence. An important factor in the choice between man-
What works in substance abuse [treatment] probably dating program participation sequentially or con-
works in domestic violence [intervention]: increas- currently is the length of time that the court has
ing motivation through support and consequences, authority over a defendant. In many jurisdictions,
increasing social support, helping the victims of the the court may order programs for a limited period.
problem through group-based intervention.” Judge Only with concurrent treatment would a judge be
Finlay added that personal accountability, so critical able to mandate both substance abuse treatment and
batterers’ intervention. Emily Sack pointed out that agreed with this approach, observing that defendants
sequential services would be difficult to mandate who also have mental health issues might be self-
in jurisdictions such as New York, given both the medicating with illegal drugs. These defendants need
limits on sentencing and the legal culture there: “We an initial period to get on the appropriate medica-
really don’t have the luxury in New York to have tion. After initial treatment, Judge Iles mandates
jurisdiction over a defendant for a year of residential concurrent but separate programs to treat the sub-
substance abuse treatment and then another year of stance abuse and domestic violence.
DV [intervention].” And, even if that were legally If the courts plan to seriously address the co-
possible, it is unlikely to be politically feasible, owing occurrence of substance abuse and domestic vio-
to the culture in criminal court and the expecta- lence, these treatment issues must be explored and
tions of the defense bar: “[Y]ou would not be able resolved, with the assistance of experts and service
to have somebody . . . with a low-level misdemeanor providers in both areas. At present, little data are
conviction under the jurisdiction of the court for available to confirm the effectiveness of various
years like that. So I think [this would be true] in vast approaches—research that the justice system needs
areas of the country, [and] obviously misdemeanors to make an informed decision on the best practice
are a lot greater [in] number than felonies. We have in this area.
to think of models that could address some of these
issues, but in a shorter time frame.” Larry Bennett OPP ORT U N I T I E S F OR T H E
concurred that time period was an issue in his Illi- S PE C I A L I Z E D C OU RT MODE L
nois jurisdiction: “We have a maximum of two years Policymakers and practitioners in the justice system
that the courts can be involved with these guys, and need to explore not only best service approaches but
generally it takes sometimes four to six months to also the best criminal justice procedures for address-
get a guy into a batterers’ program.” ing the co-occurrence of substance abuse and domes-
In contrast, Judge Finlay noted that in California the tic violence. The differences in the justice system’s
court “can put people on probation for misdemeanors, approaches to these issues create a significant chal-
domestic violence for three years, and for substance lenge. Still, the common elements and structures in
abuse five, and certain child abuse offenses five years. So specialized problem-solving courts hold promise for
we do have time to do a lot of things, and our experi- meeting that challenge.
ence has been it’s pointless to send them to the domestic Specialized courts feature a dedicated, experienced
violence program until they get their substance abuse court and partner staff who focus on a specific case-
issues in hand and that can vary.” She noted that in her load. This collaboration promotes consistency while
court she is able to place “a really chronic offender who it provides incentives for developing efficient proce-
cannot function . . . into intensive outpatient or residen- dures that incorporate promising practices in the field.
tial treatment for alcohol or substance abuse . . . and we These elements create a structure whereby the system
just wait until they’re sober and stable enough to take could develop methods of addressing substance abuse
the 52-week [batterers’] program.” and domestic violence in a responsible, effective way.
A third alternative is to mandate an initial brief Judge Iles asserted that “all domestic violence courts
period for alcohol or drug detoxification, if necessary. should be dedicated courts, they should be long-term
A defendant could then enter batterers’ intervention assignments, they should be heavily enriched with
while continuing treatment for substance abuse. This staff . . . .” She emphasized that the resources, staff
has the advantage of ensuring that the defendant is expertise, and focus of a specialized court would not
not actively abusing drugs when entering a batterers’ only enhance services to defendants but also improve
program, while also making certain that his or her the safety of victims and increase the overall effective-
battering behavior is addressed quickly. Judge Iles ness of the justice system.
Specialized courts are designed to provide ongoing, perpetrators, or to address domestic violence in sub-
intensive monitoring of defendants. This includes sev- stance abusers, places victims at greater risk.
eral elements: frequent court appearances by the defen- Consensus exists for the desirability of a com-
dant, coordination with community-based services, prehensive assessment of defendants charged with
consistent protocols for reporting and information substance abuse or domestic violence so as to iden-
sharing between the court and programs, and estab- tify the co-occurrence, if any, of these problems at
lished sanctioning schemes for noncompliance. These an early stage in the criminal justice process. Court
features are critical in any effort to address issues of personnel and community-based programs working
substance abuse and domestic violence in the defendant with these defendants need extensive cross-training
population. For example, Larry Bennett pointed out so that they can identify both issues, develop pro-
that victim safety requires domestic violence perpetra- cedures for addressing them, and incorporate vic-
tors to be assessed, not only when they enter a batterers’ tim safety needs into any program protocols. While
program but also on an ongoing basis: “Ninety percent assessment procedures and training programs require
of the recidivism in batterer programs is caused by 25 resources, nevertheless both should be priorities for
percent of the men. These men can, for the most part, the justice system, and both will improve by address-
be identified, but not by paper and pencil or psycholog- ing defendants’ long-term problems.
ical tests. The best predictors are found during the pro- Practitioners and experts alike agree that the sys-
gram: drunkenness and victim fear. Assessment must be tem must move beyond mere identification of the
ongoing throughout the program. Batterers’ interven- problem to develop appropriate criminal justice and
tion program staff is not usually prepared to do this. service intervention approaches to the co-occurrence
DV [domestic violence] court would help magnificently of substance abuse and domestic violence. It is clear,
in this area. Once a month, everyone gets reviewed in though, that approaches to substance abuse and
court.” Alyce LaViolette agreed: “[I]f you look at assess- domestic violence, whether in the court system or by
ment, it’s got to be ongoing, and the only people that service providers, are quite distinct and may indeed
are really in that position are the courts working in col- prove incompatible. These distinctions rest on strong
laboration with batterers’ treatment.” philosophical and practical foundations and cannot
Problem-solving courts have been created to be easily dismissed. Any serious examination of a
address core problems in the defendant population. coordinated approach to these issues must recognize
These courts could be an excellent starting point for the potential costs that such an effort may create and
experimental programs that comprehensively address must explore whether these costs are worth the ben-
the coexistence of substance abuse and domestic vio- efits of such an approach.
lence in defendants. Before we can expect judges to effectively handle
cases involving both substance abuse and domes-
tic violence, policymakers and practitioners need to
CONCLUSION
undertake more comprehensive research to determine
The criminal justice system and the service providers which approaches actually prove effective in address-
with which it partners can no longer disregard the co- ing substance abuse and domestic violence and
occurrence of substance abuse and domestic violence which court procedures can produce results without
in their defendant populations. The co-occurrence is jeopardizing victim safety or ignoring fundamental
substantial, and failure to address one issue diminishes theories of addiction and domestic violence. Spe-
the system’s ability to successfully address the other. cialized problem-solving courts that already work
Further, substance abuse is a marker for more severe closely with community-based agencies have per-
and ongoing domestic violence, to the extent that haps the greatest potential to develop the appropri-
failure to confront addiction in domestic violence ate coordination of substance abuse and domestic
violence programs and to devise new criminal justice problems will have a profoundly beneficial impact on
approaches to the co-occurrence of these issues. the success of our justice system’s efforts to address the
While best practices in this field are still being complex problems of defendants, provide safety to their
developed, the justice system and its community- victims, and reduce violence and drug abuse in our
based partners can take several preliminary steps communities.
that would increase their efficacy in addressing
both drug abuse and domestic violence. In addi-
tion to defendant assessments and cross-training,
courts and service providers can strengthen referral NOTES
networks among substance abuse treatment provid-
1. All quotes in the article are from roundtable partici-
ers, batterers’ intervention programs, and advocacy pants in the teleconference held on January 13, 2004. Par-
organizations for domestic violence victims. Provid- ticipants are listed in the appendix following the article.
ers in both the chemical dependency and domes-
2. Carolyn Easton et al., Motivation to Change Substance
tic violence fields can develop procedures designed
Use Among Offenders of Domestic Violence, 19 J. SUBSTANCE
to support safety and sobriety among victims and ABUSE TREATMENT 1 (2000); see also D. Brookoff et al.,
victimizers alike. Batterers, even when participating Characteristics of Participants in Domestic Violence Assess-
in substance abuse treatment programs, cannot be ment at the Scene of Domestic Violence Assault, 277 JAMA
relieved of accountability for their abusive behavior. 1369, 1371 (1997).
Similarly, substance abuse programs can screen for 3. Brookoff, supra note 2, at 1369, 1371.
domestic violence and can refer batterers in their
4. Edward Gondolf, Characteristics of Court-Mandated
population to a suitable intervention program.
Batterers in Four Cities: Diversity and Dichotomies, 5 VIO-
The cross-training and referral network can also work LENCE AGAINST WOMEN 1277 (1999); K. Leonard & T.
to strengthen interpersonal relationships, which are crit- Jacob, Alcohol, Alcoholism, and Family Violence, in HAND-
ical to any effective response to the co-occurrence of BOOK OF FAMILY VIOLENCE 383 (Vincent Van Hasselt et
substance abuse and domestic violence. As Patti Bland al. eds., Springer 1987).
expressed it, 5. P. Rivara et al., Alcohol and Illicit Drug Abuse and the
Effective intervention requires systemwide recogni- Risk of Violent Death in the Home, 278 JAMA 569 (Aug.
20, 1997).
tion of individual limitations and a desire to join
forces to provide a coordinated community response 6. Larry Bennett et al., Domestic Abuse by Male Alcohol
to end problems stemming from both domestic vio- and Drug Addicts, 9 VIOLENCE & VICTIMS 359 (1994).
lence and addiction. To achieve these ends, provid- 7. LUPITA PATTERSON, WASH. STATE COALITION AGAINST
ers in both the chemical dependency and domestic DOMESTIC VIOLENCE, MODEL PROTOCOL FOR WORKING
violence fields can begin acknowledging each oth- WITH BATTERED WOMEN IMPACTED BY SUBSTANCE ABUSE
er’s good intentions and strive to provide services 25 (Feb. 2003), available at www.wscadv.org/Resources
designed to support both safety and sobriety options /protocol_substance_abuse.pdf.
for people seeking to achieve both. This may enhance
8. T. O’Farrell & C. Murphy, Marital Violence Before and
an individual’s chances for achieving both restraint
After Alcoholism Treatment, 63 J. CONSULTING & CLINICAL
from violence and sobriety while improving safety PSYCHOL. 256 (1995); Easton et al., supra note 2, at 1–5.
and health outcomes in our communities.
9. J.J. Collins et al., Issues in the Linkage of Alcohol and
The court system can promote this coordination by Domestic Violence Services, in 13 RECENT DEVELOPMENTS
imposing certain requirements on programs used by the IN ALCOHOLISM: ALCOHOL AND VIOLENCE 387 (Marc
court, as well as by harnessing the judicial authority to Galanter ed., Plenum Press 1997).
encourage program cooperation. In the best possible 10. OFFICE OF JUSTICE PROGRAMS, U.S. DEP’T OF JUS-
outcome, confronting the co-occurrence of these TICE, NATIONAL SYMPOSIUM ON ALCOHOL ABUSE AND
CRIME: RECOMMENDATIONS TO THE OFFICE OF JUSTICE 18. DRUG COURTS PROGRAM OFFICE, U.S. DEP’T OF JUS- NOTES
PROGRAMS (Apr. 1998). TICE, DEFINING DRUG COURTS: THE KEY COMPONENTS 5
(Jan. 1997).
11. Id.
19. See id., passim.
12. GREG BERMAN & JOHN FEINBLATT, CTR. FOR COURT
INNOVATION, PROBLEM SOLVING COURTS: A BRIEF PRIMER 20. Id.
6 (2001). 21. Id.
13. Betsy Tsai, The Trend Toward Specialized Domestic Vio- 22. OJP DRUG COURT CLEARINGHOUSE, AM. UNIV.,
lence Courts: Improvements on an Effective Innovation, 68 DRUG COURT ACTIVITY UPDATE (Jan. 2005), available at
FORDHAM L. REV. 1285 (2000). http://spa.american.edu/justice/resources/2004factsheet.pdf.
14. BERMAN & FEINBLATT, supra note 12, at 6. 23. For a more comprehensive history of the develop-
15. While numerous state and national drug court evalu- ment of domestic violence courts and its relation to the
ations report a variety of positive outcomes, research on battered-women’s movement, see Emily J. Sack, Toward
an Understanding of Domestic Violence Courts: Origins,
domestic violence courts is less conclusive with success
Practice, and Potential (2004) (unpublished manuscript
relying on anecdotal information. See, e.g., Julia Weber,
on file with authors).
Domestic Violence Courts: Components and Considerations,
2 J. CENTER FOR FAM. CHILD. & CTS. 32 (2000). In addi- 24. See, e.g., Weber, supra note 15, at 26.
tion, the short time that most domestic violence courts
25. TASK FORCE ON LOCAL CRIMINAL JUSTICE RESPONSE
have been in operation, as well as several changes in the
TO DOMESTIC VIOLENCE, OFFICE OF THE ATTORNEY GEN.
criminal justice system that occurred simultaneously, has
OF CAL., KEEPING THE PROMISE: VICTIM SAFETY AND
made it difficult to obtain or interpret long-term recidivism
BATTERER ACCOUNTABILITY: REPORT TO THE CALIFORNIA
data or other impacts of the specialized courts. Many stud-
ATTORNEY GENERAL FROM THE TASK FORCE ON LOCAL
ies have tended to focus instead on a process evaluation CRIMINAL JUSTICE RESPONSE TO DOMESTIC VIOLENCE
of the implementation of the court and some qualitative (June 2005).
outcomes. See, e.g., RANDALL KLEINHESSELINK & CLAYTON
MOSHER, MINN. CTR. ON VIOLENCE & ABUSE, A PROCESS 26. See EMILY SACK, FAMILY VIOLENCE PREVENTION FUND
EVALUATION OF THE CLARK COUNTY DOMESTIC VIOLENCE & STATE JUSTICE INST., CREATING A DOMESTIC VIOLENCE
COURT (Mar. 2003); LYNN S. LEVEY ET AL., NAT’L CTR. FOR COURT: GUIDELINES AND BEST PRACTICES (May 2002).
STATE COURTS, LESSONS LEARNED IN IMPLEMENTING AN 27. ROBYN MAZUR & LIBERTY ALDRICH, CTR. FOR COURT
INTEGRATED DOMESTIC VIOLENCE COURT: THE DISTRICT INNOVATION, WHAT MAKES A DOMESTIC VIOLENCE
OF COLUMBIA EXPERIENCE (2001). Many courts have COURT WORK 4–5 (2002).
documented some promising changes, such as a dramatic
increase in the proportion of victims accessing services, 28. Weber, supra note 15, at 23.
improved tracking of defendants both before and after dis- 29. MAZUR & ALDRICH, supra note 27.
position, and an increase in issuance of protection orders.
Yet there remains a great need for outcome evaluations that 30. Judith S. Kaye & Susan K. Knipps, Judicial Responses
can provide more definitive information on such traditional to Domestic Violence: The Case for a Problem Solving
measures of success as recidivism. Approach, 27 W. ST. U. L. REV. 1, 5 (1999–2000).
16. The first drug court started in Dade County, Florida, 31. BERMAN & FEINBLATT, supra note 12, at 8.
in 1989. Domestic violence courts are a newer phenom- 32. The authors acknowledge that a decade and a half
enon within innovative courts yet are deeply influenced have passed since the first drug court in 1989. Many drug
by the domestic violence shelter movement of the early courts may now be “funded out” of the option to access
1970s. federal money and have institutionalized their courts
through state and other funding. This enables the courts
17. Problem-solving courts have developed in a number
to admit into their programs potential clients who may
of areas and include community courts and mental health
not be allowed admittance under federal guidelines.
courts. This article focuses on two such court models:
drug courts and domestic violence courts. 33. Kaye & Knipps, supra note 30, at 2.
APPENDIX R O U N D T A B L E PA R T I C I PA N T S
JUDGE DEBORAH B. ANDREWS oversees a misdemeanor domestic violence calendar in the Superior Court of
Los Angeles County. She also served as a drug court judge in Long Beach for three years.
LARRY BENNETT has been a researcher at the University of Illinois at Chicago for more than 15 years. His
work focuses on the characteristics of batterers, outcome evaluations on the effectiveness of batterers’ programs,
and the intersection of substance abuse and battering.
PATTI BLAND is the statewide training coordinator for the Alaska Network on Domestic Violence and Sexual
Assault in Juneau.
WILLIAM DOWNS is a professor at the University of Northern Iowa. For the past seven years he has been work-
ing on the Integrative Services Project, which received a National Institute of Justice research grant to study the
linkage between women in substance abuse treatment programs and domestic violence victimization.
JUDGE SUSAN FINLAY (RET.) presided over a domestic violence court in the Superior Court of San Diego
County. She formerly served as an adult and juvenile drug court judge. She has provided training on drug
courts for the National Drug Court Institute and the Department of Justice.
JUDGE MARY ANN GRILLI is a family court judge in the Superior Court of Santa Clara County. She presides
over a unified domestic violence family court calendar, which includes a special link to the criminal court.
JUDGE PAMELA LEE ILES serves in the Superior Court of Orange County. She presides over a vertical criminal
calendar, which includes domestic violence, elder abuse, and a family violence court. She is also starting a teen
dating violence program with the local board of education.
ALYCE LAVIOLETTE worked at a battered-women’s shelter from 1978 to 1984. She founded Alternatives to
Violence, a program for batterers that she ran within the shelter. She conducts national and international train-
ing programs and coauthored a parenting curriculum on domestic violence.
JUDGE JEAN PFEIFFER LEONARD became a judge in 1993 for the Superior Court of Riverside County, where
she started a family–domestic relations drug court. She currently oversees a juvenile delinquency drug court.
EMILY SACK is a professor at Roger Williams University School of Law in Rhode Island. She teaches domestic
violence law as well as criminal and family law and was formerly a deputy director of the Center for Court
Innovation in New York.
KATE YAVENDITTI is a senior staff attorney at the San Diego Volunteer Lawyer Program and works with
domestic violence victims in civil court. She is a member of the California Judicial Council’s Family and Juvenile
Law Advisory Committee.
73
From Behind Closed Doors:

Shedding Light on Elder Abuse and
Domestic Violence in Late Life
H
elen had been thrown down the stairs by her husband before. Their 40- MARY TWOMEY, M.S.W.
plus years of marriage had been riddled with violence. But something Institute on Aging (San Francisco)
was different this time. As she lay crumpled at the bottom of the steps,
she had a flash of insight: “I’m 74 years old. The next time he throws me down MARY JOY QUINN, R.N., M.A.
the stairs, I’m going to die.” Helen’s revelation that day led her to the Institute on Superior Court of California,
Aging’s Consortium for Elder Abuse Prevention. Helen joined a support group for County of San Francisco
abused older women and slowly gained the courage she needed to leave her long-
time relationship. Helen was able to open the door to safety with a lot of help and EMILY DAKIN, M.S.S.A., PH.D.
support. Whether seen as a survivor of elder abuse or as a survivor of domestic vio- University of California at San Francisco
lence in late life, Helen is just one of thousands of elderly and disabled Americans
who suffer behind closed doors. As California’s elderly population
increases, so will the incidence of elder
More than a quarter century has passed since elder abuse first became a abuse, including domestic violence in
matter of public concern in this country. Testimony on “parent battering”
late life. Ninety percent of all elder abuse
at a congressional hearing on family violence in 1978 brought the topic to
is perpetrated by family members, a
light.¹ And yet recognition of elder abuse as a social and legal problem is
large part by spouses and partners. Both
years behind child abuse and domestic violence, its cousins in the triad of
family violence issues. There is no federal legislation that focuses exclusively aging-services and domestic violence
on elder abuse. The first proposed federal elder abuse bill, the Prevention, professionals often feel unprepared to
Identification, and Treatment of Elder Abuse Act of 1981, modeled after adequately address the needs of elderly
the Child Abuse Prevention and Treatment Act of 1974, was introduced to victims of family violence. And, while
Congress 15 times by 1997 but never passed despite strong congressional and most elder abuse cases are seen in probate
state support for it.² The Elder Justice Act was originally introduced in the
court (with petitions for conservatorship),
108th Congress in 2003 but did not pass.³ Senators Orrin Hatch, R-Utah,
all court departments may encounter
and Blanche Lincoln, D-Ark., have plans to reintroduce the act in the next
Congress. This legislation would create a collaborative law enforcement and elderly victims of family violence. This
public health approach toward researching, preventing, treating, and pros- article provides background information,
ecuting elder abuse, neglect, and exploitation.⁴ definitions of types of elder abuse, the
Only 5 percent of those over 60 years of age are living in institutions at incidence and prevalence of elder abuse,
any given point in time.⁵ While nursing-home residents may also be victims Continued on page 74
of abuse and neglect, this article focuses on the 95 percent of seniors who
live in the community—in their own homes and apartments or with others. © 2005 Mary Twomey, Mary Joy Quinn &
For the purposes of this article, senior and other similar terms mean those Emily Dakin
Continued from page 73 65 years of age and older. An often-overlooked group also covered under
California’s “elder” abuse law⁶ is adults 18 to 64 who are disabled either
theories as to why elder abuse occurs,
physically or mentally.⁷ The appellation dependent adult describes this large
barriers to services specific to older vic-
cohort.⁸ Importantly, any one of us may be “dependent adults” at any time
tims, and challenges for the courts in that illness or an accident renders us “dependent.” The condition need not
confronting this growing problem. ■ be permanent to trigger the protections of the law.⁹ In this article the term
elder abuse includes dependent adults and victims of domestic violence in
late life.
W H AT I S E L DE R A BUSE ?
According to the National Center on Elder Abuse (NCEA), “[e]lder abuse is
a term referring to any knowing, intentional, or negligent act by a caregiver
or any other person that causes harm or a serious risk of harm to a vulner-
able adult.”¹⁰ The specificity of laws protecting elders varies from
state to state. In California, elder abuse or abuse of a dependent
adult includes (1) physical abuse, neglect, financial abuse, aban-
donment, isolation, abduction, or other treatment with resulting
physical harm or pain or mental suffering; or (2) the deprivation
by a care custodian of goods or services that are necessary to avoid
physical harm or mental suffering.¹¹ “Undue influence,” akin to
brainwashing, is a concept that is gaining recognition as a feature
of emotional abuse leading to mental suffering.¹² In addition,
sometimes elders neglect their own care, which can lead to illness
or injury. This category of elder abuse, called “self-neglect,” can
Photograph courtesy of Institute on Aging
include behaviors such as hoarding objects, failing to take medica-
tion, poor hygiene, and dehydration.¹³ Self-neglect has been correlated with
the presence of depression, dementia, and alcohol abuse.¹⁴
In California, the law specifically defines physical abuse,¹⁵ emotional
abuse,¹⁶ sexual abuse,¹⁷ isolation,¹⁸ false imprisonment,¹⁹ financial abuse,²⁰
abandonment,²¹ neglect,²² and self-neglect.²³ All forms of abuse, with the
exception of emotional abuse,²⁴ are mandated to be reported by those whom
the law identifies as mandatory reporters (e.g., social workers, medical profes-
sionals, and ministers, to name a few).²⁵ The reports are made to the county’s
adult protective services (APS) agency, the government office charged with
receiving and investigating reports of suspected elder and dependent adult
abuse, neglect, and self-neglect.²⁶ When a report is made, the identity of the
reporter is kept confidential.²⁷
P R E VA L E N C E A N D I N C I D E N C E O F E L D E R A B U S E
It is difficult to say how many older Americans are abused, neglected, or
exploited, in large part because the problem remains greatly hidden. Find-
ings from the National Elder Abuse Incidence Study suggest that more than
500,000 Americans aged 60 and over were victims of domestic abuse in
From Behind Closed Doors: Shedding Light on Elder Abuse and Domestic Violence in Late Life 75
1996.²⁸ This study also found that only 16 percent authorities,³⁸ and people over 80 years of age have a
of the abusive situations were referred for help, two to three times greater risk of being a victim than
while 84 percent remained hidden.²⁹ Prevalence those from 60 to 79.³⁹
research suggests that from 700,000 to 1,100,000
older adults are victims of elder maltreatment each ELDER A BUSE IS A FA MILY V IOL ENCE ISSUE
year,³⁰ a number that doubles when self-neglect Ninety percent of all elder abuse is perpetrated by
is included.³¹ Similarly, the House of Representa- family members.⁴⁰ Adult offspring and spouses
tives’ Select Committee on Aging found that up account for almost 70 percent of this number.⁴¹ Per-
to 5 percent—1.5 million persons—of the nation’s haps owing to methodological differences, research
elderly may be subject to moderate to severe abuse.³² is conflicting regarding whether adult children⁴² or
Reports of elder abuse and neglect to local adult spouses⁴³ are more likely to abuse. Similarly, research
protective services units are on the rise; the num- is conflicting regarding whether women⁴⁴ or men⁴⁵
ber of APS reports increased from 117,000 in 1986 are more likely to abuse; women may be more likely
to 293,000 in 1996, a 150 percent increase.³³ The to engage in neglect, while men may be more likely to
California Attorney General’s Office estimates that verbally and physically abuse.⁴⁶ The bottom line is
nearly 200,000 seniors and dependent adults are that elder abuse is a family violence issue.
abused, neglected, or self-neglecting each year in
the state.³⁴
The United States is experiencing an unprece- W H AT C AU S E S E L DE R A BU S E ?
dented growth in the numbers of people over 65 “Caregiver stress” as a primary cause of elder abuse
years of age. Of that group, the fastest growing seg- enjoyed popularity in the early years of research on
ment is over 85. The “baby boomers,” those born elder abuse.⁴⁷ The assumption of the caregiver-stress
between 1946 and 1964, will begin turning 65 in paradigm was that the more help the older person
2011. In 2030, they will begin turning 85.³⁵ needed the more likely abuse was to occur.⁴⁸ While
California is the fastest growing state in total pop- certain behaviors on the part of an elder-care recipient
ulation and has the most elders of any state. Between (e.g., refusal to bathe, aggressive behavior, unwilling-
1990 and 2020, the number of elders in California ness to give money that an abuser sees as “rightfully
will grow more than twice as fast as in the general his”) may trigger abuse,⁴⁹ in general caregiver stress as
population.³⁶ a cause of elder abuse has been debunked.⁵⁰ Instead,
In 1998, the California Legislature, recogniz- research indicates that perpetrator characteristics play
ing the state’s burgeoning elderly population and a more important role than victim characteristics in
the need to strengthen protections for vulnerable explaining occurrence of abuse.⁵¹
adults, passed Senate Bill 2199, which significantly Research has uncovered several key perpetra-
improved the state’s response to elder abuse by aug- tor characteristics: (1) drug and/or alcohol abuse,
menting staff at county APS programs, instituting (2) impairments such as mental illness and develop-
response-time requirements (cases must be responded mental disabilities, (3) financial dependency on the
to in either 24 hours—for emergencies—or within elder, and (4) a bad past relationship with the elder.⁵²
10 days), and adding new categories of mandated When applied to family caregiving situations, these
reporters.³⁷ Now California is one of the leaders in findings emphasize that, within the stressful context
elder abuse prevention. of caregiving, most people cope without resorting to
violent or exploitive behavior.⁵³ Family members who
WOM E N OV E R 8 0 A R E MOS T V U L N E R A BL E experience one or more of these risk factors are much
While there is no “typical” victim of abuse, women more likely to develop an abusive relationship with an
are the victims in two-thirds of all cases reported to elder relative.⁵⁴ Indeed, elder abuse resembles domestic
violence with its cycle of violence and dynamic experienced physical violence in their relationship
of power and control.⁵⁵ Most cases of elder abuse within the past year.⁶⁴
involve the types of victim-abuser dynamics seen in Professionals may struggle with different issues
other forms of domestic violence relationships.⁵⁶ when domestic violence in late life is uncovered. For
example, law enforcement professionals may find it
hard to arrest the perpetrator when he or she is 70,
ELDER A BUSE AS
75, or 80 years old. Judges may see a wife of 35 years
DOME STIC V IOLENCE
and conclude that her reluctance to testify against
As elder abuse became identified as a social and legal her husband reflects her deep commitment to him,
problem, the initial response to it closely paralleled not her fear of losing her beloved home, her concern
society’s response to child abuse.⁵⁷ Child abuse law about her often-mistreated cat, or simply her ter-
with its mandatory reporting became the model on ror of starting over in her “golden years.” Lack of
which elder abuse legislation was based.⁵⁸ The weak- knowledge regarding elder abuse may blind a social
nesses of this model, including its tendency to treat worker to the truth when the victim’s much younger
adults as children, led many to turn to the domestic wife uses “caregiver stress” as her reason for slapping
violence paradigm as a better fit.⁵⁹ Recognizing that her husband.
power and control dynamics existed in some elder
abuse situations (even when the abuser was not a BA R R IER S FOR OLDER CLIENTS
spouse or partner) brought a fresh understanding to
Older clients struggle with barriers that are both similar
the dynamics of elder abuse.⁶⁰ And yet, while elder
to those faced by younger victims and also different as a
abuse incorporates some of the features of domestic
result of age and disability. For example, elder people
violence occurring with younger people, it is espe-
cially characterized by increased physical vulnerabil- ■ are not typically used to seeking help;
ity due to age, changing mental abilities due to the
■ do not identify as domestic violence victims (or as
increased incidence of dementia, undue influence, elder abuse victims);
and financial abuse or exploitation.⁶¹
Experts have identified three kinds of domestic ■ are sensitized to putting other people’s needs
violence in late life: ahead of their own;
1. a long-time, violence-free relationship that becomes ■ may have multiple health issues, including dif-
violent with the occurrence of specific behaviors ficulty with mobility;
by an elder who has dementia (which may cause ■ may adhere to the strict rules of their religion that
personality changes) bar divorce;
2. a new relationship (following divorce or widow- ■ may need in-home supportive services that cannot
hood) that turns violent (usually following a whirl- be delivered in a domestic violence shelter; and
wind courtship)
■ may be male and not have access to many services
3. a long-term violent relationship that endures into (one-third of all elder abuse victims are male).⁶⁵
old age⁶²
Random-sample studies of seniors living in the ISSUE S FOR THE COURTS

community found more spouse/partner abuse than The victim of elder abuse or domestic violence in
abuse by adult children.⁶³ Another study of 5,168 late life may come to the court’s attention in several
couples found that 5.8 percent of couples over 60 ways. In one recent example, staff at a California
court called adult protective services about a pro- C A L IFOR N I A COU RT PROJEC TS
spective juror because the older man’s ill health and FOCUSED ON ELDER A BUSE
poor hygiene concerned the judge, who feared that
In California, courts are taking steps to address the
the man might be neglected or be self-neglecting. In
growing elder population and, in particular, elder
civil courts handling landlord-tenant matters, elders
abuse. In 2002, the Administrative Office of the
may seek to evict tenants who are terrorizing them.
Courts (AOC) funded two Elder Access programs,
Adult adoptions require special sensitivity and inves-
one each in the Superior Courts of Alameda and
tigation to ensure that the motives of both parties
San Francisco Counties. Alameda County used its
are without malevolence. A large city court investi-
grant monies to create an Elder Abuse Protection
gating the application for adoption of a 62-year-old Court Project with a court calendar dedicated to
man by his 92-year-old female neighbor discovered elder abuse cases. The separate calendar offers elders
that the man was intent on inheriting the woman’s a shorter wait time in the courtroom and more pri-
house upon her death even though she had two sons vacy than is usually the case for public hearings deal-
and a daughter. Family courts see petitions for both ing with very personal matters. The calendar is heard
domestic violence restraining orders and for elder weekly at each of the four courthouses and starts late
abuse restraining orders. Probate courts see the most in the morning to give seniors more time to travel
elder abuse in the context of conservatorships, which to court. The cornerstone of the project’s success is
are commonly sought to remove an abuser from collaboration with community agencies such as APS,
power over a vulnerable adult or to rectify abusive the District Attorney’s Victim Witness Program,
acts such as appropriation of bank accounts or prop- legal aid, and pro bono attorneys. An elder abuse
erty.⁶⁶ And, finally, more and more cases are coming case manager assists the elders by helping them fill
into criminal courts as police and district attorneys out the forms and by linking them with appropriate
are learning how to prosecute the cases through trial community agencies. More than 330 abused elders
even when the victim may not be able to testify.⁶⁷ have been assisted since the project’s inception. Most
While the occasional elder abuse case is replete were low income and self-represented; 40 percent
with evidence and cooperating victims and witnesses, were male. Most of the alleged abusers were family
most cases of elder abuse and domestic violence in members.
late life are extremely complex. These cases often pit In the Superior Court of San Francisco County,
reluctant or fearful parents against scheming adult the Elder Access project focused on conservatorships
offspring or spouses, a senior’s right to folly against because the bulk of elders appear in probate court.
society’s duty to protect the vulnerable, and undue The project surveyed the 150 agencies compris-
influence against a senior’s claim that the ancestral ing the San Francisco Consortium for Elder Abuse
home was indeed given willingly to the new maid. Prevention to learn whether professionals in non-
And, although elder abuse is a crime,⁶⁸ it is still seen profit agencies were familiar with the probate court
by many as a “family matter.” and whether the court was accessible to elders. Over
Whether abused by a spouse, a partner, an adult 90 percent of those surveyed were familiar with the
offspring, or a trusted friend, the victim of elder abuse probate court. The most commonly cited barrier to
comes before the legal system with embarrassment, access was the inability to get a particular case into
deep shame and self-blame, significant reluctance to the court system because no individual or agency
injure the alleged abuser, probable trauma, and pos- would file a petition for conservatorship. Project staff
sible confusion from deficits in mental functioning also reviewed the 168 conservatorships established
(as a result of stroke, Alzheimer’s disease, Parkinson’s in 2000 to learn more about the nature of these pro-
disease, or another debilitating condition). ceedings. Of the total conservatees, 87 percent were
older than 65. Perhaps not surprisingly, 40 percent of elder abuse and the courts. In 1995, the commission
the conservatees were older than 85. Most (58 per- received a grant from the State Justice Institute that
cent) were women. The most common impairment enabled a groundbreaking project and produced Rec-
was cognitive (65.9 percent), followed by difficul- ommended Guidelines for State Courts Handling Cases
ties with basic activities of daily living (49.2 per- Involving Elder Abuse. The recommendations were
cent). Proposed conservators were family members intended to aid the courts in
in 35 percent of the cases. Other conservators were
■ providing appropriate judicial solutions that respect
the public guardian, private nonprofit agencies, pri-
the values and wishes of elder abuse victims while
vate professional conservators, and friends. The San
protecting victims’ welfare;
Francisco project also convened a work group com-
posed of professionals who serve vulnerable elders ■ facilitating access to the courts for appropriate cases;
that explored obstacles to securing conservatorships. ■ enhancing coordination among the court system,
In addition, the project conducted individual and state and local agencies, and the elder-advocate
group interviews with representatives of the agencies network.⁶⁹
that made or accepted referrals for conservatorships.
It held public and professional educational sessions Following this project, the State Justice Institute
with particular outreach to minority groups. Staff funded another project, this one enabling COLA
wrote and published in the minority press a series of and the National Association of Women Judges to
articles about the probate court. A direct outgrowth develop three model interdisciplinary curricula on
of the San Francisco project was the establishment elder abuse for judges and for key court staff.⁷⁰ Cur-
of a conservatorship clinic where self-represented rently, COLA is at work on a handbook for judges
people could receive assistance in filing for conser- that will assist them in determining the mental
vatorship. capacity of elders appearing in their courts.
The Judicial Council of California has shown increas- While it is certain that the incidences of elder
ing concern about the impact of the aging population abuse and neglect will rise given the aging of the
on the courts and about elder abuse in general, and “baby boomers,” California courts are responding,
convened a plenary session and roundtable discussions and so are national organizations that can be helpful
on the subject in conjunction with its statewide bench to California courts. The courts will need to work
conference in September 2005. The AOC recently with a variety of community agencies in responding
launched a research project to study conservatorships to the problem of elder abuse. No one institution
statewide, to collect basic data on conservatorships, and and no one judge can do it alone.
to lay the foundation for future work to determine
how courts identify abuse in conservatorships and what
practices are most effective in dealing with the abuse.
NOTES
N AT ION A L AT T E N T ION ON 1. Rosalie S. Wolf, Introduction: The Nature and Scope of
ELDER S IN THE COURTS Elder Abuse, 24 GENERATIONS, J. AM. SOC’Y ON AGING 6
(Summer 2000).
There is also movement on the national level to
address elder abuse. The National Center for State 2. E. Capezuti et al., Reporting Elder Mistreatment, 23 J.
GERONTOLOGICAL NURSING 24–32 (1997); H.R. REP. No.
Courts is embarking on a project to determine
101-752, at 67 (1990); H.R. REP. No. 99-502, at 43 (1985);
how courts identify and deal with elder abuse. The H.R. REP. No. 97-277, at 125 (1981); J.M. Otto, The Role
American Bar Association’s Commission on Law and of Adult Protective Services in Addressing Abuse, 24 GENERA-
Aging (COLA) has also been active on the issue of TIONS, J. AM. SOC’Y ON AGING 33–38 (Summer 2000).
3. NAT’L CTR. ON ELDER ABUSE, ELDER JUSTICE ACT OF 25. Id. NOTES
2003 (S. 333) (n.d.), at www.elderabusecenter.org/default
26. CAL. WELF. & INST. CODE § 15630(b)(1)(C).
.cfm?p=elderjustice.cfm.
27. CAL. WELF. & INST. CODE § 15630(b)(1)(C), (f ).
4. ELDER JUSTICE COALITION, QUESTION: WHAT DOES
THIS BILL DO? (n.d.), at www.elderjusticecoalition.com 28. NAT’L CTR. ON ELDER ABUSE, AM. PUB. HUMAN SERVS.
/answers1.htm. ASS’N, THE NATIONAL ELDER ABUSE INCIDENCE STUDY 4-
5. MARY JOY QUINN & SUSAN K. TOMITA, ELDER ABUSE 3 (Sept. 1998) [hereinafter Incidence Study
Study], available at
AND NEGLECT: CAUSES, DIAGNOSES, AND INTERVENTION www.elderabusecenter.org/default.cfm?p=nis.cfm.
STRATEGIES 12 (Springer Publ’g Co. 1997). 29. Id.
6. Elder Abuse and Dependent Adult Civil Protection 30. K. Pillemer & D. Finkelhor, The Prevalence of Elder
Act, CAL. WELF. & INST. CODE §§ 15600–15660 (West Abuse: A Random Sample Survey, 28 GERONTOLOGIST 53–
2005). 54 (1988); see also T. Tatara, Understanding the Nature and
7. CAL. WELF. & INST. CODE § 15610.23. Scope of Domestic Elder Abuse With the Use of State Aggre-
gate Data: Summaries of the Key Findings of a National
8. Id. Survey of State APS and Aging Agencies, 5 J. ELDER ABUSE
9. See CAL. WELF. & INST. CODE § 15610.23(b) (defining a & NEGLECT 35 (1993).
dependent adult as anyone between the ages of 18 and 64 31. See Tatara, supra note 30.
who is admitted as an inpatient to a 24-hour facility, such
as a hospital). 32. H.R. COMM. ON AGING, PUBL’N NO. 97-277, ELDER
ABUSE: AN EXAMINATION OF A HIDDEN PROBLEM (1981).
10. NAT’L CTR. ON ELDER ABUSE, FREQUENTLY ASKED
QUESTIONS ((Aug. 23, 2005), at www.elderabusecenter.org 33. T. TATARA ET AL., NAT’L CTR. ON ELDER ABUSE, ELDER
/default.cfm?p=faqs.cfm#one [hereinafter NCEA/FAQ]. ABUSE INFORMATION SERIES NO. 2: TRENDS IN ELDER ABUSE
IN DOMESTIC SETTINGS (1997), www.elderabusecenter.org
11. CAL. WELF. & INST. CODE § 15610.07 (West 2005). /basic/fact2.pdf (last visited 2002).
12. Mary Joy Quinn, Undoing Undue Influence, 24 GEN- 34. BUREAU OF MEDI-CAL FRAUD & ELDER ABUSE AND
ERATIONS, J. AM. SOC’Y ON AGING 65 (Summer 2000). CRIME & VIOLENCE PREVENTION CTR., CAL. DEP’T OF
13. See, e.g., NCEA/FAQ, supra note 10. JUSTICE, A CITIZEN’S GUIDE TO PREVENTING & REPORT-
ING ELDER ABUSE, at Preface (2002), available at www
14. Id. .safestate.org/documents/citizens_guide.pdf.
15. CAL. WELF. & INST. CODE § 15610.63 (West 2005). 35. U.S. ADMIN. ON AGING, FED. INTERAGENCY FORUM
16. CAL. WELF. & INST. CODE § 15610.53 (referred to as ON AGING-RELATED STATISTICS, OLDER AMERICANS 2004:
“mental suffering”). KEY INDICATORS OF WELL-BEING (2004), available at
www.agingstats.gov.
17. CAL. WELF. & INST. CODE § 15610.63(e).
36. Those over 60 will grow by 112 percent while those over
18. CAL. WELF. & INST. CODE § 15610.43. 85 will grow by more than 143 percent. Of 58 counties, 38
19. CAL. PENAL CODE § 236 (West 2005). will have increases of more than 150 percent. CAL. DEP’T OF
AGING, STATISTICS AND DEMOGRAPHICS (2005), available at
20. CAL. WELF. & INST. CODE § 15610.30 (West 2005). www.aging.state.ca.us/html/stats/demographics.html.
21. CAL. WELF. & INST. CODE § 15610.05. 37. Act of Sept. 28, 1998, ch. 946, 1997–98 Cal. Stat.
22. CAL. WELF. & INST. CODE § 15610.57. {___} (codified as amended at scattered sections of CAL.
WELF. & INST. CODE §§ 15600–15760 (West 2005)).
23. CAL. WELF. & INST. CODE § 15610.57(a)(2), (b)(5).
38. Incidence Study, supra note 28, at 4-17.
24. But emotional abuse may be reported whenever a
mandated reporter has knowledge or “reasonably sus- 39. Id. at 4-13.
pects” that an elder or dependent adult’s emotional well-
40. Id. at 4-28.
being is endangered in any way. CAL. WELF. & INST. CODE
§ 15630(c)(1). 41. Id.
NOTES 42. Id. 54. Id.

43. Pillemer & Finkelhor, supra note 30, at 55; see also K. 55. B. Brandl, Power and Control: Understanding Domestic
Pillemer & J. Suitor, Violence and Violent Feelings: What Abuse in Late Life, 24 GENERATIONS, J. AM. SOC’Y ON
Causes Them Among Family Caregivers?, 47 J. GERONTOL- AGING 39 (Summer 2000).
OGY S165–72 (Jul. 1992); E. Podnieks, National Survey
56. Pillemer & Finkelhor, supra note 30; Podnieks, supra
on Abuse of the Elderly in Canada, 4 J. ELDER ABUSE &
note 52; L. Vinton, Abused Older Women: Battered
NEGLECT 5–58 (1992).
Women or Abused Elders?, Report to the AARP Forum,
44. Pillemer & Finkelhor, supra note 30, passim; K. Pillemer Washington, D.C. (Oct. 29–30, 1992).
& D. Finkelhor, Causes of Elder Abuse: Caregiver Stress Versus
57. Wolf, supra note 1, at 6.
Problem Relatives, 59 AM. J. ORTHOPSYCHIATRY 179 (1989).
58. Id.
45. Incidence Study, supra note 28.
59. Id. at 7.
46. Id.
60. Brandl, supra note 55.
47. M.J. Quinn et al., Authors View Transitions Over 20
Years, AGING TODAY (Sept.–Oct. 2005), at 7, 10. 61. Id.; Vinton, supra note 56.
48. Id. 62. Nat’l Comm. for the Prevention of Elder Abuse, Ser-
vices for Older Battered Women Offer Hope and Healing,
49. G.J. Anetzberger, Caregiving: Primary Cause of Elder
1 NEXUS 1 (Oct. 1995).
Abuse, 24 GENERATIONS, J. AM. SOC’Y ON AGING 47–48
(Summer 2000); Pillemer & Suitor, supra note 43, passim. 63. Podnieks, supra note 52.
50. See generally, G. ANETZBERGER, THE ETIOLOGY OF 64. S. Harris, For Better or for Worse: Spouse Abuse Grown
ELDER ABUSE BY ADULT OFFSPRING (Charles C. Thomas Old, 8 J. ELDER ABUSE & NEGLECT 27–29 (1996).
1987); L.R. Phillips, Abuse and Neglect of the Frail Elderly
65. Nat’l Comm. for the Prevention of Elder Abuse, supra
at Home: An Exploration of Theoretical Relationships, 8 J.
note 62.
ADVANCED NURSING 379 (1983); K. Pillemer, Risk Fac-
tors in Elder Abuse: Results From a Case-Controlled Study, 66. MARY JOY QUINN, GUARDIANSHIPS OF ADULTS:
in ELDER ABUSE: CONFLICT IN THE FAMILY 239–63 (K. ACHIEVING JUSTICE, AUTONOMY, AND SAFETY 12 (Springer
Pillemer & R.S. Wolf eds., Dover 1986); K. Pillemer Publ’g 2005).
& D. Finkelhor, Causes of Elder Abuse: Caregiver Stress
67. See, e.g., California statutes to protect elders: CAL
Versus Problem Relatives, 59 AM. J. ORTHOPSYCHIATRY
FAM. CODE §§ 6200–6407 (West 2005); CAL. WELF. &
179 (1989); R.S. Wolf et al., Maltreatment of the Elderly:
INST. CODE § 15657.03 (West 2005); CAL. CIV. PROC.
A Comparative Analysis, 3 PRIDE INST. J. LONG TERM
CODE § 527.9 (West 2005).
HEALTH CARE 10–17 (1986); M. Reis & D. Nahmiash,
Abuse of Seniors: Personality, Stress, and Other Indicators, 3 68. CAL. PENAL CODE § 368 (West 2005).
J. MENTAL HEALTH & AGING 337 (1997).
69. COMM’N ON LAW & AGING, AM. BAR ASS’N, REC-
51. See ANETZBERGER,
ANETZBERGER supra note 50; Pillemer, supra note OMMENDED GUIDELINES FOR STATE COURTS HANDLING
50; Wolf et al., supra note 50. CASES INVOLVING ELDER ABUSE (1995).
52. See ANETZBERGER,
ANETZBERGER supra note 50; G.J. Anetzberger 70. L.A. Stiegel, What Can Courts Do About Elder Abuse?
et al., Alcoholism and Elder Abuse, 9 J. INTERPERSONAL JUDGES’ J. (Fall 1996), at 38–42, available at www.abanet
VIOLENCE 184 (1994); P.N. Chen et al., Elderly Abuse in .org/elderly.
y
y.
Domestic Settings: A Pilot Study, 4 J. GERONTOLOGICAL
SOC. WORK 3–17 (1981); Pillemer, supra note 50; Reis &
Nahmiash, supra note 50; M. Lachs & K. Pillemer, Abuse
and Neglect of Elderly Persons, 332 NEW ENGLAND J. MED.
437–43 (1995); E. Podnieks, National Survey on Abuse of
the Elderly in Canada, 4 J. ELDER ABUSE & NEGLECT 5–58
(1992); Wolf et al., supra note 50.
53. Pillemer & Finkelhor, supra note 50.
81
Parenting Arrangements
After Domestic Violence
Safety as a Priority in Judging Children’s Best Interest
I
n recent years, all states have recognized domestic violence as an impor- PETER G. JAFFE, PH.D., C.PSYCH.
tant factor in determining child custody and visitation plans.¹ Although Centre for Research on Violence Against
states vary in their emphasis—in some states there is a rebuttable pre- Women and Children, The University of
sumption against custody for perpetrators, in others domestic violence is a Western Ontario
primary factor to consider—their concern has been the same: to ensure that
the safety of children and their primary caretakers after separation is foremost CLAIRE V. CROOKS, PH.D.,
C.PSYCH.
when courts determine the best interest of children. While this principle
of safety has been widely accepted, implementing system change has been Centre for Addiction and Mental Health,
more challenging. There are significant gaps in training and resource devel- Centre for Prevention Science (London,
Ontario, Canada)
opment, resulting in an uneven application of assessment and intervention
approaches. Compounding the complexity of this problem, the majority of
HON. FRANCES Q.F. WONG
litigants in family court are representing themselves, thereby leaving judges
First Judicial Circuit of the State of Hawai‘i
to assess explosive family issues in their rawest emotional form.
The purpose of this article is to discuss some of the controversies surround-
ing parent-child access and outline practical guidelines within a clinical and An emerging focus in the field of domestic
legal context. It begins with an overview of the relevance of domestic violence violence is the role of the family court and
in custody and access disputes, then provides a framework for differential its court-related services in determining
assessment and interventions that are based on a thorough understanding parental contact following allegations of
of the dynamics of violence in a particular relationship. Finally, it identifies domestic violence. This article outlines
factors that should be associated with terminating access, supervising access, some of the controversies that arise in
or supervising exchanges, which are the most common remedies in these
postseparation parenting plans for couples
circumstances. Each of the considerations and remedies is discussed with
where one parent has a history of perpetrat-
respect to the clinical and research literature, followed by judicial consider-
ing domestic violence against the other.
ations from Judge Wong.
The challenge for the court is to assess indi-
vidual parents in the context of children’s
R E L E VA N C E O F D O M E S T I C V I O L E N C E
I N C U S TODY A N D V I S I TAT ION best interest. There is consensus that expo-
sure to both parental conflict and violence
Only within the last decade have legal and mental health professionals started
may adversely affect children’s adjustment.
to acknowledge that domestic violence may be relevant to the determination
Continued on page 82
of child custody and visitation. Previously domestic violence was gener-
ally seen as an adult issue not relevant to the adjustment of children. Many © 2005 Peter G. Jaffe, Claire V. Crooks &
courts accepted, and continue to do so today, the notion that a man could Frances Q.F. Wong
Continued from page 81 be a violent spouse but still be a good father. Several groups challenged this
notion and encouraged major legislative reform to recognize domestic vio-
Courts and community services have a
lence as a critical factor to consider in these cases.² Similar legislative changes
mandate to limit and redress this poten-
(and the accompanying challenges) have emerged in Canada, Australia, and
tial harm by limiting the opportunities New Zealand.³ Major initiatives have taken place, such as the U.S. Depart-
for children’s exposure to it. Strategies to ment of Justice’s Safe Havens: Supervised Visitation and Safe Exchange Grant
meet this mandate include minimized Program (Supervised Visitation Program),⁴ which provides funding and
contact between the abusive parent and technical assistance to communities for supervised visitation and exchanges
the principal caregiver and possibly limit- in cases of domestic violence, and the new custody evaluation guidelines for
ing the parenting role of the abuser. The
judges on how to interpret and act on evaluations in cases involving domestic
violence.⁵ The rationale for these changes reflects current knowledge about
appropriateness of applying these strategies
domestic violence and family separation:
is predicated on a systematic approach and
consensus among service providers in com- ■ Abuse does not end with separation. Research has shown that physical
munity agencies and the justice system on abuse, stalking, and harassment continue at significant rates postsepara-
tion and may even become more severe.⁶ Promoting contact between
definitions of conflict and violence. The
children and a violent ex-spouse may create an opportunity for renewed
article emphasizes the need for comprehen-
domestic violence through visitation and exchanges of children.⁷
sive assessment and differentiated interven-
tion strategies for these families. Specifically, ■ There is a significant overlap between domestic violence and child mal-
treatment. The presence of domestic violence is a red flag for the co-
it discusses indicators and cautions for the
existence of child maltreatment. In a review of studies investigating this
application of cessation of access, super-
overlap, results suggested that between 30 and 60 percent of children whose
vised visitation, and supervised exchange as mothers had experienced abuse were themselves likely to be abused.⁸
interventions.
■ Batterers are poor role models. Children’s socialization with respect to
The development of this article was sup- relationships and conflict resolution is negatively affected by exposure to
ported by the Family Violence Department a perpetrator of domestic violence. For example, when children witness
of the National Council of Juvenile and one parent inflicting abuse upon the other or using threats of violence to
Family Court Judges (NCJFCJ) under
maintain control within a relationship, their own expectations about rela-
tionships may come to parallel these observations.⁹ The potential of vio-
Grant No. 90-EV-0250, U.S. Department
lence in a batterer’s subsequent intimate relationships represents a threat
of Health and Human Services (DHHS).
that children’s exposure to poor modeling will continue.
The views expressed in this article are the
authors’ own and do not necessarily repre-
■ Victims of domestic violence may be undermined in their parenting role.
Perpetrators of domestic violence may undermine their (ex-) partners’ par-
sent the opinions or policies of the NCJFCJ
enting in ways both obvious and insidious.¹⁰ For example, batterers may
or DHHS.
blame the children’s mother for the dissolution of the family or explicitly
Please address correspondence regard- instruct the children not to listen to her directions.¹¹ Intervention with
ing this article to Peter G. Jaffe, Centre for these fathers requires that this facet of their parenting be addressed; fathers
Research on Violence Aganist Women and need to both recognize the ways in which they undermine their children’s
Children, Faculty of Education Building, mother and commit to stopping these behaviors.¹²
1137 Western Road, Room 118, The Uni- ■ Perpetrators may use perpetual litigation as a form of ongoing control and
versity of Western Ontario, London, ON harassment. The family court can inadvertently become a tool for batterers
Canada N6G 1G7 (e-mail: pjaff[email protected]). to continue their abusive behavior.¹³ Litigation exacts a high emotional
Parenting Arrangements After Domestic Violence: Safety as a Priority in Judging Children’s Best Interest 83
and financial price for abused women already While domestic violence is relevant to child cus-
overwhelmed with the aftermath of a violent rela- tody determinations in general, the range of rela-
tionship. Some authors have suggested that many tionships and histories that fall under the rubric
batterers have exceptional skills to present them- “domestic violence” requires a range of interven-
selves positively in court and convince judges to tions. Although historically the term domestic vio-
award them custody.¹⁴ lence was reserved for a pattern of abuse and violence
that included a significant power differential in the
■ In extreme cases, domestic violence follow- relationship, it is sometimes used more indiscrimi-
ing separation is lethal. Domestic violence and nately to refer to any episode of violence. Without
homicides are inextricably linked. National fig- minimizing the impact of any assault, a single inci-
ures from the United States and Canada sug- dent of mutual pushing during an emotional period
gest that women are most at risk of homicide of separation is notably different from a longstand-
from estranged partners with a prior history of ing pattern of terror, humiliation, and abuse. In this
domestic violence.¹⁵ Thus, risk of homicide in respect, a clinical assessment of domestic violence
domestic violence cases requires diligent investi- may yield very different results than a legal one.
gation because of this growing literature linking The civil and criminal justice system is by definition
domestic violence, separation, and homicide. Risk incident-based, which means that one incident can
assessment tools have been developed to assist trigger a finding of domestic violence. Conversely,
with this work.¹⁶ In these extreme cases, children numerous subthreshold behaviors (in the legal sense)
may become involved as witnesses to homicides would not meet the legal standard but might clearly
or become homicide victims themselves.¹⁷ Child be part of a larger pattern of domestic violence. The
abduction represents another traumatic outcome role of clinical assessment is to evaluate the context
in these cases and represents a batterer’s ultimate of the behaviors—their intent, the impact on the
desire to regain control after the separation and to victim, the degree to which the behaviors interfere
punish the former partner. with parenting and child well-being, and so forth.
The context of isolated acts of violence is critical in a
clinical determination of domestic violence.¹⁹
FR A ME WOR K FOR DIFFER ENTI A L One source of confusion in the clinical assess-
A S SE S SM E N T A N D I N T E RV E N T ION ment of domestic violence has come from the term
high conflict, which has been used to describe the
The term domestic violence refers to violence in the more intense and protracted disputes that require
context of an intimate relationship. Our discourse considerable court and community resources and
in this article is intended to focus on those relation- that include domestic violence cases.²⁰ Compound-
ships where there is a demonstrated pattern of abuse ing this confusion, the original and most popular
over the course of a relationship. These relationships measure of marital violence is called the “Conflict
may be heterosexual or same-sex relationships. Men Tactics Scale,” which involves a range of behavior
or women may be perpetrators and victims, but for from “insulted” to “used a knife or gun.”²¹ In the
the purposes of our discussion we will highlight the average courtroom the terms domestic violence, conflict,
issues most relevant to cases of male perpetrators and abuse may be used interchangeably, without any
and female victims. This emphasis is justified by the clear definition or understanding of the terms.
existing literature on violence that identifies male- In recent years it has been argued that a clearer
perpetrated violence as that which is more likely to distinction needs to be made between high-conflict
engender fear, serious harm, and concern about the and domestic violence cases in terms of assessment
safety of children.¹⁸ and intervention strategies.²² In any event, the use of
these and related terms underscores a major contro- ■ identification of the extent to which the court
versy in the family court in which domestic violence process is being utilized to extend the power and
advocates are concerned that domestic violence will control issues within the intimate relationship;
be euphemized as conflict and others argue that any
■ availability of appropriate interventions for the
conflict may be interpreted as domestic violence.
principal caretaker and children; and
Even when domestic violence is identified, does the
term batterer accurately describe the perpetrator or ■ ability of the court and court-related services to
is the incident minor, historical, or isolated? Perpe- monitor safety and compliance with necessary
trators and victims represent a heterogeneous mix reviews to hold parties accountable.
of individuals and of relationships that differ with
Each of these considerations is discussed briefly in
respect to intent, impact, frequency, and severity.²³
the following section. They are discussed first from a
Although perpetrators of domestic violence are often
clinical and research perspective, then with regard to
indiscriminately labeled as batterers, we would argue
judicial considerations in assessing the information
that the term batterer should be reserved for individ-
that is before the court.
uals who demonstrate over time a pattern of abusive
behaviors that are designed to control, dominate,
T H E S A F E T Y OF T H E C H I L DR E N
humiliate, or terrorize their victims. A N D PR I NC I PA L C A R E G I V E R
As we have argued elsewhere,²⁴ the difference
between high conflict and domestic violence is a Clinical and research literature. The many lessons
critical one. A clinical finding of domestic violence learned from domestic violence death–review com-
(versus high conflict) should be based on careful mittees across the United States point to the impor-
assessment and should lead to a differential outcome. tance of risk assessment awareness and tools.²⁵ These
Specifically, we have described the current approach lessons underscore the critical period of separation
to parenting plans (i.e., the focus on collaborative and the warning signs of repeat violence and dan-
family law and shared parenting) as a superhigh- gerousness, and the potential for lethal violence. For
way that requires specific and well-marked off ramps example, a history of domestic violence (particularly
for high conflict and domestic violence cases. In in combination with controlling behavior and/or
this article, we further operationalize this approach access to weapons), stalking, threats to harm partner
by identifying indications and contraindications for or self, and violation of previous court orders have
a specific range of remedies including cessation of all been identified as red flags in assessing danger-
access, supervised access, and supervised exchanges. ousness.²⁶ In these circumstances, the court must
consider suspending the parent’s contact with the
C ONSI DE R AT IONS I N DE T E R M I N I NG children until a more thorough risk assessment and
A DIFFE R E NT I A L R E SPONSE therapeutic interventions have been implemented.
Provisions for ongoing risk management are also
Once there is a clinical or judicial finding of domestic
required.
violence, numerous considerations should come into
play in the choice of a specific remedy, including the Judicial considerations. The court’s greatest initial
challenge is to identify those cases in which domestic
■ safety of the children and principal caregiver;
violence is an issue. It is far easier to identify cases of
■ meaning and impact of the children’s exposure to substantiated child abuse and cases where the parties
violence, the degree to which children have been are legally sparring with each other. However, the
drawn in as instruments of the abuse, and over- intended consequences of domestic violence (i.e.,
lapping forms of maltreatment; intimidation, silence, and fear), coupled with ill-
trained attorneys and the growing pro se population ator, “Daddy says Mommy has got away with her
of litigants, increase the odds that the court simply crap for too long and that he is going to take her to
will not know enough about the parties to be con- court to teach her a lesson.” This ongoing exposure
cerned about safety issues. to inappropriate topics of conversation and belittling
Courts must develop systems, procedures, and of the other parent constitutes a form of ongoing
personnel able to provide at least rudimentary screen- emotional abuse that affects children’s sense of emo-
ing. For example, even the most resource-starved tional security.
court must be able to search its own and related law
Judicial considerations. The “culture” of the legal
enforcement databases for parties’ previous contacts
field in domestic relations, child custody litigation,
with the various systems. Some jurisdictions have
and family law still appears to subscribe to the Leave
successfully developed staff who actively assist the
It to Beaver divorce—i.e., “Let’s all get through this
judge with relevant data gathering, sophisticated ini-
difficult time as decently as possible and everything
tial and ongoing risk assessments, and recommenda-
will work out in the end.” Despite the growing aware-
tions linking the principal caregiver and children’s
safety needs to available community resources. ness that exposure to domestic violence harms chil-
dren, the legal culture has not caught up to the fact
C H I L DR E N ’ S E X P O S U R E TO that it itself may be furthering the harm to children.
V IOL E NC E A N D OV E R L A PPI NG Although the vast majority of separating couples can
F OR M S OF M A LT R E AT M E N T work out their differences with very little court inter-
vention, the domestic violence cases require a higher
Clinical and research literature. Although exposure level of care and vigilance.
to domestic violence is harmful for most children,²⁷ As with other needed legal conventions, such
there is considerable variability in the outcomes of as maintaining civility in the courtroom and “no-
individual children. A thorough clinical assessment continuance,” judge-controlled case management, the
identifies the impact of exposure to domestic violence. responsibility falls on the court to model application
In addition to the more obvious potential effects (e.g., of the growing body of knowledge and to demand
trauma symptoms, emotional and behavioral prob- consideration of that knowledge from practitioners.
lems, difficulties at school), assessors should probe for Sometimes judicial officers may find themselves in a
more subtle impacts with respect to children’s views position of knowing more about domestic violence
of relationships, justification of violence, and victim than the litigants and their lawyers and may have
blaming. The assessment should also include an evalu-
to ask the difficult questions that nobody else in the
ation of the extent to which children are being used
court raises.
as instruments of domestic violence and the potential
for co-occurring forms of child maltreatment. While U S E OF T H E C OU RT PRO C E S S TO
the finding of overt physical or sexual abuse quickly E X T E N D P OW E R A N D C ON T ROL
triggers the child protection system, the experience of
the authors (Jaffe and Crooks) as custody evaluators Clinical and research literature. In some cases of
has led them to probe carefully for a specific form of domestic violence, perpetrators actively employ the
ongoing emotional abuse. legal system as a means of maintaining ongoing con-
Specifically, in cases where the perpetrator of trol of their victims.²⁸ Indicators that this misuse is
domestic violence feels unjustly blamed or victim- occurring include an investment in custody and/or
ized by the system, he may go to great lengths to access that is out of keeping with a parent’s previ-
rationalize his behavior to his children and to place ous involvement in child rearing and an inability to
blame on their mother. For example, a 6-year-old focus on children’s interests in the assessment pro-
child might solemnly explain to the custody evalu- cess. Simultaneous misuse of the child protection
system is not uncommon in these cases; excessive ings, increased disposition of motions without court
reports to child protection authorities on minimal hearing, and judicious application of sanctions. This
grounds for concern may indicate this tendency to course of action is akin to application of differen-
use official systems for harassment purposes. tiated case management techniques to control the
course and conduct of litigation.
Judicial considerations. Misuse of court process is
Courts must also assist workers in the areas of
an extremely frustrating reality for judges to witness,
child protection and domestic violence to truly com-
particularly in cases of financial inequality. Judges
municate with one another about how to ensure
need to balance heavy-handed techniques (such as
safety for the child and how to bring the “cultures”
declaring a party a “vexatious litigant” under relevant
and practices of the two groups closer together.
court rules) with the strong prevailing philosophy
Without this bridge building, courts will continue to
of public access to the courts and with the concern
make less than adequate court orders.
that parties must have continuing access when court
orders affect children. If a litigant is able to manipu-
AVA I L A BI L I T Y OF A PPROPR I AT E
late various case types into existence (e.g., protective I N T E RV E N T ION S
order, divorce, and child welfare cases), even the
most coordinated of family courts are hard pressed Clinical and research literature. Good evaluations
to keep up. When these factors are coupled with a depend on appropriate and accessible resources in
lack of judicial accessibility to screening and assess- the community to make recommendations that are
ment for domestic violence and other forms of mal- based in reality. In complex child custody disputes
treatment, the judge’s quandary is complete. involving domestic violence, a host of services may
As distasteful as the word activism may be to some be required to meet the needs of victims, perpe-
judges, courts have a responsibility to work within trators, and their children. If these services are not
the judicial system to develop procedures to assist available or timely, intervention recommendations
their decision making in such situations where the are meaningless. But if these services are unavailable,
system is vulnerable to abuse. Furthermore, they safety cannot be compromised. Thus, in cases where
must also work outside of the judicial system to an assessor concludes that a certain level of service
encourage community responses that increase pro would facilitate more liberal access between the per-
bono and affordable legal services to help over- petrator and children but the services do not exist,
come the resource imbalance that often is present in we would encourage the assessor to err on the side of
domestic violence cases. conservative recommendations to ensure safety.
Courts need to develop a process, compatible with For example, in a case where access should be
their own rules of court and court practice, that will supervised by professionals but no supervised-access
strike a middle ground between a formal declaration center exists, then the recommendation should be a
of “vexatious litigant” and unfettered manipulation cessation of access until safety can be ensured. Too
of the court by a party. The court’s adoption of cri- often we see the opposite, lack of appropriate services
teria (such as those factors found in the section “The leading to more lenient decisions, such as the use of
Safety of the Children and Principal Caregiver”), well-meaning but ill-equipped family or church mem-
coupled with early screening, early assessment, and bers to fill the need for professional supervised access.
then periodic assessment thereafter, could identify In addition, custody evaluators should be encouraged
cases earmarked for stricter control by the court. to watch for opportunities to advocate for system
Such control could be accomplished by assigning reform. To assist in this advocacy role, evaluators may
the case to just one judge for all related matters want to team up to compile a wish list for appropriate
and proceedings, judicial gatekeeping of certain fil- funding from state or private sources.
Judicial considerations. The notion of “safety first” point of crisis, with the best possible recommenda-
can be a very divisive issue between persons working tions for indicated interventions. Ideally, these rec-
in the area of domestic violence and the courts, not ommendations are built on a prognosis implying a
unlike the issue of using court-ordered mediation in prediction of the future dependent on family mem-
domestic violence cases. In both areas, court-ordered bers’ motivation and capacity to attend and gain
interventions are only as good as the options avail- from recommended interventions. The initial snap-
able to the judge. Judges strive to do their best given
shot needs to be turned into a moving picture with
the acknowledged limitations noted elsewhere in this
ongoing snapshots that provide reliable and valid
article. Decision making based on partial knowledge
information. In criminal proceedings, judges can
is a reality faced by courts every day, and judges are
well aware that safety may be compromised. Courts rely on probation officers to monitor adherence to
and communities therefore must work together to court orders and assess ongoing risk. In child protec-
establish and expand appropriate supervised visitation proceedings, mandated risk assessments at regu-
tion and safe exchange programs. Other avenues lar predetermined intervals facilitate this monitoring
must be examined as well because these programs process. The lack of a similar process in family court
will not be able to provide services for all cases. translates into wishful thinking that no news is good
Courts may need help envisioning how to determine news. In our experience, families who do not come
or structure safe court orders that incorporate family back to court are as likely to have used up their emo-
members and other nonprofessionals. In addition to tional and financial resources without any sense of
financial and other resource limitations, the facts of progress in addressing the issues that brought them
the case and/or the characteristics of a child or par- to court in the first place as they are to be living in
ent may dictate a less formal intervention. Consid-
relative harmony according to the provisos of the
erations for this remedy are discussed in more detail
parenting plan.
later in this article.
Judges must also face how to administer “fair- Judicial considerations. Court reviews in isolation
ness” and “justice” in those cases where there are no may not be as useful as court reviews that are an
community resources and the only perceived option integral part of a procedure that begins with careful
is to (1) grant custody to a parent who has perpe- screening and assessment and ends with a commu-
trated domestic violence but who may continue to nity responsively providing services to the child, the
pose safety concerns to the other parent or (2) grant
victim of the abuse, and the perpetrator of the abuse
custody to a parent who has been rendered inca-
and holding the perpetrator accountable by ensuring
pable of basic parenting by a number of factors that
compliance with court orders. There is much debate
may or may not improve upon separation, including
substance abuse and/or other issues that may have in judicial circles about how active judges should
resulted from the domestic violence perpetrated by be in managing cases. Heavy dockets and funding
the abusive parent. This dilemma alone is sufficient reductions in court resources may discourage judges
to encourage appropriate judicial “activism” in the from adjourning a matter to another date and receiv-
community. ing a progress report about the parents’ ability to
follow through on treatment plans. However, lack
A BI L I T Y TO MON I TOR S A F E T Y of effective enforcement of court orders is a seri-
A N D C OM PL I A NC E W I T H
ous problem, especially in complex cases involving
N E C E S S A RY C OU RT R E V I E W S
domestic violence in which it may not serve the chil-
Clinical and research literature. In our experience, dren’s best interest to wait until one of the parents
clinical evaluations offer snapshots of families at a applies for a review hearing based on new crises.
FAC TOR S A S S O C I AT E D W I T H is particularly difficult, as it may occur in cases

C H I L D AC C E S S : I N DIC AT IONS where a perpetrator has taken full responsibility and
FOR SPECIF IC R E M E DI E S benefited from intervention; nonetheless, in some
cases the damage to relationships is beyond repair.
When domestic violence has been identified as a
Obvious cases include children who have witnessed
relevant factor in the determination of a parenting
homicide or life-threatening injuries or ex-spouses
plan, the court is left with the decision of whether to
who are in witness protection programs. Less obvi-
invoke one of three basic remedies that provide addi-
ous cases include children who have overt posttrau-
tional structure and supervision. In extreme cases,
matic symptomatology that is triggered by any cues
where a parent is a danger to the child and/or the
associated with the perpetrator.
child’s principal caretaker, there may be a cessation
These less obvious cases are extremely difficult
of all contact until safety can be assured. In less
to assess, in part because there is little research to
extreme cases, the contact between a child and the
guide decision making. While it is impossible to
perpetrator of domestic violence may be supervised
conduct experimental research in which families
by specialized staff in a structured setting. Informal
supervision arrangements can also be recommended are randomly assigned to conditions, some recent
in situations that meet particular criteria. An even studies counter the prevailing notion of maintain-
less restrictive option is supervised exchanges where ing some form of access between a parent who is
the victim is protected from direct contact with the violent and the children. For example, a study on
perpetrator but the child-parent contact is unsu- the effects of father visitation on preschool-aged chil-
pervised. In cases of a minor, isolated incident of dren in families with a history of domestic violence
violence, where the perpetrator has clearly accepted found a complex pattern of results.²⁹ The impact of
responsibility and there are no safety concerns, the father visitation depended somewhat on the sever-
court may not require one of the three aforemen- ity of the violence that the fathers had perpetrated.
tioned remedies and may consider the whole range Furthermore, father visitation was associated with
of parenting plans available to the court. In the fol- better child functioning in some domains but more
lowing section we discuss these three remedies from impaired functioning in others. The results primarily
both a clinical and a judicial perspective. indicated the need for much more evaluation of the
impact of father visitation.
CE SSAT ION OF PA R E N T- CHI L D CON TAC T Another study, one not focusing specifically on
domestic violence but on the variability in the impact
Clinical and research literature. The most difficult of father presence, demonstrated the negative impact
recommendation for a clinician to make or a court of violent fathers on children’s development.³⁰
to consider is termination of contact between a par- In this study using data from an epidemiological
ent and a child. In child protection hearings, this is a sample of 1,116 pairs of 5-year-old twins and their
more common consideration after a history of child parents, results showed that the less time fathers
abuse, risk to the child, and lack of demonstrated lived with their children the more conduct problems
ability to benefit from previous interventions have their children had, but only if the fathers engaged in
been shown. In a custody dispute, it is rare to con- low levels of antisocial behavior. In contrast, when
sider terminating parental contact. However, when fathers engaged in high levels of antisocial behavior,
a perpetrator of domestic violence is a clear and the more time they lived with their children the
present danger to his ex-spouse and/or children or more conduct problems the children had. Although
the impact of past trauma is so severe that a healthy much more research is necessary in this area, emerg-
parent-child relationship is unlikely to emerge, then ing evidence indicates the possible need to rethink
termination of access must be considered. The latter the presumption of access in all cases.
Judicial considerations. Prohibiting contact between reports as appropriate. Often in these circumstances,
a parent and child, even temporarily, is viewed as a perpetrators have modeled inappropriate behaviors,
drastic judicial remedy. Withholding visitation alto- which become the important boundaries for the
gether demands much self-awareness and reflection supervisor to monitor.
by a judge. In the usual case, where the evidence is In our experience, appropriately qualified and
poorly developed and presented or where the equities trained supervisors and supervision centers cannot
and facts are not compelling, courts would reason- be replaced by well-intentioned and naïve informal
ably order some form of visitation between the child supervisors, who tend to lack not only the requi-
and the perpetrator of domestic violence. However, site training and awareness of issues but also do not
in those cases where present danger is reasonably have access to critical background information that
foreseeable or severe past trauma has been reasonably is before the court. Thus, while untrained supervi-
established, courts still remain reluctant to prohibit sors may be able to guard against blatant physical or
contact between the perpetrating parent and child. sexual assault, they are poorly equipped to recognize
Individual judges must face their reluctance. It may and intervene when the perpetrator insidiously over-
be that, relative to other types of cases, this area steps boundaries. A key concern about supervised
is still “new.” For instance, termination of parental visitation is that it is a time-limited intervention
rights in child welfare cases used to be a much rarer that should lead to a cessation of the relationship
occurrence than it is today. Although it remains a or a gradual withdrawing of supervision conditions.
highly difficult part of the job of being a judge, it has Withdrawing of conditions should not be an auto-
taken root in the judicial landscape as the number matic next step following successful supervised access.
of juvenile dependency cases grows, along with the A gradual plan, with the onus on the perpetrator to
knowledge of harm suffered by children in flux for show an adequate ability and commitment to pro-
too long and a confidence that the court is doing tecting the child from emotional harm, is required.
the “right thing” in a fair number of these cases. As The difficulty arises when it is not clear who bears
courts continue to develop expertise in the domes- the responsibility for assessing the perpetrator’s prog-
tic violence area, jurisdictions can develop protocols ress or compliance with conditions. For example, a
and checklists of considerations to apply to the hard custody evaluator can propose an 18-month plan for
decision of prohibiting parent-child contact. reducing supervision if things go well, but if it falls on
the other parent to return the matter to the court for
S U PE RV I S E D AC C E S S appropriate orders, the plan to progressively reduce
supervision may unravel, even when it is not in the
Clinical and research literature. Consideration of best interest of the children.
supervised access is most relevant when there appears In some instances, the use of informal volunteers
to be an attachment between the parent and child as supervisors (such as the paternal grandmother) can
that is worth preserving but the clinician is uncer- be helpful. They may be most appropriate in cases
tain about the child’s physical and emotional safety. where the concerns are not so much about safety as
Emotional safety is compromised when a parent the need for assistance with parenting. We see many
continues to undermine a child’s sense of stability cases where a father who has been minimally involved
and security in their current circumstances. Supervi- in the basic care of his children receives access visits,
sion offers protection for a child while at the same causing great anxiety for the custodial parent (who
time maintaining the relationship at an intensity may be aware, for example, that the father has never
and frequency that is developmentally appropriate. changed a diaper or prepared a bottle). If the father
The visits can be complemented by school reports, is not a danger to the children or their mother but
exchange of holiday gifts, and updated medical requires support and monitoring during visits, an
informal supervisor may be appropriate. In these with all court orders, a material change in circum-
cases, the informal supervisor can probably assist the stances should be required before protective terms
father in learning child-care skills and provide cor- and conditions are deleted or modified. Although
rective feedback if necessary. However, it is less likely courts generally favor agreements and stipulations,
that this same supervisor could detect and intervene domestic violence cases require a judge’s heightened
in boundary violations, such as the father’s harassing review concerning issues of safety.
the children to report on their mother’s actions.
S U PE RV I S E D E XC H A NG E S
Judicial considerations. In many cases, the service of
a supervised visitation center is the only assurance Clinical and research literature. The least restric-
of safety offered to the principal caregiver and chil- tive of the three remedies discussed in this article is
dren. And yet, while courts are relieved to have this supervised exchange. The principal goal in this inter-
option to include in the court order, there may not vention is to protect the victim from any ongoing
be enough collaboration and coordination between harassment by the perpetrator. Even if perpetrators
the court and the visitation center. Courts must be have changed their behavior, their very presence may
aware of the range of services as well as the rea- trigger distress and anxiety for the other parent and
sonable limitations of the supervised visitation cen- children who are fearful to have their parents in the
ters and programs in their communities. They must same doorway. This intervention is recommended
identify those court practices that hinder the work of for perpetrators who are not considered dangerous
the center or program. For example, are the courts or likely to reoffend but still require an intermedi-
neglecting to provide important information that is ate step before more flexible parenting plans can be
readily available in the court record? put into effect. This strategy is also effective in high-
In most cases, supervised visitation will be tempo- conflict divorce cases where there is no domestic
rary, whether supervised by a professional program violence history but still a need to protect children
or by informal volunteers. The considerations for from ongoing emotional harm brought upon by
the timing of cessation and/or gradual transition- parental conflict. These exchanges can be built into
ing of supervision are fairly straightforward—i.e., existing children’s routines—for example, one parent
the perpetrator’s compliance with the court orders picks up the children from school on a Friday and
and/or treatment plan, whether the perpetrator has drops them off at school on the following Monday
shown observable and measurable improvements vis- morning. Another situation that can be greatly ame-
à-vis domestic violence as well as parenting, whether liorated by these structured, supervised exchanges
safety concerns for both the children and the prin- is when the perpetrator of domestic violence is not
cipal caregiver have realistically lessened. While the posing a danger of physical harm but is exercising
considerations are easily articulated, the courts’ real power and control by inconsistently showing up or
problems are resources, case management, moni- being punctual for the exchanges or by habitually
toring, and enforcement. The state is not a party returning the children late.
in family law cases, unlike child welfare cases, and Judicial considerations. Courts have the greatest con-
bears no responsibility to act. In cases with very little fidence in supervised exchanges that are administered
private resources, the court can draft an order that by trusted supervised visitation centers. However,
attempts to link the principal caregiver with pub- the dilemma of scarce resources and the problem
lic agencies and advocacy groups. Ideally, the court of faulty or incomplete screening and assessment
would set reviews. In cases with resources, the court mean that courts will settle for other reasonable and
can depend on the parties’ bringing the case back not-so-reasonable solutions in both domestic vio-
to court when necessary. However, in all cases, as lence and high-conflict cases. Supervised exchanges,
like supervised visitation, are viewed as time-limited exchange services for victims of domestic violence,
interventions and the “end of the road” for court sexual assault, stalking, and child abuse. In addition
involvement. But it is imperative that the court give to funding communities to provide services to fami-
serious thought to setting up “feedback loops” to lies, OVW has funded Praxis International, Inc., and
avoid the “no news is good news” trap. Although the National Council of Juvenile and Family Court
supervised visitation centers are not intended to per- Judges (NCJFCJ) to provide technical assistance to
form evaluation, they are often a source of valuable those communities. As a result of the Supervised Vis-
information about parents’ ability to comply with itation Program, the United States is taking a closer
court orders and to demonstrate some basic signs of look at how to address the needs of battered parents
responsible behavior. Together with other sources of and their children in a visitation setting.
information, information from the visitation center Additionally, the NCJFCJ has launched, in part-
may help the judge develop a better appreciation of nership with the Family Violence Prevention Fund,
the parents’ ability to follow through on court rec- seminars for judges on enhancing judicial skills in
ommendations. domestic violence cases. Courses include curricula
focused on improving judicial decision making in
CONCLUSION
custody cases involving domestic violence. These and
other similar initiatives build capacity in the judicial
Courts and court-related services are beginning to system and provide much needed tools and guide-
recognize domestic violence as a significant factor lines.
in the determination of child custody decisions. Increasingly, the field is demanding clear defini-
Although child abuse has long been recognized tions of domestic violence and more prescriptive
by the court as a detriment to children, domestic guidelines for how to manage parent-child access
violence was previously seen as an adult issue and in cases with domestic violence. Unfortunately, the
deemed irrelevant to children’s well-being. Since the complexity of these cases precludes simple formulae
initial publication of the Model Code on Domestic to measure dangerousness and match to parenting
and Family Violence,³¹ subsequent endorsements of plans. In this article we have tried to capture some
the U.S. Congress, the American Bar Association, of the challenges in the field, which demand better
and the American Psychological Association have led informed clinical practices and thoughtful decision
state legislators to revise extant child custody legisla- making on the part of judges. The justice system
tion.³² However, legislative change has only been the needs to develop more effective models for assessing,
first step in changing awareness, training, resources, intervening, and monitoring change in these intri-
and everyday practice. cate family systems. Rather than looking at court
With practice developing in this area there is a clear intervention as an isolated, discrete event, judges
hunger for appropriate assessment tools and inter- need to be more actively involved in reviewing their
vention resources. As mentioned earlier, a number of court orders and ensuring both safety for victims and
encouraging developments support this awareness. accountability for perpetrators.
One important development in the United States is In our travels across the United States we have seen
the considerable expansion of supervised visitation a desperate need for adequate resources to meaning-
and exchange services through the Supervised Visita- fully implement the legislative change in domestic
tion Program. Through this program the Office on violence law. Beyond these resources, applied research
Violence Against Women (OVW), U.S. Department needs to expand to offer feedback on the effective-
of Justice, has poured millions of dollars into 63 ness of differential interventions. Furthermore, this
communities throughout the country and into select outcome research should address the whole system
territories to develop supervised visitation and safe rather than singling out components.³³ To draw a
parallel to the effectiveness of batterers’ interven- Maureen Sheeran & Scott Hampton, Supervised Visitation in
tion in the criminal justice system, collaboration and Cases of Domestic Violence, 50 JUV. & FAM. CT. J. 13 (1999).
integration of justice and community service systems 8. Jeffrey L. Edleson, The Overlap Between Child Maltreat-
are not merely lofty goals but the only things that ment and Women Battering, 5 VIOLENCE AGAINST WOMEN
really matter.³⁴ The same fundamental truth is likely 134 (1999).
to underlie our success or failure in dealing with 9. LUNDY BANCROFT & JAY G. SILVERMAN, THE BATTERER
domestic violence in the family court. AS PARENT: ADDRESSING THE IMPACT OF DOMESTIC VIO-
LENCE ON FAMILY DYNAMICS 2 (Sage Publ’ns 2002).
10. PETER G. JAFFE & CLAIRE V. CROOKS, UNDERSTANDING
NOTES 1. 1–10 NAT’L COUNCIL OF JUVENILE & FAMILY COURT WOMEN’S EXPERIENCES PARENTING IN THE CONTEXT OF
JUDGES [hereinafter NCJFCJ], FAMILY VIOLENCE: LEGIS- DOMESTIC VIOLENCE: IMPLICATIONS FOR COMMUNITY AND
LATIVE UPDATE (1995–2004). COURT-RELATED SERVICE PROVIDERS (Violence Against
Women Online Resources 2005), www.mincava.umn.edu
2. See, e.g., NCJFCJ, MODEL CODE ON DOMESTIC AND
/documents/commissioned/parentingindv/parentingindv.html.
FAMILY VIOLENCE (1994), available at www.ncjfcj.org
/images/stories/dept/fvd/pdf/new_modelcode.pdf; Am. 11. See BANCROFT & SILVERMAN, supra note 9, at 7.
Psychological Ass’n, Potential Problems for Psychologists
Working With the Area of Interpersonal Violence (1998), 12. Katreena L. Scott & Claire V. Crooks, Effecting
www.apa.org/pi/pii/potential.hmtl. Change in Maltreating Fathers: Critical Principles for Inter-
vention Planning, 11 CLINICAL PSYCHOL.: SCI. & PRAC. 95
3. Peter G. Jaffe & Claire V. Crooks, Partner Violence (2004), available at http://clipsy.oxfordjournals.org/cgi
and Child Custody Cases: A Cross-National Comparison of /reprint/11/1/95.
Legal Reforms and Issues
Issues, 10 Violence Against Women 917
(2004). 13. See Jaffe et al., supra note 7, passim.
4. Violence Against Women Act of 2000, § 1301, 42 14. Joan Zorza, How Abused Women Can Use the Law
U.S.C. § 10420 (2000) (creating the Safe Havens for to Help Protect Their Children, in ENDING THE CYCLE
Children Pilot Program). See also Office on Violence OF VIOLENCE: COMMUNITY RESPONSES TO CHILDREN
Against Women, U.S. Dep’t of Justice, at www.usdoj.gov OF BATTERED WOMEN 147 (Einat Peled et al. eds., Sage
/ovw/safehaven_desc.htm. Publ’ns 1995); Janet Bowermaster & D. Johnson, The
Role of Domestic Violence in Family Court Child Cus-
5. CLARE DALTON ET AL., NCJFCJ, NAVIGATING CUS-
tody Determinations: An Interdisciplinary Investigation
TODY & VISITATION EVALUATIONS IN CASES WITH DOMES-
(Oct. 1998) (unpublished paper presented at the Fourth
TIC VIOLENCE: A JUDGE’S GUIDE (2004), www.ncjfcj.org
Annual International Conference on Children Exposed to
/images/stories/dept/fvd/pdf/complete_guide_read-only.pdf.
Domestic Violence, San Diego, Cal.).
6. CAN. CTR. FOR JUSTICE STATISTICS, FAMILY VIOLENCE
IN CANADA: A STATISTICAL PROFILE 2001, at 31 (2001), 15. CAN. CTR. FOR JUSTICE STATISTICS, supra note 6; JAMES
available at www.statcan.ca/english/freepub/85-224-XIE A. FOX & MARIANNE W. ZAWITZ, BUREAU OF JUSTICE STA-
/0100085-224-XIE.pdf; Marsha B. Liss & Geraldine TISTICS, U.S. DEP’T OF JUSTICE, HOMICIDE TRENDS IN
Butts Stahly, Domestic Violence and Child Custody, in THE UNITED STATES (1999), available at www.ojp.usdoj
BATTERING AND FAMILY THERAPY: A FEMINIST PERSPEC- .gov/bjs/homicide/homtrnd.htm; Neil Websdale, Review-
TIVE 175 (Marsali Hansen & Michele Harway eds., Sage ing Domestic Violence Deaths, 250 NAT’L INST. JUST. J. 26
Publ’ns 1993). (2003).
7. BARRY LEIGHTON, SPOUSAL ABUSE IN METROPOLITAN 16. ASSESSING DANGEROUSNESS: VIOLENCE BY SEXUAL
TORONTO: RESEARCH REPORT ON THE RESPONSE OF THE OFFENDERS, BATTERERS, AND CHILD ABUSERS (Jacquelyn
CRIMINAL JUSTICE SYSTEM (Solicitor Gen. Can. 1989); Peter C. Campbell ed., Sage Publ’ns 1995); Jacquelyn C. Camp-
G. Jaffe et al., Common Misconceptions in Addressing Domes- bell et al., Risk Assessment for Intimate Partner Homicide, in
tic Violence in Child Custody Disputes, 54 JUV. & FAM. CT. CLINICAL ASSESSMENT OF DANGEROUSNESS: EMPIRICAL
J. 57, 59–60 (Fall 2003) available at www.ncjfcj.org/images CONTRIBUTIONS 136 (Georges-Franck Pinard & Linda
/stories/dept/fvd/pdf/journal_4_fall_03_misconceptions.pdf.; Pagani eds., Cambridge Univ. Press 2001).
17. Neil Websdale et al., Domestic Violence Fatality Reviews: 33. Peter G. Jaffe et al., Domestic Violence and High-Conflict NOTES
From a Culture of Blame to a Culture of Safety, 50 JUV. & Divorce: Developing a New Generation of Research for Chil-
FAM. CT. J. 61 (Spring 1999). dren, in DOMESTIC VIOLENCE IN THE LIVES OF CHILDREN:
THE FUTURE OF RESEARCH, INTERVENTION, AND SOCIAL
18. PATRICIA TJADEN & NANCY THOENNES, FULL REPORT POLICY 189 (Sandra A. Graham-Bermann & Jeffrey L.
OF THE PREVALENCE, INCIDENCE, AND CONSEQUENCES Edleson eds., Am. Psychological Ass’n 2001).
OF VIOLENCE AGAINST WOMEN: FINDINGS FROM THE
NATIONAL VIOLENCE AGAINST WOMEN SURVEY (Nat’l 34. See generally EDWARD W. GONDOLF, BATTERER INTER-
Inst. of Justice, U.S. Dep’t of Justice 2000), available at VENTION SYSTEMS (Sage Publ’ns 2002).
www.ncjrs.org/pdffiles1/nij/183781.pdf.
19. LORETTA FREDERICK, BATTERED WOMEN’S JUSTICE PROJ-
ECT, EFFECTIVE INTERVENTIONS IN DOMESTIC VIOLENCE
CASES: CONTEXT IS EVERYTHING (2001), available at www
.bwjp.org/documents/context%20is%20everything.htm.
20. Janet R. Johnston, High-Conflict Divorce, 4 FUTURE
OF CHILD. 165 (1994).
21. MURRAY A. STRAUS ET AL., BEHIND CLOSED DOORS:
VIOLENCE IN THE AMERICAN FAMILY (Anchor Books
1980); Murray A. Straus et al., The Revised Conflict Tactics
Scales (CTS2): Development and Preliminary Psychometric
Data, 17 J. FAM. ISSUES 283 (1996).
22. PETER G. JAFFE ET AL., CHILD CUSTODY AND DOMES-
TIC VIOLENCE: A CALL FOR SAFETY AND ACCOUNTABILITY
(Sage Publ’ns 2003).
23. See FREDERICK, supra note 19.
24. See JAFFE & CROOKS, supra note 10.
25. Jacquelyn C. Campbell et al., Risk Factors for Femicide
in Abusive Relationships: Results From a Multisite Case Con-
trol Study, 93 AM. J. PUB. HEALTH 1089 (2003).
26. See Campbell et al., supra note 16.
27. David A. Wolfe et al., The Effects of Children’s Expo-
sure to Domestic Violence: A Meta-Analysis and Critique, 6
CLINICAL CHILD & FAM. PSYCHOL. REV. 171 (2003).
28. See BANCROFT & SILVERMAN, supra note 9.
29. Carla Smith Stover et al., The Effects of Father Visita-
tion on Preschool-Aged Witnesses of Domestic Violence, 18 J.
INTERPERSONAL VIOLENCE 1149 (2003).
30. Sara R. Jaffee et al., Life With (or Without) Father:
The Benefits of Living With Two Biological Parents Depend
on the Father’s Antisocial Behavior, 74 CHILD DEV. 109
(2003).
31. See NCJFCJ, supra note 2.
32. See JAFFE ET AL., supra note 22.
PARENTAGE
ISSUES
CHALLENGING
CALIFORNIA’S
JUDICIAL
SYSTEM
Illustration, page 95
“GREAT AMERICA—MY LIFE”
ANTHONY T.
Age 8
“I am in a foster home and I have

the coolest moms in the world. But
some time we get in a fight. But it is
o.k. Thes persons take a lot of care of
me. They give me a lot of clothes. They
are so rich persons. You would want
them to be your persons. I bet you my
persons. I my foster family!!!”
2004 Children's Art & Poetry Contest

97
Parentage Issues Challenging

California’s Judicial System
We have devoted this journal’s issues forum section to questions of parentage that are
challenging California’s courts. In addition to an abridged version of the transcript from
the Fred Friendly Seminar that has been edited for clarification, we have included articles
presenting different facets of the legal challenges facing the courts. Our intent is to provide a
forum of ideas to promote a dialogue for improving judicial policy in this area.—Ed.
99
What Is a Family?
A Fred Friendly Seminar
I
n December 2004, the AOC Center for Families, Children & the Courts MODERATOR:
sponsored a Fred Friendly Seminar on parentage issues at its annual Beyond
MR. CHARLES J. OGLETREE, the Jesse
the Bench conference. More than 20 years ago, Fred Friendly, now deceased,
Climenko Professor of Law at Harvard
started the seminars, which use the Socratic method to explore complex and vital Law School and a prominent legal theorist
issues challenging society. A skilled moderator, using a hypothetical case history,
challenges panelists who have not been given any prior information about the
hypothetical, to decide how to act in complicated situations where the “right” PANELISTS:
choices are not obvious or easy. HON. PATRICIA BRESEE, Commissioner
In the Beyond the Bench hypothetical, 4-year-old twins Ashley and Ben are (Ret.), Superior Court of California,
found in a homeless shelter with their mother, Diane, who has a severe substance County of San Mateo
abuse problem rendering her incapable of caring for the children. When the chil-
MR. FALOPE FATUNMISE, Director,
dren are identified by the “system,” a search begins for a new family and home.
Edgewood Center for Children and
Will their grandparents, loving and able but of very modest means, meet the
Families, Kinship Support Network
standards necessary to serve as the children’s foster parents? Will Diane’s lover, who (San Francisco)
raised the children as a parent until a recent breakup, be given custody, rather
than the children’s aunt and uncle? Does it matter whether Diane’s partner was a HON. ERNESTINE GRAY, Chief Judge,
man or a woman? Does California law provide clear answers? And will a Cali- Orleans Parish Juvenile Court (New Orleans)
fornia court’s decisions in this case be followed by an out-of-state court? HON. HANNAH-BETH JACKSON,
35th Assembly District, California State
Assembly
MODERATOR: This morning’s discussion is about Ashley and Ben, two beauti-
ful 4-year-old twins, a girl and a boy. Brittany Pettigrew, we want to talk to MS. MARJORIE KELLY, Former Deputy
Director, California Department of Social
you about Ashley and Ben. They are here because their mother, Diane, lives
Services
in shelter care. She suffers from a severe drug abuse problem and can’t care
for them and is looking for foster care. And so we come to you to get a sense HON. DAN LUNGREN, Representative-
about what these children should expect. Tell us, Brittany, about your first elect, 3rd Congressional District, and
reaction to these two 4-year-old children and what you will need to do. former Attorney General of California
PETTIGREW: My first step would be to ask if there is family or friends of fam- MS. MARTHA MATTHEWS, Director,
ily who could possibly take the children in. Domestic Violence Clinic, and Assistant
Clinical Professor of Law, University of
MODERATOR: I’m Ben, the 4-year-old. If you were talking to me, tell me
Southern California Law School
about this experience. What am I going through?
PETTIGREW: All right. Ben, your mom is having some problems, and she
wants some help taking care of you. And so we want to take you to a place
where you’ll still be able to visit with your mom. © 2005 Judicial Council of California/
Administrative Office of the Courts, Center for
MODERATOR: You’re taking me away from my mom? Families, Children & the Courts
Continued from page 99 PETTIGREW: Yes.

MR. MICHAEL MCCORMICK, MODERATOR: Can Ashley come with me?
Executive Director, American Coalition for PETTIGREW: Yes. Both of you are going to go and live in a different home with
Fathers and Children (Washington, D.C.) what we call a “foster parent,” who is a person who takes care of children who
HON. JAMES MIZE, Judge of the can’t live with their parents right now. And we’re going to try to help your
Superior Court of California, County of mom, and we’ll try to keep you in as much contact as possible so she can see
Sacramento, and President, California you and talk to you on the phone.
Judges Association MODERATOR: Tell me, Brittany, and tell this audience, is this agonizing for you?
MS. BRITTANY PETTIGREW, Child PETTIGREW: Yes, because before I talk to a child, I usually have a written report
Welfare Supervisor, Alameda County Social or something in front of me that I can look at, and I might make a couple of
Services Agency phone calls ahead of time to understand better what I’m walking into.
MR. IAN RUSS, Family Counselor and MODERATOR: Let me ask you, Ian Russ. A couple of months ago these children
Court Custody Evaluator (San Diego) were in a stable relationship with two parents, two loving parents. And then
MR. GARY SEISER, Senior Deputy Diane’s drug abuse problem became so significant that they split and she left
County Counsel, Juvenile Dependency with the children, and now they’re in a position to be considered for foster
Division, San Diego County care. Tell us what these children are going through—what’s happening here?
MS. JANET SHERWOOD, Juvenile Law RUSS: These children are going through confusion because they can’t under-
Attorney (Corte Madera) stand some of the words, they don’t understand the process. All they understand
is what is immediate and present in their lives. They’re talking with strangers.
They’ve probably been taught by their parents not to talk with strangers. They’re
afraid they could get their mother into more trouble. They don’t know what to
say and what not to say, and they’re probably terrified about not being with
Mom and not being with Dad.
MODERATOR: What is it that they need right now?
RUSS: They need security and they need a sense of constancy. They’re going to
need contact with their mom. I don’t know what happened with Dad. There’s
extended family. Extended family can fill in a lot of that along the way. But
they need a consistent sense of warmth and loving in their lives.
MODERATOR: And stability—I assume you’re trying to get some stability and
some permanency?
RUSS: Yes, but stability is difficult because as they’re going off to foster care,
they’re moving into a house with all new rules, all new people; they don’t
know how things happen, and it’s a very unstable world unless we can find a
family member to do it.
MODERATOR: Well, Falope Fatunmise, let me ask you this. We have been
unable to find the other parent. But Diane has been able to put you in touch
with her parents, the grandparents of Ashley and Ben. And these are healthy
grandparents, but they are of very modest means. They’re living on a fixed
income, on social security. What’s your sense about whether we could think
about these grandparents’ being the responsible parents to take care of Ashley
and Ben?
What Is a Family? A Fred Friendly Seminar 101
FATUNMISE: Ideally, it appears that those grandpar- MODERATOR: They can’t sleep in the same bedroom?
ents may be the most logical step for those kids. But FATUNMISE: At 4 years old they can sleep in the same
I have two questions. Are these kids in formal foster bedroom. But if they get to be 5 years old, they will
care at this point? Has 48 hours elapsed? have to have separate bedrooms.
MODERATOR: We want to get them in foster care. MODERATOR: Help me, Brittany. Help me here.
We have loving grandparents. They’ve known them,
PETTIGREW: That’s right. When you’re talking about
they’ve seen them over holidays, they have a warm
a formal foster-care approval process, there are reg-
relationship—so it’s done, right?
ulations that mirror those of licensure. But when
FATUNMISE: Well, if they’re going to be placed with you’re talking about approving a relative or a friend
those grandparents, they will have to go through a of family, I look for any possible, reasonable exemp-
licensing process in order for those kids to officially tion that I can find in order to preserve the family
reside in their home. That will require a criminal connection.
background check of not only those grandparents
MODERATOR: What’s the reasonable one here?
but anybody else who resides at or uses that address.
So if Grandmother did something 20 years ago, it’s PETTIGREW: “Reasonable” meaning that the benefit
going to come out. As far back as she’s been living, of placing the children with the caregiver continues
actually. to outweigh the cost of finding the exemption.
MODERATOR: Forty years ago? Fifty years ago? MODERATOR: Well, these children have come to the
right place, because the grandparents just have one
FATUNMISE: Yes.
bedroom, right? But the great news is that they have
SEISER: Which is why Brittany is going to be talking a foldout couch in the living room. So we’re good to
to the mom and saying, “You know, if you take these go, right?
children and put them into the system, into the
dependency system, you’re going to lose control.” PETTIGREW: For the most part, yes. We do have to
also look at child protective services history, which is
MODERATOR: Well, Mom can’t take care of them
separate from criminal history.
right now.
MODERATOR: But the grandparents are on a fixed
SEISER: I understand that, but in talking with her,
income; they’re going to need financial assistance.
Brittany’s going to be saying, “Hey, Mom, let’s see if
They can get it, right?
we can do this informally, let’s see if we can do this
voluntarily.” PETTIGREW: Not necessarily. Approval of a placement
is separate from the issue of eligibility for funding.
MODERATOR: Tell me, what are the hurdles? They
have no criminal record. What next? MODERATOR: Okay, but we have everything. We have
a loving set of grandparents. We have two grandchil-
FATUNMISE: Now the house has to go through an
dren who want to be there. We have a nice clean, you
inspection. These are two kids of a different gender—
know, immaculate home. We’ve got separate places
MODERATOR: The house is beautiful, it’s well kept; for the grandparents and grandchildren to sleep in.
this is a terrific house.
PETTIGREW: Well, if they meet the requirements and
FATUNMISE: Yes, but it has to have a number of bed- I can get exemptions, then I don’t have a problem
rooms for those kids to sleep in. They can’t sleep in with approving the home. But eligibility for financial
the same bedroom with those grandparents. assistance is a different process.
MODERATOR: These are two 4-year-old twins. MODERATOR: I’m worried that if we start talking
FATUNMISE: They can’t sleep in the living room; they about going through all this red tape, you might
can’t sleep in the dining room either. even separate these children. Is that one of the risks
that we’re facing? We’ve got loving grandparents. The MODERATOR: I mean, here we’ve got the home, we’ve
grandchildren love these grandparents. We’ve got a got the loving grandparents, and why are we drawing
home. It’s not ideal. But it’s ideal for them. It’s not back because of this technical two-bedroom rule?
ideal in terms of the federal and state red tape. Janet Sherwood?
PETTIGREW: The reality of our situation is that if SHERWOOD: Judge Bresee is right. If you can keep
you’re talking about a formal foster-care situation, the kids out of the system, that’s probably the best
every home has to be approved prior to the child’s thing.
going there. So that could necessarily mean that a MODERATOR: But we’ve got Brittany. Brittany’s going
child will have to go to an emergency foster-care to work through this, right? Can’t Brittany creatively
situation pending the approval of the home. And if interpret this?
there is no available emergency foster-care situations
SHERWOOD: Brittany can’t creatively interpret this.
at the time that can take both 4-year-old children
and keep them together, even with any kind of waiv- PETTIGREW: But I will admit that I am a very astute
ers and exemptions we might get for that placement bureaucrat. Part of my role is to help families negoti-
possibility, then it is possible that we might have to ate the system if they have no other options.
separate the twins temporarily. MODERATOR: I mean, who cares about the bedrooms?
MODERATOR: What do you mean “temporarily”? There’s a bedroom for the grandparents. There are
separate sleeping quarters for the two children. Why
PETTIGREW: The goal is to reunify them as quickly as
should that be an obstacle to keeping this family
possible in the same place.
together? Marjorie Kelly, how would you respond to
MODERATOR: You still haven’t answered my question. Brittany’s dilemma here? What would you do in her
You’re going to separate me and Ashley. Explain that circumstance?
to me, Ms. Pettigrew.
KELLY: Part of the responsibility of the system is to
PETTIGREW: Ben, I cannot promise you that I will
work with families, to understand what they can do
not separate you. outside of the system, to help each other and to help
MODERATOR: We’re being punished. themselves. And so, in this situation, efforts to track
BRESEE: This is a frustration, I think, for anybody down the dad as the assumed preferential placement
who sits on the bench and ultimately gets these would be the obvious first avenue to pursue. And
cases. If Diane had made the arrangements on her the second avenue is to say to Mom, “You can put
own before she ever entered the treatment center those kids with the grandmother, go ahead and do
and taken the children to the grandparents, the only it,” just as my son can go to his grandparents without
thing that’s missing is the money. Now there may a judge’s permission.
be ways to receive some assistance for her family—if MODERATOR: My question is, are the social service
she’s receiving benefits, then they may be able to. So people going to say, “I’m really going to try to figure
I think what we’re pointing up are the frustrations out what’s best for the children and try to navigate
with “the system.” I like to focus on the families’ through this red tape”? It makes no sense to have this
solving their own problems. And I certainly would technical two-bedroom requirement.
want to know where that other parent was. And I
KELLY: What you’re actually hearing is how the sys-
would want to find out what Diane had in mind for
tem has become—and this is not a good term per-
these kids.
haps, but—perverted by the search for funding. And
MODERATOR: Well, shouldn’t the system focus on what Brittany is telling you isn’t that she wants to do
reasonableness? all these things to these children. She doesn’t even
BRESEE: I think so. necessarily want to make a case. What she’s telling
you is, “I can get the grandparents more money if we income. But if you’re looking out in the future, this
make it a child welfare case and you meet all of these may very well be the best thing for the children. And
obligations and requirements.” However, one of the people have to stretch, and I think we should ask
things that we’ve not spent enough time on is how relatives to stretch.
we explain to relatives what the options are, maybe PETTIGREW: I want to say, though, that actually is a
at a lower rate of money but that allow them to oper- conversation that people repeatedly have. If a place-
ate as a family, caring for each other—for example, ment can be safely made outside of the foster-care
how to apply for welfare, an option that may not system, we’re definitely going to try to take advan-
provide as much money as a dependency foster-care tage of that. You can do it quickly, you can execute
arrangement. You don’t have to come into the system quickly. I mean, for us, it’s a lot more work to bring
at all. a child into the system than to find a safe alternative
MODERATOR: All right. Judge Gray, welcome to Califor- outside of our system. I do feel that we try, as much
nia. Now, you’re from Louisiana. Sort this out for us. as we know, to explain what the options are.
GRAY: Well, quite frankly, if this case came to me, I MODERATOR: Martha Matthews, I’ve got some bad
would wonder why the agency is not taking advan- news for you and some good news for you. Grand-
tage of what I heard they can do in this case. Since pop had a stroke. But he’s fine. He’s recovering. But
the children are 4, the regulation that is causing all it’s clear that they will not be able to handle the bur-
these problems doesn’t apply to this case. It only den of raising twin 4-year-olds. It just won’t work.
applies if they’re older. So, if they came to me under The good news is that now we’ve found Chris.
this scenario, they would be in deep trouble because Let me tell you about Chris. Chris is a wonderful
they haven’t placed the children because they are 4 person. Chris met Diane and, as they developed a
and the bedroom issue is not an issue. Second, in relationship, Diane told him, “I’m pregnant by Mr.
Louisiana, we have the ability to do emergency cer- One-Night-Stand. I have no idea where he is or what
tification of homes for a temporary period of time. he’s doing.”
We do that quite often. So I would want to know And Chris said, “Diane, I love you very much.
whether or not we could place these children with You should have the child (it turned out to be twins).
their grandparents, do an emergency certification I will support you.”
of their home, let the children go there, and make And that’s indeed what happens. Diane has the
sure the criminal record’s checked, all those things twins. Diane and Chris are living together. The twins
check out, and the children can stay there perma- call Chris “Dad.” Chris works and provides for them,
nently. I think Marjorie has touched on something and Diane is a stay-at-home mom. And so, that’s
that is critically important. We don’t explain, in my Chris’s status.
opinion, to parents, grandparents, and relatives the And let me ask you, Martha, what is Chris? Is
negatives of foster care. We present this as a truly he a very, very good friend? Is he the father? Under
positive thing. And we don’t say to relatives and par- California law, what is Chris’s relationship to the
ents what are the downsides when the children get children?
into foster care. Just because children go into foster MATTHEWS: Well, it depends. I mean, if he’s held
care, they don’t come out necessarily well grounded, himself out as the father of those twins, if they think
adult—skilled adults. And I think we need to say he’s the father, if he’s always acted as the father, he
honestly to people this is not the panacea that you can assert himself to be what’s called a “presumed
think it may be, and, because it is not, you need to parent” under California parentage law. Even if he
make decisions that may be burdensome to you, it knows he’s not the biological father, as in the Nicho-
may be hard for you to keep these children on a fixed las H.¹ case, he could still be a presumed parent,
which means that he is someone the dependency definition of relatives includes relation by blood or
system can work with as the other parent. affinity. And I think we’ve got the affinity piece.
MODERATOR: Judge Bresee, how would you answer SEISER: The rule of court defines affinity, and it
that question? wouldn’t include Chris’s relatives until the court
BRESEE: I would agree with Martha. And we do have makes a determination.
the guidance of our Supreme Court in that case. I SHERWOOD: And I think the rule of court is inconsis-
look to the child’s perception of parentage. Whom tent with the statute, and, therefore, we ignore it.
does the child see as a father, a mother, two fathers, SEISER: Ohhh—
or two mothers, whatever the situation may be? And
MODERATOR: All right. Hannah-Beth Jackson, what’s
whenever possible, I trust the children.
your sense about this? Chris is on the scene now.
MODERATOR: Great. Well, it seems all settled, right, Problem solved or problem complicated?
Gary Seiser? We’ve got the judge and the lawyers,
JACKSON: I think that California law is moving in
right? And so there’s no problem. The Supreme
the direction of intentional parentage, and he clearly
Court has spoken.
has held himself out as the father. I would have to
SEISER: The main problem is that we’re not going agree to try to avoid the foster-care system and court
to call this man a “presumed father” until the court system to the extent that you have a willing and
does. Because at this point he’s an alleged father. And capable parent. He clearly seems to come under that
so on the dependency petition Brittany’s going to call definition. And, unless and until there’s some ques-
him an “alleged father,” which will raise a red flag to tion that calls for the intervention of the court or a
the court to say, “Hey—we need to deal with pater- financial request that would then bring the system
nity.” And if the court finds him to be a presumed into play, I would agree that Chris is the man.
father, then we will treat him as a presumed father.
MODERATOR: Okay. What do you think about this,
But until that happens, he’s an alleged father, which
means he’s not eligible for placement, his relatives are Michael McCormick? Good result?
not eligible for placement as actual relatives. MCCORMICK: I think that based on the facts and cir-
MODERATOR: I’m worried, Judge. You told me this cumstances of the moment, it is a good result.
was all settled, and I felt very comfortable. Is Gary MODERATOR: At the moment? Uh-oh, there’s a little
right? hesitation in your voice. Why?
BRESEE: Yes, Gary is right, but don’t file the petition— MCCORMICK: Well, I’m concerned about a child
MATTHEWS: Just let the kid go live with him. I going into a foster-care system, being placed with
wonder where he’s been the last couple of months, grandparents, and down the road setting up an
though. I mean, where was this guy? adversarial custody situation where the father is try-
ing to get the children back from the grandparents.
MODERATOR: Looking for his children, and looking
So the idea of avoiding the system initially is a very
for Diane. She left.
good idea and brings to mind that adage, “I’m from
MATTHEWS: If you find out about Chris, there doesn’t the government and I’m here to help.” And I think
need to be a dependency case in the first place. The we need to settle this outside of bureaucracy as much
kids can just go live with him. as we can.
MODERATOR: Janet Sherwood, any problem? MODERATOR: Dan Lungren, you’re from the govern-
SHERWOOD: No, no problem. And I think Gary’s ment and you are here to help, right? Tell this audi-
only half right, by the way. I don’t agree that his rela- ence—we’re working toward the right result here,
tives would not be the children’s relatives, because the right?
LUNGREN: Frankly, I don’t know because I just find So, while I’d love to believe what you just said, in
it strange that you have these people who claim they fact I don’t think it’s true.
were living as a family, and one can go off with the JACKSON: Well, part of the problem is that the Leg-
two kids, the other one didn’t find them for some islature is often reactive. And when we see a bad
time. That would suggest to me some instability. I situation that comes into play because of some
don’t know, just based on the facts, that there was a mix-up in the system or inattention—you have a
true father relationship with these kids. I don’t have hundred cases, it’s the one case you couldn’t get to
enough facts at this point to know exactly what I that becomes headlines—that’s when the Legislature
would do on this. And while I have seen the problems tends to react and to respond in a way that takes
of foster care, I’ve also spoken to foster kids who, as away the discretion.
much as they’ve had difficulty in foster care, have
MIZE: From the 99 judges that were doing well
given me chapter and verse of the problems they had
all along.
with their “parents.” And in some cases, they would
have been far worse off with those parents. JACKSON: Exactly. And part of the problem, too, is
that you see fewer and fewer attorneys becoming
MODERATOR: You didn’t draft these guidelines we
legislators, particularly those who have practiced law,
talked about earlier, but is the Legislature trying to
so we get farther and farther away from the reality of
do something by setting up some clear guidelines
the court system and the entire process.
that may frustrate all these caretakers?
MODERATOR: There are two factual changes I want
LUNGREN: I think so. I mean, one of the comments
to add to this hypothetical. The first, Dan, is that
made earlier was that so much seems driven by fund-
your wife, “Jane,” is the sister of Diane. And you
ing. And, unfortunately, many decisions in the Leg-
and Jane have a 6-year-old, little Daniel. And Jane’s
islature are driven by budget. And you’ve just got so
interested in this situation because she’s recognizing,
much budget to use, so you try to shoehorn your
“Here’s my niece and nephew.” You guys love them.
decisions within that. I believe the major thing that
You guys see them on holidays. You’re very close to
ought to be done here is an assessment of what’s best
them. And, of course, Jane is a stay-at-home mom
for the kids involved, and in most cases that’s trying
with little Daniel, and she thinks it would be great to
to keep a family unit together. But we know there
have the twins there with your son. And she wants to
are some tremendous exceptions. So, as a legislator, try to persuade you to think about getting involved
you’re trying to figure out what makes the most sense in this case. But there’s also another important fac-
and where you want somewhat rigid rules and where tual issue about Chris. I think that you have most of
you want to have discretion because you know there the facts but not all of them. I didn’t mention that
are fact patterns that you can’t anticipate and you Chris is “Christine.” And Christine is very interested
want to allow the judge or whoever is the decision- in this proceeding, and we’re going to get to a battle
maker to be able to put those into the system. over who should have custody—Christine, a person
MIZE: You raised an issue that is of real concern to who really loves and has raised these children, or the
judges, and that is the idea that the Legislature really relative, Jane.
wants judges to have discretion. That’s not the case Jane comes to you and says, “Dan, dear, you know
in California, where the Legislature is always coming that Ashley and Ben need to be with their real family,
to judges and saying, “This is how we want you to not with this person who has no biological connec-
rule when the facts are A, B, and C. And we do not tion to them at all. We’re not rich, especially since
want to give you discretion because of anecdotal evi- you took that doggone federal job. But we’ve got a
dence of judges’ not making a clearly good choice.” nice home and we can take them in. We should seek
to become responsible for Ashley and Ben. I just important family members?” I’m glad we’re in the
want you to support me, Dan.” Done? dependency system because now we’ve got a forum
LUNGREN: I would try. We grew up with the idea that to litigate whether Chris has any rights or should get
you help one another. If you come to me and you tell placement or the relatives and how we’re going to do
me that you want us to see if we can do it, I’m game that. But I’m going to ask, number one, what is that
if we really do believe it’s best for the kids. If so, we’ll relationship and what does it mean to the children?
work as hard as we can to make sure it happens. And that’s going to be very important.
MODERATOR: But the question is, do you believe it’s MODERATOR: Falope, let me ask you. Would you respond
best for the kids? differently than the way that Dan Lungren responded?
LUNGREN: What I know about these children, yes. I What do you see as the issues from your point of
mean, I’m happy to have them come live with our son. view? No red tape, we got bedrooms, all that stuff,
we’re set. She has the equal opportunity to provide for
MODERATOR: Do you at all think about taking these
these two twins.
children away from their mother?
LUNGREN: No, I know my sister-in-law has a drug FATUNMISE: Then I think Christine is the ideal place-
problem, I know it’s serious, I’d like to see her get ment for those children.
help. But I also know the difficulty, and a lot of MODERATOR: Make Dan understand that. It might
things are stacked against her. And so I’m thinking help him persuade his wife to go in the other direc-
about three people right now. I’m thinking about my tion. Talk to him.
sister-in-law, who has things stacked against her, and
FATUNMISE: These kids have established a bond and a
I’m thinking about the two kids. If I can save the two
relationship with Chris, who they see as their mother.
kids, and I can’t save my sister-in-law, I’ll do every-
And I don’t see anything that could be closer or more
thing I can to save those two kids.
endearing or loving or caring for these kids than to
MODERATOR: Well, you might save them by letting be with their mother. It doesn’t mean that your sister
them go with Christine, who they call “Mom,” who couldn’t have visitation with these children. But to
they’ve lived with for four years, who’s been their take these kids away from their mother is just a fur-
mom, who has a real bond with them. Why would
ther disruption of these kids’ lives.
you be against that? Why wouldn’t you tell Jane,
“No—I understand, honey, it’s a good idea, but LUNGREN: Look, I still think, and this may be the
they’ve got a mother who has a good job, who can minority view on this panel, but I still think the best
afford to take care of them. Why should we not let environment for a child is to have a mother and a
them go?” father, if they can be raised in that setting. There are
other situations that work. But I still believe that.
LUNGREN: Well, I think we’ve got a stable relation-
ship, we have a child here, we have an established MATTHEWS: But, Dan, that’s not the choice with
family. It seems to me it’s a better environment for these children. The choice for Ben and Ashley is
those two kids. between staying with their mother after their other
MODERATOR: Why is it a better environment? Gary mother had to go into rehab and going to live with
Seiser, what do you think about Dan’s analysis here? their uncle and aunt, who maybe they have visited,
but they don’t have that primary parent-child bond.
SEISER: I think it’s perfect. He’s trying to support his
wife. But we haven’t said what is best for the children. LUNGREN: Well, where has this mother been for
And the number-one question that I’m going to ask months? Because my sister-in-law took off with the
is, “Brittany, when you talk to these kids, where do kids. So there obviously was not a stable relationship
they want to be, and who do they see as their most between those two. She took the kids away, essen-
tially stayed away from this other mom. And so I’m he’s going to have to argue to the court next, per-
wondering how stable is that relationship? suade the court which decision to make. Tell your
GRAY: But the sister-in-law was using drugs, so any supervisor what you think should happen.
decision that she made obviously might not have PETTIGREW: Well, after interviewing the children,
been a stable one. She was impaired by her drug it appears to me there’s evidence that their primary
usage. So, yes, she ran off and took the children with connection is with their mother and their mother. So
her, but that doesn’t mean that she did it for lofty my preference would be placement with Christine as
purposes. a nonrelative, extended family member, who is also
MIZE: Diane may not have been stable, but Chris an approved home. The dilemma I see is that I’m not
may be very stable. sure if I’m allowed to give preferential treatment to
GRAY: Right. this nonrelative, extended family member—some-
one who’s defined as an approved relative—when
MODERATOR: Well, let’s just resolve it. Judge Bresee,
all other things are considered equal. But I can tell
they’re going to be in your courtroom. And Martha
you that my recommendation to the court would be
Matthews, you represent Christine, who is Diane’s
that the children go with Chris because that’s where
partner. Janet Sherwood, you represent Jane, who is
their primary connection is and I hope that the court
Diane’s sister. Each of you has to persuade this judge
agrees, and that you litigate your little heart out to
that your situation is the ideal one. Janet, why don’t
make it happen.
you go first?
MODERATOR: Gary, you get a chance to appear before
SHERWOOD: I move for de facto parent status, Your
Judge Bresee. What are you going to say to her?
Honor. Under the Constitution of the United States
of America, my clients have a due process interest in SEISER: Your Honor, we’re here today to deal with
participating in this proceeding because, as potential where these children should be placed and whether
caretakers and relatives of these kids, they have at they ought to be in the dependency system. But
least a notice and hearing right to participate in the before we can do that, we need to determine who
ultimate decision. But we shouldn’t proceed until are the parents so that we can determine what rights
counsel has been appointed for these children. they have in this litigation. And, as an officer of the
BRESEE: I agree. court, I’m suggesting that we should first deal with
the issue of whether Christine is a presumed mother.
MODERATOR: Counsel has been appointed. Don’t
If so, she is going to have a right to appear as a par-
worry about that. So, Martha, what’s your argument?
ent and to litigate the issue of placement as well as
MATTHEWS: Your Honor, under the case of Karen jurisdiction. So I think that’s an issue we have to deal
C.,² my client is a presumed parent for the same with before we even get to the issues of placement
reason that Nicholas H. was a presumed parent. and jurisdiction.
My client held out the children as her own for four
BRESEE: I quite agree with counsel.
years. The children call her “Mommy.” The children
are intensely bonded with her. There’s been a stable MODERATOR: Well, we’ve got one more intervenor
parent-child relationship. This dependency petition here. Hannah-Beth Jackson, you represent the chil-
should be dismissed. There’s no reason for a depen- dren. And what would you be saying to them?
dency here, and they should just go home and live JACKSON: I would be saying to them that we were
with their mother and, hopefully, their other mother going to try to figure out a way to get them back
will get out of rehab. to their home to live with their parents, with their
MODERATOR: Talk to Gary, Brittany, about what you mother Chris until their other mother is well and
want to interject in this case, your thoughts, because can come home to be with them. They have a good
relationship with their mom Chris and I’m going their lives during a tough time. Bringing them into
to make sure that the judge knows that they have the system to move them to an uncle who’s peripheral
that relationship, perhaps with an in camera meeting to their lives or to put them into foster care—
with the court if the judge felt that was appropriate, MODERATOR: Well, peripheral—come on now, it’s
depending on how articulate they are in expressing not peripheral. This is Dan, right? He loves these
their love and affection for Chris. children, and his wife loves them. You take exception
MODERATOR: Ian Russ, how would you advise to that, right?
Hannah-Beth Jackson to talk to Ashley and Ben? Is
LUNGREN: I took them to the World Series to see the
that a difficult conversation?
Boston Red Sox win—they love me.
RUSS: It is a difficult conversation. But rather than
MODERATOR: But this is a slam-dunk. Everybody’s
asking them their preferences, I’d prefer that you talk
saying Chris, not Jane and Dan, a wonderful biolog-
to them about the narrative of their lives. Because
ically connected set of stable family members who
I don’t want them in the position of feeling they’re
want to care for and love their niece and nephew.
making the decision. So I want to know how they
experienced their lives, what kind of things they did BRESEE: I think any judicial officer making this deci-
with Chris, what kind of things they did with Diane, sion wants to base it on case precedent and statutes
how well they know Uncle Dan, to see where their that exist. And this is an evolving kind of process. I
life really is based and where their affections are, not think Ian and Hannah-Beth have stated the strong
by their conscious choice, but by their narrative of position that I articulated earlier—that the children
the story. have made the decision for me. And I always trust
JACKSON: Well, I jumped to the conclusion that they the recommendation of the attorney, especially of the
wanted to be with Chris, but I agree with you com- attorney whom I know well and trust has indeed
pletely. But rather than be as focused on Uncle Dan, spent time with the children.
the question I keep coming back to is, if Chris were MODERATOR: But Jan Sherwood has described a won-
Chris and not Christine, would there even be this derful, stable, resourceful, loving family with a bio-
question? And I think the law today is clearly mov- logical connection to these children. Janet, try to tell
ing in the direction, particularly with AB 205,³ that her why she should be cautious about what seems like
there will be equal parenting, whether it’s a male or a slam-dunk. Argue for Dan and Jane.
female, same-sex relationship or not—the question
SHERWOOD: Well, I think that you need to con-
will be, were they the intended parents? Is there that
sider the relationship that these children may or may
relationship, parental relationship? Does it make a
not have with Christine. Because I think there were
difference if it’s Chris or Christine? I think the law
some issues about this relationship that need to be
in California is going to the point where the answer
explored. But I think you also need to consider this
is no.
family that can provide them with a stable home on
MODERATOR: Ian, you get a chance to argue to Judge a long-term basis if that’s what ultimately becomes
Bresee. What’s your argument to her? What should necessary. And in the beginning of this case we don’t
she do? Where should these children be placed based actually know if Diane is going to make it through
on what you know? rehab. We don’t know if Christine is actually going
RUSS: Your Honor, these children are already in a situ- to be able to take care of these kids without assis-
ation where the world has become chaotic. To stabilize tance. We do know that Dan and Jane and Daniel
these children’s lives, to minimize the trauma, it is junior can provide these kids with a stable home,
essential to their stability that they remain with Chris, and that these children can be there long term if
who they know as their mother. This will stabilize that’s ultimately what becomes necessary.
BRESEE: I certainly would listen very carefully to that BRESEE: Consideration, not presumption.
and agree. These are children that were, first of all, JACKSON: I agree, Your Honor, consideration. But I
ripped away from Chris by Diane. Now they may be think there’s another issue here. I think Welfare and
facing another traumatic tearing away from some- Institutions Code section 316.2 requires Christine
one. I think they’re very fortunate to have other lov- to file a UPA action. And until she steps forward and
ing family members, and, if possible, it makes sense
files a UPA action and gets herself declared a pre-
to try to maintain and enhance that relationship.
sumed parent this is all just hypothetical, because she
MODERATOR: It’s interesting you have this loving actually doesn’t have any standing until she asserts
relationship, but Christine, who has all the support her parental rights, if any, and she hasn’t done that
and love, she’s going to be working. There’ll be a yet. All this discussion about Christine is premature.
nanny there. Dan’s wife, Jane, will actually be home
MODERATOR: But your thinking is that the challenge
with the two children and their own child.
is between the best interest of the children, as we
SEISER: Oh, Your Honor—value judgment! hear Martha on behalf of Chris arguing, and what
MODERATOR: Values don’t matter? some may say, that society has a different interest, a
biological interest. And is that a dilemma for judges,
SEISER: Values do matter. But we need not to impose
or is it clear enough that you’re going to figure out
our own values. We need to impose the system’s
values. the best interest of the children and not let society
impact how you have to rule in this case? Because
MODERATOR: Oh my God, didn’t we just reject the they could be in conflict.
system’s values?
MATTHEWS: Parenthood trumps everything else. If
SEISER: No, no—we’re working in the system. And you’re a parent, you’re on a whole different level from
the system’s values say we have to make this decision even the most loving and wonderful uncle or family
as thorough and as promoting of long-term stability as friend. If you’re a parent—and that’s why I think the
we can. So the county is going to ask, Your Honor,
UPA is very important here—and you haven’t been
not only that Christine is a presumed mother, but
found unfit, our court really should not be in the
we’re also going to ask that you make an alternative
business of saying, “Gee, is your uncle a lot better
finding. That even if she wasn’t a presumed parent,
than your mother?” I mean, how many of us who
that you would find that, as a nonrelative, extended
are single parents would really want to have that go
family member, this is a better placement for the
to court?
children because of their relationship than the rela-
tive placement with Dan and his family. So should PETTIGREW: As a social worker, I’m definitely going
the Supreme Court say, “Hey, next year, we’re not to recommend for the children to get placed with
going to recognize the Uniform Parentage Act as Chris, or for Chris to become a presumed parent
gender-neutral,” and they throw that stuff out and and have that standing. But the reality is that I’m not
Christine isn’t a presumed mother, those kids are expecting that to actually happen. In my experience,
still there in a nonrelative, extended-family-member those kinds of decisions have been really inconsistent
placement. and based on various nuances of a particular case.
So I’m not expecting anything. For me, I’m basically
JACKSON: Except, Your Honor, relatives are entitled
to preferential consideration and Dan’s an uncle, so having to finesse both sides of the fence because
he’s one of the relatives and is entitled to preferen- regardless of where all the fallout lands after the deci-
tial consideration. And relatives, I believe, are one sion is made, I have to work with whoever wins.
step above nonrelative, extended family members in MODERATOR: Well, you prevail. It seems the majori-
terms of preferential consideration. ties prevail. You and Gary and Martha and Ian—
sorry, Janet—all succeeded in getting this placement MCCORMICK: Do I feel that she should necessarily
with Christine. be paying child support? No, I’d be more inclined
BRESEE: First the court would declare Christine to be to think the children ought to be with her and she
a presumed parent. There’s a legal status to her. ought to be supporting them, not necessarily writing
a check that’s going to flow to a different direction.
MODERATOR: Professor Matthews, of course there’s
another little wrinkle. Christine has been working SEISER: But part of the answer is going to depend on
with Diane and trying to make this relationship what county are you in.
work, but it hasn’t worked. So Christine throws up MCCORMICK: Oh, absolutely.
her hands and says, “Y’know—I’m outta here.”
SEISER: And another part is going to depend on what
And so Diane says, “Oh no, you’re not. I’m filing
a petition for child support for you to support these does the Supreme Court do next year with the Kris-
children.” tine H.⁶ and Elisa B.⁷ cases.
Professor Matthews, not Attorney Matthews, tell MCCORMICK: Unquestionably, and I think that
me, does Diane have a case? that’s where the placement becomes so important
MATTHEWS: Oh yeah. If you’re a presumed parent here, because if you have an application to the foster
under the UPA, I think the parenthood should not system for benefits, the system is going to look back
be unbundled. If you’re a parent for one purpose, to a parent to collect child support from. We need to
you should be a parent for all purposes. see if we can have those children with that parent
regardless of whether it’s Christine or whoever may
MODERATOR: Never filed to become domestic part-
ners, never filed to become formal parents. be presumed to be the parent, where there is no
triggering of all those mechanisms with regard to
MATTHEWS: She’s still a parent under Nicholas H.⁴
payment and support.
and also Karen C.⁵ If someone has been holding
out for years and years to the child, and to the com- JACKSON: I think as the law moves in the direction of
munity, and usually to the other parent, “Hey, I’m a intent of the parent or intent to be a parent, you have
parent,” and later it turns out that they don’t have a to take the responsibilities along with the rights. And
biological connection, or even knew from the begin- I think in this situation, if Chris is the presumed
ning they don’t have a biological parent, tough luck, parent, whether male or female, I think that there is a
they’re a parent. responsibility associated with that. If there’s a relation-
MODERATOR: Dan, isn’t this what you’re worried ship based upon an intention to have that relationship,
about? Here we go. Now Christine is going to be held there are responsibilities. Chris wanted all the rights to
responsible for paying child support and you wanted go with being a parent, and I’m hoping that we get
to take over, you have a biological connection— more consistent so that we’re not constantly finding
different jurisdictions operating differently.
LUNGREN: I’m going to say let her pay. Let her pay.
SEISER: Although the majority here on this panel
MODERATOR: This is what they asked for, right?
would say she should be granted presumed-mother
LUNGREN: That’s right. status, the law is not settled on that.
MODERATOR: Mike McCormick, what do you think
MODERATOR: There’s another dilemma right down
about this? What’s going on here, Michael? Should
the hallway from this courtroom. In the courtroom
Christine be forced to pay child support?
right down the hall, there’s a proceeding that’s about
MCCORMICK: I think that she is in a position where to start with the appellate court. And the appellate
she is going to end up paying child support. court consists of Justices Lungren, Bresee, Mize, and
MODERATOR: But you haven’t told me how you feel. Matthews, along with Chief Justice Gray.
Elaine and Francine were a lesbian couple, and this silly form because I’m signing a bunch of forms
Elaine actually donated her eggs to Francine seven without paying attention.”
years ago so that they could have a child. And they MODERATOR: She signed the form.
have these, again, twins. And these two 6-year-olds
are part of this wonderful relationship. But they LUNGREN: But if in fact the record shows that for
break up after six years. Francine gave birth to the whatever reason she intended to sign the form
children, but Elaine now wants to be declared a par- because she did not want to take on the responsibil-
ent. She signed a consent form when she gave these ity of being a parent, then I think we’ve got a whole
eggs, acknowledging that she was waiving those different thing that we’ve got to worry about.
rights. But now she says, “You know—my eggs, my GRAY: She signed the form, and it’s too late to change
children, six years—I want to be a parent.” her mind.
Elaine, who donated the eggs, lost at the trial
MODERATOR: All you need, Dan, are two votes.
level. But now we have the court sitting en banc and
I’d like to hear Chief Justice Gray. Let’s figure out LUNGREN: I understand. But you will find this hard
what do we do about Elaine’s petition that says, “I to believe. I’m concerned about the interest of the
want to be declared a parent.” Do you speak first, or children in this case. The forms have to mean some-
do you want to push one of your other colleagues? thing. She signed the form. Presumably she had
GRAY: Being the chief, I want to hear from Justice knowledge at the time she did it. We have these
Matthews. forms so that they will in fact determine what a
decision will be some years later. We can’t just reject
MATTHEWS: Well, they’re both parents. I mean, if
these forms out of hand. She put pen to paper. For
they have been raising these children together as
whatever reason, she did not want to be the parent.
parents for six years, the mother who gave birth to
Case closed.
the children is a parent by virtue of the UPA. The
mother who donated the eggs may not be a parent MATTHEWS: I actually agree with Justice Lungren
by virtue of the egg donation because of the waiver. that that is important. I mean, you could have a
However, if they intended to parent the children situation where someone intentionally sets it up so
together, and they actually did so for six years, then that the mother who gives birth is the only legal
regardless of what she signed in the hospital, she’s a mother, and says, “Hey, I’ll participate in this proj-
parent. So they’re both parents. Case closed. ect of yours. You want to have kids, I’m your girl-
MIZE: I agree with that, I just have some concern friend—fine, here are some eggs. But you’re really
about what her intention was when she waived the the only parent.” I mean, it’s important to know
rights. Why did she waive them? what they’ve been doing for six years. If they’ve been
raising the children together, and the children call
MATTHEWS: Well, there are these standard forms that
them “Mama” and “Mommy,” then I think they
people sign when you’re an egg donor; when you’re
really are both parents. If they’re saying, “That’s your
giving your eggs away to strangers, you always have
mom, I’m just this friend over here, and, gee, I hap-
to sign a form. What probably happened, and of
pen to look like you,” then you’re right.
course we defer to counsel on the record, is that peo-
ple get a stack of forms to sign in the hospital. And MIZE: How would this be any different if in fact they
they sign them without paying that much attention. started their relationship after she was already preg-
And they think, “This doesn’t matter because, of nant and then just lived six years together? Clearly
course, I’m not giving my eggs to strangers. I’m giv- there would have been no intention to have donated
ing my eggs to the children’s other mother, and we the egg. But there would have been the six years. So I
intend to raise them together. So I’m just signing think the six years becomes determinative.
GRAY: I guess I’m looking for help. Because, for me, GRAY: That’s part of the record. Six years they held
I sort of agree with Dan on the signing of the form. themselves out as parents. They made all the deci-
And I would be concerned if we start saying people sions about daycare, they made all the decisions
can sign the forms but they don’t mean anything— about Little League baseball and all those kinds of
that we’re maybe undoing a lot of relationships that things. They shared expenses. And so the record sup-
were based on signing that form. So I’m having a real ports that they were both holding themselves out as
problem, being a strict constructionist person that I parents. For six years they did that. And so I’m say-
am. But I’m sort of in the middle and I could, at this ing they’re both parents.
point, go either way. I’m also convinced by the fact MODERATOR: So is this unanimous? Is there a con-
that they held themselves out as parents for six years. curring opinion? Unanimous decision, okay.
And, to me, looking at the best interest of the chil-
MODERATOR: Well, we’ve got another interesting
dren, who didn’t know anything about the forms,
question I’d like Michael McCormick and Gary
that’s not the issue for them. So how do we decide?
Seiser and Martha Matthews and Janet Sherwood
BRESEE: I would defer to Justice Mize and his com- to weigh in on. What happens when we have an egg
ments. I think we have to look at the relationship donor or a sperm donor or both and a child is born?
that’s gone on for six years. How did that intent That child becomes, because of the separation of the
manifest itself? parents, a ward of the state. Gary, should we be able
MODERATOR: Interesting— You have a choice of to go after the egg donor or the sperm donor for sup-
the genetic connection as one way to go. You have the port of this child in your view?
six-year relationship as another way to go. And you SEISER: Well, first off, in the dependency court, we’re
have the signing of the form. Those are all interest- not going after them for support so I actually have
ing, different facts in this case. no idea. That’s a completely different area.
MIZE: Let me see if I can clarify, also, to Chief Jus- MODERATOR: Is there an agency that deals with it?
tice Gray. If it were three weeks or three months SEISER: Sure, sure—child support.
after the signing of this form, my opinion would,
MODERATOR: And what do you think would come
perhaps, be very different. So the six years makes
from child support? What would they say?
a difference. I’m just saying that your concern is
appropriate. We have to give some power to a signed SEISER: Where can we get the money? They are far
document. We act as if people know what they’re more concerned with—they’re not really dealing
doing and give the opportunity for people to donate with child custody, child placement, child welfare.
eggs and sperm without the necessity of having to They’re dealing with fiscal responsibility. And they’re
worry about people coming back and getting child most focused on, in my perception anyway, where
support from them. But this is six years later, and I can we get the money?
think that makes it easy. MODERATOR: Marjorie Kelly, what do you think of
LUNGREN: But what if we had evidence that in the that? What do you do here? Go out to the egg donor,
fourth year she still maintained that position, “I go out to the sperm donor—what do you think, hav-
didn’t want to do that.” But then in the last two years ing been involved in the system at some level?
has had a change of mind. KELLY: I’m stumped, frankly, because I think when
MIZE: It’s a closer case then. we have egg donor situations and sperm donor situ-
ations, clear legal steps are taken to protect those
GRAY: So what’s our decision? folks from exactly this situation. And so I think that
MATTHEWS: Were they holding out as parents? I what you’ve got to overcome is not just the ques-
think that’s part of the record. tion of should we go after them. What you’ve got to
overcome is the central legal question of could you, he’s been a father and to take responsibility for those
if you wanted to, could you? And then, secondarily, twins. For the sake of this part of the hypothetical,
should you? Michael McCormick, I want you to play Michael
MODERATOR: It’s interesting because we’re saying, Smith. Congratulations.
“You have no rights, you’re signing those waiver MCCORMICK: Thank you.
forms, you have no rights, but do you have any MODERATOR: And your wife is interested in this as
responsibilities?” Janet? well. You have an interest in getting involved. I want
SHERWOOD: Part of the reason for the waiver forms is you to talk to Ian Russ because Ian knows a lot about
also to protect the sperm donor and egg donor from children and family and relationships and you really
ever getting hit up for child support because they want to get involved and become the father of chil-
wouldn’t donate if 10 years from now, surprise, you dren for which you were responsible. Can you talk to
know, you’re a mom. Ian? Can you guys have a conversation? Ian, can you
MODERATOR: Does the form actually say that? help him? What should he expect? What is he going
to go through? What should he do and not do? Can
SHERWOOD: I think it’s statutory. It’s the rights/ you talk to Michael?
responsibilities thing. You’re giving up your rights, so
you’re also being relieved of the responsibilities of a RUSS: Well, I think that you need to talk to the
parent; and since you have neither, you have no legal mother. And to talk about whether or not they think
responsibility for that child. there is a space for you somewhere in this relation-
ship, that they would be willing to bring you in. Yet
MODERATOR: And that makes sense to you, Michael they are the parents that these children know. And to
McCormick? enter into a custody fight would be awful for these
MCCORMICK: It’s somewhat analogous to the deter- kids. But talk to the parents and to see if there is a
mination of parental rights. If your parental rights place for Uncle Michael, maybe, in these kids’ lives.
are terminated, you don’t continue to be financially MCCORMICK: What if they say no? If they just turn
responsible for the child. It’s similar when you have me down flat?
a donor situation. They didn’t donate with the intent
that there would be a financial obligation down the RUSS: I think you need to think carefully about what
road. They also didn’t donate with the idea that they the impact is going to be on these children’s lives.
would be a part of the upbringing of the offspring of And to understand that has to be the organizing fac-
that particular union. So there shouldn’t be the abil- tor and not your own wishes and feelings.
ity to go back after child support. MCCORMICK: And I could certainly deal with that
MODERATOR: We have one more interesting devel- and would want what’s best for my children. You
opment in this hypothetical. Guess what? We have know, I have friends who have adopted children, and
found Mr. One-Night-Stand. His name is Michael those children have gone back to find their birth par-
Smith. Very successful guy, has a wife, has a great ents. Children want to know where they came from.
family. Michael Smith actually had no idea back And so how do I help them know where they came
then that Diane became pregnant. It was a one-night from, not wanting to disrupt their lives, but wanting
stand, and they did not see each other for a long to give them the benefit of what we have in our life
time. But then he happened to be at the home of a and to give them the benefit of their heritage. How
mutual friend of his and Diane’s and saw this picture do I do that?
of these wonderful twins. And they looked just like RUSS: Well, I think that you have to understand that
Michael. And Michael’s saying, “Those are my kids.” you’re talking about your wishes here, and they have
And he has a genuine interest in finding out that value, but the children are living in a family that has
set up its own value systems and its attachments. to know you a little bit and are a little more comfort-
And I would be very wary of interfering in that able with you. Third, you need to understand that
family’s life if they don’t want you in it. this is going to be a very tough fight and you may
MCCORMICK: I appreciate that. If the children do lose altogether, and, therefore, I want my money up
want me in their lives and the parents do not, how front. Because our Supreme Court, in a case called
do we handle that particular situation? Because In re Zacharia D.,⁸ said if you have unprotected
I recognize that I want to be in their lives. Their sex, you are on notice that there may be a child as a
mothers may not want me to be in their lives. But result and the “I didn’t know” excuse does not cut it.
the children may have a desire different from what the And so, if you delay in making an effort to find out
mothers’ are. How should I deal with that particular whether a child resulted from that relationship and
situation? in attempting to establish your parental rights, that
delay can be used against you. And it may be used
RUSS: Well, I don’t know how we would find that out
against you in this case, and you may not be suc-
without talking to the children about your existence,
cessful in getting a court to recognize a parent-child
which would kind of already bypass the mothers’
relationship between you and these kids. So, given
authority. Yes, at an older age they might wonder,
“Hey Mommy, where’s my daddy?” And I would all of that, what do you want to do?
hope that there are ways to go and investigate this. MODERATOR: No, no, no. She’s got your money,
MODERATOR: Michael, let me give a little advice. she wants money up front. I want something more
Don’t talk to these child counselors. Get yourself a positive than that. Aren’t you going to win this case,
lawyer. Janet, you are Michael’s lawyer. Talk to your Janet?
client. He’s excited. He’s found two children that he’s SHERWOOD: No.
responsible for. Talk to him because you’re going to MODERATOR: Why not? You’ve got the biological
court soon. father here. You’ve got him.
SHERWOOD: Well, Michael, you’ve got a couple of
SHERWOOD: I’ve just told him the reasons why I
options. I’m not sure we’ve really clarified whether
don’t think we’re necessarily going to win.
these kids have two mothers psychologically or these
kids have two mothers legally. MCCORMICK: Well, I want to ask you a question. I
do have the resources to enter into this particular sit-
MODERATOR: Yes, psychologically.
uation. But I’m also very pragmatic, and I want you
SHERWOOD: One of the first things you want to do to tell me, lay it out for me, what is the most likely
if you want to establish a relationship with these scenario given this set of facts and circumstances?
children is file a UPA action to establish a parent-child
SHERWOOD: Well, first of all, we’re going to care-
relationship legally between yourself and these children.
fully choose the jurisdiction in which we file. And
But you need to understand that if you do that,
we’re going to look at our family law bench, and we’re
you’re making yourself financially responsible for
going to hope we can file this in a jurisdiction where
these children as well as giving yourself certain rights
they’re kind of conservative and where they’re more
to custody and visitation and so forth. Second, you
sort of family-values oriented. Because that’s going
need to understand that if you file this UPA action,
you’re probably not going to end up with custody. to increase your chances, I think, of convincing the
The most you’re probably going to end up with, at court that your mere biological relationship is suf-
least initially, is visitation. And that may be very lim- ficient to establish—
ited, and it may even be supervised by a therapist or MODERATOR: Mere biological? You’re his lawyer. My
somebody at least in the beginning, until the kids get goodness. How much are you charging this guy?
SHERWOOD: I have to tell him the truth. The answer Ashley and Ben. Father wants to come back in the
is I cannot guarantee it. But in certain jurisdictions picture. He’s got resources. He loves the children.
your odds are much better than in others. He wants to take full responsibility. What do you say
MODERATOR: You’ve got the gist of it now, Michael. to the judge? He wants to get in their lives. Walk us
Judge Bresee, this case is now back on your calendar. through it. Do you have any reaction to his enthusi-
And, of course, Martha Matthews, you represent astic interest?
Christine. So, Judge, who do you want to hear from? PETTIGREW: Well, my reaction is obviously curiosity.
Here comes Michael Smith. Raring, able, loving, I just want to know more about who you are and
wants to be the parent. what you can offer the children. I don’t know that
BRESEE: I think Jim thinks this is pretty simple. you present an immediate detriment to the chil-
dren. So I start with what is the most successful way
MODERATOR: All right, Jim, it’s simple. You decide it.
that I can incorporate you into the children’s lives.
Do you want to hear from the lawyers, or you don’t
It’s going to be disruptive no matter what happens,
need to hear anything from the lawyers?
bringing a new person into something that’s been
MIZE: I don’t need to hear from the lawyers. This cruising along. But what’s the best chance of success
comes up all the time. Particularly, fathers come into for you to be introduced to these children and to
play sometimes 6 months later, 6 years later, 12 years have a relationship that honors where they’ve been
later. We see that all the time. Not this particular but also gives an opportunity for the future?
fact pattern, but others like this. And my philosophy
MODERATOR: Falope, did we see this coming? He
always has been—I don’t care how long it’s been,
comes back. What would be your input at this point?
if they’re finally coming to the table to accept the
Is this a good thing for these children? Or is it a bad
responsibilities, then I’m going to let that happen. But
thing?
Jan’s advice was correct. There’s a distinction between
having the father come in and now being a father, FATUNMISE: Well, I think it’s a great thing for these
paying the support, getting visitation versus custody. kids. I always believe the largest support system that
The likelihood of his getting custody or full custody or a child can have the better off the child is. I do feel
something is really very, very small. that the most challenging aspect would be the rela-
tionship between him and the children versus him
MODERATOR: Why?
and those adults. So at some point I would offer
MIZE: Because he hasn’t been a part of the child’s life some level of family conferencing so that they could
during all the bonding periods. actually get together and talk about how they’re
MODERATOR: Well, not immediately. But you’re not going to be intervening with these children. The
ruling out the possibility that he will now share— truth is that those children really would want him
you can’t say that he will never get full custody? in their lives because there is a relationship between
MIZE: I won’t say that at all, ever. But I will say that a biological parent and a child that’s never separated.
at the very beginning it’s going to be possibly super- So they will always want that relationship with that
vised, have a professional bring them together and biological father.
then have some time to spend with them on a week- MODERATOR: Judge Seiser?
day basis. Then maybe extend to the weekend. SEISER: What we’re creating here is the possibility
MODERATOR: Maybe we need to hear from Brit- of three parents that the court will recognize, if they
tany and Gary Seiser because, Brittany, you know recognize Mr. Casual Inseminator as a parent. We
these two children and here comes the father, four have a mother and another woman—we should not
years later. What do you think about this? Talk to call them both “mothers”; we should say “mother”
Judge Mize. You’ve always been concerned about and “a second parent.” Because the case law suggests
that we ought to use that terminology. If we’ve MATTHEWS: As a person, I really struggle with this
already done that and have two parents, this is going because I actually think that the law may be moving
to be three. in the long term toward the recognition that there
MODERATOR: Right now we’re really talking about are real children who really do have more than two
Christine and we’re talking about Michael. parents. And it will be as you said, deep doo-doo.
It’ll be hard for our family court system to accom-
SEISER: But we know there’s another one out there. modate that. But there are stepparents. There are
And the concern I have is that we’re setting a prec- already children in my child’s elementary school who
edent. And I realize it’s not a published case, but if in have more than two parents. It’s just the law doesn’t
our courthouse we have walked in and said, “There call them that. And so I hope that we evolve to a
can be three parents,” we are in deep doo-doo on the family court system where somehow we can fairly
next case where we try to say, “No, only two.” adjudicate, “Hey, this kid has two mothers.” Maybe
MODERATOR: Dan, it sounds interesting, doesn’t it? we need tiers of parenthood.
LUNGREN: That’s why they should have let the kids MODERATOR: The question is, is there something
go with me, Uncle Dan. We could have solved this, wrong with three parents?
we’d have stable relationships, they could go fight MATTHEWS: No, but it’s scary to think about in terms
with themselves. They could come see the kids when of how do you run your court system.
they wanted to.
MODERATOR: Falope, here are three people who love
MATTHEWS: I think that as the children get older this child. And we’re trying to define it so that there
they will have questions about their biological ori- are only two people.
gins. But these kids already have two parents. And
FATUNMISE: And my concern is that’s all a legal
I’ve already filed my UPA petition and it’s been
aspect. What we are concerned about is “the system.”
granted. And there’s also case law saying that when
We aren’t concerned, it appears, enough about what’s
there are two competing presumptions, when one
best for those children.
person shows up and says, “I’ve been holding out for
four years,” and another person shows up and says, MODERATOR: Do you agree with that, Marjorie?
“Oh yeah? But I was the one who got her pregnant,” KELLY: What I actually think is that by the time this
the presumption supported by the most compelling goes through all these assorted systems, with all the
reasons of policy wins. assorted value systems and decisions, the kids will
BRESEE: And he isn’t even a presumed father. become teenagers and they will choose where they
want to live and it will just happen. And the judge
MATTHEWS: This guy—well, maybe at the discretion
won’t get to say, and I won’t get to say.
of the parents. There are two fit parents. They get to
decide what other relationships their children have. MODERATOR: And then Dan will get them, right?
And so, as the children grow up, they get to decide Brittany?
when it is appropriate and how it is appropriate for PETTIGREW: In my view, it’s our challenge to become
them to meet their biological father. more inclusive, because we know that children aren’t
MODERATOR: So what do you say to Michael? Is really independent at 18 even though society calls
there no future for Michael in terms of ever becom- them adults. So, to me, the challenge has to be how
ing a parent to the two children that he has a biologi- we include him without disrupting.
cal connection to? I’m not asking you as Christine’s MODERATOR: Let me just ask you, Hannah-Beth
counsel. I’m asking you as a citizen, as a person. For- Jackson, is a new law going to create this three-
get about the advocacy. Talk to Michael. Tell him. parent possibility?
JACKSON: I think we’re going to have to—I won’t you. And Martha Matthews, you still represent
say close the door on it, but make some kinds of Christine. And now Michael says, “Look. Now it’s
policy decisions that say, “If you get in the system, clear. These are my children, and I’m going for the
we are going to limit the extent to which we can full enchilada. I want full custody.”
make those decisions.” I just think from the practi- So, Martha, you’re down in South Idelia practicing
cal aspect there comes a point where we’re going to family law. Argue in front of Judge Gray whether or
have to put in some kind of guidelines so we don’t not Christine should retain custody now that Diane
end up having the biological father come in and then is gone. What’s your argument to Judge Gray?
maybe Dan coming in—you know, we’re going to
MATTHEWS: What has Michael been doing all this time?
have six different people with six different lawyers,
six different sets of representatives for the children, MODERATOR: Still trying to get closer to his children.
and then six different members of the social-work He has been in their lives visiting.
community or DPS or the dependency courts, the MATTHEWS: Well, I’m not sure what I have to work
juvenile courts—then we don’t have enough judges with in terms of case law.
to hear them all. That’s the problem. So let’s not MODERATOR: She was a parent in California. Here
make it worse. we are.
SEISER: Our courts are doing us a great disservice MATTHEWS: Under the interstate compact, under
when they create these multiple kinds of parents full faith and credit, this person has a UPA declara-
or start recognizing more than two parents without tion of parentage from California so she is a parent.
waiting for the Legislature to give us the tools and Then there is this other biological parent who has
the guidelines to say how the people in the trenches not had much relationship with the child. I guess
every day should handle it. I’d be asking for a custody order to Christine with
MIZE: The courts aren’t in position to be able to visitation—I mean, if there is any dispute between
make policy. They’re just deciding the cases. Christine and Michael, I would try to get a custody
SEISER: No, no, no, you’re talking the trial court. and visitation order nailed down with Christine hav-
Our appellate courts and our California Supreme ing primary custody and Michael having visitation.
Court are making policy. And that’s problematic. It MODERATOR: Janet, what would you argue for
needs to be dealt with in the Legislature, not in the Michael?
courts. SHERWOOD: Well, Your Honor, this state does not
MODERATOR: Judge Gray, this case comes to you. recognize same-sex marriages. So whatever that order
Here is a new and final twist on this amazing story. from California is, it’s not recognized in this state.
We’re in the State of South Idelia where you are pre- She may have been a legal parent in California, but
siding judge. Both Christine and Diane come back she’s certainly not a legal parent here. Michael clearly
together. And Diane is taking care of her drug prob- is the legal father of these children. And he’s been
lem. They seem to be very steady. Things are going trying for years to become the legal father of these
well. Christine has a very good job. And all seems to children and to get custody and visitation. And
be going well with the children and with the parents. Christine has totally cut him out and has refused to
And then tragedy strikes. While they’re in South Ide- let him have any contact with his very own children.
lia, living there, Diane dies in a traffic accident. And now that Diane is gone, who was the other legal
Michael, you live in South Idelia. You’re a native parent, this complete stranger should not be allowed
of South Idelia. And so now you’re in a state that also to continue to cut Michael out of these children’s
doesn’t recognize same-sex marriages. You’re home. lives. I’m asking the court to declare Michael the
And you’ve still got Janet Sherwood representing legal parent of these children and make a custody
order giving him full custody and perhaps giving MODERATOR: All right, the lawyer’s there.
him discretion as to whether or not Christine should GRAY: And probably with every other lawyer as well
have any visitation, depending on whether it’s in the because none of the lawyers trust me to get it right.
best interest of the children and whether she behaves So I have to have them all in chambers.
herself.
MODERATOR: It’s all on the record—talk to me.
MODERATOR: You must have paid all your legal bills.
GRAY: Ben, I know that you have been living with
This is a much better argument. Boy, she’s fired up,
Christine—
Michael.
MODERATOR: My mom.
GRAY: The law is clearer.
GRAY: —your mom, for some period of time.
MODERATOR: Okay, Judge Gray, it’s clear—this is a
simple case. MODERATOR: My whole life.
GRAY: Your whole life. No, no, actually there was a
GRAY: Under the law in my state, I’m prohibited
period of time in your life, Ben, when you were not
from giving any recognition to an out-of-state same-
living with Christine.
sex marriage. No recognition at all.
MODERATOR: With my grandparents very briefly. My
MATTHEWS: Can I have some rebuttal time? An order
granddad had a stroke; my mom came back and she’s
was not issued yet. This UPA declaration of parent-
been there for us.
age was not based on any purported same-sex mar-
riage, which doesn’t exist in California either. This GRAY: And you know, Ben, that all during this time
was based on a finding under a presumption that is there have been lots of people who wanted to take
common to the Uniform Parentage Act in 33 states, care of you.
and I don’t know if South Idelia is one of them, that MODERATOR: And nobody loved me like my mom
someone who holds his or her child out for more and my mom.
than two years as a parent is a parent. It doesn’t mat- GRAY: Well, actually Michael loves you. I’ve had—
ter if she’s male or female. That presumption applies
MODERATOR: He said that, but I don’t know him. He
and, under full faith and credit, that parentage dec-
just came a couple of years ago.
laration is just as valid here as it was in the state in
which it was issued. We would have chaos if states GRAY: Let me show you how I conclude that Michael
don’t recognize each other’s parentage orders. Your loves you. Michael, when he didn’t have to, came
Honor, please reconsider your tentative decision. into court and said, “Judge, these are my children.
And I want to be in their lives.” And even though
GRAY: I believe that I cannot under the current law.
there were a lot of people saying that that shouldn’t
Down the road we may be able to do that, but cur-
happen, Michael consistently, over the course of the
rently I do not believe that I can. And, therefore, I’m
last four years, has said to this court, “Judge, these
ruling in favor of Michael.
are my children, I love them, I want to be involved
MODERATOR: I’m Ben. Explain this— in their lives.”
GRAY: And how old are you now? MODERATOR: I just lost one of my mothers, and now
MODERATOR: Eight. You just wanted me in cham- you’re going to take me away from the other one?
bers. Ashley’s not feeling well. She’s devastated to GRAY: No, I’m not going to take you away from
hear that you’re going to take us away from our Christine. I’m not going to sever your relationship.
mommy. I’m going to let you stay with Michael—
GRAY: I would not have Ben in chambers at 8 with- MODERATOR: Ian Russ, what am I hearing as 8-year-
out his lawyer. old Ben? Tell me what’s going on here.
RUSS: Disaster. When Michael professes his love to out. I think it’s kind of presumptuous of the Con-
these children, it is not the love for these children; gress to move in on this right now.
it’s the love for the fantasy that he has about these MODERATOR: Well, finally, the good news this week
children, because he hasn’t had a relationship with is that we don’t have to worry about any of these
them. And that is with all the goodwill and desire problems, Gary Seiser, because on January 1, 2005,
that he has to want them in his life. There isn’t a his- California’s going to solve the whole thing, right?
tory. What Ben is hearing is that the world that he
SEISER: Not at all. California’s not solving the whole
knew doubly is lost. That his mother, Diane, is dead
thing. And that’s unfortunate. We had, in 2004, a bill
and that he is being kidnapped, taken away from his
introduced in Sacramento to adopt the Uniform Par-
mother. And that this isn’t like after a nasty divorce
entage Act of 2004, an updated, expanded version.
where, two years or so when things are calm, kids
That’s where we need to put focus. The Supreme
can kind of get back on their feet again. This is a
Court is obviously going to hand us down a lot of
huge loss and an unexplainable loss to an 8-year-old.
guidance. But history shows us that individual cases
Death is awful, but it’s explainable. I know I miss my
create as many problems as they solve because they’re
mom because my mom is dead. I went to the funeral.
dealing with one set of facts. We need the Legislature
I cried. But to be taken away from my mom because
to deal with the Uniform Parentage Act and say that
of some mumbo-jumbo in a court is bizarre.
it’s gender-neutral. And say that a woman can cre-
MODERATOR: Well, let me ask the judges very ate presumptions this way just as a man. We need
briefly—I hear you talking about the law and what to deal with it all there in the Legislature so that the
you have to do. But take off the judicial robe just for courts can ensure that we have guidelines and we
a minute—does this seem right? Judge Bresee? operate by them. Our system right now is in chaos.
BRESEE: I don’t think the issue of same-sex marriage The domestic partners bill⁹—that’s a great bill and
is what this issue is about. For one thing, they don’t it’s a step forward. But it doesn’t solve what we’ve
even have a same-sex relationship because Diane’s been talking about for the last two hours.
dead. It’s about parentage, and I buy Martha’s argu- MODERATOR: Brittany, let me ask you finally for some
ments in terms of the UPA. brief comments, just in a sentence: What is a family?
MODERATOR: So you’d like to figure out a way to PETTIGREW: A family is what the child defines as his
keep these children with Christine? or her family.
BRESEE: Absolutely. MODERATOR: Dan Lungren, what is a family?
MODERATOR: Judge Mize? LUNGREN: Well, I think there are different kinds of
MIZE: Might give it a shot if I could. Is the question families. I think we have the nuclear family, and
difficult? Of course it is. We have this stuff 20 times a then we are moving out from the nuclear family. I
day in every custody decision. It happens all the time. hope we don’t define family so broadly that we lose
MODERATOR: Well, we can solve this. Dan Lungren, any sense of what we initially talked about and from
give us a piece of federal legislation, right? Can’t you which we move out.
guys solve this problem? Do we need a federal law to MODERATOR: Michael McCormick, what is a family?
address this issue? Two parents, three parents—what MCCORMICK: I’ll agree with Mr. Lungren. The expan-
do we need to solve the problem? sion of the definition of a family has led to a lot of these
LUNGREN: I don’t think so. This does not implicate particular issues. I just think we have to work to maintain
same-sex marriage. This goes to the question of par- some semblance of respect for the relationship aspect of
entage. And the states are, as we say, laboratories of family and the biological aspects of family. As far as the
democracy, and they’re trying to work these things specific definition, it’s getting muddier every day.
MODERATOR: Falope, what’s a family? 8. In re Zacharia D., 862 P.2d 751 (Cal. 1993).
FATUNMISE: A family is a group of people who are 9. California Domestic Partner Rights and Responsibilities
willing to support the best interest of the child. Act of 2003, ch. 421, 2003 Cal. Stat. {___}, available at
www.leginfo.ca.gov/pub/03-04/bill/asm/ab_0201-0250/ab
MODERATOR: Judge Gray, what is a family? _205_bill_20030922_chaptered.pdf (codified at Cal.
GRAY: A family, to me, is a group of people, some Fam. Code §§ 297–297.5 (West 2005)).
related by blood, others not, who agree on a set of
principles that guide their relationships and they
work on what’s best for that group.
MODERATOR: And Martha Matthews, what is a family?
MATTHEWS: What I would call a “nuclear family” is
a family of adults who are responsible for a child,
who have either brought a child into the world or by
their intentional conduct caused a child to be there
or adopted a child — responsibility plus relationship.
By their conduct they have established that primary
bond with the child. That’s the family.
MODERATOR: I think that as we move into the 21st
century, not just in California but around the nation,
we’re going to have to confront that issue in a demo-
cratic, progressive society and answer it for ourselves in
a way that would have meaning in the 21st century.
I hope you will join me in thanking this panel for
helping us grapple with some very tough issues this
morning.
NOTES 1. In re Nicholas H., 46 P.3d 932 (Cal. 2002).

2. In re Karen C., 124 Cal. Rptr. 2d 677 (Cal. Ct. App.
2002).
3. California Domestic Partner Rights and Responsibilities
Act of 2003, ch. 421, 2003 Cal. Stat. {___}, available at
www.leginfo.ca.gov/pub/03-04/bill/asm/ab_0201-0250/ab
_205_bill_20030922_chaptered.pdf (codified at Cal.
Fam. Code §§ 297–297.5 (West 2005)).
4. Nicholas H., 46 P.3d at 932.
5. Karen C., 124 Cal. Rptr. 2d at 677.
6. Kristine Renee H. v. Lisa Ann R., 16 Cal. Rptr. 3d 123
(Cal. Ct. App. 2004).
7. Elisa Maria B. v. Superior Court, 13 Cal. Rptr. 3d 494
(Cal. Ct. App. 2004).
121
A Brief Primer on Case Law Addressing

Parentage Issues for Nonbiological
Parents Before 2005
W
hile adoption continues to be the usual path to “nonbiological” FRANK H. FREE
parentage, it is not the only one. California courts have identi- Private practice, Oakland
fied a narrow class of persons who may earn full legal parenthood
through application of sections 7611 and 7612 of the California Family Recent case law has interpreted the
Code.¹ Those statutes establish a mechanism for determining legal paternity
California Family Code as providing a
and also may be applied to determine maternity, as will be discussed later in
mechanism for adults who are not bio-
this article.
logically related to children to be declared
How broad the category of “statutorily presumed nonbiological parents”
may be is the subject of a fast-developing body of case law. The crucial fac- “presumed parents” with full legal rights
tors for a court’s evaluation of a person seeking presumed-parent status under and responsibilities. How broad the class
the statutory mechanism appear to be whether a biological parent has been of such persons may be is the subject
identified, the child’s age, and the strength of the bond between the child and of continuing litigation. However, the
the adult seeking a parentage determination. factors that courts have found most sig-
Section 7611 establishes two presumptions that cannot be rebutted by nificant to a determination of presumed
other evidence once a statutory deadline for the introduction of blood-test
parenthood are whether a biological
evidence has passed:² if a man and the child’s mother have executed a vol-
parent has come forward, the child’s
untary declaration of paternity under sections 7570 through 7577 or if the
man has established the “conclusive presumption” under section 7540 by age, and the extent of the bond between
having been married to and cohabiting with the child’s mother at the time the child and the nonrelated adult. This
of conception.³ It also sets forth a series of “rebuttable” presumptions. The article briefly addresses the primary cases
first three of these are based on the couple’s having married, or attempted to that have interpreted California’s laws
marry, prior to, or after, the child’s birth.⁴ The section that has been the route concerning presumed parents. ■
to “nonbiological” parentage in most cases is 7611(d), under which a man
is “presumed to be the natural father” of a child if he has “received the child
into his home and openly held the child out as his natural child.”⁵
The leading case thus far on nonbiological parentage is In re Nicholas H.⁶
In that case, Thomas, the only man claiming paternity, admitted during
dependency proceedings that he was not the child’s biological father.⁷ He
had, however, “received and held out” during Nicholas’s four years of life:
he had been Nicholas’s primary source of financial support, Thomas and the
mother had told all but a handful of people that he was the biological father,
and Nicholas considered Thomas his father.⁸ County counsel conceded this
much but argued that the presumption was rebutted under section 7612(a), © 2005 Frank H. Free
which provides for rebuttal by clear and convincing which states that, where two or more conflicting claims
evidence “in an appropriate action.”⁹ The juvenile of paternity are found, the trial court must follow
court granted Thomas both presumed-father status “considerations of policy and logic” in determining
and physical custody while continuing the depen- which man’s claim prevails, the court determined that
dency.¹⁰ The Court of Appeal reversed, holding that Paul was the child’s presumed father.²⁸ The Court
because there was clear and convincing evidence of Appeal affirmed, and Heriberto petitioned for
that Thomas was not Nicholas’s biological father, the review.²⁹ Noting that his criminal and immigration
presumption was rebutted.¹¹ A unanimous Califor- status were likely to preclude Heriberto from acting
nia Supreme Court, however, reversed the Court of as Jesusa’s father in the foreseeable future and that Paul
Appeal, noting that it had disregarded the phrase qualified as a presumed father under the statute, the
“in an appropriate case.”¹² Because no other man Supreme Court majority held that the juvenile court
claimed paternity, and because Nicholas would be had not abused its discretion by declaring Paul the
left fatherless if the presumption were rebutted, Cal- legal father.³⁰ Two strongly worded dissents focused
ifornia’s high court held that this was not “an appro- on Heriberto’s due process rights as a biological
priate action” for rebuttal.¹³ In doing so, it noted father and on Jesusa’s very young age, which distin-
three other Court of Appeal decisions that had rec- guished her from most of the children involved in
ognized nonbiological paternity under sections 7611 “nonbiological paternity” cases.³¹
and 7612.¹⁴ In one, In re Raphael P.,¹⁵ as in Nicholas As noted, men are not the only “nonbiological
H., the court held that a nonbiological father could parents” found under sections 7611 and 7612. To
be found a presumed father where no other person the surprise of many observers, at least three Courts
had come forward to claim paternity.¹⁶ And in the of Appeal have applied the reasoning of Nicholas H.
other two cases, Stephen W. v. Matthew S.¹⁷ and In to cases involving women. In the first, In re Karen
re Kiana A.,¹⁸ the courts held that where two men C.,³² the putative mother held Karen out as her
claimed paternity, the one with whom the child had biological child to age 10 but then told a social
the stronger bond would prevail, even if the other worker that the real biological mother had given
claimant was the biological father.¹⁹ Karen to her at birth.³³ Based on the putative moth-
The court in Nicholas H. reserved the issue of er’s denial of biological maternity, the juvenile court
whether a nonbiological father’s claim could prevail denied the child’s motion to establish the maternity
over that of an acknowledged biological father.²⁰ of the woman whom she had always believed was
But it resolved that question in favor of a nonbio- her mother.³⁴ The Court of Appeal reversed, noting
logical father in In re Jesusa V.²¹ In that case, though that section 7650 dictated that the presumptions
the mother was married to Paul, with whom their under sections 7611 and 7612 should be applied to
five oldest children lived, she resided with Jesusa’s determinations of maternity where that was prac-
biological father, Heriberto.²² But she spent much ticable and that Nicholas H. therefore applied.³⁵ It
of Jesusa’s life under Paul’s protection because Heri- remanded the case to the trial court for a hearing on
berto was physically abusive to her.²³ Dependency whether the facts supported the child’s motion.³⁶
proceedings commenced after Heriberto raped the That reasoning was followed in In re Salvador M.³⁷
mother.²⁴ Because Paul was married to the mother and in Kristine Renee H. v. Lisa Ann R.³⁸ Salvador M.
when Jesusa was born, he qualified as a presumed involved only one claimant to maternity, an adult
father under section 7611(a);²⁵ Heriberto claimed sister who had raised her younger brother as her own
paternity under section 7611(d) because he had child after their mother’s death.³⁹ The court found
received the child into his home.²⁶ The juvenile that the sister qualified as a “presumed mother.”⁴⁰
court found that both men qualified as presumed Kristine Renee H., along with two other cases, presented
fathers.²⁷ After proceeding under section 7612(b), the issue of competing maternity claims before the
A Brief Primer on Case Law Addressing Parentage Issues for Nonbiological Parents Before 2005 123
California Supreme Court. The others are K.M. v. 14. Id. at 937–40. The court also noted a fourth case, In re NOTES
E.G.⁴¹ and Elisa Maria B. v. El Dorado County Supe- Jerry P., 116 Cal. Rptr. 2d 123 (2002), where a man held
rior Court.⁴² In each of these cases, lesbian part- himself out as the child’s father both before and after the
birth but was prevented from receiving the child into his
ners agreed to produce children through in vitro home as required by section 7611 of the California Family
fertilization, with one of the women being the birth Code because the child’s mother stopped him from doing
mother. Following birth, the women stayed together so. The Court of Appeal in that case held that a nonbio-
for significant periods, with the non–birth mother logical father may have a sufficient liberty interest in his
assuming a parental role. The partners dissolved their relationship with the child to attain standing to challenge
relationships and sought the court’s assistance on the statutory scheme that precludes a man from attaining
presumed-father status when he has been prevented from
issues concerning visitation, custody, and child sup-
receiving the child into his home through no fault of his
port (which are more fully addressed in other articles own. Nicholas H., 46 P.3d at 939; see also Jerry P., 116 Cal.
in this Issues Forum). We now know the outcome Rptr. 2d at 140–41.
of those cases recently argued before the California
15. In re Raphael P. III, 118 Cal. Rptr. 2d 610 (Cal. Ct.
Supreme Court, analyzed in other articles in this App. 2002).
section, and it is more clear than ever that we have
come a long way in a short time since the early cases
on “nonbiological paternity.” 17. Stephen W. v. Matthew S., 39 Cal. Rptr. 2d 535 (Cal.
Ct. App. 1995).
18. In re Kiana A., 113 Cal. Rptr. 2d 669 (Cal. Ct.
App. 2001).
NOTES 19. Stephen W., 39 Cal. Rptr. 2d at 539; Kiana A., 113
Cal. Rptr. 2d at 679–80.
1. All statutory references are to the California Family Code.
2. An alleged father has the right to have genetic testing
21. In re Jesusa V., 85 P.3d 2 (Cal. 2004).
performed to determine if he is the biological father of a
child. He can use such testing results to set aside or vacate 22. Id. at 7.
a judgment of paternity within two years of the date he
23. Id.
received notice of an action to establish paternity. But
after the two-year time period has expired, he no longer 24. Id. at 6.
has that right, even if testing does show him to be the bio-
25. Id.
logical father. CAL. FAM. CODE § 7635.5 (West 2005).
26. Id. at 7.
3. CAL. FAM. CODE §§ 7540, 7570–7577, 7611.
27. Id.
4. CAL. FAM. CODE § 7611(a), (b), (c).
28. Id. at 7–8.
5. CAL. FAM. CODE § 7611(d).
29. Id. at 8.
6. In re Nicholas H., 46 P.3d 932 (Cal. 2002).
30. Id. at 13–14.
7. Id. at 935.
31. Id. at 27 (Kennard, J., dissenting), 32 (Chin, J., dis-
8. Id.
senting).
9. Id. at 936; CAL. FAM. CODE § 7612(a) (West 2005).
32. In re Karen C., 124 Cal. Rptr. 2d 677 (Cal. Ct.
10. Nicholas H., 46 P.3d at 936. App. 2002).
11. Id. 33. Id. at 678.
12. Id. 34. Id.
13. Id. at 933–34. 35. Id. at 681.
NOTES 36. Id.

37. In re Salvador M., 4 Cal. Rptr. 3d 705 (Cal. Ct.
App. 2003).
38. Kristine Renee H. v. Lisa Ann R., 16 Cal. Rptr. 3d
123 (Cal. Ct. App. 2004).
39. Salvatore M., 4 Cal. Rptr. 3d at 706.
40. Id. at 709.
41. K.M. v. E.G., 13 Cal. Rptr. 3d 136 (Cal. Ct. App. 2004).
42. Elisa Maria B. v. Superior Court, 13 Cal. Rptr. 3d 494
(Cal. Ct. App. 2004).
125
Parentage by Intention for

Same-Sex Partners
C
alifornia courts historically have made it difficult, if not impossible, DIANA RICHMOND
for two persons of the same sex to be declared parents of a child. They Sideman & Bancroft LLP (San Francisco)
have ruled that a lesbian partner who was not a biological parent
and had not adopted is not an “interested person” who could bring an action The California Supreme Court accepted
under the Uniform Parentage Act (UPA).¹ They have ruled that a person who
for review three cases that gave it the
is not a biological parent of a child has no standing to assert parentage under
opportunity to affirm or substantially
the UPA.² Moreover, they have rejected attempts to create parentage by
estoppel³ and, until recently, have made it difficult to obtain second-parent revise the tests for determining parent-
adoptions. They have refused to extend the juvenile court’s doctrine of de hood. Although all three cases arose from
facto parentage to same-sex parentage cases.⁴ This historical context is rapidly the breakup of same-sex couples, they
changing with a 2003 California Supreme Court decision upholding second- presented issues that could well apply to
parent adoptions for same-sex couples⁵ and with the enactment of the Cal- a far wider variety of parentage questions.
ifornia Domestic Partner Rights and Responsibilities Act (DPA), which
This article explores different modes of
became effective January l, 2005.⁶ While these two developments are major
determining parentage and advances the
protections for same-sex families now and in the future, they do not provide
a mechanism for determining the parents of children born to couples who premise that the court’s previously enun-
were not registered as domestic partners or did not adopt. This article is prem- ciated test of determining parenthood in
ised on the notion that it should be easy for same-sex couples to determine assisted reproductive technology cases —
parentage and that their intentions as articulated at the outset should decide the parties’ intention at conception —
the question. is the most preferable. The Supreme
On September l, 2004, the California Supreme Court accepted for review
Court decided the three cases after this
three parentage cases that are likely to reduce the existing hurdles to establish-
article was written but prior to publica-
ing same-sex parentage.⁷ Some of the parties to these cases urge the Supreme
Court to equally apply the presumptions of fatherhood contained in the tion. The decisions are discussed in the
UPA to women seeking co-parenthood. These parties also urge the court afterword to this article. ■
to abandon its prior finding that a child may have only one mother under
the UPA.⁸ Some urge that the Supreme Court resolve the question by use
of the child’s best interest or the child’s constitutional right to the care and
companionship of someone he or she has come to regard as a parent. Some
assert that every child should have two parents. Some urge that the parent-
age question be resolved by use of the court’s previously enunciated test, the
intention of the parties at the time of conception. In the view of the author,
who represents one of the parties in the pending cases, the law should be
interpreted to make it easier for same-sex couples to establish co-parentage,
if that is their intention; however, co-parentage should not be involuntarily
imposed upon a natural mother or father if that was not the parties’ mutual © 2005 Diana Richmond
intention from the outset. Whatever standards the tional mother and the biological mother.¹⁵ The court
court adopts should be capable of clear and con- looked to the parties’ intentions as expressed in the
sistent application, establish parentage as early as surrogacy contract to resolve the question in favor of
possible, and not permit parentage to change over the wife.¹⁶
time as relationships between parents change. Such In Johnson the court made several other rulings. It
standards should likewise create the same rights and stated that the presumptions of parentage under the
obligations for same-sex couples as for opposite-sex UPA do not come into play where the parties’ inten-
couples. The author believes the intention test origi- tions are known.¹⁷ Because a presumption is intended
nally articulated by the California Supreme Court in to aid in the determination of a fact when the circum-
Johnson v. Calvert in 1993⁹ best accomplishes these stances are not known, the presumption is unneeded
objectives. when the circumstances are known.¹⁸ The court also
stated that intentions rule over biology; an ovum donor
T H E JOH N S O N V . C A LV E RT DE C I SION is not a parent without the requisite intent, any more
than a woman who bears the child from an ovum of
In Johnson v. Calvert
Calvert, the California Supreme Court another is a parent without the requisite intent.¹⁹ In
articulated a new test for parentage: “[I]ntentions addition, the court explicitly rejected adoption of a
that are voluntarily chosen, deliberate, express and best-interest test to determine parentage: “[S]uch an
bargained-for ought presumptively to determine legal approach raises the repugnant specter of governmen-
parenthood.”¹⁰ The case arose from an opposite-sex tal interference in matters implicating our most fun-
surrogacy contract that forced the court to make a damental notions of privacy, and confuses concepts of
choice between two competing mothers. Advances in parentage and custody.”²⁰
medical technology have enabled people to become
parents under circumstances that previously could
T HR E E C A SE S PE NDI NG BE FOR E
not be imagined, and the state high court’s approach
T H E C A L IFOR N I A SU PR E M E COU RT
to these developments was to fashion a test that
adhered both to the parties’ intentions and to the All three cases pending before the California Supreme
dictates of the UPA. This case provides the starting Court involve disputes between female same-sex for-
point for the analysis that follows. mer partners; no men are seeking parentage rul-
In Johnson, a wife who was infertile and her hus- ings in these cases. The court once again is called
band entered into a contract with a second woman, upon to interpret the UPA in situations not origi-
who agreed to act as a surrogate for the couple, bear nally contemplated by the framers of the act. The
them a child, and relinquish any claims to parent- questions raised include whether intention controls
age.¹¹ The contract specified that the husband and over the UPA’s presumptions, whether a child can
wife would be recognized as the child’s parents.¹² have two mothers under the UPA when there are no
After having an embryo from the husband’s sperm competing fathers, whether the presumptions under
and the wife’s egg implanted in her uterus, the sur- the UPA that refer to men should be construed to
rogate carried the child to term.¹³ Because the rela- include women, and whether the cases should be
tionship between the couple and the surrogate had decided from the standpoint of the child’s best inter-
deteriorated during the pregnancy, the surrogate est or constitutional rights instead of the intentions
had second thoughts and filed a parentage action, or rights of the adults involved.
claiming that she was the mother because she had
borne the child.¹⁴ The court stated that the UPA K R I S T I N E R E N E E H . V. L I S A A N N R .
applied, but that, since the act recognized only one In this case²¹ a same-sex couple decided to have
mother, the court had to decide between the gesta- and rear a child together.²² Kristine was inseminated
Parentage by Intention for Same-Sex Partners 127
informally with a friend’s sperm and became preg- parties were then still together.³⁸ Before they began
nant.²³ In the eighth month of her pregnancy, she the ovum donation procedure, the parties received
and Lisa decided to seek court approval of their counseling about the procedure.³⁹ E.G. agreed to
decision to become parents together.²⁴ Both part- accept all rights and responsibilities of parenthood
ners signed a stipulation that they intended to be by signing an ovum-recipient consent form.⁴⁰ K.M.
parents of the child about to be born and that they signed the ovum-donor consent form at the hospital,
both undertook the rights and responsibilities of a month before the egg retrieval procedure.⁴¹
parenthood.²⁵ Kristine filed a parentage action in K.M.’s eggs were fertilized with sperm from an
court and presented the stipulation to a family court anonymous donor; then four of the resulting embryos
judge, who entered a judgment that both women were implanted in E.G.’s uterus.⁴² Twins were born
were parents of the child.²⁶ The child’s surname was and were given E.G.’s surname.⁴³ Only E.G. was
a combination of the surnames of Kristine and Lisa, listed on the birth and baptismal certificates.⁴⁴ The
and Lisa was named as father on the child’s birth parties promised each other to tell no one of the
certificate.²⁷ Lisa listed the child as a dependent on twins’ genetic connection to K.M.⁴⁵ E.G. and K.M.
her health insurance, and both Kristine and Lisa pro- lived together and shared caretaking duties for the
vided financial support for the child.²⁸ Both women children, although only E.G. undertook financial
participated as parents for nearly two years.²⁹ responsibility for them.⁴⁶ Initially, only E.G. main-
When the women broke up, Kristine challenged tained life and medical insurance for the twins.⁴⁷
the judgment as exceeding the power of the court.³⁰ After two years, the parties began to argue about
But the trial court upheld the earlier judgment, E.G.’s unwillingness to allow K.M. to adopt the
finding both women to be parents.³¹ The Court of twins.⁴⁸ When the children were 5 years old, K.M.
Appeal reversed, finding that the stipulated judg- brought a parentage action seeking to be determined
ment exceeded the court’s power; however, it stated a parent over E.G.’s continuing objection.⁴⁹ The trial
that on retrial the court could use both the pre- court found by clear and convincing evidence that
sumption arising from taking the child into one’s K.M. had “knowingly, voluntarily and intelligently”
household and holding the child out as one’s own relinquished all claims to parenthood when she
and the intention test as criteria for determining signed the consent form for ovum donation.⁵⁰ Both
parentage.³² The Court of Appeal held that the pre- the trial court and Court of Appeal ruled against
sumption should be applied equally to a woman as K.M. on the ground that the parties’ intentions were
to a man.³³ that E.G. would parent the children and that K.M.
had knowingly, intelligently, and voluntarily waived
K . M . V . E .G . all claims to parentage when she made the ovum
E.G. had been trying to have a child as a single par- donation.⁵¹ And both courts held that the presump-
ent before meeting K.M.³⁴ After K.M. and E.G. tion of parenthood that applies when a man holds
started to live together, E.G. continued trying for a child out as his own, as extended to the mother-
more than a year to become pregnant by artificial and-child relationship by California Family Code
insemination.³⁵ She then tried to become pregnant section 7650,⁵² was inapplicable, because the parties’
by in vitro fertilization using her own eggs and a actual intentions were already known and because
stranger’s sperm.³⁶ When she found she was no the presumption did not arise where K.M. did not
longer producing viable eggs, she accepted an ovum hold herself out as the parent.⁵³
donation from K.M. on condition that E.G. would
be the sole parent.³⁷ E.G. told K.M. that their rela- ELIS A M AR I A B. V. S U P E R IO R C OU R T
tionship was too new and that she would consider an In Elisa Maria B.,⁵⁴ Elisa and Emily each decided to
adoption only after the child was 5 years old if the give birth to a child, using the same anonymous sperm
donor so that their children would be related.⁵⁵ Elisa nology cases. It would not be logical for a sperm or
gave birth to a son, and Emily gave birth to twins a egg donor who does not intend to become a parent
year later.⁵⁶ All three children were given a hyphenated to become one solely because of his or her genetic
surname combining Emily’s and Elisa’s surnames.⁵⁷ connection. For example, in Kristine Renee H. v. Lisa
The two women breastfed their three children inter- Ann R.,⁶⁹ application of a biological test would ren-
changeably.⁵⁸ Elisa considered both Emily and herself der the informal sperm donor the child’s father and
mothers of the three children.⁵⁹ Emily did not return Lisa a legal stranger to the child—a result entirely
to work after the twins were born.⁶⁰ Elisa provided contrary to the parties’ intentions but not without
financial support for the entire family, listed all three precedent in prior case law. Nor does biology resolve
children as dependents on her medical insurance, and the question of who is the mother in surrogacy cases.
claimed all three as her dependents for income tax And use of biology alone would preclude at least one
purposes.⁶¹ The parties separated a year after the birth member of most same-sex couples from being deter-
of the twins and two years after the birth of the first mined a parent.
child.⁶² For a time Elisa continued to provide finan-
cial support for the twins, but when she stopped R E L AT ION S H I P BE T W E E N A DU LT S
A S C R I T E R ION
paying,⁶³ Emily went on public assistance and the
county sought child support from Elisa.⁶⁴ The trial Likewise, the relationship between adults is used
court granted child support, but the Court of Appeal in some circumstances based on (1) the conclusive
reversed on the ground that, because Elisa was not the presumption of parentage for a child born during
children’s father under the UPA and did not give birth marriage;⁷⁰ (2) the presumption of parentage arising
to the twins or adopt them, she could not be their par- from attempting to marry the mother;⁷¹ and (3) the
ent under the UPA.⁶⁵ rights of registered domestic partners with respect
to a child of either of them.⁷² Formalizing the rela-
tionship, by marriage or registration of a domestic
CR ITER I A FOR DETER MINING
partnership, is a logical, consistent way of assigning
PA R E N T A G E
parentage. The formalizing of the relationship is a
If there were no law on how to determine parentage, reliable measurement of the couple’s conscious com-
the court could choose from a number of criteria, mitment to each other and to the responsibilities of
such as biology, the relationship between the adults, parenting together.
the relationship between the child and the adults, or But using the parties’ relationship to determine
intention. Biology is certainly among the earliest of parentage in the absence of such formalization is
such organizing principles and still has a role to play likely to lead to confusion and inconsistent results.
in existing law: In such an instance how does a court gauge the
requisite level of commitment in the relationship
■ Under the UPA, motherhood is established by
in order to assign parentage to both members of
giving birth.⁶⁶
the couple? Suppose a woman (it does not matter
■ There is a blood-test exception to the conclusive in this analysis whether she is homosexual or het-
presumption of parentage for a child born to a erosexual) is impregnated by an anonymous sperm
married couple.⁶⁷ donor and then lives with an intimate partner for
the first three years of the child’s life. Assume further
■ A sperm donor who donates informally, without using
that the partner then leaves and the mother begins
a physician, is the natural father under the UPA.⁶⁸
a relationship with another person with whom she
Biology, however, does not adequately resolve the registers as domestic partners or marries. That part-
question of parentage in assisted reproductive tech- ner helps co-parent the child for the next five years
of the child’s life. Is either partner a second parent the other member of the couple already lives in the
to the child? If so, which of them, and why? What if household, it cannot be said that the other “receives
the mother seeks to hold the first partner as parent the child into his [or her] home” because both mem-
over the objection of that partner? Is that fair from bers of the household already live there.⁷⁸ The fact of
the perspective of any of the participants, including the the child’s entering the household is thus equivocal:
child? The relationship between the parties does not it does not necessarily indicate parentage. Given that
resolve the question of parentage in any of the three a presumption is intended to substitute for evidence
pending cases, inasmuch as none of the couples had where it would assist in resolving a factual question,
either married or registered as domestic partners with this first clause of the UPA presumption is virtually
the Secretary of State.⁷³ useless without the second clause, “and openly holds
out the child as his [or her] natural child.”⁷⁹ Amici
R E L AT ION S H I P BE T W E E N C H I L D A N D in the three pending cases urge that the presumption
A DU LT S : U PA PR E S U M P T ION A N D be applied to women as well as to men, just as it was
BE S T I N T E R E S T
by the Court of Appeal in In re Karen C C.⁸⁰ If the pre-
Examining the relationship between the child and sumption is to be used, it should be applied equally
the adults in his or her life to determine “parent- to women and men so that lesbians are not excluded
age” options is primarily used in juvenile depen- from a means of determining parentage that is avail-
dency cases, where one or both of the child’s natural able to others. It logically follows that other related
parents have abandoned or abused the child and statutes should be applied equally to women and
the court must choose a parent figure among the men. For example, if a man donates sperm to some-
best available choices. In this context, the Califor- one other than his wife through the services of a
nia Supreme Court ruled that a man who was not physician, he is a legal stranger to a child conceived
biologically related to a child but who had served in a from that sperm.⁸¹ It follows that an ovum donor
parental role in the child’s life could be established as should likewise be treated as a legal stranger under
the child’s parent where the child otherwise would the law. Similarly, a man and a woman can obtain a
be orphaned.⁷⁴ In a similar context, the Court of judgment establishing parentage based on their filing
Appeal ruled that the UPA presumption arising from a written stipulation;⁸² so, too, should a same-sex
a father’s taking a child into his household and hold- couple like Kristine Renee H. and Lisa Ann R. have
ing out the child as his own applied equally to a the same right.
woman.⁷⁵ The relationship between the child and Use of the presumption or best-interest test would
the adults is the underpinning for the statutory pre- work well in the pending case of Elisa B. and Emily
sumption of parentage arising from a father’s taking B.⁸³ The two women gave birth to children born of
a child into his household and holding the child out the same anonymous sperm donor, rendering their
as his own.⁷⁶ It is also the underpinning for use of children biological half-siblings.⁸⁴ The two women
the best-interest test. held themselves out as the parents of each other’s chil-
The UPA presumption at stake in these cases is dren and each contributed to the children’s support
inherently ambiguous and, for that reason alone, not while they were living together.⁸⁵ One can assume
helpful in determining parentage. The first clause of that their children were attached to each other and
the presumption, a man “receives the child into his to both women. The children and one of the women
home,”⁷⁷ connotes an archaic model of a man who were dependent on the financial support of the other
has primacy in the household and takes in a child woman, without which they became dependent on
he has fathered. The clause is more difficult to apply the state for support.⁸⁶ It is not difficult to determine
when a couple of either sex or either sexual orientation that both women are parents by using either the pre-
lives together and one of them has a child. Because sumption or the best-interest test because the facts so
clearly support such a finding. But with Kristine H. parent or to force parentage upon an unwilling
and Lisa R.,⁸⁷ the presumption arising from taking a cohabitant who had helped care for a child.⁹⁶
child into one’s household and holding the child out One obstacle is the collision of a parent’s fun-
as one’s own is less clear than the parties’ own explicit damental right to make decisions about his or her
enunciation of their intention in the stipulated judg- own child⁹⁷ with a child’s fundamental right to the
ment of joint parentage. Under the reasoning of care and companionship of a parent. The United
Johnson v. Calvert
Calvert,⁸⁸ the presumption is unnecessary States Supreme Court, signaling its deference for
because the facts are known. those parental rights, has ruled that a court may
Use of either of these tests with K.M. and E.G.⁸⁹ not intrude upon a parent’s constitutional rights by
is far more problematic. The Court of Appeal found imposing grandparent visitation on the parent over
the presumption factually inapplicable because the his or her objection.⁹⁸ In each of the three cases
children were born into a household in which both discussed in this article, there is one person who is
parties resided; there was no “receiving” of the child irrefutably a parent of the child and who certainly
“as one’s own” but, rather, a “welcoming” of E.G.’s holds these fundamental constitutional rights. Will
child.⁹⁰ Further, K.M. never held herself out as the the California Supreme Court rule that a child’s
children’s biological mother, consistent with the par- constitutional right to the care and company of a
ties’ explicit agreement that her genetic connection parentlike figure overrides the acknowledged par-
would be kept confidential.⁹¹ And because both ent’s constitutional rights? If so, the case could be
women, as in Johnson, qualified to be the natural appealed to the U.S. Supreme Court for resolution.
mother—one giving birth, the other genetically However, there is a doctrine that courts will not
related—there was no need to apply an evidentiary reach constitutional questions when a decision can
presumption because, in such a case, “the ultimate be made on some other legal basis,⁹⁹ and in each of
determination of legal parentage is made by examin- the three cases the appellate courts have found other
ing the parties’ intentions.”⁹² Here K.M. had relin- bases on which to make the decision. Therefore, it
quished all claims to parentage when she agreed to is unlikely that the California Supreme Court will
become an ovum donor and signed an agreement invoke such conflicting constitutional rights when a
waiving her rights, while E.G. “intended to bring decision can otherwise be made under existing law.
about the birth of the child to raise as her own.”⁹³ Another challenge to the application of either of
However, both the trial court and Court of Appeal these tests is the question of how many parents a
struggled with the question of the children’s best child can have. It may be that more than one person
interest because they found that the best interest of takes the child into his or her household and holds
the children conflicted with the rights of E.G. and the out the child as his or her own, either simultane-
parties’ clearly expressed intentions.⁹⁴ Because John- ously or sequentially. Will the courts require a child
son made clear that intention, and not best interest, to have two parents if any way can be found to do
was the test, the courts ruled in favor of E.G. as the so? How should the courts determine parentage if
sole parent.⁹⁵ two or more persons have served sequentially in a
caretaking role for the child? Some argue that the
DIS A DVA N TAG E S OF BE S T-I N T E R E S T T E S T courts should do so on the ground that a child’s
A more generalized use of the best-interest test faces interest is served by having two parents. Why not
several challenges and obstacles. In K.M. v. E.G., both three or four? An argument can certainly be made
the trial and appellate courts noted the unfairness of that a child is better served by having more than one
invoking best interest either to force co-parentage or two caretakers. If so, how should the court resolve
on a person who had undertaken to become a sole the question of who is and is not a parent? These
issues will be invoked sooner rather than later if the tion] is essentially one of contract between the par-
court adopts a best-interest test. ties whose consent is required.”¹⁰⁵ Intention under-
The above questions expose the infirmities of lies the statutory provision that a man can become a
using best interest as the test for parentage. Eschewed father based upon a declaration of parentage upon
by the California Supreme Court as unwonted gov- birth.¹⁰⁶ Intention is the foundation for parentage
ernmental interference in matters of fundamental of children born by means of artificial insemination
privacy,¹⁰⁰ the best-interest test imposes a stranger’s under a physician’s supervision.¹⁰⁷ Likewise, inten-
judgment upon that of a parent. While the flex- tion underlies the California Court of Appeal’s 2000
ibility and malleability of the best-interest test may decision upholding a contract between an unmarried
well suit custody decisions, which can change over man and woman who agreed that he would be the
time for good reasons, these very features make it a father of a child conceived with the sperm of another
poor test for determining parentage, which should donor.¹⁰⁸ Even the presumption arising from receiv-
be determined once and for all, as early as possible in ing a child into one’s home and holding the child
a child’s life. The best-interest test, over the past hun- out as one’s natural child is essentially premised on
dred years, has resulted in shifting and inconsistent intention.¹⁰⁹
decisions based (at different times and places and Janet Dolgin, an expert in the legal aspects of
depending on the particular judge’s worldview) on assisted reproductive technology, notes that “a central
notions of reverence for motherhood; presumptions component of the traditional ideology of family—
of paternal custody for boys; parental attachment that family relationships stem from and reflect
theory; presumptions of sole or joint custody; the biogenetic unity—has been widely supplanted by
“conventional, middle class, middlewest background understandings of family grounded in notions of
of the parents”;¹⁰¹ and presumptions against lesbian choice.”¹¹⁰ She further comments that the law today
parents.¹⁰² The best-interest test poses inherently recognizes “[a] set of contrasting assumptions that
vague criteria for the evaluator or the judge decid- ground parentage in conscious, deliberate decisions
ing the matter: there are gradations and shifts in and agreements, i.e., in intentions and in contracts,”
attachment and connectedness, in weighing a child’s appearing alongside “traditional assumptions about
temporary pain after a separation versus losing a parentage that ground the parent-child relationship
caretaker and permanent emotional damage.¹⁰³ firmly on biological truths.”¹¹¹
In light of this history, it is curious that amici for Intention has been employed by several courts
lesbian and gay organizations in the three pending in determining parentage in assisted reproductive
cases urge the court to adopt a best-interest test. To technology cases. For example, biology was explicitly
this author such a test appears to render the par- rejected in favor of intent in a case where a child was
ties vulnerable to some of the same judicial biases born from a surrogacy contract in which an embryo
that have precluded same-sex couples from becom- formed with sperm and ova from unrelated parties
ing parents in the past. The positions of many of the was implanted in a surrogate, who gave birth by
amici are that children should have two parents, a contract to provide parentage to a married couple.¹¹²
bias that may or may not best serve the children and The court in that case declined to limit Johnson to its
one that reflects cultural values that shift. facts, citing the Supreme Court’s “broader purpose”
Intention is the underlying rationale for many to emphasize the “intelligence and utility of a rule
modes of becoming a parent. It is the foundation for that looks to intentions.”¹¹³
all adoption statutes, including adoption of a domes- At least two decisions in New York have used
tic partner’s child and second-parent adoption.¹⁰⁴ the intention test to determine parentage in assisted
In the Sharon S. second-parent adoption case, the reproductive technology cases. One appellate court
Supreme Court observed: “The proceeding [adop- used the egg donation analysis from Johnson to find
that a gestational mother, who, with the consent decedent of an intent to adopt the child or to have
of her husband, had been implanted with embryos him or her treated as a legally adopted child, sheds
formed from his sperm and anonymously donated little light on the decedent’s likely intent regarding
eggs, was the intended mother of the twins who were distribution of property.”¹¹⁹ The court observed that
born.¹¹⁴ The husband’s arguments that the children a rule looking to the parties’ relationship rather than
should be declared illegitimate or that he should be to “particular expressions of intent to adopt, would
declared the sole parent were defeated by application necessarily be a vague and subjective one, inconsis-
of his wife’s intention to be a parent at the time of tently applied, in an area of law where ‘consistent,
the in vitro fertilization.¹¹⁵ Similarly, another New bright-line rules’ are greatly needed. Such a broad
York case enforced an in vitro fertilization consent scope for equitable adoption would leave open to
agreement providing that frozen embryos would competing claims the estate of any foster parent or
be donated to the in vitro fertilization program for stepparent who treats a foster child or stepchild lov-
research if the parties were unable to make a deci- ingly and on an equal basis with his or her natural or
sion about them.¹¹⁶ Denying the request of a wife in legally adopted children.”¹²⁰ The court’s rationale is
a marital dissolution proceeding for custody of the not only applicable to intestate succession but also
frozen embryos so that she could bear another child, is arguably even more important in the court’s deter-
the New York high court ruled that the parties had mination of parentage for a minor when custody and
clearly expressed their intent in the in vitro fertiliza- affiliation are at stake.
tion consent forms.¹¹⁷ It reasoned: A child’s parentage should be determined based
on facts that existed at the time of conception and
Agreements between progenitors, or gamete
established as soon as possible after the child is
donors, regarding disposition of their pre-zygotes
born, so that the child may be assured of care and
should generally be presumed valid and binding,
support and so that the parents may have “some
and enforced in any dispute between them. Indeed,
measure of confidence in the legal ramifications of
parties should be encouraged in advance, before
embarking on IVF [in vitro fertilization] and cryo- their procreative actions.”¹²¹ California’s statutory
preservation, to think through possible contingen- system provides a variety of means of announcing
cies and carefully specify their wishes in writing. or determining parental intent, such as by birth cer-
Explicit agreements avoid costly litigation in busi- tificates, declarations of parentage, and adoption
ness transactions. They are all the more necessary decrees. Likewise, the legal system provides a vari-
and desirable in personal matters of reproductive ety of deadlines intended to secure parentage at the
choice, where the intangible costs of any litiga- earliest time, such as the deadline on blood tests to
tion are simply incalculable. Advance directives, determine paternity¹²² and the requirement that a
subject to mutual change of mind that must be presumed father take prompt steps to establish his
jointly expressed, both minimize misunderstand- parentage or lose it.¹²³
ings and maximize procreative liberty by reserving It stands to reason that a person who intends to
to the progenitors the authority to make what is in become a parent will more willingly and consistently
the first instance a quintessentially personal, pri-
undertake the very real burdens of parenthood than
vate decision. Written agreements also provide the
one who becomes a parent involuntarily. One who has
certainty needed for effective operation of the IVF
not undertaken any of the legal burdens of parenthood
programs.¹¹⁸
from the outset can easily walk away from responsibili-
Intention underlies the California Supreme ties of caretaking and/or support if those responsibilities
Court’s recent decision in an equitable-adoption no longer suit that person’s objectives.
case that “[t]he existence of a mutually affectionate By contrast, it would be destabilizing for both
relationship, without any direct expression by the child and parent if parentage could be redetermined
over time, based on changes in domestic part- The intention test allows same-sex parents, such as
ners’ relationships to each other or to the children, those involved in the three pending cases, to articu-
changes in domestic partners’ intentions, or par- late parentage just as opposite-sex parents have been
ents’ changing partners. Each of the three pending permitted to do. Indeed, the intention test harmo-
cases arose because one partner changed her position nizes the three pending cases.
on parentage from that which she held at the time In Elisa Maria B. v. Superior Court
Court, the parties
the child was born. If best interest were to gov- evidenced their intent to co-parent by their expres-
ern parentage decisions, there would be absolutely sions to themselves and to the world that they were
no certainty that a child would have the same par- both parents, from their children’s birth certificates,
ents over his or her lifetime. Former partners could and from their course of conduct after the children
change their minds about parentage without adverse were born. In Kristine Renee H. v. Lisa Ann R., the
consequences—contrary to existing legal doctrines parties made their intent clear by obtaining a judg-
that prohibit a person from changing his or her posi- ment based on their stipulation that they would
tion when others have relied on it to their detriment. both parent the child whom Kristine Renee H. was
Parentage actions could be initiated by subsequent then carrying. In K.M. v. E.G., it is likewise clear,
partners throughout a child’s minority. Litigation both from the ovum-donor consent forms and from
would proliferate and settlements would not be fos- the parties’ prior oral agreements, that the parties
tered by use of the best-interest test. Litigation itself intended that E.G. be the sole parent. Application of
is a profoundly destabilizing element for the children the intention test provides consistency among these
as well as the adults involved. By contrast, giving three cases and the assisted reproductive technology
effect to expressed intention in the three pending cases that have preceded them.
cases will help prevent future litigation over parent- In contrast to biology, intention as the criterion
age. The absence, until recently, of clear legal stan- leads to rational outcomes in reproductive technol-
dards for determining parentage in same-sex couples ogy cases. Prospective parents may choose to use
has provoked litigation that could have been avoided the genetic material of someone to whom they are
had a clear standard been in place. already related, such as a parent or sibling. If, for
The intention test avoids litigation by defeating example, E.G. had used the ova from a sister instead
a change of course based on one party’s change of of K.M.’s ova, the children would still be E.G.’s chil-
heart. Where intentions are set out in advance and dren under the intention test. But if this court were
enforced by restrictions on later claims based on a to use biology as the test, would the ovum donor be
change of mind or heart, stability and constancy are the children’s aunt or their mother? The question
promoted. The Supreme Court in Johnson and the becomes the more perplexing for a woman who uses,
Court of Appeal in K.M. v. E.G. observed that appli- for example, a sperm donation from her father or an
cation of the best-interest test would foster litigation ovum donation from her mother. Biology does not
and promote instability in the children’s lives.¹²⁴ provide a rational solution to the parentage issue in
In contrast to the best-interest test, the inten- such cases, whereas intention does.
tion test is objective, gender-neutral, and consistent. The decision whether to become a parent is an
The intention test rests on judicial assessment of inherently private matter, long protected by both
the parties’ expressed intent, rather than on judicial the U.S. and California Constitutions. A state’s stat-
assessment of what would most benefit the chil- ute proscribing the distribution of contraceptives
dren involved. The best-interest test has historically to prevent pregnancy, for example, gave rise to a
resulted in shifting and inconsistent decisions based resounding pronouncement in favor of individual
on shifting notions of parental roles, stereotypes, autonomy: “If the right of privacy means anything,
and biases. it is the right of the individual,
individual married or single, to
be free from unwarranted governmental intrusion sole parents. The intention test promotes stability
into matters so fundamentally affecting a person as and certainty for the children of same-sex couples
the decision whether to bear or beget a child.”¹²⁵ through the early and final determination of parent-
This right of privacy extends to the decision, subject age. And the intention test provides equal rights and
to certain limitations, to end an unwanted preg- responsibilities for same-sex and opposite-sex couples
nancy.¹²⁶ The right of privacy regarding procreative and ensures consistent application of the law.
decision making was explicitly recognized by the
California Supreme Court in Johnson v. Calvert
Calvert.¹²⁷ A F T ERWOR D
Such privacy rights are protected and served by
a test that allows individuals to decide at the outset The California Supreme Court issued decisions in
whether to become a sole parent or to take on a the three cases on August 22, 2005, after this article
second parent. The intention test enables domestic was written but prior to its publication. In Kristine
partners to decide for themselves whether or not to H. v. Lisa R., the court ruled unanimously that Kris-
become joint parents through adoption, through reg- tine was barred by the rule of judicial estoppel from
istration as domestic partners prior to birth, through denying the parentage of her partner because she
a stipulated judgment of parentage, or by other clear had filed the petition for a declaration of parentage
expressions of their intent. The intention test enables jointly with Lisa and had stipulated to the issuance
a person to become a sole parent by adoption or by of a judgment that both she and Lisa were “the joint
using a sperm donor, an ovum donor, or a combina- intended legal parents” of her unborn child.¹²⁹ The
tion of both, as did E.G. It likewise enables persons court declined to rule on the validity of the stipu-
to become joint parents through the use of the same lated judgment itself, thus leaving open that ques-
technology; the outcome is dictated by choice and tion.¹³⁰ This ruling thus provides little guidance for
clear expression of intention. other couples who may have used or may want to use
The autonomy afforded a person or a couple this procedure for establishing parentage. While the
under the intention test would succumb to substan- ruling may deter some parties from challenging
tial uncertainty if the best-interest test, statutory pre- the validity of such judgments in the future, it may
sumptions, or biology were to be adopted as modes also render it less likely that trial courts will render
for determining parentage. such judgments or that other states will enforce them
when the parties relocate.
In Elisa B. v. Superior Court
Court, the court ruled that a
CONCLUSION
woman who agreed to rear children with her lesbian
Contrary to the perceptions of some, the intention partner, supported her partner’s use of an anonymous
test is not unfriendly to same-sex partners. To the sperm donor, and received the children born of that
contrary, it fosters privacy, choice, and autonomy for procedure into her home and held them out as her
same-sex partners. “To be or not to be”¹²⁸ a parent own is the children’s parent under the UPA and has
is a very real choice for same-sex couples, who prin- an obligation to support those children.¹³¹ The court
cipally rely on assisted reproductive technology to found that the statutory presumption of paternity
become parents. Whatever choice they elect at the from California Family Code section 7611(d) applies
outset should be binding upon them, whether only to a woman who, though not biologically related to
one of them is the parent or they are co-parents. a child, receives that child into her home and holds
Adoption of the best-interest test would impose out the child as her own.¹³² It further held that
unwilling parenthood on some persons who intended both parents of a child can be women, distinguish-
to be helpful partners but not parents or unwilling ing this case from the facts in the court’s prior deci-
co-parenthood on some persons who intended to be sion in Johnson v. Calvert.¹³³ And the decision cites
with approval the legislative preference for a child to the majority’s new rule “inappropriately confers
have two parents for financial support.¹³⁴ The court rights and imposes disabilities on persons because
disapproved the earlier Court of Appeal rulings in of their sexual orientation.”¹⁴⁵ She is concerned that
Curiale v. Reagan,¹³⁵ Nancy S. v. Michele G.,¹³⁶ and the majority’s rule “may well violate equal protec-
West v. Superior Court¹³⁷ (all of which had disallowed tion.”¹⁴⁶
parentage claims by a birth parent’s lesbian partner) In all three cases, the Supreme Court ruled that
to the extent they were inconsistent with its deci- both members of the couple were the parents of the
sion.¹³⁸ Of the three decisions, this one is likely to children. Although by different reasoning in each
have the greatest applicability to other couples in the case, the court did in fact render it easier for same-
future, because it applies the UPA presumption for sex parents to be recognized as joint parents.
couples who did not adopt or otherwise formalize
their relationship. There is no reason it should not
apply as well to gay men as co-parents.
1. West v. Superior Court, 69 Cal. Rptr. 2d 160 (Cal. NOTES
In a decision with two forceful dissents, the court Ct. App. 1997); CAL. FAM. CODE §§ 7600–7730 (West
decided in K.M. v. E.G. that when a woman provides 2005).
her ova to her lesbian partner in order to produce
2. Curiale v. Reagan, 272 Cal. Rptr. 520 (Cal. Ct. App.
children who will be raised in their joint home, 1990).
both the ovum donor and the woman who bears
3. Nancy S. v. Michelle G., 279 Cal. Rptr. 212 (Cal. Ct.
the children are the children’s parents.¹³⁹ Because
App. 1991); West,
West 69 Cal. Rptr. 2d at 160.
these facts may be relatively rare, the case may or
may not have limited applicability. But it is of great 4. Nancy S., 279 Cal. Rptr. at 216–17.
concern nevertheless, because the holding autho- 5. Sharon S. v. Superior Court, 73 P.3d 554 (Cal. 2003).
rizes disparate treatment of ovum and sperm donors. 6. California Domestic Partner Rights and Responsibili-
The court specifically held that Family Code section ties Act of 2003, ch. 421, 2003 Cal. Stat. {___}, available
7613(b), which provides that a man is not a father at www.leginfo.ca.gov/pub/03-04/bill/asm/ab_0201-250
when he provides semen to a physician to insemi- /ab_205_bill_20030922_chaptered.pdf (codified at CAL.
nate a woman who is not his wife, does not apply FAM. CODE §§ 297–297.5 (West 2005)).
to a woman who provides her ova to a physician to 7. Kristine Renee H. v. Lisa Ann R., 16 Cal. Rptr. 3d 123
impregnate a woman under the circumstances of this (Cal. Ct. App. 2004), review granted sub nom. Kristine H.
case.¹⁴⁰ The decision disregarded the parties’ express v. Lisa R., 97 P.3d 72 (Cal. 2004); Elisa Maria B. v. Supe-
prebirth intentions and the express written waiver of rior Court, 13 Cal. Rptr. 3d 494 (Cal. Ct. App. 2004),
review granted sub nom. Elisa B. v. Superior Court, 97 P.3d
parentage by the ovum donor.¹⁴¹ The majority stated 72 (Cal. 2004); K.M. v. E.G., 13 Cal. Rptr. 3d 136 (Cal.
that determining the parties’ intent was unnecessary Ct. App. 2004), review granted, 97 P.3d 72 (Cal. 2004).
in a case where the parties’ claims of parentage were
8. Johnson v. Calvert, 851 P.2d 776 (Cal. 1993) (finding
not mutually exclusive, as in Johnson v. Calvert;¹⁴²
that California law recognizes only one mother for any
because one woman bore the children and the other child).
provided the ova, they were both parents under the
9. Id.
UPA, and there was no tie to break as there would
have been if a third party had also asserted parent- 10. Id. at 783 (quoting Marjorie McGuire Shultz, Repro-
age.¹⁴³ And it also stated that “it would be unwise ductive Technology and Intent-Based Parenthood: An Oppor-
tunity for Gender Neutrality, 1990 WIS. L. REV. 297, 323
to expand the application of the intent test . . . beyond
(1990)).
the circumstances presented in Johnson.”¹⁴⁴ Jus-
tice Werdegar’s dissent decries the majority’s ruling 11. Id. at 778.
and abandonment of the intent test, stating that 12. Id.
NOTES 13. Id. 40. K.M. v. E.G., 33 Cal. Rptr. 3d 61, 65 (Cal. 2005),
available at www.courtinfo.ca.gov/opinions/documents
14. Id.
/S125643.PDF.
15 Id. at 779, 781.
41. K.M. v. E.G., 13 Cal. Rptr. 3d 136, 140–41 (Cal. Ct.
16. Id. at 782. App. 2004), review granted, 97 P.3d 72 (Cal. 2004).
17. Id. at 781. 42. Id. at 141.
18. Id. The presumption urged by some of the parties in 43. Id.
the current cases is that a man who accepts a child into 44. Id.
his household and holds the child out to the world as his
own is presumed to be the father of the child. CAL. FAM. 45. Id. at 140.
CODE § 7611(d) (West 2005). That presumption has
46. Id. at 141.
been extended to the mother and child relationship. Id.
§ 7650. 47. Id.
19. Johnson v. Calvert, 851 P.2d 776, 782 (Cal. 1993). 48. Id.
20. Id. 49. Id. at 141–42.
21. Kristine Renee H. v. Lisa Ann R., 16 Cal. Rptr. 3d 50. Id. at 143.
123 (Cal. Ct. App. 2004), review granted sub nom. Kris-
tine H. v. Lisa R., 97 P.3d 72 (Cal. 2004). 51. Id. at 143–44.
22. Id. at 127. 52. CAL. FAM. CODE § 7650 (West 2005).
23. Id. 53. K.M., 13 Cal. Rptr. 3d at 151.
24. Id. at 128. 54. Elisa Maria B. v. Superior Court, 13 Cal. Rptr. 3d 494
(Cal. Ct. App. 2004), review granted sub nom. Elisa B. v.
25. Id. Superior Court, 97 P.3d 72 (Cal. 2004).
26. Id. 55. Id. at 497–98.
27. Id. 56. Id. at 498.
28. Id. 57. Id.
29. Id. 58. Id.
30. Id. at 129. 59. Id.
31. Id. 60. Id.
32. Id. at 134, 143–46. 61. Id.
33. Id. at 142–43. 62. Id.
34. K.M. v. E.G., 13 Cal. Rptr. 3d 136, 139 (Cal. Ct. 63. Id.
App. 2004), review granted, 97 P.3d 72 (Cal. 2004).
64. Id.
35. Id. at 140.
65. Id. at 499, 501–04.
36. Id.
66. CAL. FAM. CODE § 7610 (West 2005).
37. Id.
67. Id. § 7541.
38. Id.
68. Jhordan C. v. Mary K., 224 Cal. Rptr. 530 (Cal. Ct.
39. Id. App. 1986).
69. Kristine Renee H. v. Lisa Ann R., 16 Cal. Rptr. 3d 95. Id. at 154. NOTES
123 (Cal. Ct. App. 2004), review granted sub nom. Kris-
96. Id.
tine H. v. Lisa R., 97 P.3d 72 (Cal. 2004).
97. Troxel v. Granville, 530 U.S. 57, 64–65 (2000).
70. CAL. FAM. CODE § 7540 (West 2005).
98. Id.
71. Id. § 7611(b).
72. Id. § 297.5(4). 99. See, e.g., In re National Recreation Products, Inc., 403
F. Supp. 1399, 1404 (C.D. Cal. 1975) (“Where possible
73. See California Domestic Partner Rights and Respon- it is preferable to base a decision concerning a question of
sibilities Act of 2003, ch. 421, 2003 Cal. Stat. {___}, law on statutory construction [rather] than on constitu-
available at www.leginfo.ca.gov/pub/03-04/bill/asm/ab tional issues”).
_0201-250/ab_205_bill_20030922_chaptered.pdf (codi-
fied at CAL. FAM. CODE §§ 297–297.5). 100. Johnson v. Calvert, 851 P.2d 776 (Cal. 1993).
74. In re Nicholas H., 46 P.3d 932 (Cal. 2002). 101. Janet L. Dolgin, Suffer the Children: Nostalgia, Con-
tradiction, and the New Reproductive Technologies
Technologies, 28 ARIZ.
75. In re Karen C., 124 Cal. Rptr. 2d 677 (Cal. Ct. App. ST. L.J. 473, 494–95 n.95 (1996) (citing Painter v. Ban-
2002). nister, 140 N.W.2d 152, 155–56 (Iowa 1966)).
76. CAL. FAM. CODE § 7611(d) (West 2005). 102. Id. at 494–95.
77. Id. § 7611(d). 103. David E. Arredondo & Leonard P. Edwards, Attach-
78. Miller v. Miller, 74 Cal. Rptr. 2d 797 (Cal. Ct. App. ment, Bonding, and Reciprocal Connectedness
Connectedness, 2 J. CENTER
1998). FOR FAM. CHILD. & CTS. 109, 120 (2000).
79. Id. 104. CAL. FAM. CODE §§ 8600–22, 8800–23, 9000–07

(West 2005); Sharon S. v. Superior Court, 73 P.3d 554
80. In re Karen C., 124 Cal. Rptr. 2d at 677. (Cal. 2003).
81. CAL. FAM. CODE § 7613(b) (West 2005). 105. Sharon S., 73 P.3d at 562.
82. Id. §§ 7571, 17410–12. 106. CAL. FAM. CODE §§ 7571, 17410–12.
83. Elisa Maria B. v. Superior Court, 13 Cal. Rptr. 3d 494 107. Id. § 7613; People v. Sorensen, 437 P.2d 495 (Cal.
(Cal. Ct. App. 2004), review granted sub nom. Elisa B. v. 1968).
Superior Court, 97 P.3d 72 (Cal. 2004).
108. Dunkin v. Boskey, 98 Cal. Rptr. 2d 44 (Cal. Ct.
84. Id. at 498. App. 2000).
85. Id. 109. CAL. FAM. CODE § 7611(d) (West 2005).
86. Id. at 497. 110. Janet L. Dolgin, An Emerging Consensus: Reproduc-
87. Kristine Renee H. v. Lisa Ann R., 16 Cal. Rptr. 3d tive Technology and the Law, 23 VT. L. REV. 225, 228–29
123 (Cal. Ct. App. 2004), review granted sub nom. Kris- (1998).
tine H. v. Lisa R., 97 P.3d 72 (Cal. 2004). 111. Id. at 235.
88. Johnson v. Calvert, 851 P.2d 776 (Cal. 1993). 112. In re Marriage of Buzzanca, 72 Cal. Rptr. 2d 280
89. K.M. v. E.G., 13 Cal. Rptr. 3d 136 (Cal. Ct. App. (Cal. Ct. App. 1998).
2004), review granted, 97 P.3d 72 (Cal. 2004). 113. Id. at 290.
90. Id. at 151.
114. McDonald v. McDonald, 608 N.Y.S.2d 477 (N.Y.
91. Id. at 141. App. Div. 1994).
92. Id. at 151. 115. Id. at 480.
93. Id. 116. Kass v. Kass, 696 N.E.2d 174 (N.Y. 1998).
94. Id. at 153–54. 117. Id. at 178.
NOTES 118. Id. at 180 (citations omitted). 141. Id. at 72.

119. Estate of Ford, 8 Cal. Rptr. 3d 541, 548 (Cal. 142. Johnson v. Calvert, 851 P.2d 776 (Cal. 1993).
2004).
143. K.M., 33 Cal. Rptr. 3d at 71.
120. Id.
Id at 548 (citation omitted).
144. Id.
121. K.M. v. E.G., 13 Cal. Rptr. 3d 136, 151 (Cal. Ct. 145. Id. at 78.
App. 2004), review granted, 97 P.3d 72 (Cal. 2004).
146. Id.
122. CAL. FAM. CODE § 7541 (West 2005).
123. Adoption of Kelsey S., 823 P.2d 1216, 1236 (Cal.
1992).
124. Johnson v. Calvert, 851 P.2d 782–83 (Cal. 1993);
K.M., 13 Cal. Rptr. 3d at 153.
125. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).
126. Roe v. Wade, 410 U.S. 113 (1973).
127. Johnson, 851 P.2d at 786–87.
128. WILLIAM SHAKESPEARE, HAMLET act 3, sc. 1 (Wash-
ington Square Press 1992) (1623).
129. Kristine H. v. Lisa R., 33 Cal. Rptr. 3d 81, 87–88
(Cal. 2005), available at www.courtinfo.ca.gov/opinions
/documents/S126945.PDF.
130. Id. at 87.
131. Elisa B. v. Superior Court, 33 Cal. Rptr. 3d 46, 57
(Cal. 2005), available at www.courtinfo.ca.gov/opinions
/documents/S125912.PDF.
132. Id. at 58.
133. Id. at 53.
134. Id. at 51.
135. Curiale v. Reagan, 272 Cal. Rptr. 520 (Cal. Ct. App.
1990).
136. Nancy S. v. Michele G., 279 Cal. Rptr. 212 (Cal. Ct.
App. 1991).
137. West v. Superior Court, 69 Cal. Rptr. 2d 160 (Cal.
Ct. App. 1997).
138. Elisa B., 33 Cal. Rptr. 3d at 59.
139. K.M. v. E.G., 33 Cal. Rptr. 3d 61, 63 (Cal. 2005),
available at www.courtinfo.ca.gov/opinions/documents
/S125643.PDF.
140. Id. The majority did, however, leave the door open
for the application of California Family Code section
7613(b) to ovum donors under different circumstances,
suggesting that this was a very narrow decision. Id. at 68.
139
Legitimate Parents
Construing California’s Uniform Parentage Act to Protect
Children Born Into Nontraditional Families
No matter what one thinks of artificial insemination, traditional and gestational JENNY WALD
surrogacy (in all its permutations), . . . courts are still going to be faced with the Hersh Family Law Practice (San Francisco)
problem of determining lawful parentage. A child cannot be ignored.
—In re Marriage of Buzzanca, 72 Cal. Rptr. 2d 280, 293 (Cal. Ct. App. 1998) The purpose of the Uniform Parentage
Act (UPA) is to prevent discrimination
I
against children based on the marital
n three recent landmark decisions, Elisa B. v. Superior Court,¹ K.M. v. E.G.,²
and Kristine H. v. Lisa R.,³ the California Supreme Court concluded that status of their parents. In August 2005,
children born into gay and lesbian families must be afforded the same the California Supreme Court issued three
rights and legal protections provided to other children. These cases are monu- seminal decisions interpreting the UPA
mental in that they represent the first reported decisions to hold that parental that protect the rights of children born
rights can be established by parents of the same gender without an adoption into families with same-sex parents. These
and without proof of a biological relationship to the child. The California
cases promise legal protection for many
Supreme Court is the first state high court to reach this issue.⁴
children who are born into and live in
As evidenced by recent increases in the numbers and visibility of alternative
families, new reproductive technologies have enabled single parents and gay nontraditional families. The legal issues
and lesbian parents to have children.⁵ All three cases respond to this reality by resolved in the cases are consistent with
providing protection and security to the children born into these families. The recent parentage determinations under
decisions affirm that the parentage laws and public policies of California must California’s statutory scheme in cases
equally protect the physical, emotional, and financial needs of children who are involving reproductive technologies. This
born into a family consisting of two same-sex parents.
article analyzes the three parentage cases
The issues resolved by these cases will affect not only the children of these
in the context of the history, policies, and
families but also thousands of other children who have been and, in the future,
will be born to same-sex and unmarried heterosexual couples through assisted purpose of California’s parentage laws. In
reproduction. The outcome of all three decisions promises to ensure that the addition, it proposes that these decisions
parentage laws in this state will be applied consistently and fairly so that chil- should be used as authority to establish
dren in all kinds of families can rightfully expect equal treatment. parentage under two additional theories
The article begins by providing the legal background and context for the in future cases arising in the context of
Supreme Court’s historic parentage decisions. For the reader to appreciate the
nontraditional families who procreate
significance of K.M., Elisa B., and Kristine H., it is necessary to understand
through assisted reproduction. ■
California’s statutory scheme for the establishment of parentage, including the
important public policies and case law that contributed to the legal definition
of the term parent over the 30 years since California adopted the Uniform Par-
entage Act (UPA) in 1975.⁶ The second section examines the evolution of this
state’s legal framework for deciding parentage in cases involving reproductive © 2005 Jenny Wald
technologies and that framework’s connection to the The status of illegitimacy has expressed through the
formation of nontraditional families. ages society’s condemnation of irresponsible liaisons
Next, the article discusses the court’s decisions in beyond the bonds of marriage. But visiting this con-
K.M., Elisa B., and Kristine H., explaining their signif- demnation on the head of an infant is illogical and
icance in achieving the statutory objectives and poli- unjust. Moreover, imposing disabilities on the illegiti-
mate child is contrary to the basic concept of our sys-
cies of the UPA by affirming that children born into
tem that legal burdens should bear some relationship
families with same-sex parents shall not be “excluded
to individual responsibility or wrongdoing. Obviously,
from the protection of a law intended to benefit all
no child is responsible for his birth and penalizing
minors, legitimate or illegitimate.”⁷
the illegitimate child is an ineffectual—as well as
Finally, the article proposes two additional bases for an unjust—way of deterring the parent. Courts are
establishing legal parentage in the context of assisted powerless to prevent the social opprobrium suffered
reproduction—Family Code section 7613(a) and the by these hapless children, but the Equal Protection
“intent” standard developed by case law.⁸ K.M., Elisa Clause does enable us to strike down discrimina-
B., and Kristine H. address and rely on both theories tory laws relating to status of birth where—as in this
and should be used as authority in establishing par- case—the classification is justified by no legitimate
entage in future cases involving unmarried heterosex- state interest, compelling or otherwise.¹²
ual parents or same-sex parents who do not otherwise
During that same period, the Court established new
qualify for protection under California law.
rights for unmarried fathers. In Stanley v. Illinois,¹³ the
Court held that an unmarried father was entitled to a
T H E PU R POSE A ND POL ICI E S OF hearing on his fitness as a parent before his children could
T H E U PA —T H E P R E S U M P T I O N be placed in state custody.¹⁴
¹⁴ The Supreme Court’s deci-
OF “L E GI T I M AC Y ” sions dramatically shifted the laws of paternity to focus
The foundation of California’s parentage laws lies in on the constitutional rights of nonmarital children.¹⁵
the Uniform Parentage Act. The following briefly
discusses its background, enactment, and underlying E N AC T M E N T OF T H E U PA
public policies. The UPA was adopted by the Legislature in 1975
and is now codified in California’s Family Code.¹⁶
B AC KG ROU N D OF T H E U PA The primary purpose of the statute was to eliminate
Under the common law, concern for children’s interests the distinction between legitimate and illegitimate
was deemed less important than the desire to restrict children.¹⁷ It is the only California statute defining
childbearing to the confines of marriage.⁹ This resulted parental rights.¹⁸
in rules that penalized nonmarital children. Most states Given the law’s long-standing tradition of allocating
denied a nonmarital child the right to inherit from his parental rights according to legal judgments about the
or her father, the right to bear the father’s name, and the sexual conduct of parents, it is significant that the UPA
right to public benefits based on the parental relation- bases legal parentage on the existence of the parent-and-
ship; paternity actions were also subject to very short child relationship instead of the relationship between the
statutes of limitation and evidentiary restrictions.¹⁰ parents.¹⁹ According to Family Code section 7601,
Beginning in the late 1960s, the U.S. Supreme Court the parent-and-child relationship is defined as “the legal
struck down “nearly all forms of legal discrimination relationship existing between a child and the natural
against non-marital children.”¹¹ In its 1972 decision, or adoptive parents incident to which the law confers or
Weber v. Aetna Casualty & Surety Co., the Court con- imposes rights, privileges, duties, and obligations. The
demned in no uncertain terms the practice of punish- term includes the mother and child relationship and
ing children for the irresponsibility of adults: the father and child relationship.”²⁰
Legitimate Parents: Construing California’s UPA to Protect Children Born Into Nontraditional Families 141
Under Family Code section 7602, “[t]he parent and wife.³¹ Parentage, in the context of a marriage, reflects
child relationship extends equally to every child and a public policy seeking to preserve the marital family
every parent, regardless of the marital status of the par- by focusing on the father’s relationship to the mother.
ents.” Thus, legal recognition of parentage under the Under the UPA, a married man does not need to dem-
UPA is based on “the existence of a parent and child onstrate that he is the biological father in order to estab-
relationship rather than on the marital status of the lish legal parentage; his paternity is presumed by the fact
parents.”²¹ The UPA is not confined to a determina- that he is married to the mother.³²
tion of paternity, as the parent-and-child relationship By contrast, an unmarried man’s paternity can be
expressly includes the mother-and-child relationship.²² based only on scientific evidence that he is the biologi-
An overview of the UPA’s provisions makes it clear cal father through blood or DNA tests,³³ on proof of
that the intention of the statute is to achieve the state’s an executed and filed voluntary acknowledgment of
policy objectives of legitimizing children by facilitating paternity,³⁴ or on evidence showing that he “received
the establishment of legal parentage.²³ For example, a the child into his home” and “openly held the child
husband who consents to the artificial insemination out as his own.”³⁵ By requiring different evidence
of his wife is “treated in law as if he were the natural based on the marital status of the father, the UPA
father” of the child who is conceived.²⁴ legitimizes children by presuming that they were born
The Family Code includes a comprehensive statu- into an extant marital union. The conclusive marital
tory scheme for establishing the paternity of children presumption of Family Code section 7540 may be
born to unmarried women.²⁵ Legal parentage can be rebutted by proof that another man is the biological
established if both parents sign a form evidencing the father. However, this claim may be raised only within
father’s voluntary acknowledgment of paternity, which two years of the child’s birth.³⁶
has the legal effect of a judgment of paternity.²⁶ The policy here is to preserve the intact marital fam-
ily over the claims of biological parents. The statutory
U N DE R LY I NG PU BL IC P OL IC I E S scheme is designed to protect established parent-and-
OF T H E U PA
child relationships that are presumed to exist between
The original intent of the UPA was to guarantee the the mother’s husband and child.³⁷
equal rights of all children by ensuring their financial To summarize, when assigning parental status,
support from both parents and by protecting their both the Legislature and the courts have relied on sev-
emotional and physical needs derived from existing eral policy objectives. Specifically, the legal tradition
social relationships with their parents.²⁷ for establishing parentage under the UPA has been
Because the fact of maternity was obvious, social based on protecting the intact marital family, as well
motherhood—a mother’s relationship with her as on protecting the biological and social relationships
child—was inextricably linked to a woman’s biologi- between parents and children.
cal relationship to her child.²⁸ In contrast, biological
paternity was uncertain, and, at the time the UPA Equal Rights of Children to Parental
was enacted, difficult to prove through scientific evi- Support and Care
dence.²⁹ As a result, legal fatherhood could be based By statute, the establishment of legal parentage con-
on a biological and/or a social parent-and-child rela- fers rights and imposes responsibilities, which cannot
tionship.³⁰ be divorced from each other.³⁸ The paramount policy
The statutory provisions of the UPA incorporated concern is to ensure that children have, whenever pos-
traditional assumptions about the connection between sible, two legal parents who are responsible for their
sexual reproduction and the nuclear marital family—the care and financial support. This goal is important
law presumed that biological parentage could be located because it is intended to serve the interest of both the
within the social relationship between a husband and state’s children and the public.³⁹
California case law and statutes further both interests families, lesbian and gay families, and unmarried het-
regarding children’s physical and emotional needs by erosexual families.⁴⁸ Each of these family forms con-
ensuring that private individuals, rather than the taxpay- tains its own unique composition of parental figures.
ers, are responsible for the financial support of their chil- The U.S. Supreme Court recently recognized that
dren.⁴⁰ The Legislature requires the courts to determine society’s traditional definition of the “American family”
child support according to the mandatory principles of has changed dramatically over the past several decades.⁴⁹
Family Code section 4053, which defines the interests In Troxel v. Granville, a case regarding the visitation
of children as “the state’s top priority” and provides that rights of grandparents and other third parties, Justice
a parent’s duty to pay child support is every parent’s O’Connor observed: “The demographic changes of the
“first and principal obligation.”⁴¹ The essential purpose past century make it difficult to speak of an average
of the mandatory support principles is to guarantee a American family. The composition of families varies
child’s entitlement to “share in the standard of living of greatly from household to household.”⁵⁰
both parents.”⁴² This objective is served as long as the The American family is no longer characterized by
amount of child support is determined “according to a household of children and their two married biologi-
the parents’ circumstances and station in life.”⁴³ cal parents. As noted by Justice Scalia in Michael H. v.
To enable children to share in the standard of liv- Gerald D.,⁵¹ the interests of the nonmarital unitary fam-
ing of both their parents, California has devised an ily is accorded constitutional protections: “The family
algebraic formula for calculating child support.⁴⁴ The unit accorded traditional respect in our society, which
amount of support is calculated according to the net we have referred to as the ‘unitary family,’ is typified,
disposable income of both parents. One express leg- of course, by the marital family, but also includes the
islative policy that is served by basing support on household of unmarried parents and their children.”⁵²
parental income is to ensure uniform statewide awards Although the UPA did not anticipate all of the
of child support, so that children who are similarly future permutations in the creation of biological and
situated will not be treated differently.⁴⁵ social families, it remains the only California statute
Unlike agreements for the voluntary assumption of defining parentage. To resolve the emerging parentage
parental rights and obligations, which are encouraged disputes in the context of these contemporary forms
under the UPA, courts may not enforce the private agree- of families, courts have adhered to the underlying
ments made between parents that deny or diminish the policies of the UPA by interpreting its provisions to
rights of their children. As a matter of law, an individual protect existing social relationships between children
cannot simply terminate his or her parental rights—and and their parents. For example, courts have liberally
potential obligations—as a parent.⁴⁶ Whereas a written construed its provisions to “legitimize” children living
contract relieving a parent of his or her parental rights in alternative families by applying the paternity pre-
and concomitant obligation of support is unconscio- sumptions to women and nonbiological parents.⁵³
nable, a written promise to furnish support by either a These decisions affirm that legitimizing children
parent or nonparent is enforceable by statute.⁴⁷ and protecting their interests require legal recogni-
tion of the existing relationship between a parent and
Equal Protection of Existing child, regardless of the parent’s gender, marital status,
Parent-and-Child Relationships or biological connection to the child.⁵⁴ In so doing,
Based on the presumption of “legitimacy,” the exis- case law has clarified that the objective of the statutory
tence of a marriage confers parental rights. As a result, presumptions of parentage is not to identify or locate
children born into traditional families are guaranteed biological parents; rather, the presumptions exist to
the right that courts will make decisions according protect the best interest of children.⁵⁵
to their best interest. However, many children today The statutory presumptions of paternity are
are born into nontraditional families—single-parent designed to serve the state’s policy of protecting a
child’s existing relationship with a person whom the child forms, as procreation no longer depends on sexual
knows as his or her parent. The primary purpose of reproduction and can occur outside of marriage. Repro-
determining legal parentage under Family Code sec- ductive technologies have further deconstructed the tra-
tion 7611(d), then, is to protect a child’s perspective of ditional definition of family by dividing parentage into
his or her family by legally recognizing parentage in a three components—genetics, gestation, and intent.
person with whom the child has developed an actual According to one legal scholar in the area of family
parent-child bond.⁵⁶ law, Professor Janet Dolgin, surrogacy jurisprudence
Indeed, the California Supreme Court and Courts is beginning to “reflect demographic and ideological
of Appeal have categorically rejected biology as a factor changes that have been altering the scope and mean-
in attaining status as a presumed parent under Family ing of family for decades.”⁶³ Professor Dolgin further
Code section 7611(d).⁵⁷ In In re Nicholas H., the Cali- argues that judicial responses to surrogacy disputes, in
fornia Supreme Court concluded that a nonbiological seeking to resolve the various claims to maternity that
father qualified as a presumed parent based on undis- they present, reflect a willingness to revise the model
puted evidence that he had lived with the child for “long of the traditional marital family to make it more mal-
periods of time” and provided the child with “significant leable and complex.⁶⁴
financial support . . . and has consistently referred to and In Johnson v. Calvert, the California Supreme Court
treated Nicholas as his son.”⁵⁸ The court focused its addressed these novel issues in a parentage case of
analysis on the “undisputed evidence that Nicholas has first impression—a child’s maternity was disputed as
a strong emotional bond with [the father]” to find that a result of a gestational surrogacy contract.⁶⁵ John-
the nonbiological father was a presumed parent.⁵⁹ son involved a surrogacy arrangement in which an
Likewise, in a recent decision, In re Salvador M., egg donated by the wife and fertilized by the hus-
the Court of Appeal, Fifth Appellate District, held that band’s sperm was implanted in a gestational surrogate
a child’s adult half-sister, who acted as the child’s de mother.⁶⁶ Prior to the birth, the parties signed a con-
facto parent, was the child’s presumed and legal parent tract, agreeing that the husband and wife would be
under Family Code section 7611(d).⁶⁰ In that decision the child’s parents and would raise the resulting child
the court stated that “[t]he paternity presumptions are in their home.⁶⁷
driven, not by biological paternity, but by the state’s Under the terms of a signed surrogacy contract,
interest in the welfare of the child and the integrity of the surrogate mother, Anna Johnson, agreed that she
the family.”⁶¹ The court in Salvador M. concluded that would relinquish “all parental rights” to the child in
a woman’s parental relationship to an 8-year-old child favor of the marital couple, Mark and Crispina Cal-
“resulting from years of living together in a purported vert.⁶⁸ In return, the Calverts agreed to pay Anna
parent child relationship . . . should not be lightly dis- $10,000.⁶⁹ Before the child was born, relations dete-
solved.”⁶² Consistent with the policies of the UPA, the riorated; both Anna and Crispina claimed to be the
California courts demonstrate a clear preference for allo- unborn child’s mother, and both sought a declaration
cating parentage according to the nature of the relation- of legal maternity under the UPA.⁷⁰ Addressing the
ship between the child and his or her parent, rather than claims made by the two women to maternity of the
the nature of the relationship between the parents. same child, the Supreme Court observed that the Leg-
islature did not address this issue at the time it enacted
the UPA: “Passage of the [UPA] clearly was not moti-
PA R E N T A G E I N C A S E S O F
vated by the need to resolve surrogacy disputes, which
A SSISTED R EPRODUC T ION A ND
were virtually unknown in 1975.”⁷¹ Notwithstanding
R EPRODUC T I V E TECH NOLOGIE S
this lack of express legislative guidance, the court in
Recent advances in reproductive technologies and sci- Johnson found that the UPA applied to any determina-
ence have led to the creation of even more unique family tion of parentage.⁷² It concluded that the UPA must
be interpreted on an ad hoc basis: “Not uncommonly, the natural mother under California law.”⁸⁰ Because the
courts must construe statutes in factual settings not genetic mother, Crispina, “intended to bring about
contemplated by the enacting legislature.”⁷³ the birth of a child that she intended to raise as her
own,” the court held that she, not the surrogate, should
T H E L E G A L F R A M E WOR K OF JO H N S O N be recognized as a legal parent.⁸¹
In Johnson, the court established a new framework
for resolving the parentage of children born through PR E F E R E NC E OF M A R I TA L
FA M I LY/ S O C I A L R E L AT ION S H I P S
assisted reproduction. First, it found that both the
surrogate mother and the genetic mother had equally In addition to the explicit intent of the parties as stated
valid claims to maternity under the UPA.⁷⁴ The court in their surrogacy contract in Johnson, the intent of the
in Johnson relied on the statutory language of Fam- genetic parents was presumed from the fact that they
ily Code section 7610(a) to treat maternity claims were a married couple living together in a committed
equally when they are demonstrated by “proof of hav- relationship. The court in Johnson linked the genetic
ing given birth” or by any other means available under parents’ marital relationship to its ultimate determina-
the UPA.⁷⁵ Specifically, it determined that Anna could tion that they were the only biological, intentional, and
show she was the mother by “proof of having giving legal parents.⁸² The fact that the intended parents were
birth,” and Crispina could show she was the mother in a committed marital relationship contributed to the
by proof of her genetic relationship.⁷⁶ court’s legal conclusion that the Calverts should be con-
However, a finding that both women were legal sidered the legal parents, as they jointly took steps to
mothers under the UPA would have resulted in the use reproductive procedures that created a child.⁸³
child’s having three parents.⁷⁷ Even though advances Specifically, the court in Johnson found that rec-
in science and technology have made it possible for ognizing legal parentage in a third party would have
the components of biological motherhood—genetics interfered with the marital family, their familial pri-
and gestation—to be divided between two women, vacy, and their rights to make joint decisions about
the court declined to establish legal parentage in two how to raise their child: “To recognize parental rights
women. Having determined that finding two legal in a third party with whom the [marital family] has
mothers was inappropriate under the specific circum- had little contact . . . since shortly after the child’s
stances in Johnson, the court did not foreclose the possi- birth would diminish [the genetic mother’s] role as
bility that a different set of factual circumstances could mother.”⁸⁴
justify a court’s conclusion that two women were the Consideration of the marital status of the parties
“natural” and legal mothers of the same child. (“We as an element of intent in Johnson is consistent with
decline to accept the contention . . . that we should well-established California law regarding the issue of
find the child has two mothers. Even though rising parentage in the context of a marital relationship.
divorce rates have made multiple parent arrangements When the social interest of maintaining the marital
common in our society, we see no compelling reason family is considered against the interests of biological
to recognize such a situation here.”)⁷⁸ fathers to maintain relationships with their children,
In Johnson the court resolved the parentage dispute the former usually prevails over the latter.⁸⁵ Courts
by turning to evidence of the parties’ intentions. To construing paternity statutes have reiterated this
“break the tie” between the two women, Johnson looked public policy.⁸⁶ For example, in Michael H. v. Ger-
to the preconception parenting intentions of the par- ald D., the U.S. Supreme Court upheld California’s
ties.⁷⁹ Relying on legal scholars, the court developed a conclusive presumption of paternity, finding that the
new rule and held that “she who intended to procreate statute furthered “traditions” protecting the privacy
the child—that is, she who intended to bring about the and autonomy of the marital family.⁸⁷ As in Johnson,
birth of a child that she intended to raise as her own—is the biological father in Michael H. was denied paren-
tal rights because he was viewed as a stranger to the manifold factual constellations—children with dif-
marriage. fering needs; claimants with differing capacities
for motherhood; varying situational aspects. Con-
BE S T-I N T E R E S T A N A LY S I S ? textual analysis enables a judge to investigate each
claim, to weigh each factor as circumstances war-
In her dissenting opinion in Johnson, Justice Kennard
rant, and to create a parental composition tailored
criticized the majority for relying on contract and
to meet the needs of a particular child.⁹¹
property law as a basis for determining legal parent-
age. “Although the law may justly recognize that the In the first California case to address a surrogacy
originator of a concept has certain property rights in arrangement, Adoption of Matthew B.,⁹² the Court of
that concept, the originator of the concept of a child Appeal, First Appellate District, focused entirely on
can have no such right, because children cannot be the child’s best interest. “The primary casualty of this
owned as property.”⁸⁸ conflict is a child caught in the cross fire . . . . The best
The court in Johnson was able to conclude that interests of this young child must be our paramount
property and contract principles outweighed a best- concern.”⁹³ Since the agreement was “fully performed,”
interest analysis in its determination because it con- the court in Matthew B. determined that ruling on the
sidered legal parentage before the child was born. The legality or illegality of the surrogate contract was unnec-
majority in Johnson rejected the best-interest standard essary.⁹⁴ But the court went on to point out the proper
in favor of legal concepts borrowed from the arenas focus for resolution of the dispute: “Here, the state has
of intellectual property and commercial contracts:⁸⁹ a paramount interest in Matthew’s welfare . . . . We
“The mental concept of the child is a controlling fac- can never ignore the child’s best interests, ‘no matter
tor of its creation, and the originators of that concept what preliminary action its parent or parents may
merit full credit as conceivers.”⁹⁰ have taken’. Indeed, the child’s welfare is ‘the control-
Arguably, the best-interest standard should be con- ling force in directing its custody, and the courts will
sidered relevant because it reflects the policies under- always look to this rather than to whims and caprices
lying the UPA to recognize existing parent-and-child of the parties.’ ”⁹⁵
relationships. This approach is consistent with the Explicit consideration of the best-interest standard as
well-established case law regarding presumed parent- part of the analysis in the allocation of parental rights in
age under Family Code section 7611(d), which relies the context of reproductive technologies is not incon-
on the best-interest standard as an important pol- sistent with the decision in Johnson. The court there
icy and rationale for the allocation of parental rights did not purport to create an absolute rule that intent
under the statutory scheme. always governs parentage in the context of artificial
Many legal scholars advocate for the application of reproductive technologies. Rather, the court in Johnson
a best-interest standard as a factor for deciding legal announced the intent standard as a presumption for
parentage in the context of reproductive technologies. deciding parentage: “[I]ntentions that are voluntarily
In a recent law review article, Professor Ilana Hurwitz chosen, deliberate, express and bargained-for ought to
argued for the inclusion of a best-interest analysis in presumptively determine legal parenthood.”⁹⁶
determining parentage in the context of reproductive As described by Professor Marjorie Shultz and
technologies: quoted in Johnson, the essential purpose of an intent-
Within a “best interests” rubric, a court may evalu-
based rule is to foster a child’s best interest: “Honor-
ate preconception intent, genetics, and gestation. ing the plans and expectations of adults who will be
In addition, the standard enables a court to con- responsible for a child’s welfare is likely to correlate
sider other factors crucial to a child’s well-being significantly with positive outcomes for parents and
such as continuity of relationship [and] nurturing children alike.”⁹⁷ Relying on Shultz, the court in John-
capacity of maternal claimants . . . . Cases present son noted that the intent model offers a reliable means
to establish parentage because it is meant to predict even if, as seems likely, the legislature did not specifi-
the best interest of a child: “[T]he interests of children, cally contemplate lesbian families [or surrogates] when
particularly at the outset of their lives, are ‘[un]likely the statute was enacted.”¹⁰³
to run contrary to those of adults who choose to bring
them into being’.”⁹⁸ A S S I S T E D -R E PRODUC T ION
Indeed, the California Supreme Court has consis- C A S E S S I NC E JO H N S O N
tently emphasized the importance of the best-interest Relying on the reasoning and policies articulated in
standard as a means to guarantee a child’s “well recog- Johnson, the Courts of Appeal have protected the
nized right” to “stability and continuity” by protecting rights of children conceived through reproductive
the child’s permanent and actual custodial arrange- technologies by recognizing legal parentage in their
ments.⁹⁹ The Legislature has established California’s “intended” parents.¹⁰⁴ Since Johnson, courts have been
public policy for ensuring a child’s best interest when called upon to determine parentage in situations that
child custody and visitation are at issue: “[I]t is the pub- are increasingly complicated by varying forms and
lic policy of this state to assure that the health, safety, new uses of reproductive technologies. The clear trend
and welfare of children shall be the court’s primary con- in all these cases is to expand the definition of legal
cern in determining the best interest of children . . . .”¹⁰⁰ parentage, particularly if there is an existing parent-
child relationship.¹⁰⁵
PR I NC I PL E S E S TA BL I S H E D All of the California cases addressing these issues
BY JO H N S O N reveal that judicial determinations of parentage con-
The decision in Johnson established several basic prin- tinue to be driven by the traditional public policies and
ciples. First, the court rejected the contention that original intent of the UPA. When people use assisted
explicit legislative guidance is required before courts reproduction to create a child, the case law holds that
may resolve new and unanticipated issues relating to two legal parents should be found whenever possible,
the parentage of children born through reproductive irrespective of the marital status of the parents.¹⁰⁶
technologies. Based on the long-standing principle that Thus, when one person uses reproductive tech-
courts must often “construe statutes in factual settings nologies with the intent to be a single parent, courts
not contemplated by the enacting legislature,” the court have resolved the competing claims asserted by other
held that the UPA provided “a mechanism to resolve potential parents by finding that there are two legal
this dispute, albeit one not specifically tooled for it.”¹⁰¹ parents. Similarly, when there are three persons seek-
Second, the court concluded that the UPA must ing to establish parental rights to the same child,
be applied in a strictly gender-neutral manner, even courts have recognized the child’s family as consisting
where the language of the statute is couched in of only two parents.¹⁰⁷
gender-specific terms. Consistent with Family Code Two well-established themes from the UPA have
section 7650, the court held that the statutory means been applied to the area of technological conception—
available to establish a father-child relationship must children’s interests come first, and two legal parents are
also “apply in an action to determine the existence or preferable to one parent or three parents. This rule is
nonexistence of a mother and child relationship.”¹⁰² true even if (1) the two people are complete strangers
Finally, rather than adopting a mechanical test for to each other, (2) the parents’ relationship has ended,
determining parental rights under the UPA, the court or (3) the second person seeks a determination that he
developed an approach that looked to the parties’ or she is not the parent.¹⁰⁸
intentions. Johnson affirms that “the courts have both Since Johnson there have been two surrogacy cases
the power and the obligation to apply the UPA—and in which the appellate courts have determined parent-
go beyond it if necessary—to resolve the parentage of age under the UPA. In In re Marriage of Moschetta,¹⁰⁹
children who are born through artificial insemination, the Court of Appeal addressed a traditional surro-
gacy arrangement. In that case, the surrogate mother was not biologically related to either the husband or
was both the genetic and the gestational parent; the wife, and the parties separated before the child was
intended mother, who was married to the biological born. The only person who sought parental rights was
father, had no biological connection to the child. the intended mother, Mrs. Buzzanca. The intended
To conclude that the surrogate mother was the legal father, Mr. Buzzanca, denied paternity and requested
mother under the UPA, the court in Moschetta turned that he not be held responsible for child support based
to the analysis of Johnson but found that it was not on an alleged private agreement he had entered with
necessary to look to intent under the facts presented: Mrs. Buzzanca.¹¹⁶
“[T]he framework employed by Johnson n v. Calvert of The court in Buzzanca relied on Family Code sec-
first determining parentage under the Act is dispositive tion 7613(a), which provides that a husband who
of the case before us. In Johnsonn v. Calvert our Supreme consents to the artificial insemination of his wife is the
Court first ascertained parentage under the Act; only legal father of the child created by the insemination,
when the operation of the Act yielded an ambiguous to find that husband and wife were both legal parents
result did the court resolve the matter by intent as under the UPA. In Buzzanca the court justified its
expressed in the agreement. In the present case, by con- conclusion because the husband and wife engaged in
trast, parentage is easily resolved in [the genetic/gesta- “acts which caus[ed] the birth of a child.”¹¹⁷
tional surrogate] under the terms of the Act.”¹¹⁰ The court in Buzzanca followed Johnson and relied
In Moschetta, the court concluded that the intent on an artificial insemination case decided in 1968, prior
standard of Johnson was inapplicable because it found to the enactment of the UPA, People v. Sorensen,¹¹⁸ to
no “tie” to break between the intended, nonbio- find that the intention to parent is determined by evi-
logical mother and the genetic/gestational surrogate dence of procreative conduct, such as consenting to
mother.¹¹¹ Applying the framework established by reproductive procedures with the hope of creating a
Johnson, the court determined that the two women child to raise as one’s own. In Sorensen, the California
did not have equally valid claims to maternity under Supreme Court held that a nonbiological father was the
the UPA because only the surrogate mother could legal parent based on the fact that he consented to
provide proof of maternity under Family Code sec- the artificial insemination of his wife, a procreative act
tion 7610(a) as set forth in Johnson.¹¹² With that find- that caused the birth of a child.¹¹⁹ Because the husband
ing the court held that it was unnecessary to look to was “directly responsible” for the “existence” of the
the intent of the parties to decide which woman was child and because “without [his] active participation
the legal mother.¹¹³ and consent the child would not have been procreated,”
To justify its reasoning, the court in Moschetta he was found to be a legal father.¹²⁰
noted that all of the justices in Johnson agreed with Relying on the reasoning in Sorensen, the court
the framework established by the majority, that before in Buzzanca construed Family Code section 7613(a)
employing the intent test it was necessary to conclude liberally to determine that the husband was a parent
that the parties had equal claims to maternity under based on his consent to the use of reproductive tech-
the UPA: “Significantly, both Justice Arabian’s concur- nologies to create a child. The court also held that the
ring and Justice Kennard’s dissenting opinions agree wife could prove that she was the legal mother under
with the majority opinion’s basic structure of first con- Family Code section 7613(a) based on her consent to
cluding the genetic mother and the birth mother were the artificial insemination of another woman, conduct
‘tied’ under the Act and then breaking the tie.”¹¹⁴ that resulted in the birth of a child.
In In re Marriage of Buzzanca, a husband and wife Because Johnson relied on the statutory language of
agreed to use reproductive technologies to create a Family Code section 7610(a) to treat maternity claims
child with the assistance of anonymous sperm and equally when demonstrated by “proof of having given
ovum donors and a gestational surrogate.¹¹⁵ The child birth,” or by other means allowed under the UPA,
Buzzanca reasoned that proof of maternity under was called upon again to address maternity claims
Family Code section 7613(a) is no different from a under the UPA in circumstances that “were virtually
maternity claim predicated on proof of a genetic and/ unknown in 1975,”¹²⁵ the court simply followed the
or gestational tie.¹²¹ Thus, Mrs. Buzzanca could prove principle of statutory construction that it announced
her maternity by proof of her consent to the artificial in Johnson: “Not uncommonly, courts must construe
insemination of another woman under Family Code statutes in factual settings not contemplated by the
section 7613(a).¹²² enacting legislature.”¹²⁶
The court concluded that there can be two natural
THE DECISIONS IN ELIS A B ., and legal mothers under the UPA without an adop-
K.M., AND KR ISTINE H. tion.¹²⁷ In so holding, the court guaranteed John-
son’s promise that the “UPA applies to any parentage
Under Family Code section 297.5(d), registered domes- determination.”¹²⁸ All of the justices of the California
tic partners (and former or surviving domestic partners) Supreme Court were unanimous in finding that Cali-
of either partner now have the same rights and respon- fornia law recognizes the establishment of two natural
sibilities with respect to a child of either of them as and legal same-sex parents of the same child.
those of spouses (and former or surviving spouses).¹²³
By enacting this statutory scheme, the Legislature has E L I S A B . V . S U P E R IO R C OU R T
clarified its intention that the same rules that apply to In Elisa B.,¹²⁹ a same-sex couple—Emily B. and Elisa
determining the parentage of children born to married B.—planned to have children together using artifi-
parents must be applied to children born to registered cial insemination by an anonymous sperm donor.¹³⁰
domestic partners. Emily gave birth to twins in 1998, one of whom
Although Family Code section 297.5 provides had Down syndrome.¹³¹ Before the twins’ birth,
guidance regarding children born to same-sex parents the couple decided that Emily would stay home to
after January 1, 2005, it does not resolve questions care for the children and Elisa would be the family’s
about the legal parentage of children born to same-sex breadwinner.¹³² The couple’s relationship dissolved
couples prior to that date or of children born to same- 18 months later, and Elisa eventually cut off all con-
sex couples not registered as domestic partners when tact and support.¹³³ Emily applied for public assis-
their children were born.¹²⁴ tance from the state, which, in turn, filed an action
Elisa B., Kristine H., and K.M. are parentage cases for child support against Elisa.¹³⁴
that arose prior to the effective date of the current
domestic partner statute. In guaranteeing protection to Two Natural and Legal Mothers
children born into nontraditional families, the decisions Until very recently, California courts refused to
in these cases demonstrate important themes underly- acknowledge the existence of more than one legal
ing the UPA, such as preventing discrimination based parent of the same sex. The decision in Elisa B. clari-
on marital status of the parents and preserving exist- fied that the statement in Johnson that California law
ing biological and social relationships between parents recognizes only “one natural mother” was confined to
and children. Because the California Supreme Court the circumstances presented in that case;¹³⁵ namely, a
recognized the possibility that a family may have two finding of two mothers in Johnson would have left the
parents of the same sex, well-established principles and child with three parents and imposed a third-party
existing case law could readily be applied to determine stranger into the intact marital family.
parentage under the circumstances of the children in all Indeed, as noted by the court in Elisa B., since the
three cases. time Johnson was decided there have been significant
Johnson stands for the proposition that the UPA developments in statutory and case law regarding the
is a flexible document. So when the Supreme Court legal rights of same-sex parents. There are now “com-
pelling reasons” to find that a child may have two legal underlying the enactment of the UPA: “to eliminate
parents of the same sex who have equal status in terms distinctions based upon whether a child was born into
of their relationship to the child.¹³⁶ a marriage, and thus was ‘legitimate,’ or was born to
unmarried parents, and thus was ‘illegitimate.’”¹⁴⁴
We perceive no reason why both parents of a child can-
not be women. That result now is possible under the Elisa B. relies on the fundamental purpose of the UPA,
current version of the domestic partnership statutes . . . . which “provides that the parentage of a child does not
depend upon ‘the marital status of the parents.’”¹⁴⁵
Prior to the effective date of the current domestic
partnership statutes, we recognized in an adoption
Social Relationship/Presumption of Paternity
case that a child can have two parents, both of The Supreme Court specifically concluded that Elisa’s
whom are women . . . . If both parents of an adopted parentage could be established under Family Code
child can be women, we see no reason why the section 7611(d).¹⁴⁶ The court noted that when Johnson
twins in the present case cannot have two parents, was decided in 1993, case law regarding the presumed-
both of whom are women.¹³⁷ paternity statutes had not previously addressed whether
Most important, the Supreme Court’s unanimous the statutes should apply to women or whether a
holding that there can be two legal mothers under biological relationship to the child was a prerequisite
the UPA overrules more than 15 years of California to meeting the requirements of Family Code section
appellate court decisions denying legal protection to 7611(d).¹⁴⁷ Since that time, both issues have been
children born to same-sex parents.¹³⁸ Those cases held resolved. A person’s status as a presumed parent may
that a lesbian partner who was not a biological or an be established regardless of gender or biological con-
adoptive parent was not entitled to establish parentage nection.¹⁴⁸
under any provisions of the UPA.¹³⁹ As previously discussed, the statutory presumptions
In 1991, the Court of Appeal, First Appellate Dis- of paternity are designed to serve the state’s policy of
trict, in Nancy S. v. Michele G., addressed whether the protecting a child’s relationship with a person whom
birth mother’s lesbian partner, who was neither bio- the child knows as his or her parent. The California
logically nor adoptively connected to a child, could be Supreme Court, in In re Nicholas H., recently articu-
considered a parent.¹⁴⁰ The court held that the status lated the well-established purpose of determining legal
of the lesbian partner as a parentlike figure did not parentage under section 7611(d)—to protect a child’s
entitle her to custody or visitation rights.¹⁴¹ The court perspective of his or her family by legally recognizing
refused to expand the definition of parent beyond parentage in a person with whom the child has devel-
its traditional meaning. It stated that courts should oped an actual parent-child bond.¹⁴⁹ As the court has
not adopt novel theories by which a nonparent could made clear, the state has a compelling interest in pro-
acquire the rights of a parent because they would then tecting established parent-child relationships, regardless
face years of unraveling the complex practical, social, of whether they are based on marriage or biology.¹⁵⁰
and constitutional ramifications of this expanded defi- The decision in Elisa B. directly relied on these case
nition of parent.¹⁴² law developments under Family Code section 7611(d).
In Elisa B., the California Supreme Court expressly After Elisa B. it is much clearer that the statutory pre-
concluded that Nancy S. and two other older cases sumption of parentage actually does apply equally
were incorrectly decided because those cases failed regardless of biology, gender, sexual orientation, or
to adopt a gender-neutral application of the UPA.¹⁴³ marital status.¹⁵¹ Elisa B. holds that the presumption
Moreover, the court was clear that children born into applies regardless of whether the children already have
families consisting of two same-sex parents could not one identified mother. The fact that the other legal
be treated with bias or stigma based on the status of parent is also a woman has no legal relevance. Just as
their birth. Specifically, Elisa B. cites to the purpose in Nicholas H., the court found that the nonbiological
mother in Elisa B. lived with the children and treated competing claims to her being the children’s second
them in all respects as her children and therefore was a parent.”¹⁵⁷
parent under the UPA. In sum, the court’s approach to the analysis of
Elisa’s parentage under Family Code section 7611(d)
Procreative Conduct not only involves the presumed-parentage cases but
Elisa B. also addressed a concern that was raised by the also invokes the language, policies, reasoning, and
court in Nicholas H.: the potential danger of imposing holdings of the artificial insemination case law. These
legal parentage under Family Code section 7611(d) on are the same policies and reasoning upon which Fam-
a nonbiological parent unwilling to accept the role and ily Code section 7613(a) was established.
responsibilities of parenthood.¹⁵² Unlike the father in
Nicholas H., Elisa was “unwilling to accept the obliga- K . M . V . E .G .
tions of parenthood.”¹⁵³ As a result, the court in Elisa
In K.M., a lesbian couple took steps to have a child
B. was required to determine whether the situation was
together. K.M. contributed her ova, which were fer-
“an appropriate action” for rebuttal of the presumption
tilized with sperm from an anonymous donor and
of Family Code section 7611(d) based on evidence that
implanted in her partner, E.G.¹⁵⁸ Both women could
Elisa B. was not the biological parent.¹⁵⁴
claim maternity as either the genetic or the gestational
In this part of its analysis, the court considered
mother of the twin girls, who were born in 1995.
evidence of Elisa’s intentional procreative conduct
K.M. and E.G. co-parented the girls until the couple
and compared her to persons in other cases in which
legal parentage had been based on similar procreative separated in 2001.¹⁵⁹ After the separation, K.M., the
conduct: “[Elisa] actively assisted Emily in becoming genetic mother, filed an action asking the court to
pregnant with the expressed intention of enjoying the determine that she was a parent and to issue a custody
rights and accepting the responsibilities of parenting and visitation award.¹⁶⁰ E.G., the gestational mother,
the resulting children . . . . Elisa’s present unwillingness argued that K.M. had no right to parent the children,
to accept her parental obligations does not affect her largely because, when they were in the hospital for the
status as the children’s mother based upon her con- ovum donation, K.M. had signed a standard hospi-
duct during the first years of their lives.”¹⁵⁵ tal form that, among pages of information about the
Following the reasoning of Sorensen, the court in medical procedure, included a section allegedly waiv-
Elisa B. stated: “A person who actively participates in ing her parental rights to the children.¹⁶¹
bringing children into the world, takes the children Both the trial court and the appellate court found
into her home and holds them out as her own, and that K.M. was not a parent on the grounds that she
receives and enjoys the benefits of parenthood, should was an “ovum donor” and that the parties had orally
be responsible for the support of those children— agreed that only E.G. would be the parent.¹⁶² The
regardless of her gender or sexual orientation.”¹⁵⁶ California Supreme Court reversed the lower courts’
Based on its application of the case law for establish- decisions, finding that K.M. did not intend to be just
ing parentage in the context of a husband’s consent to a donor and that she and E.G. were the genetic, gesta-
the artificial insemination of his wife, the court in Elisa tional, and legal parents of the twins under the UPA:
B. found that, as in Nicholas H., the circumstances did “[W]e agree that K.M. is a parent of the twins because
not present an “appropriate action” to rebut the pre- she supplied the ova that produced the children, and
sumption with proof that Elisa was not the children’s Family Code section 7613, subdivision (b), . . . which
biological mother because “she actively participated in provides that a man is not a father if he provides
causing the children to be conceived with the under- semen to a physician to inseminate a woman who is
standing that she would raise the children as her own not his wife, does not apply because K.M. supplied
together with the birth mother, . . . and there are no her ova to impregnate her lesbian partner in order to
produce children who would be raised in their joint Family Code Section 7613(b)
home.”¹⁶³ The Legislature enacted Family Code section 7613(b)
After it decided that K.M. was not a donor, the to provide clarity regarding the parental rights of
Supreme Court reached a simple yet eloquent con- sperm donors by eliminating any rights or obligations
clusion: K.M. and E.G. were the legal parents of the of a donor who provides his “semen to a licensed
twins because, as the genetic and gestational parents, physician for use in artificial insemination of a woman
they had equally valid claims under the UPA.¹⁶⁴ As other than the donor’s wife.”¹⁷¹ There is no compa-
in Elisa B., the court held there could be two legal rable legislation in California governing the parental
mothers without an adoption. Because it found there rights of ovum donors, and there is no precedent
was no “tie” to break between the parentage claims of holding that Family Code section 7613(b) applies
K.M. and E.G., the court determined that it was not equally to ovum donors.
necessary to look to evidence of the parties’ intentions Based on the evidence, the court found that Family
to decide legal parentage. Code section 7613(b) did not apply to a woman who,
like K.M., donated her ova to her lesbian domestic
Donor vs. Parent
partner with whom she planned to raise the result-
To conclude that K.M. was not a donor, the court ing children together in their joint home. As shown
compared K.M. and E.G. to the marital couple in by the court’s reasoning and its citation to a related
Johnson, finding that both couples similarly intended Colorado Supreme Court case,¹⁷² the court intended
“to produce a child that would be raised in their own to treat K.M. and E.G. exactly as it would have if
home.”¹⁶⁵ In comparing K.M. and E.G. to the Cal- they had been an unmarried heterosexual couple.¹⁷³ A
verts, the court unequivocally found that K.M. was man who statutorily waived parental rights at the time
not a “true” donor: he donated sperm cannot be denied paternity if he has
It is undisputed, . . . that the couple lived together and taken the child into his home and loved and cared for
that they both intended to bring the child into their the child as a parent.¹⁷⁴
joint home . . . . [T]he present case, like Johnson, does Other California cases have concluded that, when
not present a “true ‘egg donation’ situation.” a sperm donor provides his semen to a physician and
K.M. did not intend to simply donate her ova his sperm is used to inseminate a woman who is not
to E.G., but rather provided her ova to her lesbian his wife, the donor’s parental rights will not be termi-
partner with whom she was living so that E.G. nated under Family Code section 7613(b) where the
could give birth to a child that would be raised in
facts warrant a different outcome.¹⁷⁵ For example,
their joint home.¹⁶⁶
in Robert B. v. Susan B., a fertility clinic made a mis-
The court properly dismissed the legal relevance take when it used sperm provided by a married man
of the ovum-donor consent form under the circum- who did not intend to be a donor, and implanted the
stances of K.M. It noted that the law was clear that sperm in a single woman who requested sperm and
private parties may neither create nor destroy parental ova from anonymous donors.¹⁷⁶ The Court of Appeal
rights based on their own subjective agreements or determined that the statute did not apply to terminate
understandings about the law.¹⁶⁷ Indeed, California the donor’s parental rights, even though his sperm was
has never assigned a child’s legal parentage based on provided to an unknown recipient through a physi-
agreements between private parties.¹⁶⁸ It is well estab- cian: “In order to be a donor under section 7613(b)
lished that parents cannot, by agreement, limit or a man must provide semen to a physician for the pur-
abrogate a child’s right to support.¹⁶⁹ And parties who pose of artificially inseminating ‘a woman other than
procreate by means of assisted reproduction are just as the donor’s wife.’ It is uncontested that Robert did
responsible for their children as those who do so “the not provide his semen for the purpose of inseminating
old-fashioned way.”¹⁷⁰ anyone other than [his wife]. ”¹⁷⁷
In Jhordan C. v. Mary K., the court declined to both K.M. and E.G. were legal parents under the
apply Family Code section 7613(b) to terminate UPA. First, the court found that E.G. and K.M. could
the parental rights of a known sperm donor.¹⁷⁸ In both prove their maternity of the children under Fam-
that case, the biological mother obtained the sperm ily Code section 7610(a)—E.G., because she gave
directly from the donor without the assistance of a birth to the children, and K.M., because she was the
doctor.¹⁷⁹ The mother claimed that the parties agreed genetic mother. “K.M.’s genetic relationship with the
prior to the donation that the donor would not be twins constitutes evidence of a mother and child rela-
involved as a parent and argued that his rights should tionship under the UPA . . . .”¹⁸⁵
be terminated under Family Code section 7613(b).¹⁸⁰ Under the circumstances of K.M., because California
The mother argued that the court should apply the recognizes two natural mothers, the court concluded
statute because the donor’s agreement that he would there was no “tie” to break between K.M. and E.G.
not be a parent was the functional equivalent of the Specifically, the court found that any parental rights
requirement that a donor provide his sperm to a afforded to K.M. would not come at E.G.’s expense or
physician.¹⁸¹ To hold the statute inapplicable to the impair her parental bond with the children.¹⁸⁶ In John-
donor in this case, the court in Jhordan C. focused son, the court determined that the child should have two
on the parties’ conduct after the donation of sperm, parents, not three. In K.M., the question was whether
including visits between the mother and donor during the twins should have one legal parent or two. In finding
the mother’s pregnancy, the mother’s agreement to the that the children should have two parents instead of one,
donor’s establishment of a trust fund for the child, the K.M. followed the well-established case law and public
listing of the donor as father on the birth certificate, policies of the UPA.
and the donor’s visits to the mother and child.¹⁸² The court in K.M. held that it is unnecessary to look
In K.M. the court did not reach the issue of whether to evidence of intent to decide parentage when there is
the sperm donor statute could or should be applied no “tie” to break between two biological parents who
equally to ovum donors. “Even if we assume that have equally valid claims when their claims are not
the provisions of section 7613(b) apply to women mutually exclusive. Thus, the court decided K.M. and
who donate ova, the statute does not apply under E.G. were the legal parents based on the fact that both
the circumstances of the present case.”¹⁸³ However, women could prove their maternity under Family Code
unlike almost every other provision of the UPA, equal section 7610(a). This is the precise approach adopted
application of that statute is factually impossible. In by the appellate court in Moschetta: “[T]he framework
contrast to a sperm donor, an ovum donor can only employed by Johnson n v. Calvert of first determining
“donate” her ova by providing ova to a “licensed phy- parentage under the Act is dispositive of the case before
sician.” The statute cannot be applied equally, then, us . . . . [O]nly when the operation of the Act yielded
because a sperm donor has the option of donating his an ambiguous result did [Johnson] resolve the matter
sperm without the assistance of a physician, which by intent . . . .”¹⁸⁷ Like the donor fathers in Robert B.,
enables a man to donate sperm under the statute while Jhordan C., and Moschetta, K.M. is the second biologi-
preserving his parental rights. cal parent who came forward to assume responsibility
The Legislature, not the court, is the appropriate for the children with whom she was genetically related.
branch to resolve the myriad and complex policy ques- Similar to the genetic fathers of those cases, K.M.
tions raised by the issue of whether Family Code section offered proof of a biological relationship to her children
7613(b) should apply equally to ovum donors.¹⁸⁴ that was sufficient to establish her legal parentage.
Framework of Johnson E S TOPPE L : K R I S T I N E H . V . L I S A R .

After it found K.M. was not a donor, the court turned In Kristine H., two women who had been in a long-
to the legal framework of Johnson and concluded that term relationship decided to have a child through
artificial insemination.¹⁸⁸ Prior to the birth of the dards, and language of Johnson and Family Code sec-
baby, the couple, relying on Johnson, obtained a judg- tion 7613(a), the court’s decisions provide authority
ment by stipulation that although Kristine was preg- for establishing legal parentage under these theories
nant with the baby they would both be the parents of in future cases involving similarly situated nontradi-
the unborn child.¹⁸⁹ tional families.
Kristine, Lisa, and the child lived together as a Specifically, in all three cases the court held that
family in a home they shared.¹⁹⁰ When the child was when a couple deliberately brings a child into the
about 2 years old, the women ended their relationship world through the use of assisted reproduction, both
and Lisa moved out of the family home.¹⁹¹ Following partners are the parents, regardless of their gender or
their separation and termination of their domestic marital status. Further, the court enunciated the fol-
partnership, Kristine sought to sever Lisa’s status as a lowing principles in Elisa B., Kristine H., and K.M., all
legal parent by filing a motion to vacate the judgment of which support the application of Johnson and Fam-
declaring them both parents of the child.¹⁹² ily Code section 7613(a) to establish legal parentage
After finding that the trial court had subject-matter in future cases:
jurisdiction to determine the existence or nonexistence ■ Marital status, gender, and sexual orientation of
of parent-child relationship, the Court of Appeal, Sec- the parents should not be used as a basis to deny
ond Appellate District, held that the family court equal application of the establishment of parentage
lacked authority under the UPA to enter a judgment under the UPA.
of parentage because “[a] determination of parent-
age cannot rest simply on the parties’ agreement.”¹⁹³ ■ California public policy has a preference for two
In reversing that decision, the California Supreme parents instead of one.
Court concluded that Kristine was estopped from ■ Family Code section 7613(a) applies equally to
challenging the validity of the stipulated judgment women.
that she and Lisa were both parents. The court found
it unnecessary to decide whether the judgment was ■ The rule that a husband is the lawful parent based
valid because it found that Kristine was estopped from on his consent to the artificial insemination of his
challenging the judgment: “Given that the court had wife by an anonymous sperm donor also applies to
subject matter jurisdiction to determine the parentage same-sex and unmarried parents.
of the unborn child, and that Kristine invoked that ■ Conduct of a same-sex couple to participate in and
jurisdiction, stipulated to the issuance of a judgment, use artificial insemination or in vitro fertilization,
and enjoyed the benefits of that judgment for nearly with intent to produce a child to raise together in
two years, it would be unfair both to Lisa and the their joint home and treat as their own, is relevant
child to permit Kristine to challenge the validity of to the determination of parentage under the UPA.
that judgment.”¹⁹⁴
INTENT
A PPL IC AT ION OF E L I S A B .,
The California Supreme Court found that the parties
K R ISTINE H., A ND K .M. TO
in Elisa B., K.M., and Kristine H., engaged in deliber-
FUTUR E CASES
ate procreative conduct that resulted in the birth of
In Elisa B., K.M., and Kristine H., the California their children, not unlike that of the married couples
Supreme Court did not decide the parental rights of in Johnson and Buzzanca. In Johnson, the court held
the parties based on the intent standard of Johnson or that when a couple intends to have children together
on the artificial insemination statute, Family Code and uses assisted reproduction to procreate, they will
section 7613(a). But by relying on the reasoning, stan- be treated as the legal parents of any children born to
them as a result of their procreative conduct: “[The family together. In fact, the policy preference in Cali-
Calverts] affirmatively intended the birth of the child fornia is for two parents instead of one or three.²⁰⁰
and took the steps necessary to effect in vitro fertiliza- Under Elisa B., K.M., and Kristine H. the intent
tion. But for their acted-on intention, the child would standard should apply to two parents regardless of
not exist.”¹⁹⁵ their marital status, sexual orientation, or biological
The court discussed the intentional procreative relationship to the child. Like the marital couple in
conduct of the couples in all three decisions. As in Johnson, two same-sex parents can both be considered
Johnson, the court found that each of the couples the legal parents based on their use of reproductive
initiated and participated in medical procedures that technologies to cause the birth of a child.
caused children to be born.¹⁹⁶ But for the couples’
FA M I LY C ODE S E C T ION 7613( a )
procreative efforts the children in each of these cases
would not exist. For example, the court compared the Family Code section 7613(a) provides that a man who
joint preconception parenting intentions of K.M. and consents to his wife’s insemination is the child’s legal
E.G. as a couple, to raise a child together in their joint parent, even if he is not biologically related to the result-
home, to the similar intentions of the marital couple ing child.²⁰¹ The statutory language in section 7613(a)
in Johnson.¹⁹⁷ In K.M. the court found that the joint refers only to married, different-sex couples. But under
parenting intentions of Mr. and Mrs. Calvert were Family Code section 297.5(d), section 7613(a) applies
analogous to those of K.M. and E.G: “The circum- to domestic partners effective January 1, 2005.²⁰²
stances of the present case are not identical to those in In Buzzanca, the court construed Family Code sec-
Johnson, but they are similar in a crucial respect; both tion 7613(a) liberally to establish legal parentage in
a husband and wife who consented to the insemi-
the couple in Johnson and the couple in the present
nation of another woman—a gestational surrogate.
case intended to produce a child that would be raised
Both section 7613(a) and Buzzanca are grounded in
in their own home.”¹⁹⁸
the pre-UPA case of Sorensen: “One who consents to
To conclude that it was not “an appropriate action”
the production of a child cannot create a temporary
for the presumption of Family Code section 7611(d)
relation to be assumed and disclaimed at will, but the
to be rebutted, the court in Elisa B. cited the pre-
arrangement must be of such character as to impose
sumed mother’s procreative conduct and preconcep-
an obligation of supporting those for whose existence
tion intent: “[S]he actively participated in causing the
he is directly responsible.”²⁰³
children to be conceived with the understanding that As in the situation covered by section 7613(a),
she would raise the children as her own together with Sorensen involved a married man who consented to
the birth mother . . . .”¹⁹⁹ the artificial insemination of his wife. To support the
The reliance of the court in Elisa B. and K.M. on extension of the holding in Sorensen to unmarried
the reasoning of Johnson provides authority for appli- persons, Elisa B. specifically cites that decision: “We
cation of that standard to establishing legal parentage observed that the ‘intent of the Legislature obviously
based on intent for same-sex parents in future cases. was to include every child, legitimate or illegitimate,
A finding that same-sex parents are the intentional born or unborn, and enforce the obligation of support
parents would not conflict with the principles and against the person who could be determined to be the
purpose of Johnson, so long as the parentage claims lawful parent.’”²⁰⁴
recognized are not mutually exclusive. Similar to the In determining that the presumption of Family Code
Calverts, a same-sex couple or unmarried heterosexual section 7611(d) should not be rebutted based on evi-
couple can be the intended parents, as there is no dence of Elisa’s procreative conduct that caused the birth
need to “break the tie” between two parents who of the children, the court in Elisa B. quoted the reason-
intend to use reproductive technologies to create a ing of Sorensen, which is essentially the same as the
court’s analysis of Family Code section 7613(a) in Buz- ship with his or her parents, regardless of the parents’
zanca: “[A] reasonable man who, because of his inability marital status.²¹¹ Indeed, the Legislature has declared
to procreate, actively participates and consents to his that the parent-child relationship extends to every
wife’s artificial insemination in the hope that a child will parent and child regardless of the parents’ marital sta-
be produced whom they will treat as their own, knows tus.²¹² Elisa B. also cites to Dunkin v. Boskey, a more
that such behavior carries with it the legal responsibili- recent appellate court case, which suggests that, if the
ties of fatherhood . . . . [I]t is safe to assume that without issue had been presented, the court would have found
defendant’s active participation and consent the child that an unmarried man was the legal parent of a child
would not have been procreated.”²⁰⁵ born to his female partner based on his consent to her
Likewise, the court concluded that Elisa B. “actively insemination and voluntary consequent assumption
participated in causing the children to be conceived of parenting duties.²¹³
with the understanding that she would raise the chil- Based on the reasoning of these decisions, Elisa B.,
dren as her own together with the birth mother . . . .”²⁰⁶ K.M., and Kristine H. provide authority for unmar-
Similar to the analysis of Elisa B., the K.M. court ried heterosexual parents or same-sex parents, who do
looked to the parties’ procreative conduct to find that not qualify for the protections of Family Code section
K.M. was not a donor under Family Code section 297.5(d), to establish legal parentage under section
7613(b), finding instead that K.M. and E.G. “both 7613(a) in future cases. In sum, section 7613(a) should
intended to bring the child into their joint home.”²⁰⁷ be construed to hold that two people may establish
Although Family Code section 7613(a) does not parentage regardless of gender, sexual orientation, or
specifically address the parental rights of a woman marital status. Any other result would undermine the
who consents to the insemination of another woman, core purpose of the UPA and violate the most basic
the court in Buzzanca concluded that section 7613(a) precepts of equal protection, which were unequivo-
applied to the wife because of her “acts which caused cally affirmed by the California Supreme Court in all
the birth of a child.”²⁰⁸ As noted by the court in Elisa three decisions.
B., with respect to section 7613(a), Buzzanca holds
that both husband and wife are equally situated.²⁰⁹
CONCLUSION
According to Buzzanca’s statutory construction of sec-
tion 7613(a) and a gender-neutral application of the The three recent California Supreme Court decisions
UPA, as articulated by Elisa B., it necessarily follows have forever changed the legal landscape for same-sex
that section 7613(a) should apply to a woman who parents and unmarried heterosexual parents and their
consents to the artificial insemination of her lesbian children. Couples who are not registered domestic part-
partner in the context of a committed relationship. ners will continue to have children through artificial
While Elisa B. did not establish legal parentage insemination, just as many unmarried heterosexual
under Family Code section 7613(a), the court did couples do.²¹⁴ These children will continue to exist, and
cite to Buzzanca to support its determination that their parentage must be resolved.²¹⁵ As noted by the
the UPA applied equally to men and women. Elisa court in Buzzanca, regardless of one’s opinions regarding
B. summarized Buzzanca as follows: “[T]he declara- the creation of children and alternative families through
tion in section 7613 that a husband who consents to reproductive technologies, “courts are still going to be
artificial insemination is ‘treated in law’ as the father faced with the problem of determining lawful parent-
of the child applies equally to the wife if a surrogate, age. A child cannot be ignored.”²¹⁶
rather than the wife, is artificially inseminated, mak- Elisa B., K.M., and Kristine H. uphold the proposi-
ing both the wife and the husband the parents of the tion from Johnson that the UPA “applies to any parent-
child so produced.”²¹⁰ Further, Elisa B. observed that age determination.”²¹⁷ To treat the children born into
the UPA was enacted to protect every child’s relation- families with same-sex parents equally, the California
Supreme Court has properly applied the express poli- 19. KRAUSE, supra note 9, at 10–15; see also CAL. FAM.
cies and fulfilled the fundamental purpose for which CODE §§ 7601, 7602.
the UPA was enacted: to erode the stigma and preju- 20. CAL. FAM. CODE § 7601.
dice by treating all children as “legitimate.” And in 21. Johnson, 851 P.2d at 779.
these cases, that treatment has extended to legitimiz-
ing the same-sex parents of those children as well. 22. See CAL. FAM. CODE §§ 7601, 7610(a), 7650.
23. See CAL. FAM. CODE §§ 7540, 7551, 7570, 7610, 7613.
24. See CAL. FAM. CODE § 7613(a).
25. CAL. FAM. CODE §§ 7570–7577.
NOTES 1. Elisa B. v. Superior Court, 117 P.3d 660 (Cal. 2005).
26. CAL. FAM. CODE §§ 7571, 7576.
2. K.M. v. E.G., 117 P.3d 673 (Cal. 2005).
27. See generally KRAUSE, supra note 9.
3. Kristine H. v. Lisa R., 113 P.3d 690 (Cal. 2005).
28. Id. at 82.
4. Citing the three California Supreme Court decisions, the
Washington State Supreme Court, on November 3, 2005, 29. See generally KRAUSE, supra note 9.
determined that a lesbian partner of the birth mother could 30. Id.
establish legal parentage based on a showing that she was a
de facto parent. See In re Parentage of L.B., 122 P.3d 161 31. See, e.g., CAL. FAM. CODE §§ 7540, 7611(a)–(c).
(Wash. 2005). 32. Id.
5. Alexa E. King, Solomon Revisited: Assigning Parenthood in 33. See CAL. FAM. CODE §§ 7550–7558, 7635.5.
the Context of Collaborative Reproduction, 5 UCLA WOMEN’S
L.J. 329, 379–80 (1995). 34. See CAL. FAM. CODE §§ 7570–7577, 7644.
6. CAL. FAM. CODE §§ 7600–7730 (West 2005). 35. See CAL. FAM. CODE § 7611(d).
7. People v. Sorensen, 437 P.2d 495 (Cal. 1968). 36. See CAL. FAM. CODE § 7541(b).
8. See Johnson v. Calvert, 851 P.2d 776 (Cal. 1993). 37. See CAL. FAM. CODE §§ 7541, 7551; see also Miller v.
Miller, 74 Cal. Rptr. 2d 797, 801 (Cal. Ct. App. 1998).
9. See HARRY G. KRAUSE, ILLEGITIMACY: LAW AND SOCIAL
38. CAL. FAM. CODE §§ 7570, 7601.
POLICY 25–28 (Bobbs-Merrill 1971).
39. See, e.g., In re Marriage of Buzzanca, 72 Cal. Rptr. 2d
10. See HOMER H. CLARK, THE LAW OF DOMESTIC RELA-
280, 286–87 (Cal. Ct. App. 1998) (discussing a long line of
TIONS IN THE UNITED STATES 149–72 (Thomson-West 2d
cases assigning parental responsibility for support based on
ed. 1988) (describing common-law rules and U.S. Supreme
consent to artificial insemination rather than on biology).
Court decisions on illegitimacy).
40. Id.; County of Shasta v. Caruthers, 33 Cal. Rptr. 2d 18,
11. See HARRY G. KRAUSE ET AL., FAMILY LAW: CASES,
25 (Cal. Ct. App. 1995) (“California assigns to both the
COMMENTS, AND QUESTIONS 293 (Thomson-West 4th ed.
father and the mother of any child an equal and continuing
1998).
responsibility to support their child”).
12. Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175–76
41. See CAL. FAM. CODE § 4053(a), (e).
(1972).
42. See CAL. FAM. CODE § 4053(f).
13. Stanley v. Illinois, 405 U.S. 645 (1972).
43. See CAL. FAM. CODE § 4053(a).
14. Id. at 658.
44. See CAL. FAM. CODE § 4055.
15. See KRAUSE, supra note 9, at 64–74.
45. In re Marriage of Denise and Kevin C., 67 Cal. Rptr. 2d
16. See CAL. FAM. CODE §§ 7600–7730 (West 2005).
508, 512 (Cal. Ct. App. 1997).
17. See Johnson v. Calvert, 851 P.2d 776, 779 (Cal. 1993).
46. In re Marriage of Goodarzirad, 230 Cal. Rptr. 203, 208
18. Id. at 794 (Kennard, J., dissenting). (Cal. Ct. App. 1986).
47. CAL. FAM. CODE § 7614. 68. Id. NOTES

48. See Sharon S. v. Superior Court, 73 P.3d 554, 571 (Cal. 69. Id.
2003).
70. Id.
49. Troxel v. Granville, 530 U.S. 57 (2000).
71. Id. at 779.
50. Id. at 63.
72. Id.
51. Michael H. v. Gerald D., 491 U.S. 110 (1989).
73. Id.
52. Id. at 123.
74. Id. at 781.
53. See, e.g., In re Nicholas H., 46 P.3d 932 (Cal. 2002); In
75. Id. (The case refers to Civil Code section 7003, which
re Karen C., 124 Cal. Rptr. 2d 677 (Cal. Ct. App. 2002);
became Family Code section 7610 when the Family
In re Salvador M., 4 Cal. Rptr. 3d 705 (Cal. Ct. App.
Code became operative in 1994.)
2003).
76. Id.
54. Id.
77. Id. at 781 n.8, 782 n.9.
55. See In re Jesusa V., 85 P.3d 2, 14–15 (Cal. 2004); Nicholas
H., 46 P.3d at 937–38; Salvador M., 4 Cal. Rptr. 3d at 708. 78. Id. at 781 n.8.
56. See Nicholas H., 46 P.3d at 938. 79. Id. at 782.
57. That section presumes a man to be a child’s natural 80. Id.
father if “[h]e receives the child into his home and openly
81. Id.
holds out the child as his natural child.” CAL. FAM. CODE
§ 7611(d). 82. Id. at 786.
58. See Nicholas H., 46 P.3d at 935. 83. Id. at 786–87.
59. Id. 84. Id. at 781 n.8.
60. Salvador M., 4 Cal. Rptr. 3d at 709. 85. See, e.g., CAL. FAM. CODE §§ 7540, 7611, 7613(a)
(West 2005).
61. Salvador M., 4 Cal. Rptr. 3d at 708; see also Jesusa V.,
85 P.3d at 216 (“biological paternity by a competing pre- 86. See Michael H. v. Gerald D., 491 U.S. 110 (1989);
sumed father does not necessarily defeat a non-biological Dawn D. v. Superior Court, 952 P.2d 1139 (Cal. 1998).
father’s presumption of paternity”); Nicholas H., 46 P.3d
87. Michael H., 491 U.S. at 111.
at 937 (presumed parents have no burden to present evi-
dence establishing a biological link to the child); Steven W. 88. Johnson, 851 P.2d at 796 (Kennard, J., dissenting).
v. Matthew S., 39 Cal. Rptr. 2d 535, 539 (Cal. Ct. App.
89. Id. at 782–83.
1995) (familial relationship “is considerably more palpable
than the biological relationship of actual paternity.”) 90. Id. at 783 (citation omitted).
62. Salvador M., 4 Cal. Rptr. 3d at 708. 91. Ilana Hurwitz, Collaborative Reproduction: Finding the
Child in the Maze of Legal Motherhood, 33 CONN. L. REV.
63. JANET L. DOLGIN, DEFINING THE FAMILY: LAW, TECH-
127, 130 (2000).
NOLOGY, AND REPRODUCTION IN AN UNEASY AGE 34 (N.Y.
Univ. Press 1997). 92. Adoption of Matthew B., 284 Cal. Rptr. 18 (Cal. Ct.
App. 1991).
64. See Janet L. Dolgin, An Emerging Consensus: Reproduc-
tive Technology and the Law, 23 VT. L. REV. 225, 236, 245 93. Id. at 21.
n.135 (1998).
94. Id. at 25.
65. Johnson v. Calvert, 851 P.2d 776 (Cal. 1993).
95. Id. (citations omitted).
66. Id. at 777–78.
96. Johnson, 851 P.2d at 783 (quoting Marjorie Maguire
67. Id. at 778. Shultz, Reproductive Technology and Intent-Based Parenthood:
NOTES An Opportunity for Gender Neutrality, 1990 WIS. L. REV. 123. CAL. FAM. CODE § 297.5(d) (West 2005).
297, 309).
124. See also Sharon S. v. Superior Court, 73 P.3d 554, 572
97. Johnson, 851 P.2d at 783 (citation omitted). n.23 (Cal. 2003).
98. Id. (citation omitted). 125. Johnson v. Calvert, 851 P.2d 776, 779 (Cal. 1993).
99. Burchard v. Garay, 724 P.2d 486, 491 n.6 (Cal. 1986). 126. Id.
100. CAL. FAM. CODE § 3020(a) (West 2005). 127. Id. at 784.
101. Johnson, 851 P.2d at 779. 128. Id. at 779.
102. Id. at 780. 129. Elisa B. v. Superior Court, 117 P.3d 660 (Cal. 2005).
103. Emily Doskow, The Second Parent Trap: Parenting for 130. Id. at 663.
Same-Sex Couples in a Brave New World, 20 J. JUV. L. 1, 131. Id.
17–18 (1999).
132. Id.
104. Johnson, 851 P.2d at 783; see also In re Marriage of
Buzzanca, 72 Cal. Rptr. 2d 280 (Cal. Ct. App. 1998). 133. Id. at 663–64.
105. See CAL. FAM. CODE § 7601. 134. Id. at 662–63.
106. See Johnson, 851 P.2d 776; Robert B. v. Susan B., 135 135. Id. at 666.
Cal. Rptr. 2d 785 (Cal. Ct. App. 2003); Buzzanca, 72 Cal. 136. Id.
Rptr. 2d 280; In re Marriage of Moschetta, 30 Cal. Rptr. 2d
893 (Cal. Ct. App. 1994); Jhordan C. v. Mary K., 224 Cal. 137. Id. (citations omitted).
Rptr. 530 (Cal. Ct. App. 1986). 138. See West v. Superior Court, 69 Cal. Rptr. 2d 160 (Cal.
107. See Jhordan C., 224 Cal. Rptr. 530; Johnson, 851 P.2d Ct. App. 1997); Nancy S. v. Michele G., 279 Cal. Rptr.
776; Robert B., 135 Cal. Rptr. 2d 785. 212 (Cal. Ct. App. 1991); Curiale v. Reagan, 272 Cal.
Rptr. 520 (Cal. Ct. App. 1990).
108. See Buzzanca, 72 Cal. Rptr. 2d 280; Robert B., 135
Cal. Rptr. 2d 785; Moschetta, 30 Cal. Rptr. 2d 893. 139. See, e.g., West, 69 Cal. Rptr. 2d at 164 (“If the Legis-
lature does not provide a person with standing to obtain
109. Moschetta, 30 Cal. Rptr. 2d 893. parental rights, the courts must presume the Legislature is
110. Id. at 900. acting, or refusing to act, by virtue of its position as repre-
sentatives of the will of the people”).
111. Id.
140. Nancy S., 279 Cal. Rptr. 212.
112. Id.
141. Id. at 219.
113. Id. at 901.
142. Id.
114. Id. at 900.
143. Elisa B. v. Superior Court, 117 P.3d 660, 671–72
115. In re Marriage of Buzzanca, 72 Cal. Rptr. 2d 280, 282 (Cal. 2005).
(Cal. Ct. App. 1998).
144. Id. at 664.
116. Id.
145. Id.
117. Id. at 288 (emphasis added).
146. Id. at 667.
118. People v. Sorensen, 437 P.2d 495 (Cal. 1968).
147. Id. at 666–67.
119. Id. at 499.
148. See In re Nicholas H., 46 P.3d 932 (Cal. 2002); In re
120. Id. Karen C., 124 Cal. Rptr. 2d 677 (Cal. Ct. App. 2002).
121. Buzzanca, 72 Cal. Rptr. 2d at 284. 149. Nicholas H., 46 P.3d at 938.
122. Id. at 282. 150. Id.
151. See also Karen C., 124 Cal. Rptr. 2d 677; Nicholas H., 171. See CAL. FAM. CODE § 7613(b) (West 2005). NOTES
46 P.3d 932; In re Jesusa V., 85 P.3d 2 (Cal. 2004); Steven
172. In re R.C., 775 P.2d 27 (Colo. 1989).
W. v. Matthew S., 39 Cal. Rptr. 2d 535, (Cal. Ct. App.
1995); In re Salvador M., 4 Cal. Rptr. 3d 705 (Cal. Ct. 173. K.M. v. E.G., 117 P.3d 673, 680 (Cal. 2005).
App. 2003); Johnson v. Calvert, 851 P.2d 776 (Cal. 1993).
174. See Adoption of Matthew B., 284 Cal. Rptr. 18 (Cal.
152. Elisa B., 117 P.3d at 669. Ct. App. 1991); see also Robert B. v. Susan B., 135 Cal. Rptr.
2d 785 (Cal. Ct. App. 2003).
153. Id.
175. See, e.g., Robert B., 135 Cal. Rptr. 2d 785; Matthew B.,
154. Id. at 668.
284 Cal. Rptr. 18; Jhordan C. v. Mary K., 224 Cal. Rptr.
155. Id. at 669. 530 (Cal. Ct. App. 1986).
156. Id. at 670 (quoting amicus curiae the California State 176. Robert B., 135 Cal. Rptr. 2d at 785–86.
Association of Counties).
177. Id. at 787 (citations omitted).
157. Id.
178. Jhordan C., 224 Cal. Rptr. at 531. (The case refers
158. K.M. v. E.G., 117 P.3d 673, 675–77 (Cal. 2005). to Civil Code section 7005, which became Family Code
section 7613 when the Family Code became operative in
159. Id. at 677.
1994.)
160. Id. at 675.
179. Id. at 532.
161. Id. at 676.
180. Id.
162. Id. at 677.
181. Id. at 534.
163. Id. at 678.
182. Id. at 532, 535.
164. Id. at 680–81.
183. K.M. v. E.G., 117 P.3d 673, 679 (Cal. 2005).
165. Id. at 679.
184. See, e.g., Jhordan C., 224 Cal. Rptr. at 536.
166. Id. (citations omitted).
185. K.M., 117 P.3d at 680.
167. Id. at 682.
186. Id. at 681.
168. See, e.g., In re Marriage of Goodarzirad, 230 Cal. Rptr.
187. In re Marriage of Moschetta, 30 Cal. Rptr. 2d 893,
203 (Cal. Ct. App. 1986). In Goodarzirad, the biological
900 (Cal. Ct. App. 1994).
father signed a stipulation in court whereby he waived
“any and all rights to the care, custody and control of the 188. Kristine H. v. Lisa R., 113 P.3d 690, 691 (Cal. 2005).
minor child” in exchange for a waiver of all past-due and
189. Id.
future child support. The court held that the stipulation
was invalid as an unlawful abridgment of the court’s inher- 190. Id. at 692.
ent power to oversee contracts involving children to ensure
191. Id.
that the children’s welfare is protected. Id. at 206–09.
192. Id.
280, 291 (Cal. Ct. App. 1998). In Buzzanca, Mr. Buzzanca 193. Id. at 693.
asserted that he would “offer testimony to the effect that
194. Id. at 696.
[his wife] told him that she would assume all responsibility
for the care of any child born” and that she had promised 195. Johnson v. Calvert, 851 P.2d 776, 782 (Cal. 1993).
not to hold him responsible for the child. In rejecting Mr.
196. Johnson, 851 P.2d at 782; K.M. v. E.G., 117 P.3d 673,
Buzzanca’s claim that he should not be held to be a legal
679 (Cal. 2005); Elisa B. v. Superior Court, 117 P.3d 660,
parent based on this understanding, the appellate court
669 (Cal. 2005); Kristine H., 113 P.3d at 691.
explained, “[I]t could make no difference as to [Mr. Buz-
zanca’s] lawful paternity.” Id. 197. K.M., 117 P.3d at 679.
170. Id. 198. Id.
NOTES 199. Elisa B., 117 P.3d at 670.

200. Johnson, 851 P.2d at 781.
201. CAL. FAM. CODE § 7613(a) (West 2005).
202. CAL. FAM. CODE § 297.5(d).
203. People v. Sorensen, 437 P.2d 495, 499 (Cal. 1968).
204. Elisa B., 117 P.3d at 670 (citation omitted).
205. Id. (citation omitted).
206. Id.
207. K.M. v. E.G., 117 P.3d 673, 679 (Cal. 2005).
208. In re Marriage of Buzzanca, 72 Cal. Rptr. 2d 280, 289
(Cal. Ct. App. 1998).
209. Elisa B., 117 P.3d at 667 (citation omitted).
210. Id.
211. Id. at 664.
212. CAL. FAM. CODE § 7602 (West 2005).
213. Dunkin v. Boskey, 98 Cal. Rptr. 2d 44, 55 (2000).
214. See id. (litigation regarding child born through assisted
reproduction to an unmarried heterosexual couple); see also
In re Parentage of M.J., 787 N.E.2d 144 (Ill. 2003).
280, 293 (Cal. Ct. App. 1998).
216. Id.
217. Johnson v. Calvert, 851 P.2d 776, 779 (Cal. 1993).
PERSPECTIVES
Illustration, page 161:
“THE RIVER OF LIFE”
BANESSA
Age 18
2004 Children’s Art & Poetry Contest

163
An Open Letter to the California Judiciary
Administration of Justice
in Domestic Violence Cases
W
hy send a message to the California judiciary about domestic HON. LAURENCE D. KAY (RET.)
violence when it is neither a new problem nor one unfamiliar Court of Appeal, First Appellate District,
to the court system? Division Four
On September 6, 2005, Chief Justice Ronald M. George said farewell to me

as the retiring chair of the Judicial Council Rules and Projects Committee and
asked me to chair the newly formed Judicial Council Domestic Violence Prac-
tice and Procedure Task Force. Charged with making recommendations to DOMESTIC VIOLENCE
the Judicial Council, the task force will submit proposals that help to ensure
CASES REQUIRE NOT
the fair, expeditious, and accessible administration of justice for litigants in
domestic violence cases.1 In my view, administering domestic violence cases ONLY EXTR AORDINARY
should be the court system’s highest priority. I know that it is mine. CARE BUT ALSO THE
I accepted the appointment with enthusiasm. The Chief has a long arm and, ESSENTIAL PRESENCE OF
apparently, an even longer memory. In 1989, I served as a member of the plan-
ning committee for the first judicial education institute on criminal domestic JUDICIAL LEADERSHIP,
violence, entitled “Domestic Violence: The Crucial Role of the Criminal ON THE PART OF BOTH
Court Judge,”2 and later served as faculty for a similar program conducted in
INDIVIDUAL JURISTS
1990.3 Nothing in the ensuing 15 years has changed my view that domestic
violence cases require not only extraordinary care but also the essential AND THE JUDICIARY
presence of judicial leadership, on the part of both individual jurists and the
COLLECTIVELY.
judiciary collectively.
Regrettably, in 2005, many of the same issues that confronted me in 1989 are
still true—the need for judicial leadership, the importance of compliance with
statutory and other mandates, the need to develop best practices, and the
importance of judicial branch education, to name just a few. I hope that the
newly formed task force will not only implement significant gains in improv-
ing court practice and procedure but will also institutionalize those gains and
develop a mechanism for monitoring, revising, and maintaining best practices.
It is my further hope that 15 years from now another task force chair will not
be pondering why we have not made more progress in the way we handle
these extraordinarily important cases. © 2005 Laurence D. Kay
For the same reasons—the request of our Chief Justice and the importance of the
subject—I ask each of you to take immediate steps in your courtrooms and in your
courts as a whole to ensure that we are truly doing the best we can in these critical
cases. I ask each of you to provide the task force with your comments, suggestions,
ideas, and energy. And, finally, I ask each of you to indulge me while I summarize
some of my own ideas about domestic violence cases—what makes them different,
and what we can do together to truly work justice in these cases that tear at the
fabric of our families and our communities.
WHAT IS DIFFERENT ABOUT DOMESTIC VIOLENCE CASES ?

Domestic violence is the crime that tears families apart.4 An act of domestic violence
can be alleged in the context of cases filed in virtually every department of the court,
from criminal to family to juvenile law. Some of these cases, deemed “cross-over”
cases, involve multiple filings in one or more departments involving the same parties or
family. In the case of elder victims, domestic violence may be a part of elder abuse or
conservatorship proceedings in probate court. Domestic violence may form the basis
for a claim of damages in a personal injury action filed in the general civil department.
Indeed, the National Center for State Courts reports that during the last 10 years the
number of domestic violence cases in state courts increased by 77 percent.5 In short,
domestic violence affects all of us and in the most pervasive ways.
Behavior defined as domestic violence is a health risk, it affects children, it often

constitutes criminal conduct, and it can be lethal. Statistics recently reported by the
Office of the California Attorney General6 make these observations clear:
■ A study by the California Department of Health Services on women’s health

issues found that nearly 6 percent of women, or about 622,000 women per year,
experienced violence or physical abuse by their intimate partners.
■ Women living in households where children were present experienced domestic

violence at much higher rates than women living in households without children:
each year domestic violence occurred in more than 436,000 households in which
children were present, potentially exposing nearly a million children to violence
in the home.
■ In 2003, 48,854 arrests were made for domestic violence; 80 percent of those
arrested were men. Of 194,288 telephone calls made to police for assistance in a
domestic violence incident, 106,731 involved a weapon.
■ In 2003, almost 25 percent of female homicide victims were killed by their spouses.
In contrast, less than 1.5 percent of male victims were killed by their spouses.7
Most important, whether the court system is confronted with violent behavior in a
criminal or civil context, domestic violence is an act that is perpetrated by one person
An Open Letter to the California Judiciary: Administration of Justice in Domestic Violence Cases 165
against another with whom the perpetrator has a relationship.8 The two individuals
involved may love each other; they may even have a child together. And since we all
are the product of relationships, we have feelings about these cases—feelings about
how people should treat each other and about how they should act within a relation-
ship or a family. The prevalence of domestic violence means that, although we may
not see it, it is all around us—in our families, in our neighborhoods, in our schools,
in our places of work. We are all too aware that these cases can be extremely dif- THE PREVALENCE OF
ficult, particularly when the victim recants or other problems of proof arise. But to
DOMESTIC VIOLENCE
the extent that we fail to do everything possible to treat domestic violence cases as
a continuing and serious public safety risk both for victims and for their children, we MEANS THAT,
are letting down these victims as well as our society. Children exposed to domestic
ALTHOUGH WE MAY
violence in the home may be irrevocably damaged by that trauma or, on the other
hand, may suffer greatly as a result of the absence of a parent, whether the father NOT SEE IT, IT IS ALL
or the mother, in the aftermath of that abuse. The fact is that domestic violence
AROUND US —IN OUR
remains an act that is most frequently perpetrated by a man against a woman—a fact
that touches on all our cultural, historical, and emotional notions about the role of FAMILIES, IN OUR
gender in our culture. As a result of these complexities, many judges find it infinitely
NEIGHBORHOODS,
more difficult to adjudicate domestic violence cases than other matters—whatever
the legal standard may be—in a neutral and dispassionate way. And this is a task that IN OUR SCHOOLS, IN
I, along with each of you, have taken an oath to perform.
OUR PLACES OF WORK.
WHAT CAN GO AWRY IN DOMESTIC VIOLENCE CASES ?

In December 2003, the Attorney General of California, Bill Lockyer, formed his own
task force, in some ways similar to the one I now chair, to look at the local criminal
justice response to domestic violence cases. This precursor task force, chaired by
Casey Gwinn, former City Attorney of the City of San Diego, examined three issues
that relate directly to the courts’ work: obtaining and enforcing restraining orders,
adjudicating misdemeanor domestic violence cases, and holding batterers account-
able.9 The Attorney General’s task force report contained bad news about the crimi-
nal justice system—bad news that none of us wanted to hear. It did not break new
ground or suggest radical reform. Rather, the report succinctly stated that in various
ways many criminal justice agencies and, indeed, even the courts were not comply-
ing with the clear, unambiguous mandates contained in the law. Not surprisingly, the
bulk of the report’s recommendations urged renewed vigilance in complying with
existing statutory and other mandates on the part of all aspects of the criminal jus-
tice system, including the courts.10 Consider the following elementary proposals, to
cite just a few examples culled from the Attorney General’s task force report:
■ Issue a criminal protective order when it is required by law.11
■ Do not strike firearms restrictions that are mandated by both state and federal law.12
■ Order batterers’ intervention when it is required by law.13

■ Order mandatory terms and conditions required by law, such as a three-year

probationary term, a criminal protective order, and an order to attend a 52-week
batterers’ intervention program.14
■ Enter all restraining orders and protective orders promptly and accurately into
the criminal justice databases, as required by law.15
THE REALITY ■ Make emergency protective orders readily accessible to victims in appropriate
OF ADJUDICATING cases, as required by law.16
ISSUES OF Ensuring the fair, expeditious, and accessible administration of justice for litigants
in domestic violence cases—the job the Chief Justice would have our task force
DOMESTIC VIOLENCE perform—requires much more than strict adherence to statutory and other man-
IS DAUNTING. dates. I submit to you that it requires finely tuned systems that provide the necessary
information, resources, staff, and time to the individual judicial officers who make the
decisions that provide for victim safety, batterer accountability, and due process for
all parties. This means that computers must talk to each other. It means that judges
must have access to information. And it means that judges must be able to respond
effectively to the differing needs of each individual case. The cornerstones of such a
system are (1) the appropriate allocation of or increase in resources, including educa-
tion and technology; (2) communication within the court and feedback from justice
system partners and the public; (3) judicial and court leadership; and (4) account-
ability that includes ongoing assessment and monitoring of court performance.17
WHAT DO WE NEED TO DO THIS JOB?

The reality of adjudicating issues of domestic violence is daunting. Criminal cases are
docketed on immensely busy misdemeanor calendars. Probation officers, as a direct
result of dwindling resources (coupled with extraordinary caseloads), may be unable
to perform supervision, monitoring, or certification of batterers’ intervention pro-
grams to the extent necessary. Beleaguered family law judges decide the best inter-
est of children exposed to domestic violence on “order-to-show-cause” calendars
that tax even the most expert jurist’s stamina.
And the judges who handle these calendars need vital information. They ask them-
selves a myriad of questions: Has the person before me been the restrained party
on a prior occasion? in this court? in another county? Since I am a criminal law judge
issuing a criminal protective order that orders a perpetrator to stay away from
his or her children, is there perhaps another conflicting order issued by a family
law judge out there somewhere? Can I order this person to stay away from his or
her children? Was supervised visitation ever ordered? Did this person attend the
batterers’ intervention program as ordered, and does it seem to have done any
good? Does this person have children? Does this person understand English, or is
an interpreter available? Has this person had the benefit of legal services? Do I have
culturally competent services available to help this family? The list of questions goes
on and on and, regrettably, on.
To help us get this vital information and to help us make a fair, impartial, and respon-
sible judgment in the case, we need adequate time, staff, technology, and services.
Adequate resources will go a long way to assisting judges, but judges also need educa-
tion. They need continuing, adequate, useful education as well as bench tools to help
them do this difficult job. Fortunately, the education is available. The Administrative
Office of the Courts (AOC) operates a grant-funded project that provides educa-
tion on domestic violence, stalking, and sexual assault to California’s judicial officers.
The project provides statewide, regional, and local live programs; distance learning
opportunities; and publications. The education available needs to be expanded, and
judges need to use it.18
HOW CAN WE REACH OUT TO JUSTICE SYSTEM PARTNERS

AND TO THE COMMUNITY?
In 1992, in a groundbreaking article, Judge Leonard P. Edwards of the Superior Court
of Santa Clara County called for the creation of family violence councils as an effec-
tive means to foster a coordinated justice system response to domestic violence
and to help decrease the incidence of that violence. In concluding his article, Judge
Edwards stated:
In order to deal effectively with the problem of family violence, a comprehensive
change in the entire system which detects, investigates, prosecutes, and monitors
family violence cases will be necessary. That change can be best accomplished through
the workings of a family violence council.19
Judge Edwards’s article followed a national conference and a California conference,

both of which focused on creation of a coordinated response throughout the nation
and urged each state and ultimately each California county to form family violence
councils. A primary and important goal of such councils in California has been to
provide a feedback loop between the courts and the other parts of the justice sys-
tem as well as the public about practice and procedure in domestic violence cases.
The beauty of this strategy is that it posed systemic remedies for what were, in
fact, systemic problems. As a rule, judges and courts are isolated. They have few
mechanisms, outside of an individual case, for discussion about policies, practices,
and procedures that affect litigants generally. Family violence councils can provide
this essential tool.
Yet now, 13 years later, we are unsure about the status of family violence councils
across California. In some counties they remain vibrant and viable, but in others they
have disbanded or strayed into activities that have made it ethically questionable for
judges to continue to participate.
Community outreach and feedback are important judicial functions. They are not
only ethically permissible; they are encouraged in the California Rules of Court and
Standards of Judicial Administration.20 By contrast, judges must be sure that the
domestic violence councils do not involve them in impermissible activities. Such
activities might include lobbying for substantive changes in the law not strictly related
to practice and procedure, using the judicial office to raise funds for domestic vio-
lence causes, or speaking with council members about pending cases. To avoid an
THE NEED FOR appearance of impropriety, councils must be inclusive, and all justice system partners
must be entitled to and encouraged to participate.
EDUCATION IS
The new Domestic Violence Practice and Procedure Task Force will actively endeavor
CRITICAL FOR to foster and renew the development of domestic violence councils or similar mech-
JUDGES WHO anisms to promote feedback from community to court in each county. We anticipate
sponsoring regional conferences to discuss ways to improve court communication
HEAR DOMESTIC with our justice system partners and to review progress in remedying the problems
VIOLENCE CASES identified to date.
REGULARLY, AND
HOW CAN WE MAKE THE COURT SYSTEM ACCOUNTABLE
IT IS ARGUABLY
AND INSTITUTIONALIZE RECOMMENDED CHANGES ?
EVEN MORE California operates one of the largest and most complex court systems in the world.
COMPELLING FOR Its judges are assigned to hear matters involving domestic violence for often a brief
period, and then they move on to another assignment. With a preference for gener-
JUDGES WHO alists, our system necessarily struggles with the task of institutionalizing excellence
HEAR THEM and creating best practices that work in many different legal cultures and geographic
locations. Judges must diligently avail themselves of opportunities for education on
OCCASIONALLY.
the topic of domestic violence and ensure that, as the law changes, they keep abreast
of all new requirements. The need for education is critical for judges who hear
domestic violence cases regularly, and it is arguably even more compelling for judges
who hear them occasionally. Each judge must ensure that community justice part-
ners have an opportunity to provide the court with feedback—not about individual
cases, but rather about recommended practices and procedures that foster fairness,
efficiency, and access to justice—and, in contrast, to call to the court’s attention
practices and procedures that operate as barriers. Finally, when other agencies
within the justice system fail to carry out their clear responsibilities, it is the duty
of the court to require and encourage improvement on the part of those agencies.
Judicial leadership in this critical arena must be the catalyst for change.
We need methods to ensure accountability and review performance in order to

maintain the quality of justice in our courts. This is most apparent when we look at
the problems recently revealed in administering justice in domestic violence cases.
Creation of the Judicial Council’s domestic violence task force provides us with a
vehicle to account for our performance as an institution in these vital cases.
The AOC has also launched a project—the Domestic Violence Safety Partnership project
(DVSP)—that provides new tools on a local level. DVSP has distributed checklists to the
courts that help them assess and monitor compliance with mandates and recommended
safety measures in domestic violence cases. The self-assessment tools relate primarily to
restraining orders and protocols for family court services. These tools are available and
can be used voluntarily to identify problem areas. The AOC also can provide technical
assistance or local training. In one small rural county, the presiding judge adopted an inno-
vative approach. He shared the self-assessment tool with community and justice-system
partners and asked them to help the court assess its performance. This project can be
expanded to other areas relating to domestic violence. Other ideas about monitoring
progress should be developed and implemented as well.
WHAT WILL THE NEW TASK FORCE DO?

At its first organizational meeting, the task force that I chair assigned committees to
tackle at least the following projects over the next two years:
■ the development of best practices in cases involving domestic violence allegations
■ the improved handling of restraining orders to ensure prompt and accurate entry
of these orders into relevant statewide electronic databases
■ participation in the revision and creation of needed (and more easily understand-
able) Judicial Council forms relating to domestic violence
■ improvement of communication between courts and community and justice-

system partners about practice and procedure in domestic violence cases
■ expansion of judicial branch education on domestic violence issues
As you can see, we have our work cut out for us. I hope you agree with me that
there is an urgent need to address these challenges. I hope you will also agree that
with this task force comes an exciting opportunity to make a real difference in the
way California’s courts respond to domestic violence. Thank you for considering my
ideas and suggestions. We need your help.
1. See Appendix A for a roster of members of the Judicial Council Domestic Violence Prac- NOTES
tice and Procedure Task Force.
2. Ctr. for Judicial Educ. & Research, Judicial Council of Cal., Domestic Violence: The Crucial
Role of the Criminal Court Judge (Sept. 15, 1989) (unpublished conference materials on file
with the Journal of the Center for Families, Children & the Courts).
3. Ctr. for Judicial Educ. & Research, Judicial Council of Cal., Domestic Violence: The Crucial
Role of the Criminal Court Judge (Aug. 24, 1990) (unpublished conference materials on file
with the Journal of the Center for Families, Children & the Courts).
NOTES 4. Videotape: Domestic Violence: The Crime That Tears Families Apart (Admin. Office of
the Cts., Judicial Council of Cal., 1988) (on file with the Journal of the Center for Families,
Children & the Courts).
5. Conference of State Court Admin’rs, Position Paper on Safety and Accountability: State
Courts and Domestic Violence 3 (Nov. 2004) (on file with the Journal of the Center for Fami-
lies, Children & the Courts).
6. TASK FORCE ON LOCAL CRIMINAL JUSTICE RESPONSE TO DOMESTIC VIOLENCE, OFFICE OF THE
ATTORNEY GEN. OF CAL., KEEPING THE PROMISE : VICTIM SAFETY AND BATTERER ACCOUNT-
ABILITY: REPORT TO THE CALIFORNIA ATTORNEY GENERAL FROM THE TASK FORCE ON LOCAL
CRIMINAL JUSTICE RESPONSE TO DOMESTIC VIOLENCE 11–12 (June 2005) [hereinafter KEEPING
THE PROMISE].
7. CRIMINAL JUSTICE STATISTICS CTR., CAL. DEP’T OF JUSTICE, HOMICIDE IN CALIFORNIA (2003),
available at http://ag.ca.gov/cjsc/publications/homicide/hm03/preface.pdf.
8. See CAL. PENAL CODE § 13700 (West 2005); CAL. FAM. CODE § 6203 (West 2005).
9. The Attorney General’s task force also looked at the issue of law enforcement’s response
to health practitioner reports of domestic violence, but this issue did not generate recom-
mendations relating to the courts.
10. See Appendix B for a summary of the findings and recommendations relating to the
courts.
11. See CAL. PENAL CODE § 1203.097; KEEPING THE PROMISE, supra note 6, at 24.
12. See CAL. FAM. CODE § 6389(a); CAL. PENAL CODE § 12021(g); 18 U.S.C. § 922(g)(8) (2000
& Supp. 2005); KEEPING THE PROMISE, supra note 6, at 35.
13. See CAL. PENAL CODE § 1203.097 (West 2005); KEEPING THE PROMISE, supra note 6, at 54.
14. See CAL. PENAL CODE § 1203.097; KEEPING THE PROMISE, supra note 6, at 54.
15. See CAL. FAM. CODE § 6380(a), (b); Act of Oct. 7, 2005, ch. 631, 2005 Cal. Stat. {___}, avail-
able at www.leginfo.ca.gov/pub/bill/sen/sb_0701-0750/sb_720_bill_20051007_chaptered.pdf;
KEEPING THE PROMISE, supra note 6, at 21–35.
16. See CAL. FAM. CODE § 6250(a); KEEPING THE PROMISE, supra note 6, at 28–29.
17. For a comprehensive discussion of these and other factors, see EMILY SACK, FAMILY VIO-
LENCE PREVENTION FUND & STATE JUSTICE INST., CREATING A DOMESTIC VIOLENCE COURT:
GUIDELINES AND BEST PRACTICES (May 2002).
18. Judicial branch education is provided by the Administrative Office of the Courts’ Violence
Against Women Education Project and the Center for Judicial Education and Research. For
information, see VIOLENCE AGAINST WOMEN EDUCATION PROJECT, JUDICIAL COUNCIL OF
CAL., FACT SHEET (Jan. 2005), available at www.courtinfo.ca.gov/programs/cfcc/programs
/description/VAWEP.htm.
19. Leonard P. Edwards, Reducing Family Violence: The Role of the Family Violence Council, 43 JUV.
& FAM. CT. J. 1–17 (1992).
20. CAL. R. CT. 227.8; CAL. STDS. JUD. ADMIN. §§ 24, 39 (West 2005).
Appendix A APPENDIX
DOMESTIC VIOLENCE PRACTICE AND PROCEDURE
TASK FORCE
H ON . L AURENCE D ONALD K AY (R ET.), C HAIR

Presiding Justice of the Court of Appeal, First Appellate District, Division Four
H ON . TANI G ORRE C ANTIL -SAKAUYE

Associate Justice of the Court of Appeal, Third Appellate District
H ON . D EBORAH B. A NDREWS
Judge of the Superior Court of California, County of Los Angeles
H ON . J ERILYN L. B ORACK
Judge of the Superior Court of California, County of Sacramento
H ON . J EFFREY S. B OSTWICK
Judge of the Superior Court of California, County of San Diego
H ON . S HARON A. C HATMAN
H ON . M ARY A NN G RILLI
M S . TRESSA S. K ENTNER
Executive Officer, Superior Court of California, County of San Bernardino
H ON . J EAN PFEIFFER L EONARD

Judge of the Superior Court of California, County of Riverside
H ON . WILLIAM A. M AC L AUGHLIN
Presiding Judge of the Superior Court of California, County of Los Angeles
H ON . G EORGE A. M IRAM
Presiding Judge of the Superior Court of California, County of San Mateo
M R . J AMES B. PERRY
Executive Officer, Superior Court of California, County of Yolo
H ON . R EBECCA S. R ILEY
Judge of the Superior Court of California, County of Ventura
M R . A LAN S LATER
Chief Executive Officer, Superior Court of California, County of Orange
H ON . D EAN STOUT
Presiding Judge of the Superior Court of California, County of Inyo
APPENDIX Appendix B
TASK FORCE ON LOCAL CRIMINAL JUSTICE
RESPONSE TO DOMESTIC VIOLENCE
Abridged Summary of Minimum Standards and

Recommendations: What Courts Can Do
Source: Abridged and reprinted, with minor changes, with permission from TASK FORCE ON LOCAL CRIMINAL
JUSTICE RESPONSE TO DOMESTIC VIOLENCE, OFFICE OF THE ATTORNEY GEN. OF CAL., KEEPING THE PROMISE :
VICTIM SAFETY AND BATTERER ACCOUNTABILITY: REPORT TO THE CALIFORNIA ATTORNEY GENERAL FROM THE
TASK FORCE ON LOCAL CRIMINAL JUSTICE RESPONSE TO DOMESTIC VIOLENCE 89–92 (June 2005).
Obtaining and Enforcing Restraining Orders

■ Criminal courts must impose criminal protective orders and require comple-
tion of 52-week batterers’ intervention programs when sentencing batterers to
probation.
■ All criminal protective orders must prohibit firearm possession.
■ Task force–sponsored Assembly Bill 1288 (Chu), if enacted, will authorize the
courts to prohibit firearm possession without having to order that the batterer
and victim have no contact or peaceful contact. Prosecutors should move for
firearm prohibitions at arraignment in all domestic violence cases.
■ Criminal courts must ensure that criminal protective orders are entered into the
Domestic Violence Restraining Order System within one business day.
■ Family courts must ensure that domestic violence restraining orders are entered
into the Domestic Violence Restraining Order System within one day if task
force–sponsored Senate Bill 720 (Kuehl) is enacted.
■ Courts should maximize the availability of emergency protective orders.
■ Family courts and law enforcement should stop requiring domestic violence vic-
tims to carry restraining orders to the agency that will enter the orders into the
Domestic Violence Restraining Order System.
■ Family courts and law enforcement should stop requiring domestic violence vic-
tims to carry restraining orders to all law enforcement agencies that may have to
enforce the order.
■ The many problem practices identified by the task force can be mitigated or
eliminated only through the close collaboration of multiple agencies. The leaders
of the local agencies must convene on a regular basis to identify and address these
problems.
Prosecuting Domestic Violence Misdemeanors APPENDIX

■ Misdemeanor courts should not take guilty pleas and sentence defendants charged
with domestic violence unless a prosecutor is present.
■ Courts should not accept plea agreements that allow batterers to avoid what is
mandatory: 52-week batterers’ intervention programs and three-year probation-
ary terms.
Holding Batterers Accountable

■ Courts and probation departments in each county should develop procedures
for measuring and evaluating batterers’ program enrollment rates, completion
rates, recidivism rates, reasons for noncompletion, and judicial responses to
noncompliance.
■ Courts, probation departments, and prosecutors in each county should adopt a

strategy that puts batterers on personal notice of the specific consequences of
absences from programs and that follows up any unexcused absence with immedi-
ate arrest and sanctions.
■ The Administrative Office of the Courts should develop a form that would be
used in every criminal court to record the benchmarks of a batterer’s perfor-
mance on probation while in a batterers’ intervention program: progress, non-
compliance, terminations, sanctions, and completions.
■ The Administrative Office of the Courts should incorporate, within its new state-
wide Criminal Case Management System, fields that capture all pertinent data on
batterers on probation.
Enhancing System’s Capacity

■ Criminal justice agencies cannot collaborate effectively without judicial leadership.
Courts are obligated to exercise such leadership and can do so without violating
ethical requirements.
■ Domestic violence courts should be studied and expanded, as they hold great
promise for addressing the many and complex problems of domestic violence.
175
Engaging Men and Boys in Domestic

Violence Prevention Strategies
An Invitation to the Courts
I
n California as well as nationwide, thousands of judges, court staff, attor- HON. RONALD ADRINE
neys, domestic violence advocates, law enforcement personnel, and other Cleveland (Ohio) Municipal Court
professionals engage daily in the battle to intervene after domestic violence,
helping to protect the victims and their children, to hold perpetrators account- MICHAEL W. RUNNER
able, and to prevent future incidents of abuse. Many of these professionals Family Violence Prevention Fund
benefit from superb credentials, improved legal tools, and ongoing, practical (San Francisco)
training about this complex, widespread social problem. Will this vast justice
system response someday bring an end to domestic violence? If society contin-
Despite the successes of intervention
ues to focus vast resources exclusively on intervention measures, widespread
efforts in reaching and assisting battered
prevention of domestic violence before it occurs becomes unlikely.
women, domestic violence continues
This article will discuss the prevention of domestic violence, focusing in to be entrenched in society. A growing
particular on efforts to engage men and boys in prevention strategies. It will
number of policymakers and advocates,
briefly discuss prevention and how it contrasts with traditional intervention,
in consideration of the long-term social
describe early public awareness and prevention strategies, review research
on men’s attitudes toward domestic violence, and summarize some recent and human costs of domestic violence,
examples of research-based initiatives to engage men and boys in domestic are exploring strategies to prevent violence
violence prevention. The article will also suggest a potential process for analy- before it occurs. This article discusses the
sis of future court policy and program design with respect to prevention. prevention of domestic violence, focusing
The article does not focus on judges’ prevention efforts performed outside of the in particular on efforts to engage men
court; many of these creative endeavors demonstrate individual judges’ dedicated and boys in prevention strategies. It
leadership to stop domestic violence in the community. Rather, this article sug- briefly discusses prevention and how it
gests a process for determining appropriate prevention measures to incorporate contrasts with traditional intervention,
in the daily work of judges and court staff. While intervention must continue describes early public awareness and
until every victim of domestic violence achieves safety and receives services, the
prevention strategies, reviews research on
courts also must put significant effort into collaboration with broad segments of
men’s attitudes toward domestic violence,
their communities to prevent domestic violence before it occurs.
and summarizes some recent examples
TR ADITIONAL INTERVENTION RESPONSES TO
DOMESTIC VIOLENCE
During the past 25 years, the movement to end domestic violence in the
United States has achieved tremendous successes in assisting some victims © 2005 Ronald Adrine & Michael W. Runner
Continued from page 175 to secure safety and access services, classifying domestic violence as a seri-
ous crime and imposing criminal sanctions on persons who use violence in
of research-based initiatives to engage
intimate relationships, making social service institutions more responsive, and
men and boys. It also suggests a potential
creating public awareness. Specific strategies to end domestic violence have
process for analysis of future court policy concentrated on responding to the immediate needs of battered women and
and program design with respect to their children; raising public awareness about domestic violence as a crime;
prevention. ■ bolstering criminal sanctions against perpetrators; developing batterers’
intervention programs; and coordinating communities’ responses through the
collaboration of advocacy programs, justice systems, and social services.
Public policy has directed most resources to address domestic violence

and sexual assault toward criminal justice responses and social services for
abused women and their children. Thus, in many communities, through the
Violence Against Women Act,1 federal funds support shelters for battered
women; counseling and other services for violence survivors, rape victims,
and their children; and specialized domestic violence courts or court dockets
to increase safety for victims and accountability for perpetrators. These tra-
ditional responses that focus on intervening in domestic violence and sexual
assault are critical. Intervention activities must continue to be provided and
improved, regardless of any initiatives developed to prevent violence before
it occurs.
EXTENT OF THE COURTS’ WORK INVOLVING

DOMESTIC VIOLENCE
Much of the courts’ existing work involves issues of domestic violence directly
or indirectly. Consider the following statistics:
■ In 2002, according to the Bureau of Justice Statistics, 1,455 people were killed
by an intimate partner, representing almost 16 percent of all murders.2
■ Between 1998 and 2002, females were 84 percent of spousal abuse victims
and 86 percent of victims of abuse by a boyfriend or girlfriend.3
■ Of 85,505 convicted violent offenders confined in a local jail in 2002, 30

percent had victimized an intimate partner.4
■ The American Psychological Association has found that 40 to 60 percent

of the men who abuse their wives also abuse their children.5
■ In homes where partner abuse occurs, children are 1,500 times more
likely to be abused.6
■ Fathers who batter mothers are twice as likely to seek sole physical cus-
tody of their children as are nonviolent fathers.7
Engaging Men and Boys in Domestic Violence Prevention Strategies: An Invitation to the Courts 177
Although many victims of domestic violence do not access the court system, these
statistics alone indicate potential court entry points where the judiciary finds itself
grappling with domestic violence issues: criminal court, juvenile court, and family law
court. Other entry points might be probate court if a matter involves an elder victim
of domestic violence or a guardianship proceeding for a minor, or a court’s self-help
center when a party does not have an attorney. In fact, the issue of domestic violence
is endemic to the court system, giving every judicial officer a reason to care about it.
PROMISING VIOLENCE PREVENTION STR ATEGIES

Despite the successes of intervention efforts in reaching and assisting battered
women, domestic violence continues to be entrenched in society. As work to end
domestic violence evolves, much of what was called “prevention” just a few years
ago would now be characterized as intervention or some combination of the two.
Traditional responses to domestic violence included services to battered women
and intervention by the justice system in selected cases, as well as elements of pre-
vention such as media watches and educational programming created primarily by
advocates for battered women. During the past 10 years, domestic violence cases
involving high-profile persons and public education campaigns have dramatically
raised awareness about the issue. Consequently, in a groundbreaking 2001 survey of
over 3,300 American women, 92 percent of the respondents identified the reduc-
tion of domestic violence and sexual assault as the top priority of future focus for the
women’s movement.8 Additional research reveals that the majority of the American
public as a whole recognizes domestic violence as a serious problem.9
A growing number of policymakers and advocates, in consideration of the long-term

social and human costs of domestic violence, are exploring strategies to prevent vio-
lence before it occurs. These strategies, which emphasize prevention and the chang-
ing of social norms, must target teens, young parents, and their children; violence
perpetrators; and men generally. Research and programs, for example, are focusing
on interventions with vulnerable children and youth, as well as on universal supports
for young families, as strategies to prevent violence against women in adulthood. The
following are examples:
■ Treating children exposed to violence at home. This strategy, which uses

intervention to achieve prevention, focuses on mental health support for children
exposed to violence as well as strengthening of protective factors in the children’s
environment through work with parents. Project examples include Chicago’s
Child-Parent Centers, Early Head Start, and hospital-based programs in Boston
and San Francisco.10
■ Providing supports for young and vulnerable parents. Young parents could
benefit from the inclusion of violence prevention services in a range of in-home and
center-based parenting support programs. Nurse home visitation programs, for
example, have shown very promising results from working with first-time parents,
many of them teenagers or young persons with multiple challenges.11
■ Strengthening of mentoring, parenting education, and other violence

prevention strategies in programs for vulnerable youth. Well-designed,
ongoing mentoring and role-modeling programs can help young persons improve
social interactions and develop healthy relationships. Promising programs include
Big Brothers Big Sisters, Safe Dates, and Expect Respect: A School-Based Pro-
gram Promoting Safe and Healthy Relationships for Youth.12
■ Incorporating violence prevention services in reentry programs for youth

aged 14–24 who leave detention in the juvenile justice system or incarcera-
tion in a federal or state prison or local jail. Mentoring, positive parenting, and
violence prevention programs can help juveniles released from detention and
prisoners returning from incarceration reunite with their families, lower the risk
of harm to family members, and reduce the possibility of future arrest. Examples
include La Bodega de la Familia (Family Justice, Inc.), a New York City program that
focuses in part on recovering drug abusers returning from prison.13
■ Public education and leadership programs targeting men, teens, and chil-
dren. Public awareness and education campaigns can promote positive norms of
behavior for teen relationships, engage men and boys in recognizing opportunities
to connect positively and nonviolently with children and other young persons, and
support young parents in their child-rearing roles.
The courts have contact with many persons targeted by these prevention strategies.
In addition, the courts serve as resource referral points for connecting many of these
programs with persons who would likely benefit. Therefore, the courts appear to be
in an ideal position to participate in some of promising prevention practices and to
develop additional strategies that can engage court system professionals in universal
prevention measures without compromising the fairness and impartiality demanded
by codes of ethics and expected by the public.
RESEARCH ON MEN’S ATTITUDES TO VIOLENCE

Traditionally, men have not been a major part of any popular effort to address domes-
tic violence, despite important work in selected programs to redefine masculinity and
to confront social norms that favor men over women. In fact, for many years in the
context of domestic violence, men were mentioned almost exclusively as perpetrators
of abuse or tacit supporters of systems that perpetuate violence. Work that focused
primarily on services to victims and on criminal responsibility for violent men created
at best an unwelcoming tone for engaging men. Thus, nonviolent men who might want
to make a difference on these issues, other than men working in related social justice
or academic areas, found it difficult to locate entry points for involvement.
During the past few years a shift to a more welcoming tone has created new
opportunities for engaging large numbers of nonviolent men in domestic violence
prevention in normal activities of their lives. National public opinion research con-
ducted in 2000 provided valuable insight about men’s attitudes concerning domestic
violence and actions in which men were willing to engage regarding this issue. The
THE VALUE OF PUBLIC OPINION RESEARCH IN

DEVELOPING A PUBLIC EDUCATION CAMPAIGN
Public opinion research is enormously important, if not critical, for the success of any
public awareness or education campaign, particularly when the objective is not simply
awareness but a change in behavior. Fulfilling a different role than behavior research, a
strategic, outcome-based attitudinal research approach provides results that can effect
attitudinal and behavioral change. The results also assist sponsoring organizations in
developing concrete plans and communications to achieve their goals.
A public education campaign designed to effect attitudinal and behavioral change must
gain the attention of the audience members before they will consider the message.
Before they act on the message, however, audience members must accept it and be
motivated by a belief that it is important, necessary, or socially desirable. Public opin-
ion research is integral not only in determining the most salient approach and mes-
sages but also in identifying the most effective messengers and mediums to achieve
a campaign’s objectives. It is also critical for understanding the underlying values that
inform and shape people’s opinions on the relevant issues.
Public opinion research that includes both quantitative and qualitative components
can help in setting objectives for a campaign, segmenting and profiling the audiences,
identifying message strategies, and establishing baseline measurements of targeted atti-
tudes and self-reported behaviors. Tracking surveys can be conducted at later intervals
to measure awareness of the campaign, the target audience’s degree of exposure and
attention to the messages, and correlated changes in self-reported attitudes or behav-
iors targeted by the campaign.
Segmenting the audience is a particularly important component of this research

because different subgroups within the larger audience will move from attention to
a message to behavior for different reasons. The research identifies when and under
what circumstances different groups of people will listen, respond, and ultimately act.
Qualitative research can provide important and valuable insights. Often, the target-
ing of specific populations is the result of epidemiological surveillance or some other
method that does not provide any information about the social, psychological, and
environmental context of targeted attitudes or behaviors. Message design and strat-
egy benefits from understanding the audience’s in-group catch phrases and slang,
identifying sources or spokespersons who will attract the attention of the target audi-
ences, and identifying unanticipated social or environmental constraints to changing
a population’s behavior. Qualitative research allows for the flexibility to probe where
necessary to better understand an individual’s thought process regarding specific areas
of interest.—Abigail Davenport (Peter Hart Research Associates)
research included a national public opinion poll of 912 adult American men from
diverse demographics, dial sessions (structured, computerized systems that monitor
responses) to explore men’s and women’s reactions to various media segments, and
a series of five focus groups primarily with men of different ages and races.14 The sur-
vey findings showed that men were willing to intervene directly in violent situations
if they knew one of the parties involved. Interestingly, the intervenor was most likely
to engage in a discussion with the known party, regardless of that person’s gender.
Before this research, it was assumed that men would most likely intervene through
a discussion with other men.15
The research also revealed men’s willingness to take the time to get involved in
important community and public efforts to stop violence against women. Men
reported that they were most likely to take the time to petition elected officials to
strengthen anti–domestic violence laws and to talk with children about the impor-
tance of healthy, violence-free relationships. In contrast, men stated that they were
least likely to participate in a rally against domestic violence. Finally, when asked
which of a list of reasons was the greatest barrier to active involvement in preven-
tion, men most often selected the failure to ask men to become involved.16
Focus groups gauged participants’ reactions to various types of messages in sample

ads, yielding some interesting results:
■ The “men as role models” theme had potential as an effective message to engage
men in prevention of violence against women. Communicating an inclusive mes-
sage that is not limited to men as fathers but as role models for boys in general
would be an important way to reach multiple cultures and ages.
■ A clear and simple message must be communicated on the issue.
■ To avoid racist undertones, which negatively affected all surveyed men regardless
of race, visual images must represent persons of all races.
■ Negative themes interfere with men’s ability to perceive the message as applicable
to them and can easily trigger feelings that all men are being considered as poten-
tial batterers.17
Other research indicates that most males are uncomfortable with violence against
women and with the attitudes, behaviors, and language of men who commit such
violence.18 Most men seek consent in intimate relationships and are uncomfortable
with language and behavior that objectify and hurt women.19
Polling conducted over the past several years shows that women are more likely than
men to identify domestic violence as an “extremely important” issue, more likely
to report that they would do something to help reduce violence if they knew how
to help, and less likely to accept rationalizations for the violence. One conclusion is
that targeting men and boys for prevention efforts makes good sense because there
is significant “room for change” on attitudinal and behavioral indicators as reported

by men nationwide.
In summary, the following themes can be gleaned from research to date:
■ Engage men positively by using a welcoming, nonaccusatory, and culturally diverse

tone and by communicating to men through other men.
■ Engage large numbers of nonviolent men and boys by giving them simple, clear
roles in educational activities that help to prevent violence against women and
children.
■ Engage men to stand publicly against violence by giving them an opportunity

to state their commitment and engage their peers and families, giving men the
opportunity to play a central role in prevention campaigns.
■ Expand alliances of men by reaching out to new (and perhaps unlikely) partners
with clear, simple messages they can incorporate in their existing work. Alliances
might include, for example, men who for many years have worked with men who
wish to overcome their violence, faith-based groups, organizations that promote
responsible fatherhood, and men who work in the justice or social service system
to intervene in violence against women.
■ Engage men as leaders, role models, and mentors on the issue by creating oppor-
tunities for men to talk to other men, men to talk to boys, and teens to talk to
other teens in the usual contexts of their lives (e.g., coaches talking to athletes).
■ Engage men who are willing to become activists—for example, men who are
already involved in violence intervention, prevention, or related activities, includ-
ing community activists, social service and government workers, and academics,
by giving them opportunities to share learning, collaborate, and expand the depth
of their expertise and field of knowledge.
PREMISES BEHIND PREVENTION FOCUSED ON

MEN AND BOYS
Much of the work to address domestic violence during the past three decades
has been predicated on the belief that violence is a learned behavior that can be
unlearned. Similarly, innovative prevention efforts employing public-education strate-
gies have been based on the conviction that social norms condoning violence can be
shifted. Indeed, educational efforts aimed at changing social norms have had consid-
erable success in addressing alcohol, tobacco, and drug use and abuse in high school,
college, and community settings.20
Within the field of domestic violence, experts agree that current, predominant
social norms play a significant role in sanctioning and perpetuating inappropriate
male behavior. Thus, men can play a powerful role in promoting more positive atti-
tudes and behavior with regard to violence against women and children.21
Males of middle school and high school age also have a role to play in preventing
violence against women, especially relationship violence. In the 2000 survey, almost 9
in 10 men expressed support for incorporating into middle and high school curricula
discussions about violence against women and ways to prevent it.22 Men’s thinking
about and response to domestic violence therefore appears to be malleable; men
pay attention to what other men think, say, and do and may be willing to take action
if given the tools and embraced as potential partners with women in strategies to
end violence. The research supports widespread public education and involvement
campaigns targeting men and boys for participation in the prevention of domestic
violence. And men, as a group, seem open to receiving messages and engaging in
various levels of activities against violence.
PREVENTION ACTIVITIES FOCUSED ON MEN AND BOYS

This section discusses several examples of specific activities designed to engage
male “bystanders” and youth in preventing domestic violence. The term bystanders
in this context means nonviolent men who are family members, friends, teammates,
classmates, and colleagues with whom all persons have contact in the course of their
everyday lives. Bystanders may also include men whose peers engage in domestic
violence.
Three initial, connected missions emerged based on the polling research: (1) involve
men directly as models of violence prevention behavior and mentors to the next
generation; (2) elicit a public, personal commitment from men to stand against
violence; and (3) provide resources and build the capacity of violence prevention
advocates to work with men. In pursuit of these missions, the Family Violence Pre-
vention Fund developed a suite of three ongoing programs: Coaching Boys into Men,
Founding Fathers, and the Building Partnerships Initiative to End Men’s Violence.
Coaching Boys into Men

Coaching Boys into Men was launched nationally in February 2002 to all major com-
mercial television stations, broadcast networks, cable networks, local cable affili-
ates, commercial radio stations, and the New York Times. The campaign encourages
men to talk to boys early and often about appropriate ways to treat women. Public
service announcements (PSAs) for television, radio, and print media emphasize that
boys learn from watching men and encourage men to act as role models and com-
municate with boys about domestic violence. The PSAs also pose questions about
the right time to raise with boys the issue of domestic violence. Coaching Boys into
Men materials include tips for talking to boys of different ages, sample talking points,
examples of times to talk, and starting points for conversations.
The Coaching Boys into Men campaign was designed to offer men a clear and man-
ageable role in helping to solve the problem of domestic violence. To maximize the
campaign’s impact, strategic national partners were included from the beginning:
the National High School Athletic Coaches Association, the New York Yankees, the San
Francisco Giants, Major League Soccer, and local and regional sports-related groups.
The campaign was assessed through a study by the Advertising Council, issued in
February 2005, which measured public perception about the importance of the
issue, awareness of the ad campaign, and attitudinal and behavioral change.23 Signifi-
cantly, the study produced the following findings:
■ About 9 in 10 adults (and 84 percent of men) “strongly agree” that men can help
reduce domestic violence by talking to boys and feel it is extremely important
that they do so.
■ Respondents who saw the PSAs were significantly more likely than those who
did not to agree that men can help solve the problem of domestic violence by
discussing it with boys.
■ There was a steady and significant increase in the proportion of men sur-
veyed who had actually taken action and spoken to boys about violence against
women—from 29 percent in November 2001 to 41 percent in February 2005.
■ Awareness of the PSA campaign increased almost fivefold from benchmark levels,
rising from 3 percent at benchmark to 14 percent in February 2005.24
Initial results from the Coaching Boys into Men program demonstrate that an appro-
priate delivery mechanism (in this case an extended sports metaphor) can engage
men in specific, concrete actions to prevent domestic violence. The message that
men can make a difference in preventing violence by talking to the young men and
boys close to them is clear and uncomplicated. Future campaigns can use a modeling
or mentoring strategy in other contexts that resonate with men and engage them in
clear, positive, manageable actions with boys to prevent domestic violence.
Founding Fathers
The Founding Fathers campaign, initiated in 2003, was based on the theory that
publicizing men’s individual involvement, and thereby inspiring the involvement of
their peers, was a critical component of a strategy to prevent domestic violence. The
goal was to create a public role for men in the movement to end domestic violence,
complementing the private role encouraged by Coaching Boys into Men. Some 350
men from all walks of life mobilized in 2003 for an unprecedented public declaration
condemning domestic violence.
The Founding Fathers declaration, written by a group of five men, appeared in a full
page of the New York Times on Father’s Day 2003, with each of the 350 men listed
as a Founding Father.25 This public expression underscored the importance of men’s

commitment to involve and validate the support of their peers. While some Found-
ing Fathers’ commitments were purely public, many were moved to pledge more
extensive personal involvement. In addition to the New York Times declaration, for
example, some Founding Fathers created personalized letter-writing campaigns to
friends and family, hosted a series of open discussions among men on domestic vio-
lence, and donated resources and gifts. Some Founding Fathers even hosted meet-
ings with other men to encourage them to declare their commitment publicly.
The Founding Fathers campaign was not evaluated formally, but anecdotal indica-
tors were strong and positive: men expressed appreciation that Founding Fathers
amplified measures to involve other bystanders. The campaign struck an emotional
chord with both men and women as they tapped into vast personal constituencies
of partners, friends, co-workers, and parents; men felt good about being placed at
the leadership of what traditionally had been viewed as a women’s issue. An informal
survey among the campaign participants confirmed that the single most compelling
reason for becoming Founding Fathers was “men setting an example for other men.”
The second most compelling reason was “men taking responsibility for an issue tra-
ditionally viewed as a women’s issue.”
The Building Partnerships Initiative to End Men’s Violence

The Coaching Boys into Men and Founding Fathers campaigns focus on engaging men
as bystanders, role models, and fathers. The third prong of work with men and boys,
the Building Partnerships Initiative (BPI), involves active collaboration between men
and women working in traditional programs to end violence against women. The BPI
was intended to inspire more activist men to take a stand against men’s violence by
tapping into work at the community level—in grassroots nonprofit organizations,
schools, the workplace, and places of worship—in an effort to create a network of
new constituencies and to build capacity in local communities.
The BPI promotes stronger partnerships among persons currently working to end
violence and individuals and organizations with potential for a more active preven-
tion role, with a special focus on engaging men and boys in this process. To permit
a more comprehensive prevention agenda, the network includes new, nontraditional
allies—groups such as unions, faith-based institutions, schools and universities, sports
and social clubs, the private sector, and responsible-fatherhood organizations. The
BPI was designed in consideration of certain limitations and opportunities presented
in the field: (1) innovative program work is often carried out in relative isolation,
providing few structures for information exchange; (2) nontraditional partners bring
great untapped potential to prevention work; and (3) ecological models suggest that
a greater variety of individuals, groups, and community organizations should play a
role in ending men’s violence.
The first phase of the BPI, which incorporated information technology (IT) tools to
interact and network across wide geographical and professional divides, consisted of
an “online discussion series” for practitioners of violence prevention and potential
new partner organizations. The eight-week series took place through an e-mail dis-
cussion list and was supported by a discrete Web site.26 The discussion covered four
topics: building a “big tent,” learning from batterers’ intervention programs, working
with fathers’ groups, and working with youth and schools. More than a thousand
persons from all 50 states and 40 different countries signed on to the lively and fruit-
ful discussions. Discussion participants made it clear that to engage men successfully
in ending domestic violence, practitioners, community leaders, policymakers, and
others must model respectful relationships and partnerships.
The second phase of the BPI provides to violence prevention practitioners and
advocates an online toolkit for working with men and boys. The toolkit27 contains
guiding principles and “how-to” steps, training exercises, and background materials
for working with men and boys. The toolkit builds on the momentum and connec-
tions made during the online discussion series to transform the conversations into
practical steps for widespread prevention work with men and boys.
Because the BPI was recently implemented, analysis of the program is ongoing.
Clearly, fatherhood programming (services to help men serve as responsible,
involved fathers) provides a reservoir of experience in engaging men about intimate,
familial relationships and in listening to men’s concerns. Despite tension between
domestic violence prevention advocates and some fathers’ groups, bridges need
to be constructed because of the simple reality that many children have ongoing
contact with fathers who have used violence in the family. Ultimately, safety must
take priority over healing and contact with a child. Thus, while widespread partner-
ships between fatherhood programs and violence prevention efforts seem to be in
a nascent stage, father-involvement programs hold perhaps the greatest promise as
partners in violence prevention.
EXISTING PREVENTION ACTIVITIES BY JUDGES
The three research-based strategies described above serve as examples of the myr-
iad programs that could be developed to engage men in the prevention of violence
against women. Many judges already participate outside of court in their own strate-
gies, based on their individual interests, to prevent domestic violence. Examples of
judicial activities include
■ training of faith-based leaders and communities regarding domestic violence;
■ mentoring children in various contexts, such as sports and Big Brothers;

■ various education activities, including hosting schools in the courtroom, partici-

pating in teen dating workshops, presentations at service clubs, violence clinics at
law schools, and mock trials in schools, senior centers, and malls; and
■ serving as examples in their own personal lives.
These judicial efforts in the community further the prevention of violence before it
occurs. But they depend largely on the personal leadership commitment of a rela-
tively small group of dedicated professionals. In addition to these individual measures
and the strong violence intervention role served by the courts, judges and court staff
can begin to incorporate prevention in the daily work of the judiciary. The remainder
of this article suggests a process for beginning to address prevention in the courts.
DEVELOPING PREVENTION STR ATEGIES IN THE COURTS

The authors explored some examples of the current efforts to engage men and boys
in strategies to prevent domestic violence, in the context of the more traditional
service-based and justice-system responses that have greatly strengthened interven-
tion. As noted, the concept of “prevention” has evolved over the past 25 years from
a broad, all-encompassing label applied to any response to domestic violence to the
current, more precise focus on activities that prevent violence before it occurs.
Certainly the justice system must continue to treat domestic violence seriously as a
crime and to intervene to help adult survivors achieve safety and protect their chil-
dren. But prevention efforts also must expand dramatically to engage all members
of society. Strategies to engage men and boys must incorporate some of the core
concepts tested to date: clear, simple messages that are conveyed in the context of
everyday lives, intergenerational role modeling to change social norms, and universal
support of positive, healthy intimate relationships among all young persons. Working
together, women and men can change attitudes, beliefs, and behaviors that recognize
violence as an acceptable means of human interaction.
Based on these premises, the courts can engage in a process for determining how
to reach court users with effective, culturally diverse prevention messages. This
process would involve the following steps:
■ Assembling the appropriate discussion group. The courts need to begin pre-
vention efforts with the right persons at the table. Initially, these would include
judges, court administrative leadership, and possibly providers of ancillary services
(e.g., family court services and facilitators, probation). Upon agreement that the
court can and should move forward with prevention, the discussion group could
be broadened to include community-based domestic violence service providers,
batterers’ intervention programs, attorneys (plaintiff and defense), and others
who can contribute to broadening the points of contact for prevention, as well as
the development and implementation of prevention activities.
■ Identification of potential prevention message points. The court needs to

identify appropriate points at which to reach court users with universal violence
prevention measures. Criminal and juvenile delinquency courts, for example, have
contact with large numbers of men and boys who are entering the court as defen-
dants, detainees, victims, and witnesses. At what points during these contacts
could the court engage men and boys in prevention messages or other measures?
The court needs to consider several specific questions, including, for example:
– Are there points where judges personally can deliver universal violence pre-
vention messages without compromising impartiality?
– Where specifically in the courthouse can prevention messages be given to all

court users (e.g., videos and literature in waiting rooms or hallways, posters
to educate the public)?
■ Development and delivery of prevention activities. Activities should con-

sist of promising strategies that reach men and boys, such as the research-based
initiatives outlined in this article. Essentially, these strategies engage men and
boys in actions to which they appear receptive based on the research. Activities
in the courts might range from delivering messages (verbally or electronically) to
distribution of prevention awareness materials, including resources for users who
currently experience violence. Through leadership, courts could also participate
in constructing broad-based, inclusive prevention campaigns in the justice system,
consisting of measures that ultimately could reduce the need for intervention by
reaching large segments of society.
CONCLUSION
Additional research will be needed to help shape new prevention strategies for men
and boys. Moreover, these new efforts must connect with other prevention mea-
sures focused on teens and young persons. Primary prevention strategies are critical
elements of future responses to domestic violence, and violence against women
cannot be prevented without the central involvement of men and boys in changing
social norms that currently sanction violence. Elements of a violence prevention
focus involving men and boys include the following:
■ heightened personal awareness about violence against women and girls
■ responsible personal behavior with respect to relationships and violence
■ positive involvement in the lives of young men and boys
■ collaboration among male and female advocates and prevention professionals
■ partnership building, pursuant to common goals, between programs that promote

responsible fatherhood and violence prevention groups
■ unequivocal public commitments by men that violence against women and girls
will not be tolerated.
Efforts to engage men and boys in prevention of violence against women have just
begun. There remain more questions than answers, but we know a great deal more
now than a few short years ago. Future research can assist in determining answers
to numerous questions, such as these:
■ What else needs to be learned about men’s potential responses to violence

against women and girls? What questions do men need to be asked about how to
involve them in prevention strategies?
■ What entry points can engage larger groups of male bystanders to participate in
small, doable violence prevention efforts that are easily performed as part of their
daily lives?
■ How can men become engaged in multiple, coordinated campaigns to promote

social norms that foster healthy relationships? What key ingredients will foster
this kind of involvement, which can deepen men’s commitment to changing
social norms?
■ What are potential collaborations with efforts to prevent other forms of violence
against women, such as sexual assault and stalking, and related violence, such as
youth violence and community violence?
■ What settings, such as schools, sporting events, workplaces, and the justice sys-
tem, provide opportunities to connect men and boys with messages that promote
healthy intimate relationships as alternatives to violence?
Future efforts to end abuse must emphasize prevention of violence before it occurs
if we are to create a world in which women, children, and men can safely pursue and
exercise their basic human rights. Prevention efforts not only must engage profes-
sionals and advocates who dedicate themselves to end abuse but also must welcome,
encourage, and support persons in all walks of life—from all cultures, genders and
gender identities and from all economic classes—to undertake activities in the
course of their everyday lives. Only through multiple, universal, accessible preven-
tion strategies can we hope to end violence before it occurs.
1. Violence Against Women Act of 2000, 42 U.S.C. § 10420 (2000). NOTES

2. MATTHEW R. DUROSE ET AL., U.S. DEP’T OF JUSTICE, FAMILY VIOLENCE STATISTICS INCLUDING
STATISTICS ON STRANGERS AND ACQUAINTANCES 17 (June 2005), available at www.ojp.usdoj
.gov/bjs/pub/pdf/fvs.pdf.
3. Id. at 1.
4. Id. at 61.
5. AM. PSYCHOLOGICAL ASS’N, VIOLENCE AND THE FAMILY: REPORT OF THE AMERICAN PSYCHO-
LOGICAL ASSOCIATION PRESIDENTIAL TASK FORCE ON VIOLENCE AND THE FAMILY 80 (1996)
[hereinafter VIOLENCE AND THE FAMILY].
6. BUREAU OF JUSTICE ASSISTANCE, U.S. DEP’T OF JUSTICE, FAMILY VIOLENCE : INTERVENTIONS

FOR THE JUSTICE SYSTEM (1993).
7. VIOLENCE AND THE FAMILY, supra note 5, at 40.
8. CTR. FOR THE ADVANCEMENT OF WOMEN, PROGRESS AND PERILS: NEW AGENDA FOR WOMEN
11 (2003), available at www.advancewomen.org/womens_research/Progress&Perils.pdf.
9. Advertising Council, Family Violence Prevention Fund Domestic Violence Prevention PSA
Campaign General Market Tracking Survey (2005) (unpublished survey, on file with the Jour-
nal of the Center for Families, Children & the Courts).
10. Programs to treat children exposed to domestic violence include the Child Witness to Vio-
lence Project, Boston Medical Center (information available at www.childwitnesstoviolence
.org/about.html) and Child Trauma Research Project, San Francisco General Hospital. For
lists and descriptions of resources, see the Web site of the National Center for Children
Exposed to Violence, www.nccev.org/violence/domestic.html.
11. See D.L. Olds et al., Prenatal and Infancy Home Visitation by Nurses: A Program of
Research (conference paper, Univ. of Md., Sch. of Pub. Policy, Welfare Reform Acad.), avail-
able at www.welfareacademy.org/conf/papers/olds/prenatal.cfm; see also references listed
by the Administration for Children and Families of the U.S. Dept. of Health and Human
Services, available at www.acf.dhhs.gov/programs/opre/welfare_employ/economic_analysis
/reports/effect_nursefam/nursefam_refs.html.
12. See research reports listed by National Mentoring Center, www.nwrel.org/mentoring

/research.html.
13. See, e.g., Family Justice Web site, www.familyjustice.org; Frank Rubino, Doing Family Time,
HOPE, Mar./Apr. 2004, at 24, available at www.familyjustice.org/assets/press/Hope_Article.pdf.
14. Peter D. Hart Research Assocs., Family Violence Prevention Fund Study No. 5702c
(2000) (unpublished study, on file with the Journal of the Center for Families, Children & the
Courts). Participants in the National Opinion Poll of Adult Men were aged 18–75. Of the 912
men who participated, 459 were Caucasian, 166 were African American, 139 were Hispanic,
and 109 were of Asian descent. Twenty-three women and 24 men participated in two dial
sessions. The five focus groups were Caucasian men aged 18–25, Caucasian men aged 26–55,
African-American and Hispanic men aged 26–55, women aged 18–25, and African-American
and Hispanic women aged 18–25.
15. Id.
NOTES 16. Id.
17. Id.
18. ALAN BERKOWITZ, FAMILY VIOLENCE PREVENTION FUND, THE SOCIAL NORMS APPROACH TO
VIOLENCE PREVENTION (2003), available at http://toolkit.endabuse.org/Resources/TheSocial
/view?searchterm=berkowitz.
19. Id.
20. Id.
21. Id.
22. Hart, supra note 14.

23. Advertising Council, supra note 9.
24. Id.
25. To view the declaration, see http://endabuse.org/programs/display.php3?DocID=9933.
26. See www.endabuse.org/bpi.
27. See www.endabuse.org/toolkit.

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JOURNAL OF THE CENTER FOR FAMILIES, CHILDREN & THE COURTS

COURTS CONFRONTING THE ISSUE OF GUN SEIZURE IN DOMESTIC VIOLENCE CASES

PARENTAGE ISSUES WHAT IS A FAMILY? A FRED FRIENDLY SEMINAR

PERSPECTIVES AN OPEN LETTER TO THE CALIFORNIA JUDICIARY: ADMINISTRATION OF JUSTICE

JUDICIAL COUNCIL OF CALIFORNIA ❖ ADMINISTRATIVE OFFICE OF THE COURTS

FA M I L I E S , C H I L DR E N & THE C OU RTS

This project was supported by Grant No. 2004-VA-GX-0009, awarded by the

JUDICIAL COUNCIL OF CALIFORNIA ❖ ADMINISTRATIVE OFFICE OF THE COURTS

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CHIEF JUSTICE RONALD M. GEORGE

WILLIAM C. VICKREY MICHAEL BERGEISEN DIANE NUNN

JOURNAL OF THE CENTER FOR

SUZANNE BEAN Copy Editors Article Editors

EDITORIAL REVIEW BOARD

MS. ROBIN ALLEN MR. HUNTER HURST III

MS. MARGARET CAMPBELL HAYNES HON. LYNN WOOLSEY

JUDICIAL COUNCIL OF CALIFORNIA

HON. RONALD M. GEORGE HON. DENNIS E. MURRAY

HON. MARVIN R. BAXTER HON. WILLIAM J. MURRAY, JR.

HON. MICHAEL T. GARCIA

MR. REX S. HEINKE MS. TAMARA LYNN BEARD

HON. EILEEN C. MOORE MR. WILLIAM C. VICKREY

HON. JERILYN L. BORACK, CO-CHAIR HON. LEONARD P. EDWARDS

HON. SUSAN D. HUGUENOR, CO-CHAIR MS. ANA ESPAÑA

MS. ANTONIA W. AGERBEK HON. JANET M. FRANGIE

HON. SUE ALEXANDER MS. KERI L. GRIFFITH

HON. AVIVA K. BOBB MR. VAHAN HOVSEPIAN

MS. JUDY LYNN BOGEN MS. SHARON KALEMKIARIAN

MR. BRYAN BORYS, PH.D. MS. MIRIAM ARONI KRINSKY

HON. BECKY LYNN DUGAN HON. ARNOLD D. ROSENFIELD

HON. FRANCES ROTHSCHILD MR. DALE WELLS

MR. DAVID SANDERS MS. SHANNAN L. WILBER

HON. ROBERT ALAN SCHNIDER MS. KATE YAVENDITTI

HON. B. TAM NOMOTO SCHUMANN

3 Confronting the Issue of Gun Seizure in

31 The Court’s Role in Supporting and Protecting

53 Addressing the Co-occurrence of Domestic Violence

81 Parenting Arrangements After Domestic Violence:

121 A Brief Primer on Case Law Addressing Parentage

125 Parentage by Intention for Same-Sex Partners

139 Legitimate Parents: Construing California’s Uniform

163 An Open Letter to the California Judiciary:

Hon. Laurence D. Kay (Ret.)

175 Engaging Men and Boys in Domestic Violence Prevention

T he Judicial Council of California and the Administrative

2004 Children’s Art & Poetry Contest

Confronting the Issue of Gun Seizure

C ON S T I T U T ION A L A RGU M E N T S Does the crime ﬁt the federal requirement that it

The Court’s Role in

CONCLUSION al., Domestic Violence and Children: Prevalence and Risk in

NOTES 91. For additional information on such assessments, see

CONFIDENTIAL SCREENING FORM FOR FAMILY COURT SERVICES

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CHILDREN AND AGES: _______________________________________________________________________

© 2005 Superior Court of California, County of San Francisco

COURT COMMUNICATION PROTOCOL FOR

I. Statement of Principles and Goals

II. Procedure in Criminal Court

III. Procedure in Uniﬁed Family Court

IV. Procedure in Juvenile Dependency Court

V. Procedure in Juvenile Delinquency Court

VI. Procedure in Probate Court

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