Ms. A, an older adult with limited mobility, had experienced physical and emotional abuse from her son and was seeking an order of protection in family court. Due to the acoustics in the room and background noise from the street outside, Ms. A had significant trouble hearing and understanding the proceeding. She frequently interrupted, speaking loudly. Not understanding Ms. A, the judge interpreted her actions as disruptive and inappropriate outbursts, raising capacity concerns and slowing the proceeding.
February 02, 2022 Feature
Ageism and Bias in Family Law
Tristan Sullivan-Wilson and Deirdre Lok
While the Americans with Disabilities Act requires accessibility accommodations, the realities of the courthouse still impose significant obstacles for older adult litigants.
Ageism is the “stereotypes, prejudice, and discrimination directed towards people on the basis of their age.” World Health Org., Global Report on Aging (2021). The effects of old ageism are far-reaching and impact interpersonal interactions, the language we use, institutional policy and practice, and even self-perception. For older adults, ageism can be deadly. Ageist views are linked to poorer health outcomes and age-based health inequities, and the resulting devaluation, exclusion, and isolation of older adults increases the risk of elder abuse. The Centers for Disease Control and Prevention define elder abuse as “an intentional act, or failure to act, by a caregiver or another person in a relationship involving an expectation of trust that causes or creates a risk of harm to an older adult.” These relationships of trust make cases of elder abuse incredibly complex. In the majority of these cases, a family member is the person causing harm to the older adult, even further complicating this dynamic. Nat’l Council on Aging, Get the Facts on Elder Abuse.
In the United States, an estimated 1 in 10 people over 60 experiences abuse every year—and this number is likely vastly underreported. Under the Radar, a 2011 study of older adults in New York, showed that only 1 in 24 older adults experiencing abuse has reported the abuse to a professional. For the older adult experiencing abuse, feelings of shame, love for the person causing them harm, and internalized ageist assumptions about their own value and worth create significant barriers to reporting abuse and seeking support.
Ageism and the Law
The impact of ageism extends throughout our legal system, presenting in the physical space of the courtroom, the accessibility of proceedings, and the language of legal decisions. Real access to the legal system requires that litigants can fully participate in the proceeding, sit without pain, and understand the judge and other parties to the proceeding. Too frequently, our courts fall short of this goal.
Consider Ms. A’s story and how her experience of the legal system was impacted by the barriers created by the room itself—the location of the building on a busy street and the acoustics created by the floor and walls significantly impacted Ms. A’s ability to understand and communicate. Her opportunity to seek justice was jeopardized by the physical space of the courtroom. While the Americans with Disabilities Act requires accessibility accommodations, the realities of the courthouse still impose significant obstacles for older adult litigants. For example, the bright florescent lights on stone floors can make it difficult to see; necessary wait times in busy courts mean that older adults may have to sit for many hours on hard wood chairs, sometimes without access to food and water; the acoustics in the room may make it difficult to hear and communicate effectively.
The language used in judicial opinions also reflects this age bias, implicitly and explicitly. Professor Linda Whitton’s work has explored the way ageism manifests in the court system through statutes and case law. She points to the legal system’s reliance on the “decline and failure model of aging,” which assumes physical and cognitive disability linked inexorably with age, meaning “old age [is] used unreflectively to explain or predict other characteristics of individuals rather than merely to describe their chronological ages.” Linda Whitton, Re-examining Elder Law Practices: Reflections on Ageism, Prob. & Prop., Jan./Feb. 1998, at 8. These embedded ageist assumptions impact how older adult litigants are treated in the law and perceived in the court, including through determinations about credibility of older witnesses and plaintiffs and, importantly, in making determinations about capacity.
Implications for Practice in Family Law
In family law practice, ageism frequently presents itself through a failure to fully consider the ways in which family law issues present themselves for older adults—and particularly for older adults experiencing abuse. Family law plays a central role in addressing the safety concerns of people experiencing abuse in the home. The court’s understanding of the complex, insidious nature of intimate partner and family violence has expanded in the last 50 years—shifting from largely ignoring domestic violence to movement toward supporting creative legal solutions for survivors through expanding understanding of abuse and more accessible legal relief. Elizabeth Schneider, Domestic Violence Law Reform in the Twenty First Century: Looking Back and Looking Forward, 42 Fam. L. Q. 353 (2008–2009). However, legal conceptions of “family” and “intimate relationships” and understanding of tactics of abuse, power, and control still fall short for many older adults experiencing abuse.
Family Court Orders of Protection
A family court order of protection is a vital safety tool for people experiencing abuse. Historically, orders of protection were sought in cases of “family” abuse, including by spouses, intimate partners, or a parent, to order the person causing harm to stay away from and refrain from causing harm to the petitioner. When a survivor of violence seeks an order of protection, legal professionals frequently ask questions about other people in the home that may also be at risk of harm. For example, questions are regularly asked about the safety and welfare of minors in the home. However, most attorneys fail to consider the risk to older adults in the household, who are also at risk of experiencing harm and may be interested in seeking an order of protection. Older adults are frequently overlooked by legal advocates, law enforcement, and the judiciary when assessing the risks of harm in the home.
Older adults who are able to engage with the justice system are still met with additional legal hurdles. While the majority of older adults experiencing abuse are targeted by family members, many older adults are targeted by someone outside the traditional family who inserts themselves into all aspects of the older adult’s life. In the latter kind of case, seeking relief in family court can be difficult due to a lack of legal recognition of the close, dependent relationships of trust that can form in cases of elder abuse.
In family court, the envisioning of an “intimate relationship” focuses on a sexual relationship, between a male and female couple, with a female target and male perpetrator. By centering these types of relationships, application of the law can fall short for survivors outside of this structure, including, for example, LGBTQ+ partners, nontraditional families, and older adults experiencing abuse. For an older adult experiencing abuse from someone who has taken control of their life, an intimate relationship might not be romantic. Instead, an intimate relationship is formed through that third party: living in the older adult’s home; acting as agent or surrogate decision-maker under a power of attorney or healthcare proxy/healthcare power of attorney; acting as a mediary for all interactions with others; and/or limiting access to food and other necessities. Legal professionals must be aware of the unique ways that elder abuse can present. Without the legal system’s recognition of this dynamic, some older adults experiencing abuse are left without access to a vital safeguard against continued harm.
Divorce
Divorce rates among people over 50 have doubled in the last 50 years. Many older couples divorcing have been together for decades and, for some, have been experiencing mistreatment from their spouse for many years. Barriers to reporting abuse, including feelings of shame, fear of retaliation, and assessment of lack of available alternatives, are also barriers to seeking divorce. Abusive tactics can continue within the divorce proceeding by using litigation itself as a method of control, threatening loss of income or other resources, or interfering with relationships with children (including adult children).
For an older adult experiencing abuse, the typical complications of divorce are compounded by a history of abuse and concerns about aging independently after a change in financial circumstances. The fear of losing access to retirement savings, social security income, health insurance, or a longtime family home through divorce can significantly hinder the ability of an older adult experiencing abuse to file for divorce. These fears are not unfounded: Divorced women over 65 are three times more likely to live in poverty than married women over 65. There are legal mechanisms, for example, qualified domestic relations orders, that can address equitable distribution of retirement benefits and may address concerns about and actual loss of livable income for divorcing older adults. However, courts and attorneys frequently overlook these legal tools at the time of divorce. Like in the order of protection context, the legal system frequently fails to fully consider the experience of older adults, leaving the impacts of divorce on retirement and later life not fully addressed in divorce proceedings and older adults experiencing abuse at real risk of poverty and loss of income after divorce.
Recommendations
As public awareness of ageism grows, the legal community has taken important steps to combat ageism in the law. The Eleazer Courtroom at Stetson Law offers a model courtroom for older adults. That courtroom addresses access to justice by changing the physical design and layout of the courtroom. The courtroom is outfitted with carpeting designed to give visual clues for those with visual impairment; rounded corners on all tables and desks; sturdy chairs with locking wheels and firm arms; an easily accessible witness box at floor level with no steps; a podium that is electronically height-adjustable, with electronic side shelves or wings for those in a wheelchair and with limited upper body mobility; use of technology to enhance accessibility of participants—including flat panels in the gallery and hearing amplification devices; nonglare, nonbuzz lighting color picked to enhance vision of elders; and electronic “fly open” gates that open horizontally into pocket doors, better permitting the use of wheelchairs or walkers. Importantly, these modifications are inherent in the physical space of the courtroom for all litigants, rather than as accommodations that a litigant would have to ask for and arrange. This type of innovative thinking and infrastructure is replicable and should be adopted and modeled widely.
Education and accessible resources are required to spread awareness about the growing, sometimes unique, needs of older adults in family court and throughout the court system. The Harry and Jeanette Weinberg Center for Elder Justice at the Hebrew Home at Riverdale and the New York State Unified Court System’s Division of Policy and Planning co-authored the Elder Justice Resource Guide, which provides information, best practices, and concrete resources for judges, courtroom staff, and practitioners working with older adults, including older adults experiencing abuse.
These resources and models provide a starting point, but much more work needs to be done to change the implicit and explicit ageist biases in society and the legal system, functionally train courtroom staff, and modify courtrooms. Large-scale efforts like these are vital in combatting ageism throughout the legal system and ensuring access to justice for older adults like Ms. A.