Legal Momentum is the oldest nonprofit organization in the United States dedicated to advancing the rights of women and girls by using the power of the law and creating innovative public policy. Founded in 1970 as NOW Legal Defense and Education Fund and renamed in 2004, a principal focus of Legal Momentum’s work is eliminating all forms of violence against women: sexual assault, domestic violence, dating violence, and stalking.
Legal Momentum helped drive passage of the historic Violence Against Women Act (VAWA) and leads the efforts to reauthorize this critical legislation. Legal Momentum created and chairs the National Task Force to End Sexual and Domestic Violence Against Women that was instrumental in the drafting and passage of VAWA in 1994 and its 2000 and 2005 re-authorizations. VAWA has secured nearly $9 billion for services for survivors, including immigrant victims, improved law enforcement and prosecution, judicial education, prevention education, and research.
Legal Momentum’s Immigrant Women Program (IWP) advocates for legal protections, social services, and economic justice for battered immigrant women while reforming laws, policies, and practices that may harm them. IWP leads a national advocacy campaign that secures access to legal immigration status, benefits, and legal services for thousands of victims of violence against women and foreign fiancées. It conducts trainings for attorneys, advocates, police, prosecutors, and judges to build skills and knowledge that are critical to immigrant women receiving legally correct, culturally competent assistance from professionals in their communities. IWP also paves the way for immigrant women to acquire legal work authorization, housing, child and/or spousal support, and college loans to enhance economic security so that they can escape abusive homes and employers.
Legal Momentum works to ensure that welfare policies recognize and respond to the special needs of domestic violence victims. Women are much more likely to be poor than men are, and a significant percentage of impoverished and homeless women are battered. Their poverty may force women on to the welfare rolls, where federal antidiscrimination laws do apply. Staff attorneys work to ensure that welfare recipients are also protected from violence.
Legal Momentum’s staff attorneys focus on employment and housing rights for victims of gender based violence. Legal Momentum uses targeted litigation, legislative advocacy, and training to protect victims from employment and housing discrimination and help employers and landlords understand how they can assist survivors and promote safety. Legal Momentum has won landmark court decisions holding that employers may not fire domestic violence victims for taking time from work to seek court protection and landlords may not evict victims of domestic violence for “allowing” violence on the premises.
Legal Momentum’s National Judicial Education Program (NJEP) promotes gender fairness in judicial decision making and courtroom interaction across the spectrum of civil, criminal, family, and juvenile law. NJEP has available extensive educational materials for judges, prosecutors, law enforcement, forensic sexual assault examiners, advocates, and the community. These written materials, videos, DVDs, and Web-based curricula provide the legal, social science, and medical knowledge necessary to conduct fair rape trials, counter societal myths about nonstranger rape, and respond to the co-occurrence of domestic violence and sexual assault.
Legal System and Advocacy Efforts to Affect Child Maltreatment
There are two major types of legal advocacy efforts to affect changes in the legal process related to child maltreatment. The first involves individual, generally court-appointed, legal representation of individual children who are alleged to be victims of child abuse or neglect. The second is the filing (in state or federal court) of child welfare system impact litigation, also known as class action lawsuits. In the former, lawyers will often identify problems faced not only by their current client but also by others they have represented, and they may attempt through motions, briefs, and arguments to convince judges to handle current and future cases in specific ways that will improve the outcomes for their clients, hear and resolve cases more quickly, or involve an exercise of the judge’s inherent authority over public agencies responsible for providing services to their child clients (e.g., schools, mental health agencies) to help facilitate delivery of the resources their clients need. Through class actions, attorneys may look, for example, to the federal courts to rectify what they perceive is a large-scale deprivation of the constitutional rights of their child clients and/or their families. In both state and federal court class actions, the lawyers are generally seeking an injunction against unlawful actions and/or a court’s declaration (finding) that the law requires, for example, that the child welfare agency or local juvenile court take certain actions. Sometimes, these class action suits also seek financial compensation (damages) for the harm done to their clients by the allegedly unlawful actions of child welfare agencies or others. Many of these cases are settled through agreements known as consent decrees, where there is a commitment by child welfare agencies or others to improve practice and service delivery in certain specified ways and by specified dates. The court will often appoint a monitor and/or review panel to oversee the successful implementation of these decrees.
Individual Case Advocacy
In most states, but not all, when a case involving an abused or neglected child goes to court the child must have an attorney appointed to represent him or her. In some states, the court will appoint a lay (nonlawyer) advocate for the child, who may have the title of guardian ad litem or court-appointed special advocate (CASA). The increasing complexity of the legal or judicial process, the frequent failures of child welfare agencies and other government programs to provide services to children they are legally required to provide, and the ability that only a lawyer has to understand and utilize legal mechanisms to improve the lives of their child clients all point out the critical importance of first-rate legal advocacy. There has been a requirement for many years, as the result of federal law, that juvenile courts only appoint lawyers for children who have received, before any of these appointments are made, appropriate training. The American Bar Association has approved standards of practice for lawyers appointed to represent abused and neglected children that address what should be included in such training, and there are other excellent resources available, in print and online, to help guide attorneys in achieving quality representation of their child clients. One major barrier to quality legal representation of abused and neglected children is where an attorney is responsible for a caseload of too many open court cases and thus has difficulty giving each child and family the individualized attention they need and deserve. It is not unusual for some lawyers to have over 200 or 300 open cases, each awaiting some additional court hearings, child placement changes, permanency plans to be implemented, and so on. If a lawyer is personally responsible for more than 100 children at any given time, effective case representation becomes extraordinarily difficult, if not impossible.
There is widespread agreement on what knowledge an attorney representing an abused or neglected child should have. This knowledge includes the following: an understanding of the causes and consequences of child maltreatment; the different types of and evidence required to prove abuse or neglect, including physical abuse factors, sexual abuse diagnosis, emotional maltreatment, physical and medical neglect, and educational neglect; the short and long-term mental health aspects of these cases, including evaluations, psychological testing, and the psychiatric commitment process; physical, cognitive, language, social, and emotional child development issues, including the impact on children of attachment, separation, and loss problems; family dynamics in child maltreatment; cultural context issues; the federal and state law framework for child protection; the civil child protection court process and collateral court proceedings that may involve their child client; legal permanency issues; educational and medical care advocacy; confidentiality, privacy, and information sharing; child clients in court, including testimonial competence; rules of evidence regularly applied in child maltreatment cases; no adversarial case resolution; appellate law and practice; understanding the roles of the other attorneys, CASAs, and case workers; legal ethics in child maltreatment cases; and trial advocacy skills. Representing a child well involves complex, multidisciplinary case components that require the attorney to not only be well versed in the law, but also to understand the roles and responsibilities of personnel in child welfare agencies, schools, mental health programs, and other government programs and services.
Class Action Advocacy
For several decades, individuals and organizations have brought class action lawsuits in which one party or a group of parties sues as representatives of a larger class of individuals. Class action lawsuits have had a major impact on the operation of state and local child protection systems. These lawsuits have often been used as tools to address failures by child welfare agencies to provide adequate services to children and parents and to achieve systemic reform that might otherwise have required legislation or many individual lawsuits. In the 10 years from 1995 to 2005 alone, there was child welfare class action litigation in 32 states, with consent decrees or settlement agreements in 30. The consent decrees in these lawsuits, once approved by the court, in effect become a contract, binding the child welfare agency and the attorneys acting on behalf of the class members to its terms, and they are fully enforceable by the court. The substance of each consent decree describes specific actions defendants must take to resolve the identified problems and the plaintiffs’ responsibilities to ensure the provisions in the decree are implemented. These decrees, in decreasing order of frequency, have addressed the following: child placement issues such as recruitment, retention, licensing and training of foster parents, relative placements, and group homes; protective service issues such as reporting, investigating, and intake; requirements that defendants ensure the provision of certain services to children and their families such as medical, dental, and mental health examinations, parent–child or sibling visitation, and independent living training; requirements that defendants address issues concerning caseworkers such as adequate staffing, maximum caseloads, and enhanced training and supervision; case planning issues such as enhancing numbers of children achieving permanency and/or identified case goals; requirements for some sort of new resource development such as the creation of universal information systems or quality assurance reviews; adoption reform issues; and reforms to the judicial system in civil child protection cases. Most of the class action consent decrees that have been active within the past 10 to 15 years have addressed state failures to properly license and train foster parents; place children in adequate and safe foster and group homes; properly report, investigate, and address abuse and neglect incidents; provide needed medical, dental, and mental health services to foster children; ensure adequate parent–child or sibling visitation; ensure social workers have manageable caseloads, training, and supervision; and provide children and families with adequate case planning and review.
Advocacy Efforts within Organizations and Agencies
There is an additional form of advocacy for abused and neglected children that does not involve litigation. This advocacy is work done by governmental and nongovernmental agencies and organizations to improve services to children and families and the agency and court process through which such services are provided. Some child welfare agency advocacy efforts are led by ombudsmen, individuals and offices located either independent of or within the service delivery agency. Their role is to solicit, receive, and investigate complaints related to services and interventions for abused and neglected children. Following these investigations, the ombudsman may issue public reports that address and present recommendations for overcoming systemic barriers and other problems that impede prompt and effective delivery of services to maltreated children and their families. Some state legislatures have oversight committees that have similar roles in examining child protection system functions. Many private nongovernmental agencies and programs are actively involved in addressing systemic improvements for abused and neglected children. These include such well-established and effective organizations as the Child Welfare League of America and the Children’s Defense Fund. Many professional organizations have entities that address child protection system reform, such as the Center on Children and the Law within the American Bar Association. Some systemic criticism and highlights of needed reform also come from organizations that have been established specifically to identify and recommend how to address shortcomings in child protection agency activities. These include the National Coalition for Child Protection Reform, Center for the Study of Social Policy, Justice for Children, and First Star.
Bibliography:
- American Bar Association. (1996). Standards of practice for lawyers who represent children in abuse and neglect cases. Available at https://www.americanbar.org/content/dam/aba/migrated/family/reports/standards_abuseneglect.authcheckdam.pdf
- Haralambie, A. M. (1993). The child’s attorney: A guide to representing children in custody, adoption, and protection cases. Chicago: Section of Family Law, American Bar Association.
- Peters, J. K. (2001). Representing children in child protective proceedings: Ethical and practical dimensions (2nd ed.). Newark, NJ: LexisNexis.
- Renne, J. (2004). Legal ethics in child welfare cases.
- Washington, DC: ABA Center on Children and the Law. Ventrell, M., & Duquette, D. (Eds.). (2005). Child welfare law and practice: Representing children, parents, and state agencies in abuse, neglect, and dependency cases. Denver, CO: Bradford.
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