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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.3Although no study hasdocumented this, the experience of many

providers 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 diagnoses

which 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 battered

woman? 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 fathersabuse 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 societys 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 clients 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

MAYJUNE 2003 | JO UR NA L O F POVERTYLA W A ND 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 OFWOMENS HEALTHCARE 483 (Nada L. Stotland et al. eds., 2001).

2Id.3 Carole Warshaw et al., REPORT ON MENTAL HEALTH ISSUES AND SERVICE NEEDS IN CHICAGOAREA DOMESTICVIOLENCE PROGRAMS (2003), available atwww.dvmphi.org.

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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, and

offer 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 lawyers

working at Life Span, a Chicago domesticviolence organization that provides bothlegal services and counseling to victims.Life Span has developed an expertise in

working with this client population.

I. Some Background

An understanding of basic mental illnessdiagnoses and the causal relationship

between the clients mental illness andthe battering she has suffered can great-ly enhance a lawyers representation ofbattered women with mental healthissues. Some information about the his-tory of the mental health and domestic

violence fields will also benefit legal prac-titioners working in this area.

A. Conflicts Between Mental Healthand Domestic Violence Systems

Clients with mental illness usually areinvolved 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 or

trusting the other. To avoid any adverseeffects of these conflicts on the case, andto facilitate the lawyers 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 battered

women 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 womensshelters have strict rules regarding residents

with 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 the

mental 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 battered

womans 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 lawyers 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 decisionsjudges, other lawyers(especially those representing the child),and custody evaluatorsabout these con-flicts can contribute to an accurate analy-sis of custody issues.

Mental Illness and Domestic Violence

24 CLEARINGHOUSE REVIEW | MAYJUNE 2003

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

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of her addiction against her should sheseek help.

C. The Causal RelationshipBetween Mental Illnessand Domestic Violence

In 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 the

part 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 womans 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 decisionmakers understanding that the battered

woman 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 womans 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 victims 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 victims 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 victims men-

tal health status as a basis for emotionaland psychological abuse.

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

II. Preparing for FamilyLaw 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 parentslevel 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.



14Warshaw, 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).

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

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

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A. Investigating the Case

Investigation and fact developmentin 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 clients 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 andOther Communications

Clients with an extensive history ofhospitalizations and treatment may havedifficulty remembering every treatmentprovider, just as some clients may be

unable 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 the

lawyer be fully informed about the clientsmental health history is crucial. Often thelawyer must rely on the lawyers 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 thorny

issue in domestic violence law, and manydomestic violence advocates see protect-ing clients 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 lawyer

will have in building a beneficial rela-tionship with a domestic violence coun-selor is easing the counselors concerns

about 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 relationship

with the counselor now may help whenthe time comes to decide who will makea knowledgeable and persuasive witnesson the clients behalf.

The patients 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 abusers 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,Illinoiss Mental Health and Develop-mental Disabilities Confidentiality Act setsout detailed procedures for obtaining

treatment records and other information,including the requirement that a judgereview the records to determine rele-

vance, at which time the court issues an



19E.g., Illinois Domestic Violence Act, 750 ILL. COMP. STAT. 60/227. See also Stephen E.Doyne et al., Custody Disputes Involving Domestic Violence: Making Childrens Needs aPriority, in DOMESTICVIOLENCE LAW340 (Nancy K. Lemon ed., 2001).

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

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order for the records 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 an

efficient 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 may

have the power to decline to release infor-mation if they believe that it is not in thebest interests of their client, regardless ofthe clients wishes or instructions.22 Thisrefusal may place the clients attorney inthe position of seeking a court order forher own clients 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 victims attorney is not trying to provethe fact of the mental illness. The attorneycan glean from the records corroborationof the clients victimization, the clientscooperation with treatment, the cliniciansobservations of the quality of the clientsrelationships 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 nothelpful to the case and

might 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 information

which 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 patients belief in herown culpability in the abuse, contradic-

tory statements, and the patients 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 institutions

with which the client has had a relation-ship. Get all the records from all theproviders you find. Knowing what is in

the clients 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 theclients case.

B. Maximizing the Clients Strengths

As in all litigation, the manner inwhich the case is handled, including whatevidence and strategies are employed, isthe clients 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. Theclients feeling of self-determination andownership of the strategies used in thelitigation will contribute to her success asa litigant in her own case.

Assessing the cases legal merits con-tinues throughout the attorneys 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 clients 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.110/1110/15 (2000).

22E.g., id.

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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 HealthIssues 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. Pleadings

In our experience at Life Span, if aclient 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 battered

womans case is a successful strategy. Thisstraightforward treatment of the issuehelps dispel the stigma that the opposing

side wants to use to its advantage eithersubtly or overtly. To say that the battered

woman 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 womansindication 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 overwhelm

the 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:

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

I For all of the childs life, petitionerhas had the primary responsibility of car-ing for the parties daughter, Mary.

I Mary is a thriving and well-adjustedchild with a close relationship to peti-tioner.

I That Petitioner be awarded sole cus-tody is in Marys best interests.

Life Span lawyers also use pleadingsto raise the issue of causality in the men-tal illnessdomestic violence interrelation.

We accomplish this as simply as possible,with a minimum of conclusory language.To describe a causal relationship betweenthe clients mental state and the domestic

violence, 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 theclients paranoia and its impact on herdaily life, making it impossible for her tomeet her parental responsibilities. Theclients lawyer is describing the issue as aresult of the abusers stalking of the client.This allegation places the focus on theabusers intimidating conduct rather thanon the victims legitimate response.

Simple factual sentences can alsorelate the idea of causality in cases in whicha mental health condition is exacerbated by

abuse. Here the allegation might read:Petitioners depression deepened after therespondent began abusing her. In cases in

which 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 worddepression is important here; the term is



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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 aclients as well as an experts or treatmentproviders testimony.

B. Using Treatment Evidence inthe Casean Example

The best strategy for using treatmentevidence is to use it to establish the men-tal health issue as your issue and to

remain 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 domestic

violence 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 one

would 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 house

with a dead-bolt lock and taking the key.Mary decided that she had had enoughand called her family to come and get

her. 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. Marys relatives demanded that the

officers 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 Marys 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 Marys 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 of

Johns 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 Marys



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statements: Repeats that throughout therelationship he has been intermittentlyabusivephysically, 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 when

he 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 Marys treatment, the samepractitioners interviewed John. The social

workers notes include this sentence: Iasked him about physical fightingbetween pt. He denies, though states thatat times he has pushed her aside. Also

admits to having to restrain her. Duringa social work meeting at which both Maryand John were present, Mary described

Johns abusive conduct. The social work-ers notes of the meeting reflected that

John 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. She

went 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 with

John for two months until John beat heragain. Taking baby Ann with her, she fledto her sisters 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 Marys 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 Marys recent problems

with 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. Johns lawyer filed an answerthat raised doubts about Marys 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 Johns 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 with

Ann. 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 little

shaky but remained consistent. Marys sis-ter testified about her observations aboutMarys parenting abilities, and how gladshe was to have her sister back after yearsof John hanging up the phone when shecalled. Marys 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 Marys injuries



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and her statements concerning how shebecame injured. She showed the courther body chart and her documentation ofthe progression of Marys injuries. She tes-tified as to Marys concern about Ann. Shetestified about Marys consistency and can-dor during the several conversations she

had with Mary about the history of abuse.When the psychiatric social worker testi-fied, she talked about Marys physical con-dition and her consistent statements aboutthe battering. She talked about Johnsdemeanor, 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 with

medication, 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 victims credibil-ity is often an issue in domestic violencecases and that many police and judgesbelieve that women fabricate allegations.He thought Marys mental illness wouldheighten the judges reluctance to believeher. He talked about trying to restrain Maryand fearing for Anns safety in her care,even though Mary had always been Annscaretaker. Johns lawyers called the offi-cers who had taken Mary to the hospital;the officers testimony described her as

weeping and incoherent.The judge granted Mary the order of

protection 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 Marys 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. Marys 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 those

people believed her, helped prove her reli-ability. Second, the mental health evidencewas presented as part of Marys case andMary remained in control of the issue. Theprofessional testimony was part of Maryscase in chief and in her favor. Marys tes-timony drew a relationship between herhusbands abuse and her state of mind andfeelings. As a whole, this strategy pre-

vented John from exaggerating the prob-



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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 plaintiffsmedical condition is a central issue in thecaseit 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 Advocacy

Representing mentally ill battered women

individually 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 childs represen-tatives can all be educated by thoroughand thoughtful representation of the bat-tered woman.

Forging relationships with serviceproviders in other disciplines affecting

your 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 Building

relationships can overcome the stigmaand mistrust between these fields. Thiseffort also offers opportunities for cross-

training and creates a process for recip-rocal referrals.

V. Conclusion

Mental illness is a factor in a significantnumber of battered womens lives andshould not be a bar to successful custody

bids 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 victims 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 significant

victories 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 addressing

the 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.

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