Trauma-Informed Justice: Family Law’s response to Post-Separation Abuse

Separation doesn't silence abuse; it just changes its tune.

Logic would dictate that once a person leaves an abusive situation, they would be free from abuse. Sadly, studies show that in 40-80% of cases abuse continues post-separation and often escalates (Spearman, Hardesty & Campbell, 2022 ). Post-separation abuse is coercive and controlling behavior that persists after separation with the intent to gain, regain or maintain control over an ex-partner. ?This behavior often includes continual harassment, stalking, financial control, manipulation of legal processes and using the children as weapons of control (Young, Wangmann & Douglas, 2023 ). Continual abuse despite separation only serves to inflict more emotional and psychological pain upon the victim and impeded their progress towards autonomy in their life after separation (Hulley, Wager, Gomersall, Bailey, Kirkman, Gibbs & Jones, 2023 ).

The prevalence of post-separation abuse has great implications for family law professionals. Working with domestic abuse victim-survivors necessitates empathy and recognition of the victim-survivor's traumatic experience, both of which are important to trauma-informed lawyering.

Effective legal representation in cases involving domestic abuse commands a thorough understanding of the complicated dynamics involved, as well as knowledge of trauma-informed therapy principles, which includes acknowledging the legal system's ability for aggravating trauma[1]. Effective legal representation also includes proceeding with caution when referring their clients to settlement processes or co-parenting when those remedies may not be appropriate given the power differential between the parties (Fischel-Wolovick, 2020 )

What does the research say?

My experiences within private practice and the results from my master’s thesis research study all agree with bounty of research studies that illustrate the need victim-survivors have for trauma-informed lawyering including:

• Understanding and recognizing post-separation abuse and trauma
• Understanding and recognizing trauma responses in their clients
• Recognizing the significant effects post-separation abuse has on their clients and their children.
• Striving to create a safe environment for their client during legal proceedings and in their daily life.

This article will shed light on the relevance of trauma-informed care and the tremendous impact it may have on family law practices.

Understanding Trauma

Before delving into the specific use of trauma-informed care in family law, it is necessary to first understand the nature of trauma. Trauma, in all forms, has a tremendous impact on people, affecting their thoughts, feelings, and actions. From the psychological scars of domestic violence to the long-term effects of divorce on children, the judicial system is usually a battleground where these wounds manifest and are often exacerbated.

Prominent psychiatrist Judith Herman, emphasizes the long-lasting psychological effects trauma has on victims, viewing it as a severe infringement on a person’s sense of safety and trust. The complex nature of traumatic experiences and the ensuing processes of healing and recovery are explored in her key work in Trauma and Recovery (1992) and her subsequent works.

Gabor Maté, a well-known trauma physician and author, emphasizes trauma’s

connectivity with physical and mental health. Maté argues that trauma is not characterized simply by discrete occurrences, but may also show as persistent stresses, which have a dramatic impact on a person's capacity to function (Mate, 2022. The Myth of Normal: Trauma, Illness and Healing in a Toxic Culture ).

The Role of Trauma-Informed Care in Family Law Practice:

Despite extensive research demonstrating that this behavior destabilizes the mother-child relationship the legal industry has failed to recognize how these acts contribute to the traumatization of victim-survivors, including children (Katz, 2022 ).

Secondary traumatization, or revictimization, is a type of institutional betrayal that occurs when a victim-survivor expects validation and protection but alternatively experiences victim-blaming mentalities, neglect or downplaying of their victimization (Smith & Freyd, 2014 ). Scholars have long argued the potentiality of the judicial system to re-victimize. Herman (2005b) contends that "if one sets out intentionally to design a system for provoking symptoms of traumatic stress, it might look very much like a court of law" where victims frequently encounter skepticism and experience a loss of agency (Herman, 2005.p. 574 ).

What are the first steps?

1.??? Recognize how pervasive trauma is.

The first step is to recognize that trauma is widespread and can manifest itself in unexpected ways. Every client, witness, or even opposing party may be burdened by trauma, and family law practitioners must be aware of this.

?

2.?? Show compassion and empathy.

Empathy and compassion are emphasized in trauma-informed care. As human stories unfold in courtrooms, understanding the effect of trauma is crucial for developing a compassionate and client-centered strategy in family law.

?

3.?? Break the cycle of re-traumatization

People might be re-traumatized by legal proceedings. Through aggressive questioning and confrontational surroundings, family law can unintentionally exacerbate underlying trauma. Trauma-informed care aims to break this cycle by creating a healing environment.

Stay tuned for future blog posts that will discuss what trauma-informed lawyering looks like and what survivors really want from their lawyers and advocates.

?