GAL Spring Training Institute: March 30 th , 2012

1. Family Court Topics: Parenting plans, custody and parenting evaluations, visitation and moreCarol R. Tellett, MA, LPMatthew Shore, MSW, LICSW GAL Spring Training Institute: March 30th, 2012

2. Family Court: Who Are The Clients? • Most parents navigate family change on their own or with attorneys and submit a stipulation (agreement) to the Court • Some families encounter issues and need the Court’s help • Child Support • Custody • Parenting Schedule • Domestic Violence • Family Courts will often use Court Services or private professionals to conduct Alternative Dispute Resolution (ADR) or custody evaluations in order to resolve the disagreements

3. Parents’ Introduction to Family Court Initial Case Management Conference Other • ICMC generally happens within 3-4 of filing for custody/divorce • Informal meeting with the judge, parties and attorneys to lay out the options for moving forward • Agreements can be reached during the ICMC • Order for Protection (OFP) hearing • Child support hearing • Paternity hearing • Dissolution hearing • Self-referral

4. Determining Course of Action • Generally, the Court uses the least intrusive and least expensive means of resolving conflict first. This allows parents to have the greatest autonomy in making decisions for their family. • Issues that can affect the course of action taken: • Family violence • Parents’ capacity to participate • Representation • Power imbalances • Parents’ motivation • Expense • Availability of services

5. Determining Course of Action There are many ways to resolve family conflict. Courts, often in tandem with the parent’s wishes, choose which service best meets the family’s needs. Custody / Parenting Time Evaluation Mediation Family Court Social Early Neutral Evaluation Brief Focused Assessment

6. MEDIATION

7. “I know we’re married, but I’d still like to work out a shared-custody arrangement.”

8. Basics of Mediation • The goal is to reach an agreement on a parenting plan • Purpose of the mediator is to: • Control the discussion process • Facilitate open communication • Teach skills to handle conflict “First, can we agree that it is a big back yard?”

9. Why Mediate? • Preserves a working relationship between parents • Can generate a healthier environment for the children • Re-focuses the parents on meeting the child’s needs • Allows for parental control and self-determination • Faster and less expensive than other services • Parents report higher satisfaction with process and outcome • Increased likelihood of cooperation and parental involvement in years following mediation

10. Contraindications • Mediation is not appropriate for all situations Impairment due to drugs, alcohol, mental illness or cognitive handicap Power Imbalances Domestic Abuse Unwillingness to cooperate and solve problems Intention to “Win”

11. Types of Mediation FACILITATIVE TRANSFORMATIVE • The mediator reflects on statements and encourages problem- solving but does not volunteer information or opinions • The mediator’s goal is therapeutic. He or she moves the parties to a higher level of understanding and functioning

12. GALs and Mediation Guardians cannot mediate, because they are not neutrals -they are advocates for the child and operate under different confidentiality expectations Guardians often help negotiate or facilitate agreements Guardians may attend a mediation conducted by other professionals -Guardians should inform clients that they cannot maintain confidentiality -Guardians should not disclose settlement negotiations in Court

13. SOCIAL EARLY NEUTRAL EVALUATION

15. SENE: A Brief History • Social Early Neutral Evaluation (SENE) developed by Hennepin County Family Court Services • Early Neutral Evaluation had been used in other areas of law • First SENE in Hennepin County in 2003 • 4th Judicial District Bench and Family Court Services pioneered the project

16. SENE Structure • At ICMC, the Court discusses SENE with parties and orders the service if parties agree • A male-female SENE team meets with the parties and their attorneys for 3-4 hours • Each parent speaks during a set amount of uninterrupted time and discusses his/her wishes regarding custody, parenting time and related issues • Team members may ask clarifying questions based on their knowledge of custody statutes

17. SENE Structure, Cont. • There is a break during which Team members consult and develop a plan for presentation of feedback • Feedback is presented • Parties have a 2nd break to digest the feedback and consult with their attorneys • Following the 2nd break, settlement options are discussed • Parties may agree to all, some or none of the recommendations • Agreements are documented and relayed to Court

19. SENE and Court • In Hennepin County, if a settlement is not reached, the evaluators can suggest a “next step” to the Court (i.e. evaluations, custody studies, etc.) • Notes, ideas and issues discussed in SENE cannot to be shared with Court. SENE team members cannot be subpoenaed to testify and are not allowed to speak with future custody evaluators

20. Why SENE? • Less expensive and time-consuming than litigation • Allows parties to retain control of the outcomes while providing objective insight onto their case • Can be educational for the parties and make them re-focus on the child • Can set the trend for child-centered, pro-social communication and problem-solving • Provides a structured, self-empowering route before getting into litigation and court proceedings • Hearing feedback can prepare parties for settlement even if no agreement is reached at the SENE

21. SENE v. Mediation SENE Mediation • Occurrence and agreements can be relayed to Court • Goal is to provide neutral feedback and reach full or partial settlement • Structured 3-4 hour session • Entirely confidential • Goal is to facilitate effective communication in order to help parties resolve their own issues • Unstructured sessions

22. GALs and SENE • GALs should participate if they feel it would be helpful, or if the Court orders it • May be counterproductive if the GAL has a poor relationship with one or both parents • If GAL has met the child, he or she can present that perspective in the SENE session • Tips for GALs in SENE • GAL’s role in the breakout session should be discussed ahead of time • Everything you say/do should have a purpose • Speak up!

23. BRIEF FOCUSED ASSESSMENT

25. Brief Focused Assessment • Also known as a limited scope evaluation, this is an evaluation focusing on one or two issues on which the Court needs more information • GALs are often asked to do these, although they may be called something else • AFCC does have guidelines for writing these • AFCC Brief Focused Assessment Guidelines

26. Limitations of Brief Focused Assessments • These evaluations cannot include custody recommendations (those are only included in a full custody/parenting time evaluation) • You may, however, include your opinions based on the information gathered • Remember: • Offer interpretations and opinions within the available data • Stay within the scope of the referral questions • Make clear the limitations of the model to readers • Get clarity from the Court if unsure of what is being requested

27. Examples of Questions • What is the child’s custodial preference and does it appear well-reasoned, developmentally appropriate and rooted in the child’s true feelings? • Does the parent’s chemical use endanger the children?

28. Custody/Parenting Time Evaluations

29. “Your father and I want to explain why we’ve decided to live apart.”

30. When is a Custody Evaluation Appropriate? I • The situation is ambiguous and less intrusive methods have not been successful • Parties’ views are widely divergent—the “truth” needs to be established • The parties may request it

31. Pitfalls of Custody Evaluations • Extremely expensive • Can range from $2,000 to $20,000 • Time Consuming • Typically a 4-month or longer process • Average amount of time for evaluator is 40 hours • Intrusive on family members • Children are brought into the conflict and generally need to be interviewed, observed, etc. This can be difficult and stressful for children.

32. Statutes and Guidelines • AFCC has published best practices • AFCC Best Practices • MN Statute §518.17 (custody) and §518.18 (modification) • Move away cases are governed by MN Statute §518.175 • Third party custody statute §275C

33. Important Notes • The Court may not use one factor to the exclusion of all others • The primary care factor cannot be used as a presumption and trump all other factors • The Court must eventually make detailed findings on each of the factors and explain how the factors led to its conclusions • A good custody evaluation will assist the Court in making findings

34. Custody Evaluation Basics • The Court orders a custody/parenting time evaluation. • Typically, the process lasts 120 days from the date of the order • What does it look like? • Numerous meetings with each of the parents • Observations and interviews with the child/ren • Home visits and observations • In-office parenting observations or structured observations guided by a professional

35. The Basics, Cont. • CD evaluation, drug testing is sometimes requested • Psychological testing if necessary • Criminal and driving record background check • Personal references (friends, relatives, etc.) • GAL involvement, although reports are separate • Gathering of relevant collateral information • Mental Health Records • School Records • Medical Records

36. Custody Evaluator Qualifications Skills of the Evaluator Fields of Knowledge • Administering a safety / danger assessment • Interviewing adults and children • Data collection and analysis • Understanding legal context of factors • Report writing • Giving testimony • Psychological and developmental needs of children • Family dynamics / Family change • Significance of culture and religion on family dynamics • General knowledge of mental health, chemical health and social aptitudes

37. Qualifications, Cont. Skills of the Evaluator Fields of Knowledge • How to maintain professional neutrality and boundaries • Knowledge of informed consent and ability to explain to parties • Understanding of how to consult experts • Ability to assess parenting and co-parenting skills • Domestic violence • MN statutes and legislation regarding the best interests of the child • Age-appropriate interactions and boundaries between parents and children

38. Elements of a Good Evaluation • Balanced process and reporting (if done for one parent, then do for the other) • All allegations need to be brought to the other party for response • Don’t accept allegations at face value • Spend roughly equivalent time with each party • Consult multiple sources of information • Substantiate allegations with evidence • Do not rely too much on personal collaterals

39. Elements, Cont. • Don’t diagnose or do therapeutic interventions • Beware of confirmatory bias • Don’t dismiss information that conflicts with your hypotheses or recommendations • Observe each parent-child interaction if possible and if it’s not risky to the child • Remain neutral at all times, and focus on what is best for the child in the context of the family situation

40. Best Interests of the Child MN Statute §518.17 This statute defines 13 factors constituting the “best interests of the child.” If joint physical or legal custody is being considered, there are an additional 4 factors which need to be addressed.

41. The Good, The Bad and The Ugly

43. GALs wear many hats The work of a GAL runs the gamut—from writing reports to accompanying children on supervised visits. Necessarily, GALs must be knowledgeable on a variety of current issues. The following slides represent a sampling of some new developments in areas pertaining to the work of Guardians.

44. Domestic Violence

45. Mediation and Domestic Violence • Should mediation be attempted if there is domestic violence present? • The Court cannot require mediation if there is domestic abuse • Mixed results on whether mediation is appropriate/effective when there is domestic abuse • May depend on the pattern and context of violence • Screening is important for safety • Take safety precautions, such as staggered departures

46. Types of Domestic Violence • Coercive-Controlling • Control partner’s money, social life, movement • Physical, emotional, verbal abuse, isolation, coercion, intimidation, threats • Small %age of total intimate partner violence • Most commonly seen in shelters • Violent Resistance • Situational Violence • Separation-Instigated Violence

47. Safety Assessments DV Risk Assessment Bench Guide Risk Factors • Developed by the Family Violence Coordinating Council • Distributed to judges across Minnesota • Contains 11 factors associated with increased risk of serious injury or death • Access to a firearm • Use of weapon • Strangulation, “choking” • Threatened or attempted to kill before • Increased frequency/severity of violence • Forced sexual acts • Control of victim’s daily activities • Constantly or violently jealous • Perpetrator threatened/attempted suicide • Victim’s belief perpetrator will re-assault or kill • Pending or prior OFPs, civil and criminal cases

48. Some Thoughts on Screening • Best practice is to ask about domestic violence throughout the process, not just at intake • At intake, ask questions in various formats • Paper-and-pencil screening instrument, such as DOVE • Individual interview • In mediation, be aware of body language, silences, unusual agreeableness

49. Legal Issues