Transforming the Family Courts:The Benefits of Infusing a Trauma-Informed Approach

Presenter: Honorable Susan B. Carbon, Presiding Judge, 9th Circuit Court- Family DivisionManchester, NH

Quinnipiac Law School, October 26, 2018 1

• This project was supported by Grant No. 2016-TA-AX-K026 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed by program faculty and in program materials, including curriculum outlines, PowerPoint slides, handouts, contents of binders and CD-ROMs, and other program documents, are those of the authors and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.

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Who Comes to Family Court?• Divorce/ Parenting Cases• Juvenile Justice (Delinquency, CHINS,

PINS)• Child Protection• Terminations• Domestic Violence

• Trauma is hiding in plain sight.3

Self-Represented Litigants…

The Multiplier

Effect4

Learning ObjectivesAs a result of this presentation, you will be better able to:• Explain how trauma impacts family court

participants• Explain how challenges facing litigants are

magnified for those who are survivors of domestic violence and other trauma

• Implement a trauma-informed approach for assisting court participants

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Overview and Context• Abuse and Neglect – removals and

reattachments

• Delinquency- detention and shackles

• Sexual Assault

• Domestic violence – Omnipresent 6

Is a pattern of coercive and assaultive behaviors, including physical, sexual, verbal, and psychological attacks and economic coercion, used to establish and maintain power and control over an intimate partner;

Not typically a singular event and rarely limited to only physical aggression;

Can vary dramatically in frequency and severity—often triggered by challenge to authority/control;

Does not end when victim leaves—continues for an average of two years after separation.

Domestic violence:

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1 in 3 women and 1 in 4 men will experience domestic violence at some point; 85% of victims are women and 75% of perpetrators are men.

Domestic violence is a leading cause of family homelessness (in top five for last several years).

Only 25% of physical assaults, 20% of rapes, and 50% of stalking are reported to police.

Abusers twice as likely to seek custody, with some research suggesting two-thirds of contested custody cases have DV.

Abusers receive joint or sole custody in 70% of cases in which they seek it – same rate as non-abusers.

A few statistics on DV

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• 70-85%, i.e., most family court litigants are self represented

• Almost all would prefer to have lawyers • Lack of funds for private counsel or lack of legal

aid resources cited as primary reason • Research shows SRLs need and want help and

find court confusing and stressful

• ACEs literature indicates those with lower income and fewer resources may have higher rates of trauma

Snapshot: Family Court Self-Represented Litigants (SRLs)

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ACES (Adverse Childhood Experiences)

• Certain of life experiences are major risk factors for leading causes of illness, poor quality of life, and premature death.• Retrospective look at 10 ACES by age 18

household• Abuse [physical, sexual, emotional]• Neglect [physical, emotional]• Household dysfunction [DV, substance abuse,

mental illness, divorce, incarceration]10

ACES (Adverse Childhood Experiences)• Put into context: 3M referrals to child protection

each year, 2M investigated• 2/3 population have 1• “Court families” usually have several • If 4+, greater likelihood of risk-taking behaviors,

smoking, drugs, pg/STDs, disease (e.g., cancer), early death

• Caution: Correlation, not causation

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What Is Trauma?

…And What Does a Trauma-Informed Court Look Like?

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Giller 1999, Dabby 2011, Packard 2011, Fabri 2008 13

Individual Trauma: Trauma is the unique individual experience of an event or enduring condition, in which:

The individual experiences a threat to life or to his or her psychic or bodily integrity (or to a loved one), and

The individual’s coping capacity and/or ability to integrate his or her emotional experience is overwhelmed.

Collective Trauma

Cultural and historical trauma can impact individuals and communities across generations and how the individual experiences a trauma.

What Do We Mean by “Trauma”?

Developmental Approach• In court context, also weave in

Developmental Approach to trauma:• Brain architecture affected profoundly by trauma• Life-long impacts• Hard science• Very lay description: Traumatic event, F/F/F

response (good for safety), but prolonged exposure to trauma leads to hyperarousal, responses when no trauma present, can be legally/socially inappropriate to situation

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According to SAMHSA, (Essential Components of Trauma-Informed Judicial Practice),

“a trauma-informed court is one in which judges recognize the people appearing before them have personally experienced acts of violence or other traumatic life events, and are also cognizant of the stress of the courtroom environment impact on trauma survivors.”

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How DV and Trauma Can Affect Survivors’ Appearance in Court

• Memory• Disruptions during memory formation; better memory for

sensory information and poorer memory for facts, details, context, and narrative.

• Dissociation/Engagement• May appear disengaged, disconnected, or unable to make

eye contact.

• Triggers/Reminders• Exposure to trauma reminders may evoke PTSD symptoms

(flashbacks, avoidance, dissociation, agitation, fear, hyper-arousal/hyper-vigilance, inability to focus, concentrate, or speak coherently).

• Intimidation by abuser can have similar effects16

“Traditional” Credibility v. Trauma

“Truthful” Attitude Trauma Effects on Attitude

• Composed, could be a bit nervous

• Cooperative• Direct and spontaneous• Sincere, open, volunteers

information

• Avoidance behavior: missing meetings, avoiding calls, not “cooperating”

• Dissociation behavior: deadened affect, “wooden” demeanor

• Hostile/defensive behavior: suspicious of what’s “really” being asked 17

“Traditional” Credibility v. Trauma

“Truthful” Verbal Responses Trauma Effects on Verbal Responses

• Uses realistic, descriptive language

• Answers directly• Stays on topic• Recalls details• Does not use qualifiers• Relates information

sequentially or chronologically

• Difficulty concentrating

• Confuses order of events

• Recalls details late, or perhaps never

• Gaps in memory• Increased irritability

when pressed, can result in outbursts 18

Many aspects of court process can be triggering.

Survivors’ testimony often will be affected by trauma’s effects on memory and demeanor.

Credibility will therefore also be impacted.

Capacity to manage the multiple unfamiliar tasks involved in a complex case may be diminished.

Abusers often use court process to continue intimidation.

Assistance with preparation and appropriate interview practices can help.

Takeaways

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Building a Trauma-Informed Response to

Domestic Violence Cases

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Being trauma-informed means asking:

“What happened to you and how can we help?”

Versus

“What is wrong with you?”

Information from: © 2015, National Council of Juvenile and Family Court Judges. Marsh, S.C., Dierkhising, C., Decker, K., & Rosiak, J. (2015). Preparing for a trauma consultation in your juvenile and family court. Reno, NV: National Council of Juvenile and Family Court Judges

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SIX KEY PRINCIPLES OF A TRAUMA-INFORMED APPROACH

1. Safety 2. Trustworthiness and Transparency 3. Peer Support 4. Collaboration and Mutuality 5. Empowerment, Voice and Choice 6. Cultural, Historical, and Gender Issues

-Substance Abuse and Mental Health Services Administration. SAMHSA’s Concept of Trauma and Guidance for a Trauma-Informed Approach. HHS Publication No. (SMA) 14-4884. Rockville, MD: Substance Abuse and Mental Health Services Administration, 2014 22

Healing from Trauma*Courts should promote:

• Safety• Self-determination• Social support

With those before the court, those who work within the court and those who work with the court.

*© 2015, National Council of Juvenile and Family Court Judges. Marsh, S.C., Dierkhising, C., Decker, K., & Rosiak, J. (2015). Preparing for a Trauma Consultation in Your Juvenile and Family Court. Reno, NV: National Council of Juvenile and Family Court Judges

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Working with Adolescents Exposed to Domestic Violence

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• Survivors bring their experiences of trauma and toxic stress everywhere they go.

• We don’t necessarily know who has a trauma history.

• We get better results from processes that are trauma-sensitive.

Why are Trauma-Sensitive Settings Needed?

How is a Trauma Framework Helpful? Normalizes human responses to trauma Shifts our conceptualization of symptoms Symptoms as survival strategies: hypervigilance,

passivity, substance abuseIntegrates multiple domains/multi-dimensional

treatment approachesRecognizes impact on practitioners, organizations,

and systemsHelps to counteract abuser manipulation and

controlRe-humanizes experience of dehumanization 25

Putting it all togetherPromoting a trauma-informed responses by:• Improving courtroom culture• Implementing procedural justice

strategies (throughout civil justice system)

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Trauma-Informed Response: Starts With Each of Us

“Trauma-informed judicial interactions begin with good judicial

practice, treating individuals who come before the court with dignity

and respect.”

SAMHSA 27

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• How am I perceived?• Expression and Posture• Volume and Tone of Voice• Active Listening• Responding to

Context/Meaning

• How am I Managing Myself?• What steps can I take to

self-regulate during stress?• What steps can I take to

reduce judgment and communicate respect?

Trauma Informed Response Starts with Self Awareness

Procedural Justice…

How it can help trauma survivors and SRLs improve their court experiences

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A Simple Definition• Procedural justice (AKA procedural

fairness)concerns the perceived fairness of court procedures and interpersonal treatment while a case is processed

• Distributive justice concerns the outcome of a case

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Procedural Fairness

• The very essence of justice and the justice system

• Due process at its core

• Victim’s willingness to view the court as a resource, and the respondent’s willingness to comply with orders 31

Key PrinciplesPeople will be more likely to accept decisions if they:

Had a chance to be heard (voice) Believe they were treated with dignity

and respect Understand the process Believe decision-making process is

neutral and unbiased (neutrality)

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Procedural Justice: Examples• Voice:You felt you had the opportunity to express

your views in the court.People in the court spoke up on your behalf.

• Respect:You felt that you were treated with dignity

and respect.You did not feel pushed around in the court

case by people with more power than you.33

Procedural Justice: Examples

• Understanding: You understood what was going on in the court.You understood your rights.

• Neutrality:All sides had a fair chance to bring out the facts

in court.You were not disadvantaged in court because

of age, income, sex, race, or some other reason. 34

Research SummaryProcedural justice is more important than outcome

in determining decision acceptance.

Procedural justice is strongly related to on-going compliance with the law and legal authorities.

All core players influence perceptions of fairness –not just the judge.

Racial minorities report lower perceptions of legitimacy and procedural justice than whites. 35

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Courthouses: Warm and Welcoming?

Judge: Warm and Welcoming?

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Example

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Procedural Fairness• Procedural Fairness promotes public confidence in and

respect for the justice system – ensures everyone has their “day in court.”

• Walk in the shoes of the litigants • (Think -- foreign country, foreign language)

• Mutually Beneficial:• Helps public / safety• Helps judicial officers – more information / better

orders• Can’t increase resources, but helps maximize what

you have 40

Takeaways• Court is stressful for litigants – promote a courtroom

culture that understands trauma and seeks to meet the needs of litigants through professional and respectful responses.

• Recognize how assumptions based on seemingly counterintuitive behaviors of survivors prevent accurate assessments for trauma

• Be self-reflective and aware of your own biases and triggers.

• Procedural Justice = customer service. Adapt the principles as needed for your work and the situation.

• Utilize resources as best you can to help litigants.• Self-care is not an indulgence! You can’t do your job

properly if you’re at the end of your rope. 41

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Taking Care of Yourself

Resources• Center for Court Innovation

www.courtinnovation.org/proceduraljustice

• Professor Tom Tyler, Yale Law Schoolwww.law.yale.edu/faculty/TTyler.htm

• Procedural Fairness for Judges and Courtswww.proceduraljustice.org

• National Center for State Courts CourToolswww.ncsconline.org/d_research/CourTools/ctTemplates.htm

• National Council of Juvenile & Family Court Judgeswww.ncjfcj.org

• FCEP Guiding Principles: http://www.ncjfcj.org/FCEP-Guiding-Principles

Thank you!43