A Judge’s Guide

COMMENTARY
Subsection 1 authorizes a court to order or refer parties in a proceeding concerning custody or visitation of
a child only under two conditions, that mediation is provided by a certified mediator who is trained in
domestic and family violence and procedures are provided that protect the victim from intimidation.
Subsection 2 enumerates the procedures that must be followed by a mediator to protect the victim from
intimidation. Paragraph (a) reflects the policy recommendations, promulgated by the collaborative studies
of mediators, advocates, and legal scholars, that at the victim's option, he or she may have another party
present at mediation. This person may be the victim's attorney, an advocate, or some other person of the
victim's choosing. Paragraph (b) authorizes the court to impose any additional procedure deemed necessary
to protect the victim from intimidation.
Sec. 409. Duties of children's protective services.
1. The state administrator of children's protective services shall develop written
procedures for screening each referral for abuse or neglect of a child to assess
whether abuse of another family or household member is also occurring. The
assessment must include but is not limited to:
(a) Inquiry concerning the criminal record of the parents, and the alleged
abusive or neglectful person and the alleged perpetrator of domestic or
family violence, if not a parent of the child; and
(b) Inquiry concerning the existence of orders for protection issued to
either parent.
2. If it is determined in an investigation of abuse or neglect of a child:
(a) That the child or another family or household member is in danger of
domestic or family violence and that removal of one of the parties is
necessary to prevent the abuse or neglect of the child, the administrator
shall seek the removal of the alleged perpetrator of domestic or family
violence whenever possible.
(b) That a parent of the child is a victim of domestic or family violence,
services must be offered to the victimized parent and the provision of such
services must not be contingent upon a finding that either parent is at fault
or has failed to protect the child.
COMMENTARY
This section underscores the premise that protection of the abused child and the non-perpetrating parent
should be the guiding policy of child protective services agencies. Subsection 1 requires the state's
administrator of child protective services to develop both an assessment tool and investigation procedures
for identification of violence directed at family or household members in addition to the child alleged to be
at risk. Identification of adult domestic or family violence through careful intake screening and preliminary
risk assessment, followed by thorough investigation, is essential if parents are to be afforded the life
preserving assistance necessary for effective parenting and child protection.
Paragraph (a) of subsection 2 codifies the premise that when a parent or parent-surrogate has abused a child
or poses a continuing risk of abuse or violence towards anyone in the family or household, and the agency
concludes that safety can be accomplished only if those at risk live separate and apart from the perpetrator,
the agency should either assist the non-perpetrating parent in seeking the legal exclusion of the perpetrator
from the home or itself pursue removal of the perpetrator from the home. The perpetrator should be
removed rather than placing the abused child or children in foster care or other placement. This provision
does not require that a perpetrator be removed from the home if both the child and the victim of domestic
violence can be adequately protected by other interventions. Paragraph (b) of subsection 2requires that the
agency make services available to parents of abused children under the supervision of the agency, who
have been victimized by domestic or family violence. This subsection requires that services for parents
victimized by domestic or family violence are to be undertaken whether or not the abused parent is found to
bear any culpability for the abuse of a child under the supervision of the agency; findings of neglect, abuse,
or any failure to protect by the parent victimized by domestic or family violence are not a prerequisite for
service.
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