How To Join CAVNET

Founded by Marc Dubin, Esq., former Special Counsel to the Justice Department's Office on Violence Against Women, CAVNET (Communities Against Violence Network) serves to bring together experts and advocates addressing violence against women, human rights, suicide, school violence, bullying, and crime victims with disabilities. We are a partner with Lifetime Television's End Violence Against Women Project and a recipient of a Ms. Foundation grant.To join, send a resume to Marc Dubin, Esq, Executive Director, at mdubin@pobox.com. Marc may also be contacted by cell phone at 305-896-3000. See http://www.linkedin.com/pub/marc-dubin/4/4a0/180/



Monday, February 3, 2014

The Custody Battle - The Importance of Recognizing the Existence of Violence In the Relationship and the Exercise of Power and Control

The Custody Battle - The Importance of Recognizing the Existence of Violence In the Relationship and the Exercise of Power and Control

By Marc Dubin, Esq., Executive Director, CAVNET (www.cavnet.org), and former Special Counsel, United States Department of Justice, Office on Violence Against Women.

When a couple comes before a family court judge seeking a decision about the custody of their child(ren), family court judges, Guardians Ad Litem, social workers, psychologists, and others involved in the decision are often woefully unprepared for the cases that raise the greatest risk of injury or death to the child(ren) - cases in which there is a history of domestic violence. In these cases, myths and stereotypes about protective mothers often work against the mother, and result in custody decisions that ultimately harm the child(ren).

Far too often, with tragic results, family court judges, Guardians Ad Litem psychologists, social workers and others involved in the custody decision miss the warning signs, and send children to live with abusive fathers and deny protective mothers any chance at a meaningful relationship with their child(ren). One reason for this - groups with expertise in domestic violence are commonly denied an opportunity to share their expertise with the court, and are excluded from the discussion. 

Leading experts across the United States have confirmed what protective mothers have been asserting for years - that family court judges often lack training and understanding of the importance of looking for and identifying patterns of abuse in the marriage, and fail to bring to bear the proper experts  - domestic violence advocates - to assist them in making the proper custody decision. 

Recent research by custody and domestic violence experts across the United States have reached the same conclusion - "the present practices can no longer be justified and the custody court system must create the necessary reforms to protect the safety of children and protective mothers in domestic violence custody cases."  See "Domestic Violence, Abuse, and Child Custody", edited by Maureen T. Hannah and Barry Goldstein. Available at http://www.civicresearchinstitute.com/dvac.html 

According to Goldstein: ("TEN WAYS TO KNOW THE CUSTODY COURT SYSTEM IS BROKEN"), at http://www.barrygoldstein.net/:

"We now have extensive research to demonstrate common mistakes courts and the often-unqualified professionals they rely on use in domestic violence custody cases.  Studies show that while evaluators believe they are considering domestic violence in their investigation of the family, in fact most fail to do so.  We have many studies proving widespread gender bias against women in the approaches used by the courts.  Evaluators regularly use psychological testing that has little or no relevance to the issues before the court and is gender biased.  Psychologists testifying before the courts rarely inform the judges that their results are based upon probabilities so that factors in the case that would reduce those probabilities can be considered.  Most important to the present topic is research that considers the accuracy of the actual court decisions.  Most custody cases (over 95%) are settled more or less amicably.  The problem is with the minority of terrible cases that continue to trial and beyond.  Courts often think of them as “high conflict” cases, but in reality these are mostly domestic violence cases.  Research studies vary somewhat on the percentage of these cases that involve abusive fathers, but all agree the majority of such cases involve domestic violence.  I believe the studies that found 90% of these contested custody cases are caused by abusive fathers because unqualified professionals frequently miss domestic violence.  In any event, contested custody cases should be being decided overwhelmingly in favor of protective mothers because most of the fathers are abusive, but 70% of the cases result in custody or joint custody to the father.  This does not tell us an individual case was wrongly decided, but does demonstrate that a large percentage of cases are being decided in a way that is harmful for the children."

It is essential that these high conflict cases be recognized for what they are - ongoing efforts by the husband - the perpetrator of domestic violence  - to continue to engage in power and control, using the child(ren) as tools - in family court. Use of domestic violence advocates is also essential, and the failure to bring them into the discussion can have tragic, sometimes fatal, consequences. 

This article may be freely reproduced, with attribution.

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Saturday, January 26, 2013

A Message to Other Attorneys About Serving Clients Who Are Deaf



A Message to Other Attorneys About Serving Clients Who Are Deaf – Provide a Sign Language Interpreter, Free of Charge, Or Risk a Civil Penalty of Up to $55,000 for the First Offense, and Up To $110,000 for Each Subsequent Offense, and a Federal Civil Rights Investigation By the Justice Department
    Marc Dubin, Esq. 

Attorneys in private practice are covered by title III of the Americans with Disabilities Act (ADA), and are required to provide the appropriate auxiliary aids and services necessary for effective communication, including qualified sign language interpreters. Even solo practitioners are covered by title III. Using friends and family members as sign language interpreters does not comply with this mandate, nor does lipreading or passing notes back and forth. And the enforcement agency with the big stick? The Civil Rights Division of the Justice Department, where I spent 12 years enforcing the ADA on behalf of the United States.
But can’t lawyers choose their clients? Don’t we have the right to refuse to take on certain clients? No.
Not when the client is a member of a protected class, and the reason for refusing to take the client is the client’s disability. Clients with disabilities are protected by federal law from discrimination. Just as you are prohibited from refusing to serve African Americans because of their skin color, you are prohibited from denying your services to a person because of their disability.
Take a look at http://www.ada.gov/tirone.htm. Greg Tirone is an attorney inNew York who entered into a Settlement Agreement with the Justice Department in 2004, in the first case the Justice Department had involving an attorney’s obligations to clients who are deaf. According to the Settlement Agreement:
Mr. Tirone represented Ms. Rozanski in her divorce. The divorce involved allegations of domestic violence, as well as matters of child custody, visitation, and issues relating to a restraining order.

It is alleged that Mr. Tirone failed to provide a qualified sign language interpreter during several meetings with his client.

When meeting with Ms. Rozanski in court, Mr. Tirone used the services of the court’s interpreter. The Court’s interpreter was provided by the Court at the Court’s expense.

At other times, in the absence of a qualified sign language interpreter, Mr. Tirone communicated with Ms. Rozanski by pen and paper, fax, lipreading, and by use of the National Relay Service when communicating by phone. It is alleged that use of these alternatives took longer than would have occurred had a qualified sign language interpreter been used, resulting in higher costs to Ms. Rozanski. In addition, Ms. Rozanski alleges that due to the absence of a qualified sign language interpreter, she did not understand all that was conveyed. Mr. Tirone asserts that he represented Ms. Rozanski adequately and professionally, and that he effectively communicated with her. He further asserts that he believes that Ms. Rozanski understood him at all times.
Mr. Tirone acknowledges that as an attorney in private practice, he is covered by Title III of the ADA as a place of public accommodation and is obligated to ensure effective communication with Ms. Rozanski. Mr. Tirone does not deny that Ms. Rozanski is an individual with a disability and as such, is protected from discrimination under the ADA. See 42 U.S.C. §§ 12182(b)(1)(b)(2)(a). He asserts that he effectively communicated with Ms. Rozanski at all times
The Justice Department made specific findings of fact in the Settlement Agreement:
Use of a family member as a sign language interpreter in a matter involving domestic violence was inappropriate. Because of her relationship as Ms. Rozanski’s sister, the nature of the communications, and because of her emotional and personal involvement with her sister, she was not qualified to serve as an interpreter in this matter. In addition Ms. Rozanki’s sister was not a qualified sign language interpreter, as she has a hearing disability as well, and uses a different sign language than her sister, (signed English), and lipreads. Born with a hearing loss, she has moderate to severe hearing loss in her left ear and severe to profound loss in her right ear. Her doctors have indicated that “with hearing loss of this degree and nature, (she) can be expected to have communication difficulties in all listening situations, especially when competing background noise is present and when speakers are at a distance or not facing her.” She also has had no specialized training in interpreting legal terms.

The Department of Justice has investigated the allegation that Mr. Tirone failed to provide Ms. Rozanski with effective communication and finds the allegation meritorious. Mr. Tirone acknowledges a single violation of the ADA and agrees to the terms set forth below as a resolution of the investigation. In exchange, the United States agrees to terminate its investigation of this matter, without resorting to litigation.
The Settlement Agreement is worth reading, in its entirety. It sets forth the law quite clearly.
Section 36.303 of the ADA regulation provides that a public accommodation:
(S)hall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense.
§ 36.303(a).
Attorneys are considered a public accommodation and must provide sign language interpreters when necessary to provide effective communication, which is the case when the client uses sign language as his or her primary means of communication. The commentary to the title III regulation points out:
It is not difficult to imagine a wide range of communications involving areas such as health, legal matters, and finances that would be sufficiently lengthy or complex to require an interpreter for effective communication (emphasis added).
Commentary to § 36.303
The public accommodation must:
(F)urnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.
§ 36.303(4)(c).
Auxiliary aids and services include but are not limited to “qualified interpreters”. § 36.303(b)(1).
A “qualified interpreter” is one who:
(I)s able to interpret effectively, accurately and impartially both receptively and expressively, using any necessary specialized vocabulary. (Emphasis added). §36.104
There are several different sign language systems used by persons who use sign language. (The most common systems of sign language are American Sign Language and signed English.) Individuals who use a particular system may not communicate effectively through an interpreter who uses another system. When an interpreter is required, the public accommodation should provide a qualified interpreter, that is, an interpreter who is able to sign to the individual who is deaf what is being said by the hearing person and who can voice to the hearing person what is being signed by the individual who is deaf. This communication must be conveyed effectively, accurately, and impartially, through the use of any necessary specialized vocabulary.

Signing and interpreting are not the same thing. Being able to sign does not mean that a person can process spoken communication into the proper signs, nor does it mean that he or she possesses the proper skills to observe someone signing and change their signed or fingerspelled communication into spoken words. The interpreter must be able to interpret both receptively and expressively.

Family members, friends, and close associates are not qualified interpreters in most cases, and generally should not be used to interpret. The commentary to the Title III regulation makes clear:
...(P)ublic accommodations have at times asked persons who are deaf to provide family members or friends to interpret. In certain circumstances, notwithstanding that the family member or friend is able to interpret or is a certified interpreter, the family member or friend may not be qualified to render the necessary interpretation because of factors such as emotional or personal involvement or considerations of confidentiality that may adversely affect the ability to interpret “effectively, accurately, and impartially.” (Emphasis added). Commentary to §36.303.
Please feel free to contact me directly, at mdubin@pobox.com if you have any questions. I wrote and signed the Settlement Agreement on behalf of theUnited States.
Sincerely.
Marc Dubin, Esq.
Director of Advocacy, Center for Independent Living of South Florida
305-896-3000 mobile
Former Senior Trial AttorneyUS Department of Justice, Disability Rights Section, Civil Rights Division, 1993-2005




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Domestic Violence Shelters and the ADA

http://www.ncdsv.org/images/DVSheltersADA.pdf

"It is widely believed that women with disabilities are disproportionately at risk of intimate partner violence
2,yet they rarely seek the services of a shelter. It is the purpose of this Paper to raise the consciousness of providers of domestic violence services about how tobetter serve women3 with disabilities, and to enhance the ability of programs servingsurvivors to reach out to survivors with disabilities4.

This paper is not intended to be a criticism of shelters. To the contrary, I have a great deal of respect for the commitment shelters have to serving survivors, and of the sacrifices theymake to do so. Through my workwith the victim.s rights community and the disability rightscommunity, however, I am also aware of thegreat number of women across the countrywith disabilities who stay in abusive relationships because their local shelter is either not incompliance with federal law or has failed to adequately let the community know of itscompliance and desire to serve these women.Consider the words of Kimberly Black Wiseman, a woman who is a quadriplegic as aresult of a car accident when she was 16, who stayed in a violent relationshipwhichalmost resulted in her death:
"Looking back on my experiences of abuse, during the battering relationship in 1990 I did not perceive a shelter as an option because of my need for physicalaccessibility and attendant care. Back in 1990, basic community services, evenrestaurants, were generally not accessible to me because that was just after the passage of the Americans with Disabilities Act. During the battering relationship, ifI had had information on safety planning, education, and domestic violence, andhad an accessible shelter available, I would have been better able to protectmyself . to get out of the relationship before I was severely beaten and before
the hospital and the police had to become involved to get me out.
5"


For how many women with disabilities is this statement still true?
6 What can be done toimprove the situation? The Center for Research on Women with DisabilitiesBaylor College of MedicineWomen, atBaylor College of Medicine, has done excellentwork on the issue of women with disabilities and domestic violencefor years, and offers some excellent observations and recommendations.

7...

Article continued at
http://www.ncdsv.org/images/DVSheltersADA.pdf

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Comment from Survivor, About CAVNET

“CAVNET has been the most valuable resource of information for me throughout the last few years. As a victim of domestic violence including emotional and financial abuse and other abuses including child kidnapping, CAVNET has provided moral support and legal education, and has guided me to otherwise hard to find legal resources. In addition, CAVNET has put me in contact with specialists in domestic violence, and supportive and knowledgeable advocates. CAVNET has put together Advisory Committees providing excellent information which guided me while representing myself in court in a custody battle. I am most grateful for the help and empowerment that CAVNET has given me.”
– Survivor



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Lyn Bates Vice President, AWARE, About CAVNET

"When I got a request from a person trying to help a young woman in Ecuador who is being stalked, I knew just where to turn: CAVNET. Within a day, several members sent me the names of nearly two dozen Ecuadorian organizations that may be able to help her! Without CAVNET, I would have had nothing to offer her in her language near her home. The CAVNET members are professional, knowledgeable, and very willing to share their expertise."
– Lyn Bates Vice President, AWARE




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Diana Riehm, Victim Advocate, Counseling Services MCB, Camp Pendleton

“I recently retired after 25 years in law enforcement. I am now a victim advocate at Camp Pendleton MCB in California. Typically in law enforcement, training is offered only when legal mandates exist. Resources are few. Investigator's resources are determined by the size of their Rolodexes, which are carefully guarded. When CAVNET opened, a tremendous network opened and instantly began to vibrate with exchanges, resources, discussions, and (those nasty, dangerous thoughts known as) IDEAS. I've used the resources from CAVNET many, many times. And for every resource I have used, lives have been changed, and presumably some have been saved. Multiply my experience by the number of CAVNET members, and imagine how the world has been changed.”
– Diana Riehm, Victim Advocate, Counseling Services MCB, Camp Pendleton



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