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Friday, May 15, 2015
NANCY S. ERICKSON, J.D., DR. KARIN HUFFER, AND JANE DOE SPEAK ABOUT INVISIBLE DISABILITIES IN THE COURTROOM AND THE ADA AT THE BMCC 2015!
Nancy Erickson stated as follows: In my work in litigation, I see that the fathers would abuse the mother who would then develop PTSD or some other form of mental illness. The mother would then come across very badly in psychological tests and lose custody.
These tests are not meant to figure out whether you are a good parent and they cannot really arrive at such conclusions, but they are misused for that purpose.
PTSD is extremely common among battered women. If you look at these percentages, there are studies indicating that among women in DV shelters 40-89% have PTSD. PTSD is not what you would really call an illness. It is an injury. The best way to think about it and explain it to the court is that we are starting to learn about it. Soldiers returning from combat have PTSD. All of the research money is out there to treat PTSD, not for DV, but that which results from combat.
There are similarities and also differences. PTSD from DV is worse, because you have been traumatized by someone you thought was going to love, protect, and take care of you--not an enemy, but a person you trusted. Thus, your trust in the whole world has gone. So it is an injury.
PTSD is defined in the DSM-5 as follows:
1. You had to have had a trauma;
2. you have to have the requisite numbers and kinds of symptoms, i.e. one or more--sort of like a restaurant menu in a Chinese restaurant:
A. intrusive thoughts--nightmares of the abuse, flashbacks or dissociative reactions, not a memory, an oh my God, I am back there again, distress at exposure to external or internal cues regarding what happen, physiological reactions to external or internal cues;
B. avoidance, avoidance of thoughts and feelings of this event, avoidance of external reminders: people, places, activities, objects;
C. negative changes in cognition/mood, can't remember something that happened, change from before to afterwards, loss of trust, distorted thought like blaming yourself, anger, feelings of detachment or estrangement from others, memory problems, and persistent inability to experience positive emotions;
D. changes in arousal or reactivity such as exaggerated startle response, hypervigilance, problems with concentration, sleep disturbances, suicidal behavior or ideation.
I sometimes like to give the Court the following analogy if they are considering taking a mother's children away from her based upon PTSD. What if the abuser had taken a sledgehammer and crippled the mother for life because he destroyed her knees and now she can't walk. Then he comes to court and says, your honor, she can't even walk how can she be a parent? Yet he caused this problem!
This is not something is biochemical; this is an injury caused by the perpetrator and will stop once the constant abuse is over. Are these symptoms always at play? No. You have PTSD, but it isn't triggered all the time, only when in Court or facing the abuser, or having to see him in court. In other words, PTSD is often episodic, which is covered under the ADA.
Jane Doe mentioned requesting breaks, obtaining reduced price transcripts, pencil and paper to take notes on the stand, breaks, etc. as her accommodations under the ADA. The ADA Amendments Act of 2008 has expanded and extended the civil rights of people with disabilities.
Dr. Karin Huffer began her presentation taking note of Jane Doe's situation. She has broken heart syndrome where the pressure of family court has caused her heart attacks.
If you are in a situation like Jane Doe, says Dr. Karin Huffer, the first thing to note is: 1. You are not crazy; 2. You are not alone; 3. You have rights under the ADA.
The ADA empowers us with a powerful federal tool so that victims of DV can stand up for themselves. Family courts are a maze where you can end up being abused more because your abuser controls family court the same way he controlled the family.
In this situation, the ADA can help you. For instance, you can obtain accommodations under the ADA to undergo a deposition in writing in your own time rather than being put on the spot in an oral deposition.
It is critical to have a person in your life to address the disability issues when you are in a court proceeding.
When you request an ADA accommodation, you only have to provide a single diagnosis. So don't feel you have to provide more than one. A request for accommodation is administrative; it is confidential and does not belong under discussion in court.
Federal Court also has to comply with the ADA as well even though they will deny that. And this is why. PTSD interferes with expressive speech and so without the ADA a litigant is unable to communicate effectively with the court.
In addition, Federal law supersedes state and local law.
You don't file a motion with the judge. You go to the clerk ex parte.
People with invisible disabilities often need extra time; they need a stay, they need a break, etc. People must have executive functionality--anything that takes it away is not lawful.
It is my view that Family Courts have become a public health crisis and must be treated as such.
Consider whether it makes sense to have a psychological evaluation which is intended to take your child from you if they find a disability vs. a disability asssessment in order to address the accommodations you need in order to function.
One trick of the abuser is to litigate you to the point of bankruptcy. We need to address this issue.
Finally, we need to train ADA advocates to be in those courts. If these advocates can get all over these courts like an anthill, they will not be able to do this any further.