Making the Case: How to Use the Criminal Justice System to Positively Impact Child Custody Decisions Tovah Kasdin, Esq.

1. Making the Case: How to Use the Criminal Justice System to Positively Impact Child Custody DecisionsTovah Kasdin, Esq.JWI Program Manager Jewish Women International 2008

2. Workshop Audience • Victims • Advocates • Family Law Attorneys • Prosecutors • Legal Reformers Jewish Women International 2008

3. Workshop Goals • Roadmap for navigation • Strategies for success Jewish Women International 2008

4. Workshop Outline • Criminal System • Civil System • Case Studies • Small Group Brainstorming Session • Roadmaps and Practical Strategies • Wrap Up Jewish Women International 2008

5. Criminal System • Protection • Prevention • Rehabilitation Jewish Women International 2008

6. Prosecutor • Determines if DV crime took place and if there is evidence to support prosecution Jewish Women International 2008

7. Not so easy! Square peg in round hole! Jewish Women International 2008

8. Basis for Prosecution • Law • Evidence • Policy • Victim’s participation Jewish Women International 2008

9. Law Elements of the offense Jewish Women International 2008

10. Evidence • Police Investigation • Foundation of prosecution • Need to determine who is pre-dominant aggressor • Statements/testimony • Photos • Medical records • 911 tapes Jewish Women International 2008

11. Victim Wrongly Charged: Harm is Real! • Jail • Lose custody • Lose job • Ordered out of home • Drain financial and emotional resources • Abuser exercises further control over victim! Jewish Women International 2008

12. Policy • Directive model: • Is this a no-drop jurisdiction? • Victim participation is desired but not required! • Empowerment model: • Victim centered • Victim determines outcome of case Jewish Women International 2008

13. Victim’s considerations • Personal safety • Children’s safety • Custody issues • Finances • Immigration status of victim and abuser • Support of family and friends • Desire to preserve relationship Jewish Women International 2008

14. Victim’s Participation • Testify • Recant • Not show up to court • Marital privilege Jewish Women International 2008

15. Prosecution results • Conviction or Not Guilty • Jail • Probation • No Contact Order • Counseling • Restitution (medical expenses) • Nolle prosequi, dismissal, stet Jewish Women International 2008

16. Civil System: Custody Cases • Gain or lose rights regarding children • Custody decisions are never final Jewish Women International 2008

17. Custody Cases: Goal • Prove that you can provide best environment for child • Prove that other parent can not provide best environment for child Jewish Women International 2008

18. Factors Influencing Custody Decision • Parent’s fitness or unfitness • Ability to provide for child • DV is one of many factors • Custody factors/standards vary state by state Jewish Women International 2008

19. Proving Domestic Violence in Custody Cases • Evidence • Convictions • Police Reports • 911 tapes • Medical Records • Witnesses • Testimony/Statements (are they conflicting?) • Protective Orders • Know your laws/Know your judge! Jewish Women International 2008

20. Case Study #1: Bridging the Criminal and Civil Systems • Victim and Abuser used to date and have child in common. • Criminal System: • Abuser charged and convicted of Assault ( 2 counts) and Malicious Destruction of Property (1 count). Received time served sentence for all charges. • Civil System: • Multiple protective orders • Sole physical and legal custody Jewish Women International 2008

21. Case Study #1:You do the crime, you do not have to do the time! • Bench trial: Convictions all charges • Abuser appealed • Jury trial: Plea deal to lesser charge Jewish Women International 2008

22. Case Study #1: How Criminal Appeal Influences the Civil Process • Following Appeal, Abuser, now represented, files Motion to Modify Custody : • Changed man • New job • Involvement in church • No more drugs • Batterer’s Intervention Program • Revised criminal convictions Jewish Women International 2008

23. Case Study #1:Family Court Process • Master empathetic to Abuser’s new claims and revised criminal status • Guardian Ad Litem recommends joint custody • Master recommends joint custody Jewish Women International 2008

24. What steps could have been taken to work with Prosecutor to protect the criminal convictions? Jewish Women International 2008

25. Proactive Steps • Communicate goals early and often! • Be persistent! Meet with the Prosecutor at each stage • Give full history of DV • Attend criminal court date(s) including appeals • CLEARLY OUTLINE FOR VICTIM HOW INCONSISTENT STATEMENTS IN CRIMINAL COURT CAN DESTROY CUSTODY CASE! • Copy evidence from prosecutor Jewish Women International 2008

26. Case Study #2 • Domestic Violence victim is subpoenaed to come to court as a witness for the prosecution. She tells the prosecutor the day of court that she does not want to go forward and she wants to get back together with her husband because she can’t afford to raise her 3 children on her own. The prosecutor tells her it is the policy of the office not to drop DV cases even if the victim doesn’t want to go forward. Victim takes the stand and recants her story; she said she lied to the police because she was mad at her husband and he has never abused her. The verdict is a not guilty. • Victim does not have money for an attorney and later files on her own for divorce and custody of her 3 children on domestic violence grounds. Husband’s attorney orders transcripts of the criminal case and enters into evidence the victim’s testimony under oath in which she states that she made up the DV incident because she was mad at her Husband. Victim testifies in custody case that Husband abused her for years-even breaking her arm once in front of the kids but she does not bring medical records to support her claim. Judge does not find her testimony credible and specifically cites the criminal record in his findings. Victim loses custody of her children. • Rewind the tape, could this outcome have been prevented? Jewish Women International 2008

27. Case Study #3 • Family Law Attorney asks for a meeting with the Prosecutor. During the meeting, Family Law Attorney says that Prosecutor must get a conviction so that his client can prevail in civil court. Prosecutor tells Family Law Attorney that when the victim’s advocate called the victim yesterday the victim said she was scared of her husband and didn’t want to go forward. Family Law Attorney tells the Prosecutor to ignore what the victim said because she is just nervous about speaking in public and to go forward anyway. Prosecutor plans to speak to the victim in court tomorrow; Family Law Attorney will be in another jurisdiction and unable to attend the criminal hearing. • Rewind the tape, what is missing in this scenario? Jewish Women International 2008

28. Case Study #4 • Wife is charged with First Degree Assault after she stabbed her husband in the arm following an argument in the kitchen. Prosecutors reviewing the case decide to reduce the charge to misdemeanor Assault because the husband’s injuries were not serious. • Public Defender representing the incarcerated wife talks to the prosecutor the day of court and tells her that the wife is actually the victim of domestic violence for many years and she stabbed her husband in self defense that day after he attempted to strangle her. Public Defender says wife and husband are separated and she got a protective order last year against her husband which granted her temporary custody of the kids. The Public Defender also said that while wife was in jail the last two weeks husband filed for emergency temporary custody of the children. • What should the prosecutor do? Jewish Women International 2008

29. Roadmaps Jewish Women International 2008

30. Practical Strategies Jewish Women International 2008

31. Connecting the Systems: Wrap Up • Victim/Victim Advocate/Family Law Attorney/Legal Reformers • Communicate goals early and often! • Know the criminal system: • Limit opportunities for inconsistent statements • Prosecutor • Communicate early and often! • Review case before victim is engulfed in the system • Inform victim of danger of making inconsistent statements • If case needs to be nolled or dismissed, make a clear record as to why the victim is not cooperating Jewish Women International 2008

32. Collaboration & communicationare the keys to success! Jewish Women International 2008