Copyright
© 1999 Willamette Law Review; Merle H. Weiner I. Introduction II. The Connection Between Custody and Domestic Violence in Oregon III. A Matter of Emphasis
V. Problems with the Principles for Domestic Violence Victims VI. Conclusion Ý Over the last two decades, Oregon, like other states, [FN1] has adopted laws to address domestic violence in a more comprehensive and thorough manner. [FN2]Ý Commentators on Oregon law can no longer question whether Oregon will treat the problem of domestic violence seriously because the Oregon Legislature has done so. Now the relevant question is whether the Oregon Legislature will continue to improve Oregon's laws for domestic violence victims and their children.Ý The answer to that question will emerge from the Oregon lawmakers' response to the American Law Institute's Principles of the Law of Family Dissolution: Analysis and Recommendations [the Principles]. [FN3]Ý The Principles contain forward-thinking guidelines to govern the allocation of custodial and decisionmaking responsibility between parents, and offer recommendations for how states should resolve these issues when the parties have a history of domestic violence. [FN4]Ý The Principles' attention to the topic of domestic violence gives rise to a number of "second generation" suggestions about how courts should address domestic violence when deciding issues of physical custody, legal custody, and visitation. Ý Exploring how the Principles treat domestic violence is admittedly a narrow inquiry.Ý After all, the Principles deal broadly with the topic of how courts should allocate responsibility for children, and the attention to domestic violence comprises but a small part of what the American Law Institute [ALI] hoped to accomplish.Ý Yet a certain pragmatism undergirds the particular focus of this Article.Ý Incremental change is always easier to effect than a large systemic overhaul.Ý Adopting the Principles in their entirety would be a large systemic change in most states, including Oregon, while incorporating the details on how to address domestic violence in custody proceedings would constitute a much more modest reform.Ý Consequently, this Article does not argue for or against the specific guidelines and procedures for resolving custody disputes set forth in the Principles, [FN5] but rather examines a narrower subset of the ideas proposed in the Principles.Ý If states adopted this subset of relatively uncontroversial reforms, a substantial number of domestic violence victims who must litigate custody and visitation would benefit, as would their children. [FN6] Ý Focusing specifically on Oregon's potential adoption of the Principles' details regarding domestic violence narrows the analysis even further.Ý However, such an analysis is particularly beneficial. Tentative Draft No. 3 of the Principles, with the excellent commentary and Reporter's Notes, has only sixteen references to Oregon law, despite the fact that Oregon's legislation specifically addresses domestic violence and custody.[FN7]Ý Washington State law, in contrast, is cited forty-one times. Therefore, it is not readily apparent from the text of the Principles how Oregon, as opposed to some other states, might be affected by adopting the Principles, in whole or in part. Ý In addition, an analysis of the Principles' potential benefits or disadvantages for Oregonians seems an appropriate topic of inquiry because the Oregon Task Force on Family Law, convened in 1993 and concluded in December 1997, never considered Tentative Draft No. 3 of the Principles.Ý The Task Force reviewed Oregon divorce law, with a charge to formulate "a nonadversarial system for families undergoing divorce that provides the families with an opportunity to access appropriate services for the transition period." [FN8]Ý The Task Force recognized the devastating impact domestic violence can have on family members, acknowledged "that any system of family conflict management must protect the physical safety of all parties," [FN9] and declared that "[t]he safety . . . of family members shall be given priority." [FN10]Ý The Task Force ultimately recommended four important bills to the Legislature, and the Legislature adopted most of the Task Force's recommendations. [FN11]Ý However, the Task Force disbanded before the current version of the Principles was completed on March 20, 1998; therefore, the Task Force never studied the Principles' provisions. [FN12] Ý An Oregon-specific inquiry reveals, as this Article argues, that Oregon citizens would benefit from the integration of various ideas from the Principles into the Oregon statutory scheme.Ý Because Oregon custody law has been cobbled together over time, considerations of domestic violence are not well-integrated into the custody adjudication process.Ý In contrast, the drafters of the Principles, with the luxury of starting from scratch, considered and addressed domestic violence at each and every stage of the custody decisionmaking process.Ý The result is that the Principles represent a coherent scheme that gives broad attention to domestic violence, and emphasizes the importance of domestic violence within particular areas much more so than Oregon law.Ý Not only do many of the Principles' ideas go beyond what Oregon law currently requires, but the Principles' omnipresent concern with domestic violence makes the whole greater than the sum of the Principles' individual parts.Ý Simply, the Principles' attention to the topic helps ensure that domestic violence victims experience both procedural fairness and substantive justice.Ý This Article highlights those areas where the specific concepts embodied in the Principles could enhance Oregon law and concludes by specifically listing those reforms that the author believes that Oregon should adopt. [FN13] Ý Despite its Oregon focus, this Article also may prove useful to lawyers, legislators, and judges outside of the Beaver State. [FN14]Ý By demonstrating the usefulness of a more limited state-specific and topic-specific analysis of the Principles, the Article may encourage others to engage in similar analyses.Ý Those who are troubled by the Principles as a whole, or who seek more incremental change, may elect to cherry-pick from among the Principles' provisions instead of accepting or rejecting the Principles in their entirety.Ý In particular, it is hard to imagine that a state could not benefit from the Principles' ideas about domestic violence in the custody context. Ý The Article begins by describing the evolution of Oregon's child custody laws, as they relate to domestic violence.Ý The Article thereby identifies three areas whereOregon law and the Principles overlap in the attention they give to domestic violence in a custody contest: (1) both systems treat domestic abuse as a relevant factor in adjudicating custody and visitation, (2) both provide definitions of domestic abuse, and (3) both have a procedure for the mediation of custody and visitation disputes when domestic violence has occurred between the parties.Ý A comparison of the Principles and Oregon law in these three areas demonstrates that the Principles attach significantly more importance to the fact of domestic violence than do the Oregon laws.Ý The Article next demonstrates that the Principles also contain a greater breadth of provisions that explicitly address domestic violence.Ý These provisions reflect three implicit goals: (1) maxi-mizing the identification of cases that involve domestic violence, (2) enhancing substantive justice for domestic violence victims, and (3) ensuring domestic violence victims' safety. The Article examines illustrative provisions within these three areas and recommends some that Oregon should adopt.Ý Finally, the Article identifies several problems the Principles pose for domestic violence victims and counsels that Oregon lawmakers might choose to depart from the ALI Principles in certain respects. II. The Connection Between Custody and Domestic Violence in Oregon Ý Before Oregon reformed its statutes to make domestic violence relevant in custody disputes, Oregon courts treated domestic violence inconsistently in custody determinations. As a whole, Oregon's case law was no worse for domestic violence victims than was the case law in most states.Ý One commentator reported that only a few cases around the country had held that domestic violence was relevant to a custody adjudication, and these cases typically involved men who had killed the child's mother. [FN15]Ý Two cases, Tingen v. Tingen [FN16] and In re Marriage of Remillard, [FN17] illustrate the variable approaches in Oregon.Ý Evidence of domestic violence was relevant to the custody adjudication in the latter case only. Ý In Tingen, the trial court awarded custody of three of the couple's four children to the father. [FN18]Ý The mother appealed, and the appellate court reversed. [FN19]Ý The basis for the reversal was not the mother's undisputed testimony regarding the father's domestic abuse of her. [FN20]Ý Although the statute required that a custody award be based on the child's best interest, and this included consideration of "the conduct of the parties," [FN21] the Oregon Supreme Court forthrightly said: ÝÝÝ In determining custody we ought to consider conduct establishing grounds for a divorce only if such conduct was, or would be, directly detrimental to the child.Ý The conduct which would render a parent unfit to have custody must have some relevancy to the parent-child relationship, including having some negative effect on the child's upbringing.Ý We find no such conduct or moral impediment as to make either party unfit as a custodian of the children. [FN22] Ý In contrast, the Court of Appeals in In re Marriage of Remillard found that domestic violence was very relevant to a motion to modify custody. [FN23] In that case, custody originally was awarded to the mother. [FN24] The mother remarried and "[o]n at least three occasions she was beaten quite badly by her husband." [FN25] She ultimately went to a battered women's shelter, leaving her child with a friend. [FN26]Ý The mother returned home and she and her new husband entered counseling. [FN27] The biological father, however, moved for a change of custody. His motion was granted. [FN28] The trial court was explicit that the basis for the change in custody was the violence between the mother and her new husband. [FN29] Three months after this custody modification, the mother moved for modification to regain custody. [FN30]Ý The trial court granted this second modification and said, "Time has run on.Ý Mr. Dodge has quit his drinking.Ý Mrs. Dodge (mother) is willing to make those changes in her life that are necessary to stabilize her marriage.Ý It is now stabilized.Ý She is seeking professional help.Ý The violence has ended." [FN31]Ý The Court of Appeals affirmed the second modification, emphasizing the improvement of the mother's marital situation and the difficulty the child was having adjusting to life with the father. [FN32] Ý Approximately a decade ago, the first generation of legal reform began to make domestic violence more relevant to custody adjudications around the country. At that time, scholars advocated primarily for reform that would require (or encourage) judges to consider evidence of domestic violence in custody determinations. [FN33]Ý Change over the last decade has been rapid, with two-thirds of the states passing laws that require the consideration of evidence of domestic violence in custody determinations. [ FN34] Other states have reached a similar result through case law. [FN35] Ý The Oregon Legislature reformed Oregon law to make domestic violence relevant in custody determinations earlier than many other states. [FN36]Ý In 1987, ten years after Oregon adopted its first protection order statute for domestic violence victims, [FN37] the Oregon Legislature included domestic violence as a factor that a court could consider in custody determinations. [FN38] Another ten years passed, and in 1997 the Legislature made domestic violence a factor that a court must consider in its custody adjudications. [FN39]Ý The 1997 Legislature also adopted a provision that addresses the importance of protecting parents' safety during visitation. [FN40]Ý The 1999 Legislature enacted a rebuttable presumption that an award of sole or joint custody to a parent who has committed domestic abuse is not in the child's best interest. [FN41] Ý Despite these efforts, and contrary to a commentator's pro- testation in 1997 that "Oregon ranks among the most progressive states in domestic violence legal reform," [FN42] Oregon law does not embody the more recent innovative approaches for resolving custody disputes where domestic violence is a factor.Ý The Principles demonstrate that Oregon lawmakers still have ample opportunity to increase the emphasis that domestic violence receives in custody decisions and the breadth of ways in which domestic violence can be important to custody determinations. Ý This part compares how the Principles and Oregon law differ in those areas where Oregon's law related to custody and visitation explicitly addresses domestic violence.Ý In particular, this part compares how much weight domestic abuse receives in a custody or visitation adjudication under the Principles and Oregon law, the schemes' definitions of domestic abuse, and their approach to the mediation option when allegations of domestic abuse exist.Ý Because both Oregon law and the Principles address these areas, the discussion relates to the emphasis each system places on domestic violence, rather than on the breadth of attention each system gives to domestic violence. A. Domestic Abuse as a Factor in Custody and Visitation Decisions Ý Oregon law and the Principles differ principally in the extent to which concerns about a party's future safety can be used to deny a domestic violence perpetrator custody of or visitation with his children. [FN43]Ý A hypothetical fact pattern demonstrates the differences in the two approaches.Ý Imagine two people, Helga and Jim, who are married and have a child together, named Billy.Ý Billy is now seven years old.Ý Jim has abused Helga consistently throughout their relationship, although Jim has never abused Billy.Ý In fact, Jim and Billy have an excellent father-son relationship; in most situations, Billy prefers his father's company to that of his mother. Jim's abuse of Helga has become so severe that she fears for her life, and she has gone into hiding.Ý As the primary caretaker, she takes Billy with her. Helga petitions for a divorce and seeks sole custody of Billy.Ý She wants to deny Jim visitation because she fears for her safety if she has ongoing contact with him.Ý She believes that even if future contact is solely between Jim and Billy, Jim will discover her whereabouts and harm her. Ý Jim's abuse of Helga is relevant to the custody contest in Oregon.Ý Oregon's custody statute states that courts are to "give primary consideration to the best interests and welfare of the child." [FN44]Ý In determining the best interest of the child, domestic violence is relevant in two ways.Ý One of the six statutory factors a court must consider is "the abuse of one parent by the other." [FN45]Ý This factor applies regardless of whether the father ever abused the child. [FN46]Ý Another factor, often called the "friendly parent" provision, states that the court must consider "the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child." [FN47]Ý This factor can be rendered inapplicable by the existence of past domestic violence and a future threat of harm toward the parent.Ý A court may not consider a parent "un- friendly" if that parent "shows that the other parent has sexually assaulted or engaged in a pattern of behavior of abuse against the parent or a child and that a continuing relationship with the other parent will endanger the health or safety of either parent or the child." [FN48] Ý While domestic violence is clearly relevant to the custody dispute, Oregon has a schizophrenic approach toward the weight domestic violence should receive in the custody adjudication.Ý On the one hand, Oregon emphasizes the importance of domestic violence to the custody contest through a presumption "that it is not in the best interests and welfare of the child to award sole or joint custody of the child to the parent who committed the abuse." [FN49] On the other hand, the presumption is rebuttable.Ý The presumed fact (here, that it is not in a child's best interest to be awarded to a batterer) is no longer presumed to be true if the other parent presents sufficient evidence to counter the presumed fact. [FN50]Ý In the hypothetical, Jim may be able to present such evidence: his son prefers his company.Ý Helga then would have to prove that, in fact, it would not be in Billy's best interest for the court to award custody to Jim.Ý Once the presumption is rebutted, domestic violence cannot be the determinative factor in the custody decision.Ý Oregon law explicitly states, "the best interests and welfare of the child in a custody matter shall not be determined by isolating any . . . relevant factor, and relying on it to the exclusion of other factors." [FN51]Ý Hence, the abuse of Helga, even if it entails a severe threat to her future safety, cannot be determinative in adjudicating custody.Ý In a single statutory section, Oregon law simultaneously elevates the importance of domestic violence and minimizes its significance. Ý Oregon, like many states, [FN52] also makes domestic violence relevant to the manner in which a noncustodial parent exercises visitation. [FN53]Ý It became the policy of the state in 1997 to "consider the best interests of the child and the safety of the parties in developing a parenting plan." [FN54] The parenting plan must detail, among other things, the noncustodial parent's "parenting time" rights, [FN55] the term used in Oregon for visitation. [FN56]Ý Consequently, as of 1997, courts must consider the safety of the parties when fashioning parenting time awards. [FN57] The 1999 Legislature strengthened the law by requiring courts who award parenting time to an abusive noncustodial parent to "make adequate provision for the safety of the child and the other parent in accordance with the provisions of ORS 107.718(4)." [FN58] Despite the statute's explicit reference to a parent's safety, a domestic violence perpetrator is ineligible for visitation only if the court finds that parenting time would "endanger the health or safety of the child." [FN59]Ý The statute does not say that a court could deny visitation when it believes that no adequate provision for a parent's safety can be made.Ý Case law similarly suggests that the right to visitation is forfeited only if "the welfare of the child will be seriously affected by its exercise." [FN60] Ý The Principles are superior to Oregon law for someone like Helga because the Principles attribute more importance to a parent's future safety than does Oregon law. [FN61]Ý The Principles elevate the importance of a parent's safety with an implicit rebuttable presumption: when domestic violence exists or has existed, and the parents do not agree on an arrangement for physical custody, visitation, or legal custody, [FN62] an award of any kind to the perpetrator is unacceptable unless the other parent's and child's safety can be guaranteed. [FN63]Ý This "safety presumption" forms an important part of the Principles' approach to custody and visitation, and will be explained now in the context of how custody issues generally are resolved under the Principles. Ý The Principles require that parents formulate a parenting agreement that addresses the allocation of custodial and decisionmaking responsibility. [FN64]Ý If the parents agree on one or more provisions, the court must incorporate those provisions into an order, unless one party's assent was unknowing or involuntary, or the plan would harm the child. [FN65]Ý If the court needs to allocate custodial responsibility, [FN66] the court must "allocate custodial responsibility so that the proportion of custodial time the child spends with each parent approximates the proportion of time each parent spent performing caretaking functions for the child prior to the parents' separation or, if the parents never lived together, before the filing of the action." [FN67]Ý This allocation rule favors the "status quo," and has been called the "approxima-tion" approach. [FN68]Ý When the court cannot allocate custodial responsibility based on the time the child spent with each parent (as in the case of a newborn), or when an allocation would be manifestly harmful to the child, "the court should allocate custodial responsibility based on the child's best interest." [FN69]Ý The court is to allocate decisionmaking responsibility by considering a number of factors deemed relevant to the child's best interest. [FN70] Ý In those instances when the court must allocate custodial or decisionmaking responsibility, the court cannot make any allocation without considering possible limiting factors, including domestic abuse.Ý Section 2.13 of the Principles states, "[I]f either of the parents so requests, or upon receipt of credible information thereof, the court should determine whether a parent who would otherwise be allocated responsibility under a parenting plan . . . has inflicted domestic abuse, or allowed another to inflict domestic abuse, as defined in 2.03(8)." [FN71]Ý The Principles, like Oregon law, then state, "[I]f a parent is found to have engaged in any activity specified by Paragraph (1), the court should impose limits that are reasonably calculated to protect the child or child's parent from harm." [FN72]Ý A nonexclusive list of limitations is provided for the court's consideration, including "exchange of the child between parents through an intermediary, or in a protected setting," [FN73] "restraints on the parent from communication with or proximity to the other parent or the child," [FN74] and "a requirement that the parent complete a program of intervention for perpetrators of domestic violence." [FN75]Ý Unlike Oregon law, however, one of the limitations includes "an adjustment of the custodial responsibility of the parents, including the allocation of exclusive custodial responsibility to one of them." [FN76]Ý Most importantly, and unlike Oregon law, the Principles include a rebuttable safety presumption.Ý If there is a finding of domestic violence, the court ÝÝÝ may not allocate custodial responsibility or decisionmaking responsibility to that parent without making special written findings that the child and other parent can be adequately protected from harm by such limits as it may impose under Paragraph (2).Ý The parent found to have engaged in the behavior specified in Paragraph (1) has the burden of proving that an allocation of custodial responsibility or decisionmaking responsibility to that parent will not endanger the child or the other parent. [FN77] Ý Consequently, the rebuttable safety presumption emerges in three ways within the Principles' structure for adjudicating custody and visitation issues. First, the "status quo" rule does notÝ automatically apply if a parent "has inflicted domestic abuse, or allowed another to inflict domestic abuse." [FN78]Ý Second, application of the "best interest" rule is made subject to the safety presumption when a parent has inflicted domestic abuse. [FN79] Third, the presumption for joint decisionmaking is overcome if there is "a history of domestic abuse." [FN80] The court cannot allocate responsibility in these situations unless it makes special written findings that the child and other parent can be "adequately protected from harm," [FN81] and the perpetrator "prov[es] that an allocation of custodial responsibility or decisionmaking responsibility to that parent will not endanger the child or the other parent." [FN82]Ý In short, the presumption applies whenever the parents cannot agree on custody and (1) the approximation approach is the rule of decision; or (2) the court is allocating decisionmaking responsibility; or (3) in those few cases where the best interest rule applies (e.g., the case of a newborn).Ý In the case of Helga and Jim, a court could not award Jim custodial responsibility for Billy (which includes parenting time) unless Jim proved, and the court specifically found, that Helga would not be endangered by the allocation. Ý Although Oregon law and the Principles both require a court to address domestic violence when ruling on custody and visitation, the increased emphasis that a victim's future safety receives under the Principles is palpable. First, there is an implicit recognition--as part of the Principles' rebuttable safety presumption--that domestic violence may continue to endanger the child or parent.Ý Second, the Principles, unlike Oregon law, allow the existence of domestic violence to preclude an award of custody or visitation, regardless of whether the award might otherwise be in the child's best interest.Ý If the parents do not agree on custody and the perpetrator cannot establish that an allocation of custodial responsibility will not endanger the parent or the child, then the court should not grant the perpetrator such responsibility even if the perpetrator is otherwise a great parent.Ý Third, before the court can award custody or visitation to a perpetrator of domestic violence, the court must make special written findings that the child or other parent can be adequately protected from harm.Ý Simply put, the Principles take domestic violence more seriously than does current Oregon law because the Principles recognize that the safety of individuals should never be compromised. Ý It would be wrong to suggest that an Oregon court could never base a denial of custody or visitation on considerations of a parent's future safety.Ý Yet, an Oregon court would have to engage in legal, and perhaps factual, machinations to allow concerns about a party's future safety to dictate its decision.Ý In addition, the significant discretion that exists under the Oregon statute undercuts any assurance that a court would find a parent's future safety important to the analysis, let alone determinative.Ý For example, the court would have to equate a parent's future safety with danger to the child's health or safety in order to deny visitation under the Oregon statute. [FN83]Ý While social science research and scholarly opinion support this conclusion, [FN84] courts routinely have disaggregated abuse of a parent from the child's best interest or thechild's safety when making custody and visitation awards. [FN85] Ý A court might refuse to equate the risk of future violence to the parent with danger to the child for various reasons.Ý First, a judge may believe that there is a fairly remote risk that the child will witness future violence.Ý After all, a custody decision removes the child from a household where battering between the parents is occurring, and the court may believe that it can structure visitation to eliminate any risk to a parent.Ý Similarly, the court may feel confident that any potential future violence can be addressed independently of the visitation award--for example, with a Family Abuse Protection Act order.Ý Second, while odds are that a child will be harmed if he or she witnesses domestic violence, [FN86] a specific child may not be harmed by the experience. [ FN87]Ý Third, to the extent that a strong link exists between partner abuse and child abuse, [FN88] child abuse is its own factor in any best interest inquiry. [FN89]Ý Because evidence suggests that both battered mothers and battering fathers abuse children, [FN90] any statistical correlation between battering one's partner and abusing one's children would be, without more, an insufficient reason to bar visitation. Fourth, an Oregon court may be particularly disinclined to make the connection between a parent's safety and the child's best interest because the Oregon Legislature explicitly disaggregated the two factors in the visitation context: "the court may consider only the best interests of the child and the safety of the parties." [FN91]Ý Even if the court equated the parent's future safety to the child's health and safety, the court still would have to consider any potential detriment to the child's health from foreclosing contact with the abusive parent. Ý While Oregon law offers the advantage of greater flexibility for courts than the Principles, the wide discretion can also cause serious problems, [FN92] such as the undervaluation of a party's safety as a relevant factor in a custody or visitation award.Ý Judges historically have been criticized for harboring the broader societal misconceptions about domestic abuse. [FN93]Ý Oregon judges, in particular, have come under attack for being "insufficiently educated concerning the dynamics of domestic violence," [FN94] for "treat[ing] domestic violence incidents as less serious than the same offenses between non-family members," [FN95] and for "not always appear[ing] cognizant of the safety issues involved in their decisionmaking." [FN96]Ý If judges minimize the significance of future domestic violence to children's welfare, their misperceptions are shielded from appellate review by their vast discretion. [FN97]Ý Even those Oregon judges with the best intentions may sometimes undervalue the importance of future domestic violence to the child's best interest because of the ubiquitousness of violence.Ý The Massachusetts Supreme Judicial Court recognized this phenomenon: "The very frequency of domestic violence in disputes about child custody may have the effect of inuring courts to it and thus minimizing its significance." [FN98] Ý The Principles' rebuttable safety presumption does not guarantee that judges will not harbor societal misunderstandings or discount the importance of domestic violence. [FN99] No rule of law, regardless of its intended prophylactic effect, can accomplish those results. Yet the presumption can help appellate courts better monitor the trial courts and help ensure that judges take domestic violence seriously. [FN100]Ý The Principles afford the judge little discretion when it comes to the relevance and importance of a parent's safety; the Principles' rebuttable presumption makes clear that a court must consider a party's safety in making a custody or visitation award and that a parent's safety should trump other considerations. Ý The Principles' explicit attention to a parent's future safety makes sense because visitation by the batterer, shared custody, or a custody award to a batterer with visitation by the domestic violence victim can force contact between a victim and her abuser, thereby endangering the victim's safety and providing an avenue for the victim's harassment.Ý As the Oregon Task Force on Gender Fairness recently concluded, without qualification, "[w]omen are placed at risk of further domestic violence when courts allow batterers to have continued visitation with their children." [FN101]Ý The Commentary to the Principles recognizes the potential for problems: "[A]busers often use access to the child as a way to continue abusive behavior against a parent." [FN102]Ý The risk of abuse increases after separation, making attention to the safety issues imperative: "The risk of domestic violence directed both towards the child and the battered parent is frequently greater after separation than during cohabitation; this elevated risk often continues after legal interventions." [FN103] A rebuttable presumption that elevates the victim's and child's safety above even the child's best interest honors the sacrosanctity of human life. Ý Frankly, the difficulty of crafting sufficient protection for the victim is heightened in Oregon, where few specialized visitation centers exist to protect victims and their children. [FN104]Ý As the National Council of Juvenile and Family Court Judges recognized, when protective interventions are not accessible in a community or a parent's safety cannot be guaranteed, "a court should not endanger a child or adult victim of domestic violence in order to accommodate visitation by a perpetrator of domestic or family violence." [FN105] Visitation is not always an appropriate option, even where such visitation centers exist.Ý The recent killing of Melanie Edwards and two-year- old Carli Fay at a Seattle visitation center demonstrates that visitation cannot always be safely accomplished. [FN106] Therefore, it is imperative that courts give serious attention to the parent's and child's safety in awarding custody and visitation. Ý A rebuttable safety presumption has other benefits apart from helping to guarantee individuals' safety.Ý It also facilitates victims' law abidance. ÝIt helps assure a woman that playing by the rules will place neither her own safety nor her child's safety at risk.Ý It also encourages battered women to leave abusive relationships.Ý While the safety presumption does not guarantee that the victim will obtain custody, [FN107] and while many women remain in abusive relationships because they fear losing custody of their children, [FN108] some women stay in abusive relationships because they perceive that leaving the relationship will heighten the risks to themselves, especially when their abusers have access to them through custody or visitation awards. Application of the safety presumption would mean that a court proceeding would enhance, not threaten, a victim's and her children's safety. Ý The benefits of a safety presumption have led many eminent groups to recognize its value.Ý For example, the National Council of Juvenile and Family Court Judges [FN109] recommended that the domestic violence perpetrator bear the burden of establishing that "adequate provision for the safety of the child and the parent who is a victim of domestic or family violence can be made," [FN110] and that custody and visitation be denied if the other parent's safety cannot be guaranteed. [FN111]Ý The Oregon Domestic Violence Council has similarly concluded, "[t]he court should not compromise the safety of a child or a parent in order to accommodate the visitation interest of a domestic violence perpetrator." [FN112]Ý These ideas are replicated in the Principles and would benefit Oregon domestic violence victims and their children if enacted into Oregon law. Ý Adoption of the Principles' rebuttable safety presumption would be an important and beneficial supplement to Oregon's current approach.Ý The Principles' rebuttable safety presumption is not itself a substantive standard for awarding custody.Ý In fact, it is important to recognize that the safety presumption in the Principles differs from the "best interest" presumption, a substantive custody standard adopted by numerous states, [FN113] including Oregon. [FN114] Ý Past domestic violence is simply irrelevant to the Principles' approximation and best interest approach in those situations where the parent's and child's safety can be assured. [FN115]Ý Imagine, for example, a perpetrator who has committed domestic violence and can convince a court that there is no danger to his partner in awarding him custody because a third party could act as an intermediary for all exchanges of the child.Ý He may also convince the court that there is no danger to the child because he has never committed the violence in the child's presence.Ý The Principles' presumption offers no further help to the victim in her attempt to obtain custody.Ý This would be true even if the perpetrator's violent actions had had a profound effect on the present allocation of custodial or decisionmaking responsibility.Ý The Principles do not allow a court to discount the amount of time attributed to a father for performing caretaking functions when that father wrongfully kept the child away from the mother as part of his abuse. Similarly, the Principles do not allow a court to supplement the calculation of the mother's time spent performing caretaking functions when her past failure to perform such functions resulted from her victimization. [FN116] Rendering this past violence irrelevant conflicts with the recommendations of various commentators who have been seeking to make domestic violence more, not less, relevant to the substantive custody decision. [FN117]Ý Consequently, a state may find it most advantageous to adopt both a safety presumption and a best interest presumption. [FN118] Ý Another area where the Principles give domestic abuse more emphasis than does Oregon law is in the definition of "domestic abuse."Ý The definition of domestic abuse is fundamental to how important domestic violence will be in the custody determination.Ý A narrow definition of domestic abuse--for example, only considering physical abuse of a life-threatening nature--obviously would miss the vast quantity of domestic abuse. [FN119] Domestic abuse falls along a spectrum, covering not only serious physical violence, but also an array of actions that are meant to exert power and control over the victim.Ý States' domestic violence laws tend to define domestic abuse more narrowly than do advocates for domestic violence victims, [FN120] although states sometimes use a broader definition for data collection. [FN121]Ý How a state defines domestic violence for custody adjudications illustrates how seriously the system treats domestic violence. Ý Unlike child abuse and neglect, which the Principles define by incorporation of individual state law, [FN122] the Principles adopt their own definition of domestic abuse. [FN123]Ý The Principles' definition of domestic abuse is neither unduly restrictive nor expansive.Ý Domestic abuse is defined as "the infliction of physical injury, or the creation of a reasonable fear thereof, by a parent or a present or former member of a child's household against a child or another member of the household." [FN124] The Principles continue, "[r]easonable action taken by a person for self-protection, or the protection of another person, is not domestic abuse." [FN125] Ý Until 1999, Oregon did not define domestic violence in the custody section of its laws. [FN126]Ý Now, however, Oregon's rebuttable custody presumption is invoked by "abuse," as defined in the Family Abuse Prevention Act (FAPA). [FN127]Ý FAPA defines abuse as ÝÝÝ the occurrence of one or more of the following acts between family or household members: (a) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury. (b) Intentionally, knowingly or recklessly placing another in fear of imminent bodily injury. (c) Causing another to engage in involuntary sexual relations by force or threat of force. [FN128] Interestingly, the FAPA definition of "abuse" applies only to the rebuttable presumption.Ý If the presumption is rebutted and the court has to weigh the statutory factors to determine the child's best interest, then it must consider only "the abuse of one parent by the other." [FN129] "Abuse" in this context is not defined, and the explicit limitation on who must be the victim of the abuse is inconsistent with the more expansive FAPA definition. [FN130] Ý When the FAPA definition of abuse is invoked under Oregon law for custody purposes, the definition of abuse proves narrower than the Principles' definition in two ways. [FN131]Ý First, under Oregon's FAPA, domestic abuse based on threats requires that the victim be placed in fear "of imminent bodily injury." [FN132] The Principles remove the imminence requirement: "The physical injury feared need not be 'imminent,' since in the domestic violence context injury is feared not only at the time of a violent encounter but at other times as well." [FN133]Ý The difference between the approaches is that an Oregon court might not consider the threat "Next week I'm going to kill you" to be abuse, whereas a court operating under the Principles' regime would. [FN134] Ý Second, when there is mutual violence, the Oregon statute does not differentiate between domestic violence perpetrators and domestic violence victims.Ý That is not to say that Oregon courts would not make the distinction.Ý Inherent in the word "abuse" is the notion that the violent acts are not in self-defense; Oregon courts have stated in dicta that self-defense is a legitimate defense to a FAPA petition. [FN135]Ý Instead of allowing judges to decide on a case-by-case basis whether acts of self-defense constitute domestic abuse for purposes of the custody determination, the Principles contain a clear rule to guide judges: "Reasonable action taken by a person for self-protection, or the protection of another person, is not domestic abuse." [FN136] The commentary repeats this point. [FN137] Similarly, the Principles, unlike Oregon's custody law, explicitly recognize the concept of the primary physical aggressor, a concept that has come into vogue recently in law enforcement circles, [FN138] including those in Oregon. [ FN139] ÝThe Principles state: "[I]n situations of mutual domestic abuse, when one parent's aggression is substantially more extreme or dangerous than the other's, it may be appropriate for the court to impose limits on the primary aggressor but not on the primary victim." [FN140] Ý One shortcoming of the Principles, however, is that the assessment of the primary physical aggressor becomes relevant only at the point of fashioning a remedy, and not for determining whether domestic abuse exists. [FN141] Some states have taken a different, and more preferable, approach.Ý Nevada, for example, addresses the disparity in violence in its formulation of the factors to be considered in awarding custody. [FN142]Ý Like Oregon, Nevada's statute requires that the court, in determining a child's best interest, consider whether the person seeking custody has engaged in domestic violence. [FN143]Ý Nevada also has a rebuttable presumption that it is not in a child's best interest to award custody to a domestic violence perpetrator. [FN144]Ý The statute further states: ÝÝÝ If after an evidentiary hearing held pursuant to subsection 5 the court determines that each party has engaged in acts of domestic violence, it shall, if possible, then determine which person was the primary physical aggressor.Ý In determining which party was the primary physical aggressor for the purposes of this section, the court shall consider: ÝÝÝ (a) All prior acts of domestic violence involving either party; ÝÝÝ (b) The relative severity of the injuries, if any, inflicted upon the persons involved in those prior acts of domestic violence; ÝÝÝ (c) The likelihood of future injury; ÝÝÝ (d) Whether, during the prior acts, one of the parties acted in self- defense; and ÝÝÝ (e) Any other factors which the court deems relevant to the determination. ÝÝÝ In such a case, if it is not possible for the court to determine which party is the primary physical aggressor, the presumption created pursuant to subsection 5 applies to both parties.Ý If it is possible for the court to determine which party is the primary physical aggressor, the presumption created pursuant to subsection 5 applies only to the party determined by the court to be the primary physical aggressor. [FN145] The Nevada approach minimizes the risk that the presumption will ever operate to the detriment of the true victim of domestic violence.Ý Minimizing this risk is particularly important when the presumption is a "safety presumption."Ý Without a preliminary determination of the primary physical aggressor, the court might encounter a primary aggressor who could rebut the safety presumption and a true victim who could not, perhaps because the true victim, and not the perpetrator, was proceeding pro se.Ý In that situation, the outcome would be exactly opposite of what the drafters intended. [FN146] Ý An Oregon court's assessment of who is the primary physical aggressor would play an important role in the vast number of cases that have some mutual violence. [FN147]Ý For example, the assessment might affect the outcome in cases such as In re Marriage of Sleeper. [FN148]Ý In that case, the court awarded the wife's husband, although not the biological father of her children, custody of the children after the court estopped the wife from asserting that he was not the biological father. [FN149]Ý The husband was the primary caretaker of the children, and the emotional bond "weigh[ed] heavily in the husband's favor." [FN150]Ý The court found him to have "displayed a more active interest in the children," and awarding him custody "would involve the least disruption in their existing parental relationships." [FN151]Ý It appears that the children had lived with the husband since birth and he was initially awarded temporary custody of the children when they were two and four years old. [FN152]Ý While evidence of domestic violence existed, the Court of Appeals found that it did not weigh in either party's favor, since a mutual restraining order had been issued. [FN153]Ý The appellate court quoted with approval the trial court's statement that, "I have not been given any evidence . . . that it would be in these children's best interest to change the status quo." [FN154]Ý It appears from the appellate court's opinion that no court had ever analyzed which person was the primary physical aggressor. Ý When an Oregon court cannot use the FAPA definition of abuse, but must instead apply the statutory factor "the abuse of one parent by another," the Principles again prove superior.Ý The Principles provide a wider definition of domestic abuse, defining domestic abuse to include violence "by a parent or present or former member of a child's household against a child or another member of the household." [FN155]Ý Most states employ a similar definition for use in custody decisions. [FN156]Ý Oregon, in contrast, is explicit that the "abuse of one parent by the other" is the only conduct that constitutes relevant family abuse for custody purposes once the rebuttable presumption is rendered inapplicable. [FN157]Ý The phrase "abuse of one parent by the other" [FN158] excludes a parent's abuse of other adults in the household who are not the child's parent.Ý For example, the Oregon statute does not require a court to consider a father's abuse of his domestic partner, not the child's mother, even if the child is present when the abuse occurs. [FN159] The Oregon statute also excludes the abuse of children from its concept of relevant abuse, [FN160] although an Oregon court undoubtedly would consider the parent's abuse of another child in the household in adjudicating custody. Ý Similarly, and finally, under the Principles, a single act can qualify asÝÝ "domestic abuse," whereas Oregon law requires "a pattern of behavior of abuse" to negate consideration of the friendly-parent provision. [FN161]Ý In short, a woman who attends to her own or her child's safety after a severe, but single, act of abuse can face adverse consequences during a custody adjudication.Ý Oregon's law fails to recognize that a single act of violence can be enough to put a woman in legitimate fear of her safety or her child's safety, triggering "unfriendly" behavior.Ý Often the actual violent act has been preceded by acts of control short of violence, [FN162] so that the recent trend experienced by the "un-friendly" parent has been one of escalating danger.Ý In addition, some women experience single acts of violence that are sufficiently severe to cause these women to fear for their lives. [FN163] Because separation is the most dangerous time for victims, [FN164] an absence of prior abuse may not be predictive of what a woman legitimately fears during separation.Ý Oregon would be wise to adopt a uniform definition of domestic abuse for all uses of that term, and the definition within the Principles, with a slight modification, [FN165] seems to be an attractive option. Ý One of the principal ways Oregon addresses the importance of domestic violence to child custody adjudications is through its statutory provisions that discuss the mediation of custody disputes generally.Ý Section 107.755 of the Oregon Revised Statutes requires that all judicial districts provide mediation "in any case in which child custody, parenting time and visitation are in dispute." [FN166] Courts must require parties in all cases involving disputes over child custody or parenting time to attend a mediation orientation session, [FN167] except "upon a finding of good cause." [FN168]Ý The legislature recognized that mediation may be inappropriate when domestic violence has been or is present in a relationship.Ý The statute directs judicial districts to ÝÝÝ [D]evelop[] a plan that addresses domestic violence issues and other power imbalance issues in the context of mediation orientation sessions and mediation of any issue in accordance with the following guidelines: ÝÝÝ (A) All mediation programs and mediators must recognize that mediation is not an appropriate process for all cases and that agreement is not necessarily the appropriate outcome of all mediation; ÝÝÝ . . . ÝÝÝ (C) All mediation programs and mediators must develop and implement ÝÝÝ (i) A screening and ongoing evaluation process of domestic violence issues for all mediation cases; ÝÝÝ (ii) A provision for opting out of mediation that allows a party to decline mediation after the party has been informed of the advantages and disadvantages of mediation or at any time during the mediation; and ÝÝÝ (iii) A set of safety procedures intended to minimize the likelihood of intimidation or violence in the orientation session, during mediation or on the way in or out of the building in which the orientation or mediation occurs; ÝÝÝ (D) When a mediator explains the process to the parties, the mediator shall include in the explanation the disadvantages of mediation and the alternatives to mediation; ÝÝÝ (E) All mediators shall obtain continuing education regarding domestic violence and related issues; and ÝÝÝ (F) Mediation programs shall collect appropriate data.Ý Mediation programs shall be sensitive to domestic violence issues when determining what data to collect. [FN169] Each judicial district must consult with a statewide or local domestic violence coordinating council (or a nonprofit organization that has a grant from the state to address family violence prevention) in developing the district's plan. [FN170]Ý Projects around the state are attempting to ensure that custody mediators recognize and appropriately address domestic violence. [FN171] Ý The Principles also expressly address the mediation of custody disputes for couples when there is, or has been, domestic violence.Ý They provide: ÝÝÝ A mediator should not conduct a mediation, even by parental agreement, without first screening for domestic abuse. If credible evidence thereof exists, the mediator should take steps Ý ÝÝ(a) to ensure the voluntary consent of the victim of the abuse to participate in the mediation, and to any agreement reached as a result of the mediation; and ÝÝÝ (b) to protect the safety of the victim. [FN172] Mediators' duties arise "not only when there has been a judicial finding of domestic abuse, but when the mediator becomes aware of any credible evidence of the abuse." [FN173] In fact, the Commentary states: "Even when there is only a charge of domestic abuse, without tangible evidence thereof, the mediator should take precautions to ensure that the voluntariness of the process or its results have not been comprised." [FN174]Ý Neither the Principles nor Oregon law allows the mediator to make a custody recommendation to the court, at least without the parties' written consent. [FN175] Ý Both the Principles and Oregon law afford the court discretion to order mediation.Ý Under the Principles, a court "may" inform parents about "mediation or other non-judicial procedures designed to help them achieve an agreement," [FN176] and may order the parties into mediation. [FN177] Oregon law requires parties to attend a mediation orientation session, unless excused for "good cause," [FN178] and the Oregon Legislature in 1999 clarified that courts need not always order people into mediation. [FN179] Ý Although Oregon law seems sensitive to the potential inappropriateness of mediation, the Principles have several advantages over Oregon law.Ý First, when mediation is ordered, the Principles prohibit the court from ordering services "that require a parent to have face-to-face meetings with the other parent." [FN180]Ý Oregon, in contrast, does not require that parents be separated during the orientation or the screening session.Ý This distinction, although seemingly minor, can have an impact on a domestic violence victim's ability to opt out of the process.Ý For example, a face-to-face meeting gives a batterer the opportunity to intimidate a domestic violence victim so that she feels unable to opt out ofmediation. [FN181]Ý Intimidation can occur quite subtly--for example, with a certain look that a mediator may not see or interpret as threatening. [FN182] Ý Second, the Principles better assure that any mediated agreement is the result of voluntary consent by both parties.Ý The Principles allow mediators to testify about any threats of violence that occur during mediation.Ý The Principles state, "A mediator . . . may not reveal information that either parent has disclosed during mediation under a reasonable expectation of confidentiality except, upon questioning by the court, if relevant to fact- finding under section 2.07." [FN183]Ý Section 2.07, among other things, allows the court to conduct an evidentiary hearing to determine whether the parties entered into their agreement knowingly and voluntarily. [FN184] Such a hearing becomes mandatory when there is credible information that domestic abuse has occurred. [FN185]Ý In contrast, Oregon law states the following: ÝÝÝ All communications, verbal or written, made in mediation proceedings shall be confidential.Ý A party or any other individual engaged in mediation proceedings shall not be examined in any civil or criminal action as to such communications and such communications shall not be used in any civil or criminal action without the consent of the parties to the mediation. Exceptions to testimonial privilege otherwise applicable under ORS 40.225 to 40.295 do not apply to communications made confidential under this subsection. [FN186] The difference is explainable, in part, by the Principles' heightened commitment to ensuring that the parties knowingly and voluntarily assent to all agreements. [FN187] Ý The Principles also better assure that any mediated agreement is the result of voluntary consent through its presumption against mediation where domestic violence exists or has existed between the parties.Ý The commentary to the Principles states: "When one parent is a victim of domestic abuse, mediation should be approached very cautiously, if at all." [FN188] Oregon law has no similar directive that courts exercise their discretion to order mediation "very cautiously." Ý A specific orientation against mediation makes sense when the parties have a history of domestic violence.Ý As the Oregon Domestic Violence Council stated, ÝÝÝ Mediation is a process that presumes that participants can maintain a balance of power with the help of a mediator.Ý It can be misused if the imbalance is great, and/or the imbalance is unrecognized.Ý As this imbalance of power is characteristic of relationships in which there is domestic violence, mediation can be a dangerous process for those subjected to domestic violence. [FN189] In fact, research has documented that women who are afraid of their husbands tend to obtain worse results from negotiations than other women, probably as a result of subtle intimidation. [FN190]Ý A statewide Oregon group suggested that mandatory mediation for cases with child custody or parenting time disputes "may create obstacles for a victim of domestic violence in leaving an abusive relationship." [FN191]Ý While Oregon's recent elimination of mandatory mediation helps minimize the objections to mediation for domestic violence victims, a presumption against mediation when domestic abuse exists or has existed even further assures that domestic violence victims are not disadvantaged by the process. Ý The Principles' orientation against mediation in these cases, while preferable to Oregon's absence of a presumption, is not as strong as that recommended by the Oregon Domestic Violence Council: "Where domestic violence is present, the case should be presumed inappropriate for mediation, unless compelling reasons justify the use of mediation." [FN192]Ý The Principles' presumption against mediation can be overcome by less than "compelling reasons."Ý The mediator must take steps only to ensure that the victim's participation and the agreement are voluntary, and that her safety is protected. [FN193]Ý It is difficult to assess in the abstract the practical difference between the Oregon Domestic Violence Council's formulation and the Principles' formulation.Ý The difference, in fact, may be nonexistent because both of these formulations appear to force the decisionmaker to take an extremely cautious approach to mediation where evidence of domestic violence exists. Such statutorily-mandated prudence seems appropriate given commentators' general skepticism of the mediation option in this context, [FN194] and concern that "media-tion in cases in which there is or has been domestic violence . . . can be dangerous to the participants and the mediator." [FN195] Ý Finally, the Principles better assure the voluntariness of a mediated agreement by permitting support persons to attend the mediation session.Ý While the Principles are silent on whether advocates are welcome into the mediation session, support persons appear welcome because the Principles require mediators to take steps "to ensure the voluntary consent of the victim of the abuse to participate in the mediation, and to any agreement reached as a result of the mediation." [FN196]Ý The Reporter's Notes cite Isolina Ricci's work as "offering suggestions as to how mediators may help parties cope with power imbalances." [FN197]Ý Ms. Ricci's book cautions, "If the wife cannot empower herself sufficiently for negotiating in her own self-interest, however, the mediator may need to insist on an outside coach, counselor or even a proxy." [FN198]Ý Oregon law, in contrast, explicitly excludes domestic violence advocates and other support persons, other than attorneys or children, from attending the mediation session. [FN199]Ý Many commentators favor the Principles' approach because support people can help to empower the victims. [FN200] Ý Oregon law is superior to the Principles in one important way, however.Ý The Oregon statute requires that "all mediators" receive "continuing education regarding domestic violence and related issues." [FN201]Ý The Principles, unfortunately, do not address this point, even though some states do not even "establish minimum credentials for mediators." [FN202]Ý This oversight is problematic because the Principles' effectiveness requires mediators who are sensitive to the issues that can arise when parties have a history of domestic violence. Ý The foregoing discussion has suggested that Oregon's statutory provisions addressing domestic violence and custody do not afford domestic violence victims as much protection as do the Principles.Ý Oregon would benefit by strengthening its existing provisions.Ý It could adopt a rebuttable presumption that a domestic violence perpetrator should not have physical custody, visitation, or legal custody of the couple's children unless the perpetrator can assure the court that the other parent's safety and the child's safety can be guaranteed.Ý The law also should define abuse to cover threats, even if those threats do not cause fear of "imminent" bodily injury.Ý The law should explicitly excuse acts of self-defense and acts by the nonprimary physical aggressor from the definition of abuse.Ý Abuse against any household member, not solely the child's parent, should qualify as domestic abuse.Ý Single acts of domestic abuse should be sufficient to negate the court's application of the "friendly parent" factor.Ý In addition, Oregon law should prohibit judges from sending parties to a mediation orientation session where face-to-face contact might occur. Mediators and judges should be required to presume that cases in which there is or has been domestic violence are inappropriate for mediation.Ý The law should permit mediators to testify about threats and violence occurring during mediation. Domestic violence advocates or other support people should be allowed to attend mediation sessions.Ý These reforms would place more emphasis on domestic violence during the resolution of custody and visitation disputes in Oregon. Ý The other significant difference between the Oregon statute and the Principles relates to the number of individual provisions that address domestic violence.Ý The Principles have the advantage of being a well-integrated scheme, rather than a series of legislative initiatives adopted over time.Ý As such, they address domestic violence in nearly every provision.Ý An analysis of each provision that addresses domestic violence reveals that the drafters of the Principles appear to have had three goals: (1) identifying all cases that involve domestic abuse; (2) enhancing substantive justice in each case; and (3) strengthening domestic violence victims' safety during and after the legal proceedings.Ý This part addresses each of these goals and highlights some particular provisions of the Proposed Act that Oregon should adopt. A. Identifying All Cases That Involve Domestic Abuse Ý Any legal system that believes domestic violence is relevant to custody determinations must confront the question of how that information will come to a court's attention.Ý Two basic options exist: the court can require that parties disclose relevant information to it, or the court can rely on the adversarial process to bring the relevant information to its attention. Generally, Oregon courts obtain information relevant to the adjudication of child custody and visitation disputes through a mixed system.Ý For example, a party to a custody proceeding must state in the first pleading or an accompanying affidavit "the child's present address or whereabouts, [and] the places where the child has lived during the last five years." [FN203]Ý The party also must detail whether the party participated in any other custody or parenting-time proceeding concerning the child in any state. [FN204]Ý By requiring the parties to provide this information to the court, the legal system does not rely solely on the adversarial process to ensure that the court obtains information relevant to whether it has jurisdiction to adjudicate the case under the Uniform Child Custody Jurisdiction and Enforcement Act. [FN205]Ý Yet, the vast amount of information relevant to a child custody proceeding comes to the court's attention solely as a result of the adversarial process.Ý Most relevant for purposes of this Article is the fact that Oregon law does not require the parties to file affidavits with the court addressing whether one party has abused the other.Ý If a party fails to bring this information to the court's attention, the court will not consider the abuse during the proceedings. Ý The Principles, in contrast, require that information about domestic violence be shared with the court regardless of whether either party makes domestic violence an issue.Ý Parties must file with the court, either jointly or singly, a parenting plan. [FN206]Ý The parenting plan must be accompanied by an affidavit that contains a description of "limiting factors," including "whether a parent who would otherwise be allocated responsibility under a parenting plan . . . has inflicted domestic abuse, or allowed another to inflict domestic abuse, as defined in 2.03(8)." [FN207]Ý Parties also must disclose "any restraining orders against either parent to prevent domestic abuse, by case number and jurisdiction." [FN208] Ý The Principles' explicit requirement that the parties address the topic of domestic violence in affidavits filed with the court would have a tremendous impact in Oregon.Ý The requirement particularly advantages pro se litigants who are currently the majority of litigants in these cases.Ý When a victim is represented, her attorney should call the court's attention to any domestic violence.Ý However, in pro se proceedings, the information may never come to the court's attention because the victim may not understand its relevance. [FN209]Ý Pro se cases represent the vast majority of the courts' family law docket in Oregon: ÝÝÝ [In family law cases], the number of pro se filings (where one or both parties have no attorney) is accelerating.Ý In as many as 80 percent of family law cases in Oregon, at least one side is unrepresented.Ý Between 1994 and 1996, the number of cases in which neither side was represented rose from 38 to 40 percent of filings in Oregon. [FN210] Ý Undoubtedly, some victims will be reluctant to disclose the violence through the affidavit screening process. ÝÝÝ A parent may be reluctant to provide information about abuse in an affidavit submitted in support of a parenting plan, for example, if that parent fears retaliation by the abuser, or if the parent believes he or she will be disbelieved, or have his or her credibility reduced in later proceedings with the court.Ý A parent may be especially reluctant to disclose information about abuse if the legal significance of that information is not understood, or if resources are not available to help secure the child's or the parent's safety. [FN211] The Principles attempt to combat the victim's potential reluctance to disclose abuse by recommending that states implement a process that "early and routinely gives information about abuse, its significance in the legal process, and resources for addressing it." [FN212] Ý In addition, the Principles require that the judicial system itself ferret out domestic violence information that relates to its litigants, [FN213] a provision that has no counterpart in Oregon law.Ý The Principles suggest that a court, at a minimum, "inquire of the parents themselves or of their attorneys [[to see] if they have knowledge of circumstances supporting a finding" that domestic abuse has existed in the relationship. [FN214]Ý More ambitiously, the Principles recommend that court personnel "review" police and court records to check for prior complaints of abuse, convictions for crimes of domestic violence, or civil protection orders entered for domestic abuse. [FN215] Ý A procedure for discovering past or present domestic violence is the hallmark of a legal system that really cares about domestic violence victims.Ý Oregon courts would obtain an enormous amount of information relevant to the custody disputes before them by requiring parties in Oregon to disclose the existence of domestic violence in preliminary court filings and by requiring court- initiated fact-gathering about domestic violence.Ý When so many litigants are pro se, and when victims' safety concerns may inhibit victims from bringing important information to the court's attention (especially if not required), such a change in Oregon's law is warranted. B. Enhancing Substantive Justice for Domestic Violence Victims Ý The Principles explicitly address four areas where substantive justice can be particularly problematic for domestic violence victims.Ý First, and perhaps counter-intuitively, domestic violence victims can be disadvantaged unfairly by parenting arrangements to which they have agreed. The problem arises when such agreements are not entered into voluntarily or when the agreements inadequately protect the victim's safety. Second, domestic violence victims can encounter substantive unfairness when courts punish them for violating court orders that threaten their safety.Ý Third, the standard for the modification of orders can produce substantive injustice if the standard does not consider the onset or escalation of violence to be a sufficient trigger for modification.Ý Fourth, the standard for relocation can harm domestic violence victims if the standard does not permit relocation to escape from danger. Ý Parenting plans, as described above, [FN216] are "a core concept" of the Principles. [FN217]Ý Under the Principles, parenting plans address custody and visitation, as well as future dispute resolution mechanisms.Ý If the parents reach an agreement on these issues, then the court must adopt the plan, unless the court finds that the parents have not agreed to the plan knowingly or voluntarily, or unless the plan is manifestly harmful to the child. [FN218]Ý The court uses this uniform standard to review all provisions of a parenting plan, regardless of whether the parenting plan addresses sole physical or legal custody, joint physical or legal custody, or visitation. Ý Oregon law also favors parents working together to resolve their visitation and custody issues.Ý However, in Oregon, in contrast to the Principles' uniform approach, three different legal standards guide courts in reviewing three different types of parenting agreements.Ý First, Oregon courts can reject even a mutually agreed-on parenting plan that addresses parenting time (i.e., visitation), [FN219] if the plan is contrary to the child's best interests and/or a party's safety. [FN220]Ý Second, Oregon law requires that a court adopt a joint custody plan if the parties agree to it. [FN221]Ý Third, the court evaluates other custody agreements by applying a best interest standard. [FN222] Ý Oregon law appears to require that courts review parental agreements more for substantive content, and less for actual consent, than the Principles.Ý For example, the Principles' substantive standard for reviewing custodial agreements is "manifest harm" to the child. [FN223] This is a higher standard than Oregon's "best interest" standard, [FN224] which Oregon courts use to evaluate custodial agreements other than joint custody.Ý Yet for any of the three types of agreements described above, Oregon statutory law does not require courts to ensure that the parties enter into the agreements voluntarily and knowingly. [FN225]Ý While an Oregon court may consider whether an agreement (including joint custody) was voluntary when deciding whether to accept it, [FN226] no reported case exists where a court refused to enter an agreement when both parties asked the court to adopt it. [FN227] Similarly, anecdotal evidence suggests that Oregon courts rarely inquire into the voluntariness of an agreement. [FN228]Ý In fact, Oregon case law suggests that parental agreements are entitled to the courts' deference, provided an agreement is "the deliberate compact of the mother and father to which they came after many discussions." [FN229] An agreement entered between a perpetrator and a victim may fail to qualify as a "deliberate compact," but courts simply do not raise the issue when the parties appear to be in accord. Ý Oregon should follow the Principles and include in its statute the requirement that any custody and visitation agreement be entered voluntarily and knowingly.Ý The requirement seems especially important because Oregon courts appear not to review agreements for substance, despite the statutory standards. [FN230]Ý Adding such a requirement would not be without precedent in Oregon law. Oregon already makes voluntariness an explicit statutory requirement, for instance, in the premarital contract area. [FN231] Adding a similar provision to Oregon's custody law should encourage courts to inquire about voluntariness prior to approving parental agreements. [FN232]Ý This upfront inquiry seems warranted especially in the joint custody context because Oregon is one of the few states that requires the entry of a joint custody award when the parties agree to it. [FN233]Ý In fact, "many states have a rebuttable presumption or mandate against an award of joint custody upon a finding of domestic violence." [FN234] Ý To best ensure that agreements are entered voluntarily, Oregon should also follow the Principles' lead by requiring that the court hold an evidentiary hearing to evaluate whether the consent was knowing and voluntary "when there is credible information that . . . domestic abuse . . . has occurred." [FN235] The Principles' illustration is informative: ÝÝÝ Abel and Sedona have filed for divorce, both pro se, and have jointly filed with the court a parenting plan setting forth their proposed arrangements for their three-year-old twin daughters.Ý The parenting plan provides for each daughter to spend half of her custodial time with each parent.Ý A routine cross-check with other court records reveals that Sedona has filed two complaints against Abel for domestic abuse, both of which she dropped before trial.Ý The court must order an evidentiary hearing to further examine the parents' circumstances based on its suspicions about whether Sedona's assent to the parenting plan is voluntary. [FN236] Ý Further, Oregon should adopt a mechanism by which courts gather facts related to domestic violence for any hearing on voluntariness.Ý Simply, a court may need additional information at the hearing to resolve the issue of voluntariness.Ý Section 2.15 of the Principles states, ÝÝÝ When substantial allegations of domestic abuse have been made, the court should order an investigation under Paragraph (1) or make an appointment under Paragraph (2) or (3), unless the court is satisfied that the information necessary to evaluate the allegations will be adequately presented to the court without such an order or appointment. [FN237] Paragraph (1) authorizes the court to "order a written investigation or evaluation from an appropriate individual or agency," [FN238] paragraph (2) allows the court to appoint a guardian ad litem for the child, [FN239] and paragraph (3) authorizes the appointment of an attorney for the child. [FN240] Ý Oregon has no similar statutory provision recognizing that fact gathering is needed when allegations of domestic abuse exist, or encouraging the court to initiate the fact-gathering process.Ý While an Oregon court has the authority in a custody case to order "an investigation . . . as to the character, family relations, [and] past conduct . . . of the parties for the purpose of protecting the children's future interest" [FN241] or to "appoint counsel for the children," [FN242] these efforts are not required. A court need not invoke these mechanisms even when the court knows that it will not receive sufficient facts about the domestic violence.Ý In addition, the court's ability to order an investigation into a parent's character appears limited to cases in which the information may affect protection of the children's future interest, and not for purposes of protecting a party's safety or determining the voluntariness of an agreement. [FN243] Ý Courts should take a proactive approach and assess whether the parental agreements submitted for their approval have been entered knowingly and voluntarily.Ý A pro se litigant, coerced into the agreement and fearful of her batterer, probably would not renege on an agreement prior to court approval even if she knows that an agreement must be entered voluntarily.Ý While a woman might seek later to invalidate an agreement based on her involuntary assent, by that time the batterer may have further abused his victim and reaped the benefits of a custody and visitation arrangement that was coerced rather than consensual. Ý Both Oregon law and the Principles provide mechanisms to enforce court orders.Ý The Principles' enforcement mechanism is an exclusive remedy and displaces even civil contempt: the section is "intended to cover the entire range of civil remedies for willful violation of a parenting plan." [FN244] In contrast, Oregon law provides parties with a variety of civil remedies for enforcing custody or visitation orders, [FN245] including contempt [FN246] and the "ex- pedited parenting time enforcement procedure." [FN247] The most common civil remedy in Oregon is "remedial" contempt, [FN248] although the new expedited statutory remedy for violations of parenting time orders may also prove to be popular. [FN249] Ý Unlike Oregon law, the Principles explicitly permit a defense in an enforcement proceeding based on a party's safety concerns.Ý The Principles state that a parent will not be found to have violated the provisions of a parenting plan unless the parent acts "intentionally and without good cause." [FN250]Ý The Commentary details what constitutes good cause: "Good cause excusing failure to comply with a parenting plan is established when a parent reasonably thinks his or her actions or failures to act are necessary to protect the child or the parent, or when compliance is simply impossible." [FN251] This includes the parent who acts "to escape domestic abuse." [FN252] Ý Oregon law does not require an absence of good cause to establish a prima facie case of remedial contempt, nor does the law embody a "good cause" defense.Ý The elements of contempt in Oregon are the following: "(1) a valid court order; (2) knowledge of the order by the contemnor; and (3) the contemnor's voluntary noncompliance with the order." [FN253] The third element, the willfulness requirement, [FN254] requires only that the defendant knew of the court order and failed to comply with it (or seek modification of it). [FN255]Ý The only affirmative defense to remedial contempt listed in the statute is "inability to comply with an order." [FN256]Ý No case law in Oregon indicates whether this defense would exonerate a woman who disallows visitation, in violation of a court order, to protect her own safety.Ý An inability to comply with an order suggests lacking even the option to comply with the court's order, [FN257] which seems very different from simply disobeying an order because one thought one had a good reason not to comply. [FN258] Ý The Principles leave criminal contempt untouched.Ý However, if Oregon were to follow the Principles and adopt a "good cause" defense in the civil contempt area, Oregon should also make the defense available in criminal contempt prosecutions. [FN259]Ý In Oregon, criminal contempt is governed by a different statutory provision than remedial contempt. [FN260]Ý The only affirmative defense to criminal contempt listed in the statute is the "inability to comply with an order of the court," [FN261] although the defendant is also "entitled to the constitutional and statutory protections . . . that a defendant would be entitled to in a criminal proceeding." [FN262] Ý Oregon's statutory "choice of evils" [FN263] defense, while analogous to the Principles' "good cause" defense and potentially available to criminal contemnors, [FN264] is more limited than the Principles' approach.Ý First, the Principles, unlike Oregon law, employ a subjective standard of intent. Under the Principles, the disobedience must appear reasonably necessary to the victim; Oregon's necessity defense requires that the disobedience be necessary "according to ordinary standards of intelligence and morality." [FN265] Whether consciously or not, the Principles' authors appear to have incorporated into the formulation of the good cause defense the research and commentary about battered women who kill.Ý This scholarship suggests that it is more appropriate to view reasonableness from a subjective standard because a particular victim may legitimately fear serious injury from her batterer, and the average person might not understand her fear or appreciate the seriousness of the situation. [FN266]Ý Second, Oregon law, unlike the Principles, requires that the threat be imminent. [FN267]Ý Third, the Oregon defense applies only if the defense is not inconsistent "with some other provision of law." [FN268]Ý Access to one's children is a very strong policy in Oregon, [FN269] and that policy's codification may significantly restrict the availability of the necessity defense. [FN270] Ý Oregon's newest remedy for violations of court orders is the expedited parenting time enforcement procedure.Ý This remedy is available for the violation of the parenting time provisions of a parenting agreement. [FN271]Ý After a parent files a motion requesting enforcement, the purported violator must appear "and show cause why parenting time should not be enforced in a specified manner." [FN272]Ý The statute contains no enumerated defenses, nor any explicit intent requirement.Ý While the remedies for a violation do not include imprisonment or fines, some substantial penalties still exist.Ý For example, the remedies can include the termination, suspension, or modification of spousal support. [FN273]Ý There are no reported cases on Westlaw that involve the parenting time enforcement procedure, probably because the provision only became effective in 1997.Ý It is unclear whether a court will read into the law an intent requirement, an inability to comply defense, or, assuming the court views the remedy as a "criminal" sanction, a "choice of evils" defense. Ý It is misguided to punish a victim who violates a parenting time or custody order for safety reasons.Ý Sanctioning the disobedient parent focuses attention away from the true wrongdoer (the batterer), rewards the batterer for his battering (by imposing a sanction on his victim), and discourages women from taking the steps necessary to maintain their own and their children's physical safety.Ý Because women are placed at risk when they exchange their children with their batterers, [FN274] the law should recognize the necessity of an occasional self-help remedy.Ý Otherwise some women will face unreasonable, and possibly lethal, outcomes when the inherent risk becomes an actuality.Ý While a judicial modification of a custody or visitation order is always an appropriate avenue for a victim facing an unreasonable risk of harm, there may be inadequate time to accomplish a judicial modification before contact is scheduled to occur between the victim and her batterer. [FN275] Ý The Principles expressly address the situation where domestic violence between the litigants starts, continues, or worsens after the court enters its order allocating custodial or decisionmaking responsibility.Ý Similar to the approach found in the Model State Code on Family Violence, [FN276] the Principles state that an occurrence or worsening of domestic violence constitutes a changed circumstance sufficient to obtain modification of an award. [FN277]Ý While the modification must also be "necessary to the child's welfare," [FN278] the Principles proclaim that "security from ex-posure to physical or emotional harm" is in the child's best interest. [FN279]Ý In addition, "in exceptional circumstances," the Principles allow modification even without changed circumstances if the plan is "manifestly harmful to the child." [FN280]Ý This provision would permit modification when the continuation of domestic violence between parties causes "actual, demonstrated harm" to the child. [FN281]Ý A court that decided to modify an order would first consider imposing safety measures to protect the child or parent, [FN282] but could alter the allocation of custodial or decisionmaking responsibility if the child or parent could not be adequately protected from harm. [FN283] Ý In Oregon, modifying a custody award requires a substantial change in circumstances since the entry of the original award. [FN284]Ý The change in circumstance must relate to the custodian's capacity to care for the child. [FN285]Ý The court also must assess whether the modification is in the child's best interest. [FN286] The movant bears the burden of proving both the substantial change in circumstances and that the modification is in the child's best interest. [FN287]Ý A motion to modify parenting time does not require a substantial change of circumstance. [FN288]Ý The sole consideration for a modification of a visitation award has been whether the change will benefit the children. [FN289]Ý However, since Oregon law now makes the safety of the parent relevant to the parenting time award, [FN290] "safety of the parent" should now also justify a modification of visitation. Ý In Oregon, the onset or worsening of domestic abuse can potentially trigger a modification of custody.Ý For example, in a 1977 case, In re Marriage of Remillard, [FN291] the trial court originally modified and transferred custody of the child from the mother to the father when the mother's new husband was seriously abusing the child's mother. [FN292] After the violence ended, the mother sought to have custody modified again, and the trial court granted her motion to have custody returned to her. [FN293]Ý The Oregon Court of Appeals upheld the second modification, citing the improvement in the mother's marital situation and the child's difficulties adjusting to life with his father. [FN294]Ý Remillard predated the statutory inclusion of domestic violence as a factor for courts to consider when fashioning initial custody awards.Ý Today there should be absolutely no question that domestic violence is relevant to a request for modification given the statutory approach to domestic abuse in initial custody adjudications. While undoubtedly relevant to a request for modification, there is no guarantee that an Oregon court would consider the advent or worsening of domestic violence to be a substantial change of circumstances justifying modification, [FN295] and the mere continuation of domestic violence may not be considered a change in circumstance at all. Ý The Principles' explicit language about the relevance of domestic violence to a modification proceeding is preferable to Oregon's silence.Ý As one domestic violence scholar explained, domestic violence should be relevant to the modification proceeding for the following reasons: ÝÝÝ First, a custody award may encourage one parent to harass the other parent.Ý For example, an award of reasonable visitation rights that does not explicitly set out the hours and times of visitation may cause the noncustodial parent to visit with the custodial parent at any time.Ý When a joint custody award permits one parent to badger and abuse the other, the abused parent should be able to petition for a custody modification based on her continued harassment and abuse.Ý Because domestic abuse has deleterious effects on children, if the parents' separation and a custody award do not prevent the abuse, the children will suffer.Ý Second, in determining an appropriate modification to a visitation or custody arrangement, the court should weigh the father's behavior toward the mother, rather than focusing exclusively on whether the behavior has been directed toward the child, or even whether the child has witnessed it.Ý If abusers know that courts may take action against them if they harass women about their visitation rights, then children will not become pawns between their parents, used by one parent as an excuse to abuse the other.Ý In addition, mothers will be protected from further abuse caused by arrangements for visitation and jo |