Mental Illness and Domestic Violence: Implications for

Many studies have shown the nexusbetween domestic violence victimizationand mental health problems. Experts be-lieve that between 60 percent and 90 per-cent of battered women have significantmental health issues.1 Eighty-one percentof women who have been treated for psy-chiatric disorders report histories ofabuse.2 Between 30 percent and 90 per-cent of battered women in Chicago-areadomestic violence programs have mentalhealth diagnoses.3 Although no study hasdocumented this, the experience of manyproviders tells us that a large number ofthe women seeking legal assistance havemental health difficulties, including de-pression, posttraumatic stress disorder,substance abuse issues, or other diagnoseswhich have a serious impact on their fam-ily law cases.

In an era in which providers of legalservices are mindful of shrinking re-sources and the duty to use those re-sources wisely to help the most people,why should poverty law specialists takeon the case of a mentally ill batteredwoman? These cases can consume hugeamounts of attorney time. They almostalways necessitate expert evaluation andtestimony, involve the collaboration of

attorneys with other agencies, and fre-quently have very difficult facts. However,work on behalf of this client populationadvances the mission of legal aid agenciesto assist those in most need, address socialissues through legal representation, andseek justice. The rewards of helping a bat-tered woman challenged by mental healthissues prove her credibility, secure cus-tody of her children, and win a chance atfreedom from fear can be enormous.

Although the facts of these cases areoften initially adverse, fairness and equi-ty are usually on the side of the batteredwoman, especially in custody matters. Thechildren may also be victims of the father’sabuse while the battered woman providesthem with a home, care, and love.

Representing these clients can en-hance a reform agenda: the stigma ofmental illness and society’s prejudiceregarding mental health conditions are atthe heart of courts’ denial of custody tothese mothers. Further, in cases in whichthe domestic violence caused or wors-ened the client’s mental health condition,our work on these cases holds the abuseraccountable for the full extent of the dam-age the abuser has done to the family,and prevents uneducated courts from

MAY–JUNE 2003 | JOURNAL OF POVERTY LAW AND POLICY 23

Mental Illness and Domestic Violence:Implications for Family Law Litigation

By Denice Wolf Markham

Denice Wolf Markham is

executive director, Life Span,

Center for Legal Services and

Advocacy, 20 E. Jackson St.,

Suite 500, Chicago, IL 60604;

312.408.1210;

[email protected].

1 Carole Warshaw, Women and Violence, in PSYCHOLOGICAL ASPECTS OF WOMEN’S HEALTH

CARE 483 (Nada L. Stotland et al. eds., 2001). 2 Id.3 Carole Warshaw et al., REPORT ON MENTAL HEALTH ISSUES AND SERVICE NEEDS IN CHICAGO

AREA DOMESTIC VIOLENCE PROGRAMS (2003), available at www.dvmphi.org.

rewarding the reprehensible conduct ofthis bad actor.

Here I give some background in theissues facing this client population, dis-cuss confidentiality, privilege, and strate-gies for dealing with treatment and eval-uative evidence in preparing the case, andoffer ideas for systemic advocacy withregard to mental illness in the family lawsystem. Much of my analysis of these top-ics is based on the experience of lawyersworking at Life Span, a Chicago domesticviolence organization that provides bothlegal services and counseling to victims.Life Span has developed an expertise inworking with this client population.

I. Some BackgroundAn understanding of basic mental illnessdiagnoses and the causal relationshipbetween the client’s mental illness andthe battering she has suffered can great-ly enhance a lawyer’s representation ofbattered women with mental healthissues. Some information about the his-tory of the mental health and domesticviolence fields will also benefit legal prac-titioners working in this area.

A. Conflicts Between Mental Healthand Domestic Violence SystemsClients with mental illness usually are

involved with a number of service pro-viders. They may have sought help fromshelters or domestic violence counselors,may have been hospitalized and receivedmental health treatment, or experiencedsome other intervention. The lawyer han-dling these cases will probably have rela-tionships with some of these providers asthe lawyer develops facts, gathers evi-dence, and prepares witnesses. Workingin this area, I have been struck by theconflicts and contradictions between thesetwo systems, each not understanding ortrusting the other. To avoid any adverseeffects of these conflicts on the case, andto facilitate the lawyer’s interactions andrelationships with these professionals,some understanding of these different sys-tems is warranted.

Domestic violence service providers

are typically grass-roots organizations guid-ed by the political thesis that batteredwomen are victims of a patriarchal societywhich blames women for the violence per-petrated by men. The suggestion that abattered woman is “crazy” is directly con-trary to this thesis and is viewed as detri-mental to these providers’ goal of abuseraccountability. Some battered women’sshelters have strict rules regarding residentswith mental illness, not allowing them tocontrol their medications, or refusing toallow women taking medication to live atthe shelter. Ignorance of mental healthdiagnoses and treatment contribute toreluctance on the part of some serviceproviders to deal with these issues.

Mental health service providers canlack an understanding of domestic violencein the lives of their clients. Criticisms of themental health system include inappropri-ate reliance on medication to the exclu-sion of other treatments and using couplestherapy to “treat” domestic violence. Mentalhealth practitioners may view a batteredwoman’s coping strategies as symptoms,pathologizing what is an appropriateresponse to battering. An additional prob-lem with this system is a profound lack ofresources for battered women who do nothave serious mental illness. Communitymental health centers often limit their ser-vices to patients with serious mental ill-nesses, such as schizophrenia.

Further, abusers typically control in-surance and use that power to controltreatment, endangering the victim.4

In preparing a case for a mentally illbattered woman, the lawyer must takeinto account the disparate approaches ofeach system to the lawyer’s client, mind-ful of their effect on both written evidenceand testimony. The lawyer must learn tointegrate these different points of viewand interpret the evidence to the advan-tage of the client. Educating those whorely on the work of these providers inmaking decisions—judges, other lawyers(especially those representing the child),and custody evaluators—about these con-flicts can contribute to an accurate analy-sis of custody issues.

Mental Illness and Domestic Violence

24 CLEARINGHOUSE REVIEW | MAY–JUNE 2003

4 Gabriella Moroney et al., Mental Health and Domestic Violence: Collaborative Initiatives,Service Models, and Curricula (Sept. 2002), at www.dvmphi.org.

B. Mental Health Diagnoses 101A familiarity with basic mental health

terminology and diagnoses is necessaryto represent this population of batteredwomen. Victims who have been hospi-talized, sought treatment for mental ill-ness, or been evaluated in connectionwith custody litigation may have one ormore diagnoses which may profoundlyaffect their requests for relief in family lawcases. Understanding the basic sympto-mology and having a framework forthinking about and analyzing these issueswill allow the lawyer to develop a legalstrategy for dealing with them in the con-text of the family law case.

Battered women suffering mentalhealth consequences may be diagnosedwith a number of illnesses, includingdepression, anxiety, panic disorders, orposttraumatic stress disorder.5 The lastdevelops as a response to a traumatic eventor events, such as battering. Symptoms aregenerally divided into three types: intru-sive, often flashbacks or nightmares; avoid-ance, including inability to remember anevent or lack of emotion; and increasedarousal, manifested as startle reactions,inability to concentrate, and insomnia.6

The effects of posttraumatic stress dis-order on a battered woman as a party ina legal action are important for lawyers toconsider, as symptoms may directly affectthe attorney-client relationship. The clientmay have difficulty making decisions andfind it hard to trust others. These prob-lems can compromise her ability to seekhelp and to cooperate with those tryingto help her.7 She may withhold informa-tion about her abuse, her mental healthhistory, or other important details becauseof her lack of trust or her inability to

remember. Although the client may haveobtained a protective order or be in a shel-ter, posttraumatic stress disorder makes itdifficult to see the battering as a pastevent.8 Those with experience in domes-tic violence law recognize the probablecorrectness of her assessment of imminentdanger, but mental health professionalsmay see the insistence on the immediacyof her fear and trauma as a symptom ofher mental illness.

Depression has long been recognizedas one of the more common psychicinjuries of battering. Experts estimate thatbetween 37 percent and 63 percent ofbattered women experience depression.9

The symptoms of this disease includedepressed mood, lack of interest in every-day activities, indecisiveness, inability toconcentrate, fatigue, insomnia, feelings ofworthlessness, or thoughts of death orsuicide.10 To expect some of these symp-toms to be present in a woman who hasexperienced even one episode of domes-tic violence is almost common sense. Inwomen with a history of serious abuse,problems with depression are even morelikely to occur.11

Substance abuse also plagues manybattered women. As many as one third ofvictims suffer from alcoholism.12 Use ofillegal drugs is also common.13 Substanceabuse may be the woman’s attempt tomedicate herself in order to deal with theongoing abuse or the consequences ofthe trauma. Another common scenario isthe use of drugs or alcohol as part of theabuse. In these cases the abuser forcesthe victim to become dependent on thesesubstances as a means of control and asa way to destroy her functionality andself-esteem. The abuser then uses the fact



5 Warshaw, supra note 1, at 480. “Posttraumatic stress disorder” is abbreviated commonlyas “PTSD” in professional literature and discussion.

6 AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 427–29(4th ed. 1994).

7 Warshaw, supra note 1, at 450.8 Id.9 Id. at 451.

10 AM. PSYCHIATRIC ASS’N, supra note 6, at 327.11 Warshaw, supra note 1, at 451.12 Id.13 Id.

of her addiction against her should sheseek help.

C. The Causal Relationship Between Mental Illness and Domestic ViolenceIn many cases a convincing argument

can be made that mental illness anddomestic violence are causally related.Although this relationship is most appar-ent in those victims suffering from post-traumatic stress disorder, a causal link toother mental illnesses can also be made.14

Trauma theory is a recent constructparticularly useful in analyzing the rela-tionship between mental illness anddomestic violence in a case and can helpthe lawyer develop a theory of the casethat will insulate the client from negativeinferences regarding mental illness on thepart of the judge, the attorney for thechild, evaluators, and other decision mak-ers in the litigation. A basic premise oftrauma theory is that the symptoms ofmental illness that a battered womanmanifests can be understood as survivalstrategies, developed as a reaction to herexperience.

When trauma theory is employed, abattered woman’s extreme caution andfearfulness are not a symptom of para-noia but a rational response to what shehas experienced. One of the goals of thisanalysis is to contribute to a decisionmaker’s understanding that the batteredwoman is acting as a reasonable persongiven the abuse she has survived.

Her distrust of others is not patho-logical but learned from her victimizationat the hands of someone she loves. Herlack of emotion is a way of protectingherself from the psychic trauma of abuse.Viewed in the framework of trauma the-ory, a battered woman’s symptoms canbecome examples of her strength in cop-

ing with what has happened to her andas reasonable attempts to survive in a vio-lent relationship.

Domestic violence can also exacer-bate a victim’s already existing mentalhealth condition.15 These battered womenmay have extensive mental health back-grounds and treatment records aboutwhich the batterer is familiar. The batter-er may use the victim’s illness as a way tocontrol her, telling her that no one willbelieve her account of the abuse becauseshe is crazy. In these cases the abusermay be overly involved in her treatment.The abuser may force her to be hospital-ized or use threats of involuntary com-mitment to terrorize her. He may controlher medication, overmedicating her orinducing symptoms by withholding med-ication. The abuser uses the victim’s men-tal health status as a basis for emotionaland psychological abuse.

In both situations—where mental ill-ness is a direct result of abuse and wheredomestic violence is exacerbating a men-tal health condition—victims often willimprove and symptoms will abate or dis-appear once the domestic violence is ad-dressed.

II. Preparing for Family Law Litigation

In most states the well-known standardfor determining custody is the best inter-ests of the child.16 Statutes typically list anumber of factors to consider in makingthis determination; one factor is the men-tal and physical health of the potentialcustodians.17 Courts examine the parent’slevel of functioning, compliance withtreatment, and support systems in assign-ing relative importance to the mental ill-ness in the potential custodian.18 The rela-tionship of the child and the parent iscrucial, as it is in any custody case.



14 Warshaw, supra note 1, at 454; see also Mary Ann Dutton et al., Posttraumatic StressDisorder Among Battered Women: Analysis of Legal Implications, in 12 BEHAV. SCI. & L.215, 226 (1994).

15 Warshaw, supra note 1, at 45416 E.g., 750 ILL. COMP. STAT. 5/602 (2000).17 E.g., id. 5/602(5).18 E.g., People ex rel. Bukovic v. Smith, 423 N.E.2d 1302 (Ill. 1981); In re Horbatenko, 531

N.E.2d 1011 (Ill. 1988) (Clearinghouse No. 44,095).

A. Investigating the CaseInvestigation and fact development

in cases of domestic violence and mentalillness are of paramount importance. Theissue of mental illness can arise in manydifferent ways: the abuser may make anallegation in pleadings or by other means,the client’s referral source or the clientmay raise the issue, or the lawyer or para-legal may question the client on this topic.At Life Span inquiry about physical andmental illness, treatment, and medicationsis part of every intake.

1. Obtaining Records and Other Communications

Clients with an extensive history ofhospitalizations and treatment may havedifficulty remembering every treatmentprovider, just as some clients may beunable to remember serious incidents ofabuse. Minimizing what has happened tothem is a way of coping with trauma. Thedeep shame and guilt that clients mayfeel, both about the abuse and the result-ing mental health consequences, mayhave an impact on their ability to recounttheir history accurately. These clients arenot lying or withholding informationcapriciously; they cannot remember allthat has happened to them in sequentialorder, with dates and times. That thelawyer be fully informed about the client’smental health history is crucial. Often thelawyer must rely on the lawyer’s owninvestigation and fact gathering to fill inthe gaps of the history that the clientrelates. This investigation always requiresobtaining confidential and privilegedrecords from treatment and service pro-viders and institutions.

Confidentiality is a particularly thornyissue in domestic violence law, and manydomestic violence advocates see protect-ing client’s mental health treatment, coun-seling, and other records as a way of pro-tecting their clients from victim blaming.States’ domestic violence statutes oftencontain a section on the confidentiality of

communications between counselors oradvocates and their clients.19 In Illinoiscounselors who disclose confidentialinformation without written permissionfrom the client are subject to criminalprosecution.20 Obtaining records fromdomestic violence agencies always re-quires a written release of informationfrom the client. At this step in case prepa-ration, lawyers should work to engagethe domestic violence counselor as an allyto achieve a common goal for the client.Domestic violence service providers havehad ample experience with lawyers whodo not understand domestic violence andhave hurt, rather than helped, past clients.One of the initial tasks that the lawyerwill have in building a beneficial rela-tionship with a domestic violence coun-selor is easing the counselor’s concernsabout the purpose of asking for therecords. The counselor can help thelawyer understand the history of the vio-lence and can give detail and other infor-mation. Developing a good relationshipwith the counselor now may help whenthe time comes to decide who will makea knowledgeable and persuasive witnesson the client’s behalf.

The patient’s attorney will probablybe able to secure mental health treatmentrecords through the release of informa-tion, or the client may be able to accom-plish this herself. However, most statesstringently protect mental health recordsfrom disclosure, and the abuser’s attor-ney may not be able to obtain themthrough the regular course of fact gath-ering. Familiarity with the state statutedealing with confidentiality and privilegeis imperative for the attorney to obtainthe necessary information. For example,Illinois’s Mental Health and Develop-mental Disabilities Confidentiality Act setsout detailed procedures for obtainingtreatment records and other information,including the requirement that a judgereview the records to determine rele-vance, at which time the court issues an



19 E.g., Illinois Domestic Violence Act, 750 ILL. COMP. STAT. 60/227. See also Stephen E.Doyne et al., Custody Disputes Involving Domestic Violence: Making Children’s Needs aPriority, in DOMESTIC VIOLENCE LAW 340 (Nancy K. Lemon ed., 2001).

20 750 ILL. COMP. STAT. 60/227.

order for the record’s release.21 Sometreatment providers will seek review andan order from the court no matter who(including the patient) is seeking therelease of the file.

An interview with the therapists anddoctors working with the client can be anefficient and enlightening way to investi-gate the mental health aspects of the case,but these practitioners may be reluctant todiscuss the case with the attorney. Timespent developing a collaborative rela-tionship with mental health providers, justas with domestic violence professionals,is time well spent. Treaters have their ownduties to their client; such duties includemaintaining the therapeutic relationship,which could be damaged by the dissem-ination of sensitive information or opin-ions. Under some state laws, treaters mayhave the power to decline to release infor-mation if they believe that it is not in thebest interests of their client, regardless ofthe client’s wishes or instructions.22 Thisrefusal may place the client’s attorney inthe position of seeking a court order forher own client’s records.

2. Contents of the Records

Mental health records can have awealth of information and observationswhich will help the client prove the ele-ments of her case beyond the issue of themental illness and treatment itself. After all,the victim’s attorney is not trying to provethe fact of the mental illness. The attorneycan glean from the records corroborationof the client’s victimization, the client’scooperation with treatment, the clinician’sobservations of the quality of the client’srelationships with others, any assessmentof her ability to be a parent, and other bitsof evidence helpful to her case.

The records will also have informa-tion that is not helpful to the case andmight be damaging to the client. Knowingthe downside of the case is just as impor-tant as mastering the positive theories ofthe action, and the attorney must be alertfor negative information, or informationwhich may be interpreted in a manner

harmful to the client. Discussing thesepieces of information with the treater canhelp the lawyer develop a strategy forminimizing the effects of the informationon the case and explain them away.Statements of the patient’s belief in herown culpability in the abuse, contradic-tory statements, and the patient’s doubtsabout her ability to be a good parent areall examples of potentially damaging in-formation in the file. The lawyer and thetreatment provider can develop togetheran explanation for why a victim of domes-tic violence might express these feelings.

In all likelihood one set of recordsfrom a treatment provider will lead theattorney to other treaters or institutionswith which the client has had a relation-ship. Get all the records from all theproviders you find. Knowing what is inthe client’s mental health files is the onlyway to analyze accurately and plan forusage and management of the informa-tion and the issue of mental illness in theclient’s case.

B. Maximizing the Client’s StrengthsAs in all litigation, the manner in

which the case is handled, including whatevidence and strategies are employed, isthe client’s ultimate decision. In cases asdifficult and time-consuming as these,client involvement may seem a burden.However, engaging the client in thisprocess and having her input on decisionsabout the strategy for obtaining informa-tion and deciding how to use it promotesher cooperation in the litigation. Theclient’s feeling of self-determination andownership of the strategies used in thelitigation will contribute to her success asa litigant in her own case.

Assessing the case’s legal merits con-tinues throughout the attorney’s repre-sentation of the client. In cases where cus-tody is an issue, the attorney should havea good understanding of the best-inter-ests standard in the state and fit the factsof the client’s case into the standard asthe attorney investigates and develops thefacts. This is an excellent time to think



21 Mental Health and Developmental Disabilities Confidentiality Act, 740 ILL. COMP. STAT.110/1–110/15 (2000).

22 E.g., id.

about the case’s weaknesses and try toaddress them.

In our experience, some concerns andfactors can be addressed or improvedupon while waiting for a case to ripen fortrial. Again, if the attorney has a relation-ship with the other professionals involvedwith the client, all can work together tostrengthen the client’s case and chancesfor a successful outcome. The profession-als should work together to encourage theclient to take steps to enhance her owncredibility. If the client feels that she is partof a team, she will be more motivated tocooperate with recommendations of theservice providers involved in her case. Forexample, if the client is currently in treat-ment, the professionals can communicatethe importance of compliance with treat-ment, further motivating the client to attendall appointments and regularly take anymedication that is prescribed. The attor-ney can ask that the treatment providermonitor this aspect of the case and docu-ment the client’s progress in the provider’sfile. This documentation can ensure thatthe client is following the strategy; the doc-umentation is also excellent evidenceshould the case go to hearing or trial.

Other recommendations can servethis dual purpose of strengthening theclient’s case and supplying evidence fortrial. Attending parenting classes and sup-port groups is a common recommenda-tion. Professionals working with the bat-tered woman may suggest that the childwould benefit from intervention such ascounseling or art therapy. These resourcescan be difficult to find, but the localdomestic violence agency may be able toassist the children.

A viable support network for theclient and her child is positive in any cus-tody case, but it is crucial for the batteredwoman with mental health issues. Family,friends, neighbors, and church can be theall-important backup that a potential cus-todian needs. This support system is usu-ally a work in progress for any single par-ent, and the client can continue to buildand develop it while the case is pending.

C. Searching for a Custody EvaluatorFinding a competent custody evalu-

ator for domestic violence cases is always

a challenge. In most states the evaluationprocess is not standardized but couldencompass the following: interviews withparties, review of mental health and med-ical records, review of criminal records ofparties including police reports, and inter-views with people—such as neighbors,other family members, teachers, and doc-tors—collateral to the case. The evalua-tor may perform and interpret various psy-chological tests. Custody evaluations thatprove valuable to the court must includeobservations of the parties and the childor children. The evaluation itself is usuallywritten and contains a recommendationfor custody and visitation. Many containrecommendations for further treatment orother therapeutic processes such as par-enting classes, anger management class-es, and therapy for parents or children.In contested custody cases, the evaluatorwill act as an expert witness, will testify atthe hearing or trial, and will be subject tocross-examination.

To assume that a mental health pro-fessional will understand domestic vio-lence is a mistake, and to think that theprofessional will have a grasp of the inter-relationship between domestic violenceand mental illness is a greater mistake.Finding someone who is knowledgeableabout these issues, or is educable, can bea tremendous asset to the case.

In our work at Life Span we have hadsome negative experiences with evalua-tors’ failure to understand domestic vio-lence and its manifestations in the moth-er and her relationship with her child.Clients realistically concerned for theirchildren’s physical and emotional safetywhen with the abuser were seen asenmeshed, overidentified, and overin-volved with their children. Evaluators rou-tinely did not recognize these character-istics as arising from real and legitimatefear and the desire to protect as a resultof domestic violence. Rather, evaluatorsoften saw them as evidence of poor par-enting skills. In some cases, clients wereblamed for the effects of violence, andabusers were absent in this determinationof responsibility. Through experience andnetworking, Life Span lawyers have founda few psychologists who are sympathet-ic to our clients’ point of view and who



have been willing to explore the nexusbetween domestic violence and mentalillness for themselves. In suggesting thateach case would benefit from such anevaluator, I understand how difficultobtaining such an expert will be for anyattorney beginning to represent this pop-ulation of clients.

III. Developing a Strategy forHandling Mental Health Issues in the Case

The knowledge that the attorney hasgained in the investigation and fact devel-opment phase of case preparation willform the basis for decisions about howto handle the domestic violence and men-tal health issues in the legal action.

A. PleadingsIn our experience at Life Span, if a

client has had treatment for a mental ill-ness and the abuser knows this, theabuser will try to use it to prove that (1)she is not a credible witness and (2) sheshould not be awarded custody of thechildren. Since the opposing party, in alllikelihood, will raise the issue, we havefound that acknowledging the mentalhealth issues affirmatively in the batteredwoman’s case is a successful strategy. Thisstraightforward treatment of the issuehelps dispel the stigma that the opposingside wants to use to its advantage eithersubtly or overtly. To say that the batteredwoman can use her mental illness in apositive way may be too strong a state-ment, but acknowledging the issue in herown petition for divorce, custody, or aprotective order allows her to avoid adefensive posture. The battered woman’sindication in her court papers that she istaking ownership of the issue of her men-tal health status tends to deflate anyattempt by the opponent to overwhelmthe case with this issue.

The client can underscore her appro-priateness as a custodial parent at thesame time that she raises the mental ill-ness issue in any petition seeking anaward of custody. Again, the strategy intreating the issue this way is to refuse togive credence to the stigma of mental ill-ness. We have adapted the following sam-

ple statements for use in many cases atLife Span:

� “Petitioner has been diagnosed withdepression, is currently in treatment, andis in compliance with all treatment rec-ommendations.”

� “For all of the child’s life, petitionerhas had the primary responsibility of car-ing for the parties’ daughter, Mary.”

� “Mary is a thriving and well-adjustedchild with a close relationship to peti-tioner.”

� “That Petitioner be awarded sole cus-tody is in Mary’s best interests.”

Life Span lawyers also use pleadingsto raise the issue of causality in the men-tal illness–domestic violence interrelation.We accomplish this as simply as possible,with a minimum of conclusory language.To describe a causal relationship betweenthe client’s mental state and the domesticviolence, an allegation might be wordedas follows: “Petitioner is afraid to leaveher house due to her fears that therespondent is following her.” This sen-tence, used in the context of a pleadingin a case in which mental illness is anissue, is a good deal more complicatedthan it appears because it is an allegationincorporating the idea of trauma theory.The abuser might raise an issue of theclient’s paranoia and its impact on herdaily life, making it impossible for her tomeet her parental responsibilities. Theclient’s lawyer is describing the issue as aresult of the abuser’s stalking of the client.This allegation places the focus on theabuser’s intimidating conduct rather thanon the victim’s legitimate response.

Simple factual sentences can alsorelate the idea of causality in cases in whicha mental health condition is exacerbated byabuse. Here the allegation might read:“Petitioner’s depression deepened after therespondent began abusing her.” In cases inwhich the mental illness was relieved oncethe client was protected from violence, thepleading might say: “Once petitionerentered the domestic violence shelter, herdepression lifted.” The use of the word“depression” is important here; the term is



both technical and in the vocabulary of theaverage person. “Posttraumatic stress dis-order” cannot be used in the same way.

In these three examples the lawyerputs forth the theory of the case and thenexus between domestic violence andmental health issues without any techni-cal or theoretical language which mightalarm either the opposing side or thecourt. In fact, these factual statementslend themselves to a variety of uses inthe case and can be proven through aclient’s as well as an expert’s or treatmentprovider’s testimony.

B. Using Treatment Evidence in the Case—an ExampleThe best strategy for using treatment

evidence is to use it to establish the men-tal health issue as your issue and toremain the master of the evidence. In thissection I will use a case example fromLife Span files to illustrate how treatmentevidence can be used both to prove yourcase and to negate the power that theopponent hopes the mental illness willhave in his case.

Mary and John were married and hadan 18-month-old daughter, Ann. Mary wasa stay-at-home mother and John was apatrolman in their local police depart-ment. John was abusive and had beenhitting Mary with increasing frequencysince her pregnancy. He prohibited herfrom speaking with her family and didnot allow her to leave the house unless heaccompanied her. Before the marriage,Mary had a history of depression and hadtaken antidepressants. As the domesticviolence in her marriage to John pro-gressed, Mary again became depressed.Although she took good care of Ann, shewas often too debilitated by her illness toengage in any other activity. She was sad,listless, and did not take care of herself.She rarely ate a full meal and lost weight.John often told her that she was crazy,but he would not allow her to contact herdoctor for help. He told her that no onewould believe her story of abuse becauseshe was crazy. John knew that he mightlose his job if the police department hadevidence that he was a batterer.

One evening John beat Mary severe-ly, pulling her hair, hitting her in the torso

and thighs, grabbing her by the upperarms and shoving her to the ground andinto the wall. After the beating John wentout, locking Mary and Ann in the housewith a dead-bolt lock and taking the key.Mary decided that she had had enoughand called her family to come and gether. When her father and brother arrived,they could not get in the house. Theycalled the police from their cell phone,and John and a few of his colleaguesarrived together some minutes later.

John explained what had happenedto the other officers: Mary was depressed,but she would not get help for herself.Earlier that evening she had tried to jumpout of the window, and he had had torestrain her. Sobbing, Mary recounted thefacts to the officers, who expressed dis-belief. Mary’s relatives demanded that theofficers do something to protect Mary, so,in consultation with John, they decidedto take Mary to the mental health wardof the nearby hospital.

At the hospital the nurses and doc-tors performed a general examination todetermine Mary’s physical health. Theynoted in the file that Mary appeared tohave many fresh injuries to her body, legs,and arms. They documented the injurieson a body chart in the file. The nurseasked Mary what had happened to her,and Mary told her that her husband hadbeaten her earlier that night. Mary wastearful and asked repeatedly about herdaughter and who was caring for her. Thenurse wrote an account of the conversa-tion in the file, noting Mary’s concern forher daughter. When Mary sat up in bed,the nurse saw clumps of hair on her pil-low; the hair was falling out as a result ofJohn’s abuse. The nurse wrote theseobservations in the file.

Mary was admitted voluntarily fortreatment of depression. She was inter-viewed by nurses, social workers, anddoctors several times during her two-week hospitalization. Each time Mary toldthe story of her victimization and relatedthat her husband beat and isolated her.She denied ever trying to commit suicideand explained that her husband lied tocover up the true origin of her injuries.The file contained the following notationsfrom medical personnel about Mary’s



statements: “Repeats that throughout therelationship he has been intermittentlyabusive—physically, including punching,pulling hair, and kicking her & verballyabusive as well.” Later the nurse notedthat “husband has only set of keys to thehouse & locks her in with the baby whenhe goes to work or goes out for any rea-son.” The nurse identified the issues inthe case as “psychiatric symptoms; domes-tic violence.” During her stay, nursesupdated her file as her injuries developed;the nurses noted increased bruising andswelling as the days wore on.

As part of Mary’s treatment, the samepractitioners interviewed John. The socialworker’s notes include this sentence: “ Iasked him about physical fightingbetween pt. He denies, though states thatat times he has pushed her aside. Alsoadmits to ‘having to restrain her.’” Duringa social work meeting at which both Maryand John were present, Mary describedJohn’s abusive conduct. The social work-er’s notes of the meeting reflected thatJohn “did not deny or become overtlyanxious when discussing. He states thatthese occurrences have been recent.” Johnalso “expressed his wish to restrict hercontact with her family.”

Mary was discharged from the hos-pital with antidepressant medication. Shewent home with John and resumed theirlife together, hoping that John wouldchange his behavior toward her. Mary hadtwice weekly appointments with thesocial worker at the hospital and took hermedicine as prescribed. She lived withJohn for two months until John beat heragain. Taking baby Ann with her, she fledto her sister’s home. She contacted LifeSpan for help. We took her case to filefor an order of protection under theIllinois Domestic Violence Act.

In the meetings with her attorney,Mary was straightforward about her men-tal health issues and recent lengthy hospi-talization. She was skeptical that she wouldbe able to keep her baby and was surethat a judge would not believe her story ofabuse. The lawyer interviewed Mary atlength and observed her with her daugh-ter. She asked Mary to go to the hospitaland get a copy of her treatment records.The lawyer reviewed the records that Mary

brought to her later that week and foundmany statements that could be helpful. Thelawyer met with Mary and explained thatshe wanted to file papers that told thejudge about Mary’s illness and her treat-ment. The lawyer explained the issuesrelated to the use of privileged informa-tion. With Mary in agreement with thisstrategy, the lawyer prepared a petition fora protective order, also asking for tempo-rary custody of Ann. The pleading includ-ed an account of Mary’s recent problemswith depression and described the condi-tion as one that arose after a history ofabuse. The petition alleged that Mary wasin treatment and taking her medication,fully functional and taking care of herdaughter. John’s lawyer filed an answerthat raised doubts about Mary’s ability to betruthful. The answer described Mary as sui-cidal and unable to care for Ann. John alsofiled his own petition for custody.

This case went to hearing within aweek of its filing at John’s insistence. Hewas concerned that the petition woulddamage his career as a police officer, andhe was confident that the case would bequickly resolved in his favor. In prepara-tion for the hearing, Life Span lawyersheld a conference with Mary and the prac-titioners who had treated her at the hos-pital. They went over the files and agreedthat their testimony could only help Maryprove her case. The lawyer subpoenaedthe nurse and social worker, along withtheir complete files.

The Life Span attorneys offered thefollowing evidence: Mary testified aboutthe abuse and about her relationship withAnn. She talked about her depression andher treatment compliance. She told thejudge that she felt much better since shemoved in with her sister. Her lawyer wassurprised at how well Mary stood upunder cross-examination; she was a littleshaky but remained consistent. Mary’s sis-ter testified about her observations aboutMary’s parenting abilities, and how gladshe was to have her sister back after yearsof John hanging up the phone when shecalled. Mary’s dad testified about the nighthe went to help Mary and found herdead-bolted in the house.

We then called the nurse as a wit-ness. She testified about Mary’s injuries



and her statements concerning how shebecame injured. She showed the courther body chart and her documentation ofthe progression of Mary’s injuries. She tes-tified as to Mary’s concern about Ann. Shetestified about Mary’s consistency and can-dor during the several conversations shehad with Mary about the history of abuse.When the psychiatric social worker testi-fied, she talked about Mary’s physical con-dition and her consistent statements aboutthe battering. She talked about John’sdemeanor, his admissions about the push-ing and other violence, as well as hisunwillingness to let Mary see her family.She explained to the judge that depressioncan be a result of abuse and is a verytreatable condition. She also testified thatMary had kept her appointments sinceleaving the hospital, was compliant withmedication, and the depression had less-ened considerably. The social worker hadobserved Mary and Ann together manytimes in her office and found their inter-actions appropriate. We used the nurseto supply a foundation for the treatmentrecords and entered them into evidence.

John testified on his own behalf. Histestimony was a series of denials andassertions that Mary was crazy and couldnot be believed. From his work as a policeofficer, he knew that the victim’s credibil-ity is often an issue in domestic violencecases and that many police and judgesbelieve that women fabricate allegations.He thought Mary’s mental illness wouldheighten the judge’s reluctance to believeher. He talked about trying to restrain Maryand fearing for Ann’s safety in her care,even though Mary had always been Ann’scaretaker. John’s lawyers called the offi-cers who had taken Mary to the hospital;the officers’ testimony described her asweeping and incoherent.

The judge granted Mary the order ofprotection and gave her temporary custodyof her daughter. He required Mary and thebaby to live with her sister during the pen-dency of the case and to follow the instruc-tions of her social worker. He ordered Johnto enroll in domestic violence counselingand reported his conduct to the policedepartment. The judge ordered the partiesto participate in an evaluation for custodypurposes. This case pended for more than

a year while the evaluation was complet-ed. Mary was the recommended custodian,and the case settled.

In Mary’s case the lawyers used themental health evidence for a number ofpurposes. First, it bolstered her credibilityon the abuse issues and helped prove thatdomestic violence occurred. Mary’s con-sistency in telling her story to a number ofpeople in a situation in which she was like-ly to be truthful, and the fact that thosepeople believed her, helped prove her reli-ability. Second, the mental health evidencewas presented as part of Mary’s case andMary remained in control of the issue. Theprofessional testimony was part of Mary’scase in chief and in her favor. Mary’s tes-timony drew a relationship between herhusband’s abuse and her state of mind andfeelings. As a whole, this strategy pre-vented John from exaggerating the prob-



lem, inflating its importance, or character-izing her illness as debilitating.

Mary was able to present evidencethat she was an appropriate parent forAnn. She testified about her caretakingabilities, as did her sister. The nurse andsocial worker presented evidence aboutMary’s concern for her daughter, her com-pliance with treatment, and her appro-priate interactions with Ann. Although thejudge put some safeguards in place forAnn as part of the temporary order, theclient and her lawyers clearly establishedthat she, and not her abusive husband,was a better parent for Ann.

C. Some Caution in Using Treatment EvidenceMany lawyers are tremendously reluc-

tant to use treatment evidence in a hear-ing or trial, perhaps in part because ofthe many unknowns of using this kind ofevidence. The lawyer should becomefamiliar with some of the issues involvedand the applicable law of the state as away of making this valuable evidence auseful part of the case.

1. Waiving the Privilege byIntroducing Mental HealthTreatment Evidence

Once the client introduces the men-tal health treatment evidence as part ofher case, it is no longer protected by priv-ilege. The opponent can make use of anydocumentation in the file for his own pur-poses—to prove his case elements, todamage the battered woman, or to dis-credit her theory of the case. Therefore,when deciding to go forward with a treat-ment file as part of the battered woman’sevidence, the woman’s lawyer must knoweverything that is contained in the file andmake the determination that the infor-mation is more helpful than harmful.

2. The Dangers of Cross-Examination

Obviously any witness the lawyeroffers must be vetted for cross-examina-tion issues. Testifying in court can befrightening for battered women, and, forthose suffering the traumatic mental healtheffects of battering, the prospect of cross-examination can be terrifying. Witnesses,

including the health professionals, mustbe thoroughly prepared. For example,many treatment files contain ambiguousor contradictory statements, and thelawyer should assist the treater in formu-lating an explanation for this commonoccurrence. The witness’ demeanor, tone,and attitude are important, and the lawyershould direct the presentation. Althoughthe witness is a professional, the witnessmay not, without thorough preparation,give the forceful, straightforward testi-mony that the lawyer is seeking. Life Spanlawyers routinely prepare a difficult crossto administer to their own witnesses.

3. Formerly Privileged InformationMay Be Used in OtherProceedings

In Illinois and in jurisdictions acrossthe country, battered women find them-selves challenged in a number of differ-ent forums. A battered woman seekingcivil remedies in a family law case mayalso participate in the criminal prosecutionof the domestic violence crime or bebrought into juvenile court on charges ofchild endangerment, abuse, or neglect.When the privilege protecting mentalhealth records is waived in one proceed-ing, such as an order-of-protection hear-ing, that same evidence could be used inanother proceeding under very differentcircumstances. For example, a treatmentfile detailing a long history of abuse maybe very helpful in establishing a case fora protective order in civil court but maybe damning in a juvenile court proceed-ing charging the victim with failure to pro-tect her children from witnessing abusein the home. This possibility must beincluded in any calculus about the relativehelpfulness and harmfulness of informa-tion contained in the files.

4. Waiving the Privilege by Making Mental Illness an Issue in the Case

Some lawyers have theorized thatonce the battered woman raises the issueof her own mental health, she makes it anissue in the case and thereby precludesher ability to assert a privilege over hermental health records even when she hasnot introduced any of these records in



support of her case. This idea is analo-gous to the issues of illness and injury ina tort action; when a plaintiff sues fordamages for a tortious injury, the plaintiff’smedical condition is a central issue in thecase—it is the subject of the lawsuit. Theplaintiff in that circumstance cannot suc-cessfully protect relevant medical infor-mation as privileged. However, in cus-tody litigation, Illinois courts hold that theissue in a custody matter is “best inter-ests,” not the parents’ medical status, andthat parents retain the ability to assert thattheir medical and health records are priv-ileged.23 Before raising any mental healthissue, lawyers must research this point inthe case law of their own state.

IV. Systemic AdvocacyRepresenting mentally ill battered womenindividually can affect the manner inwhich the court system handles theseissues, and each case that a legal servicesprovider takes contributes to reforms inthe system. Judges, lawyers, mediators,custody evaluators, and child’s represen-tatives can all be educated by thoroughand thoughtful representation of the bat-tered woman.

Forging relationships with serviceproviders in other disciplines affectingyour client also has a reform effect, andcreating these relationships benefits otherclients within this special population evenif they do not have the benefit of informedlegal representation.

In Illinois a ground-breaking projectfocuses on systemic reform of these issuesand is a highly successful model for otherjurisdictions. The Domestic Violence andMental Health Policy Initiative, headed byDr. Carole Warshaw, brings together ser-vice providers from domestic violence andmental health to discuss common issuesand create ways to collaborate.24 Buildingrelationships can overcome the stigmaand mistrust between these fields. Thiseffort also offers opportunities for cross-

training and creates a process for recip-rocal referrals.

V. ConclusionMental illness is a factor in a significantnumber of battered women’s lives andshould not be a bar to successful custodybids on their behalf. Providers of legalservices can and should take these cases.

Lawyers undertaking this work canenhance their ability to obtain good fam-ily law outcomes by understanding therelationship between mental illness anddomestic violence. A willingness to con-front prejudice and stigma about mentalillness in our courts and in our society bythoughtful mastery of this issue as part ofthe victim’s case is a crucial part of thisapproach. Building relationships withdomestic violence and mental health ser-vice providers will assist greatly in thiseffort on both an individual and a sys-temic level. A custody evaluator with anunderstanding of both battering and men-tal illness is a necessary component ofsuccessful litigation, and recruiting such aprofessional is an important initial step inrepresenting this client population.

Court systems and their personnel,including judges and lawyers, especiallythose representing children, need educa-tion on these topics, both from experi-ence in working on individual cases andin a comprehensive manner.

Battered women whose abuse hasaffected them through mental illness areunderserved by the legal services profes-sion, which often considers these casestoo difficult and time-consuming to under-take. Strategies that result in significantvictories for battered women and theirchildren are within the reach of any inter-ested poverty law practitioner. This workcan be wholly rewarding, both on an indi-vidual basis and as a means of addressingthe prejudice our society holds towardthe mentally ill and those victimized byviolence in the home.



23 Jonathon D. Nye, Disclosure and Privilege of Mental Health and Substance AbuseRecords and Information, in 23 ILL. FAM. L. REP. 94 (2000).

24 For information about the Domestic Violence and Mental Health Policy Initiative, seewww.dvmhpi.org.

Documents

Mental Illness and Domestic Violence: Implications for