FALL 201017SPECIALIZATION HAS THE POTENTIAL TO LEAD TO UNEVEN JUSTICE:DOMESTIC VIOLENCE CASES IN THE JUVENILE & DOMESTIC VIOLENCE COURTSBy: Allison Cleveland 1Rather than focus on process and precedent, problem-solving justice focuses on the outcome. Problem solving courts are “specialized courts that seek to respond to persistent social, human, and legal problems, such as addiction, family dysfunction, domestic violence, mental illness, and quality-of-life crime.” These courts adapt their processes to suit the sources of the problems, which are driving the actions that bring the wrongdoer to court in the fi rst place. The focus is on the individual, and the courts provide particularized responses designed to change that specifi c offender’s future behavior. - Kathryn C. Sammons2I. Introduction In October of this year, I observed an initial hearing at the Boston Juvenile Court for a care and protection case involving four children, all less than fi ve years of age.3 The Massachusetts Department of Children and Families (“DCF”) presented evidence that the mother used cocaine during her pregnancy with the youngest of the four children–a newborn. This was the entirety of the DCF case. The other three children were present at the hearing and appeared to be very happy, energetic, and well-cared for. Though the children’s mother and father did not live together, they still saw each other socially and coordinated child care. Counsel for the mother argued that the DCF presented no nexus between the mother’s drug use and her ability to care for her older children. The older children, reasoned the mother’s counsel, should therefore remain in her care. The judge reviewed documents submitted into evidence and came to the father’s criminal record. Noting multiple restraining orders against the father for domestic abuse, the judge voiced concern about the mother’s failure to separate herself from a man with such an extensive history of domestic abuse. Accordingly, the judge ordered DCF to take custody of all four children.Following the hearing, I spoke with another juvenile court judge. I admitted my surprise that all four children were removed from their mother’s home based on their father’s violent history against women. The judge was not surprised by the outcome and voiced his strong feeling that the outcome was correct. He noted that, based on the fi rm language used by the Supreme Judicial Court in Custody of Vaughn,4 juvenile court judges take no risks in situations involving domestic abuse. The court would rather remove a child from his or her partner violence is enough to remove children from the home. He underscored the harm that he believes can be done to a child by simply observing abuse and his belief that mothers are not likely to escape the cycle of intimate partner violence. In the ensuing weeks, I observed more cases in which children were removed from their families and placed into DCF custody based largely on the mother’s status as a domestic violence victim. These decisions continued to strike me. Would the outcome be different in other courts? Would the outcome differ, specifi cally, in courts that specialize in domestic violence cases?This paper examines the ways in which judges in the juvenile and domestic violence courts have dealt with, and are likely to deal with, cases of intimate partner violence where children live in the household. Specifi cally, this paper suggests that the divergent goals of these two specialty courts likely result in uneven justice. In juvenile courts, a judge’s focus is on the welfare of the child. Consequently, children are more likely to be removed from an abused parent’s custody to protect the child’s physical safety. In domestic violence courts, on the other hand, judges are likely to adopt a more favorable position toward domestic violence survivors, in that the abused party is seen less as a victim and more as a capable caretaker. This is especially true in jurisdictions where more services exist to help victims become self-sustaining, as custody in those jurisdictions appears more likely to be awarded to the non-abusive parent as part of the rehabilitation process. II. Specialization: The Domestic Violence and Juvenile and CourtsDomestic Violence Courts “Domestic violence courts,” as the name implies, are specialized courts that adjudicate cases involving domestic violence. The Violence Against Women Act (“VAWA”) (Title IV of the Violent Crime Control and Law Enforcement Act of 1994)5 routed substantial funds into the nation’s court systems and other areas of criminal justice to demand more accountability from domestic violence perpetrators and to provide help and safety to victims.6 Beginning in the 1990s, courts nationwide began to allocate special court sessions and other procedural resources for domestic violence cases.7These “domestic violence courts” were deemed necessary, in part, to handle the growing number of domestic violence cases as arrests for partner abuse became mandatory and as district attorneys faced increasing pressure to prosecute such crimes.8 There are currently more than 300 courts family than run the risk of abuse. As here, evidence of intimateTHE MODERN AMERICAN18with special procedures in place to handle domestic violence matters.9 The goals of specialized domestic violence courts around the country have been relatively uniform and include protecting and empowering domestic violence survivors10 in addition to holding perpetrators accountable.11 Improving case management efficiency is also often cited as a goal.12Domestic violence courts vary greatly in structure.13 Some domestic violence courts may hear only requests for civil restraining orders, while others may adjudicate all issues—such as restraining orders, criminal charges, and divorce and custody issues—for a single family when domestic violence is involved. The term “domestic violence court” can encompass anything from specialized intake processes to an actual separate court system dedicated to domestic violence cases.14 For example, in