Domestic relations matters are, by their very nature, inherently adversarial, at least to some extent. People who are getting along well together typically do not seek representation to end their relationships or sort out issues relating to the care and support of their children. Since there is some level of conflict between the parties in most of the work that practitioners undertake, we may become somewhat desensitized to some very important considerations. There is a huge distinction between the common types of arguments or disagreements that lead a couple to separate and the outright domestic abuse that some of our clients experience. Lawyers who are accustomed to dealing with people in conflict-ridden relationships must guard against dismissing or discounting genuine instances of abuse.
The Board of Editors has created this issue to help practitioners remain informed about what some see as the ugly underside of some human relationships.
In their article “Trauma-Informed Advocacy and Domestic Abuse,” Nilaja S. Ford and Rosalind Ford illustrate the impetus on family law practitioners to understand the trauma response clients who have experienced trauma may exhibit and the ways it affects their case. They give practice tips for the unique challenges of the discovery process when coercive control and other factors are at play and for witness and trial preparation in what can be a very emotionally charged situation where the client, among other things, may fear not being believed.
Maleaha L. Brown shares tips on “Identifying and Remedying Non-Assaultive Domestic Violence in Family Law Cases,” such as when an abuser tries to exert what is known as coercive control over a victim. She lists the ways coercive control can manifest in abusive relationships, including violations of the victim’s financial and sexual autonomy. She notes that coercive control can be difficult to prove due to its often-subtle nature.
In “Implicit Bias in the Legal Profession when Working with Survivors of Domestic Violence,” Larissa Mañón Mervin reminds us that family law, especially in the context of domestic violence cases, is not immune to the unconscious biases we see in our larger society. She lays out the startling statistics of how domestic violence disproportionately affects women of color and the LGBTQ+ community. She points out that understanding the truth behind the data can and should impact how we work with survivors and challenge our own cultural biases.
Dorislee Gilbert details the nuanced evidentiary process in cases involving domestic violence in her article, “Identifying and Utilizing Evidence in Cases Involving Domestic Violence: He Said/She Said ‘Plus.’” As she notes, a family law practitioner should not stop with the domestic victim’s testimony but should look for witnesses and physical and circumstantial evidence, always with an eye to the admissibility rules for domestic violence cases and in their jurisdiction.
Allen M. Bailey reminds us of the “Attorney Risks in Family Law Cases Involving Domestic Violence” and the need for precautions due to the emotional and contentious nature of our practice area. The author recalls the 1994 murder in his hometown, committed by his own former client, of a municipal prosecutor and the April 2024 shooting in a Las Vegas law office during a deposition. Beyond heightened security practices in courtrooms, he suggests family law practitioners safeguard their own offices, in part, by screening each new client for a history of abuse and emotional harm. To help, he offers appendices containing his own screening devices. He notes that domestic violence is often accompanied by psychological disorders and substance abuse, which can contribute to volatility in the legal case, especially in child custody disputes. He also suggests that attorneys safeguard their own mental health by seeking mental health counseling to reduce potential harm or “vicarious trauma,” and even post-traumatic stress disorder, from what may be regular exposure to clients who have or are experiencing trauma.
As R. Keith Perkins relates in “Remember: Intimate Partner Violence Creates Domestic Tort Claims,” “for every act of domestic violence, the victim may have the right to an equal and opposite legal reaction.” Domestic tort claims against an abuser, he explains, can be very large and dramatically change the outcome of the divorce. He urges divorce attorneys to know how to properly inquire or advise a client of their potential rights if they are a victim of domestic violence because failure to do so can prevent the client from making a sufficiently informed decision when accepting the divorce settlement agreement and, consequently, produce catastrophic legal malpractice claims.
Steven P. Shewmaker gives us several “Domestic Violence Considerations for the Family Law Attorney,” including the need to be prepared to advise clients on both sides of a domestic violence accusation on what to expect, what to avoid, and what to do, even if you would prefer to or are recommending a criminal defense attorney to manage the case. He believes that understanding criminal law regarding domestic violence is necessary for family law attorneys and that you should familiarize yourself with the elements of a family violence crime in your jurisdiction, the statute of limitations, and how these apply to the facts in the case before you.
In “Child Well-Being and the Parent-Child Relationship when Parents Experience Domestic Violence,” the Hon. Aurora Martinez Jones reminds us that despite the temptation to focus on the adults, the lives most impacted by the trauma of family litigation are the children’s. Judge Martinez Jones discusses the need to both value the parent-child bond and protect the child’s safety. To do this, she explains that it is necessary to find, when appropriate to the case, child attorneys or guardians who are knowledgeable about child development within the context of the impact of domestic violence to educate the court in preparing orders to meet the individualized needs of the children in family law cases.
Bea Coté explains what “Battering Intervention Programs” (BIPs) are and why targeting the root cause of domestic violence—the abuser—makes them internationally recognized as a method of intervening in cases of domestic violence. She shares how referrals to BIPs work and how raising self-awareness in the abuser, including past experiences that may have led to their pattern of abuse, is the first step in dismantling those patterns. She goes on to discuss the BIP tools that are employed—cognitive, emotional, and behavioral—and the remarkable and often unexpected growth she has seen in past abusers.
Gretchen Hunt and Karina Barillas, a bilingual advocate and immigration attorney working together at a community-based domestic violence program, offer tips on “Effectively Representing Immigrant Survivors of Domestic Violence.” Key to effective representation of immigrant survivors of domestic violence, they state, is knowing that fear of deportation, lack of safety due to lack of language access in hospitals and with police, and lack of freedom of movement often overshadow the fear of the abuser in these cases.
Finally, Catherine Tucker addresses “Intimate Partner Violence: Challenges for the Surrogacy Attorney.”
