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The Abuse of Custody Interview with Ruth Lea Taylor, Lawyer

Q: Many people believe that once a battered woman leaves the abusive relationship, her and the children are safe. What is your experience?

A: I am a lawyer who is consulted after the relationship has broken up, and my experience is that the violence and the fear of violence escalates at that point. I think there are probably alternative psychological-sociological reasons for it. I think the most apparent one is a battering situation: the battering male has incredible control, and the woman and the children leaving that environment results in him having a serious sense of loss of control. The threats, the violence and the extremely erratic behaviour that result are expressions of that control need.

Usually the woman has left in the face of threats such as, "If you ever leave me, I will kill you. If you ever leave me, I will see that you never see the children again." That is so common I would say that it happens in almost every battering situation. There is that kind of threat hanging over her head.

The fact that she would leave in the face of that kind of threat is incredibly inciting to his sense of control. It takes a lot of bravery to get out of a battering relationship. It takes incredible courage for her to do that. For him, I would hazard an analysis that it is decompensationa. That she would dare to do this means a declaration of war for him.

Q: What do you see as the biggest problem in this situation?

A: The lack of response by the legal system to the incredible dangers that a woman faces when she leaves a battering situation. Where we see it is in both the criminal system and the civil system. The criminal system, where they proceed with charges against him for assault, quite often results in acquittal or a sentence that, in my mind, is virtually a license to commit further assault. The sentences run the gamut from probation to fines to minimal prison sentences. And where you do find the prison sentences, there is usually considerable bodily harm done to the woman.

Also a not adequate deterrent in a general way (in the sense that they do not pass the message on to men who are beating up on women that we as a society do not condone this), the message that is still being passed on is that the reason it is in the criminal system at all is the individual woman's fault. Also, that it is still a matter between two people and not society, which is why I am very alarmed at suggestions that we take the issue of wife assault and make a special court that deals with it in a family context. I feel the problem is that for a millennia it has been dealt with within a family. We see it everywhere in criminal law that, for example, invasion of the home is a serious crime and society sees it that way. I say that if a woman can't be safe in her own home there is something seriously wrong with society, and that assault created against that woman in her home should be treated as a very serious offense.

Q: What happens when an assaultive man and his ex-wife decide to share custody of the children?

A: I would like to respond to the question in the sense that therein lies the very problem I think we have. The assumption underlying the question is that the couple decide they wish to share custody of the children. You will find that it is not the couple's decision. You will find that those are his demands and she agrees. It's a whole different set-up than the couple decides to share custody of the children. She agrees because she wishes to keep the peace. She has a long history of trying to keep the peace; that's what she does and does well. She does not want to fight over the children. I see it as his method of maintaining control through the children, and it works. He says, "If you don't agree to joint custody, I will fight you for custody and you don't have a chance." She, of course, takes what she can get to keep the peace. It does not keep the peace. The battle over those children continues until they are adults. This is the ultimate control, because often for a battered woman, I think for all mothers, the major thing that keeps them operating is their children.

It works so well. Over the years, I have ceased to wonder why women go back. I have begun to say that the real key is whatever makes them leave in the first place. What I find is that they suffer incredible abuse, and the minute he takes the children it is an incredibly vulnerable point. He continues to use it in every situation. He will take her to court for custody; everytime you turn around, there will be access problems. The children will scream they don't want to go, so she doesn't let them go and he has her arrested. It continues to escalate around the children.

Joint custody is an important topic because in the best of all possible worlds it should work. When you talk about the best interests of the children, I can't argue with this, it is a doting mother and father who are able to make joint decisions about where you go to school, where you get religious training, activities. In abusive relationships it does not happen that way, and the people who are so adamant around joint custody are the men who want to have the control.

They don't want the responsibility. You will find so many joint custody orders say primary residence with the mother with access to the father every second weekend, which is virtually a standard. It means that there are supposed to be joint decisions made about the children, but where you have this incredible control it means that he gets to run the show without the responsibility on a day-to-day basis, and what he holds over her is "I'll go for custody if you don't agree." We have fathers' rights groups everywhere saying "the father has a right to custody" and they're being very effective.

What an abusive man does a lot, I think, is use the children as a way to revenge himself upon their mother. He will go to incredible lengths to alienate the children from their mother. He will denigrate the mother constantly, he will set the mother up so that she's always in a bad position - "I'm taking the children to Disneyland next week." Mother says no, it's not a good time. Who gets to be the heavy with the children? I think he has lost sight of the children and is using them as a weapon. The children really suffer from it. I would like to see all men everywhere take parenting courses. I wouldn't have such a big problem with the idea of fathers' rights if fathers were, in fact, being mothers and being sensitive to the needs of the children as to what seriously works well for the children and causes them less distress, less upset.

Q: How does a family court judge determine custody and access arrangements when a man is facing spousal assault charges?

A: You're implying that there is, in the first place, any consideration of his violence against the mother. What the law says, in both the Divorce Act and the Family Relations Act, is that the conduct between the parties will not be considered a factor in matters of custody unless you can show that that conduct has a direct bearing on that issue. Until very recently, judges have said that because he beats his wife, it doesn't mean he can't be a good parent. To make that behavioural connection is incredibly difficult. I have been reprimanded by judges for trying to lay a history of assaultive behaviour of the man against his wife in custody cases.

How the situation is looked at in a court of law to this day is that it is an equal battlefield. I have yet to hear a family court judge say anything about the behaviour of the man to the woman in a relationship. I can show the most incredible assaultive behaviour against my client, the woman, and the judge at the end, when he or she is giving their reasons, will just say these parties are not getting along. This relationship has been dysfunctional. There is obviously a great deal of trouble between these two. The courts are reluctant to choose one side or the other. I see it as a sort of blanket, a closing of the eyes to what goes on in a marriage where the man is beating up his wife.

One of my favourite cases was in Ontario within recent times. It was a custody battle, and the judge awarded the father custody in the face of evidence that he was an absentee father who showed very little interest in his children. An incredible amount of evidence goes into a custody trial. The judge ruled that the father should have custody because he was being given the chance to finally be a proper father. The mother in that case must be shocked that all the work she did to parent those children was not rewarded with custody.

There is an amazing magnification of fatherhood. I have had judges say to me, "Well, he should have custody because he knows the name of the teachers, and he actually takes the children skating." The yardstick used for fathers in a custody suit is considerably different than that for mothers. If a father has so much as a glimmer of parenting skills, he is given so many more rights. I've seen strange things happen in a courtroom, where I think "Why is the judge doing this in the light of this evidence?"

Q: Given the present situation, what can a battered women do to protect her children?

A: I would say to her, always, if she is leaving home, never leave the children there. It can be a problem. He might be holding the baby or refusing to allow access to the children, but she should go immediately to the police and get police assistance for her to go back to get the children. The reason for that is that in custody suits, where I am trying to argue that he is an assaultive-aggressive danger and she is worried about him being with the children, and we have clear evidence that she left and left the children with him, she lacks credibility. If there is so much as a crack in the evidence of a woman, you can drive a truck through it.

She should also make sure that any peace bonds and restraining orders also apply to the children when she talks to Crown Counsel. She will have to convince the Crown Counsel that the children could be in danger. What happens is that if he is charged and there is a no contact order only against her, he goes and picks up the children after school, and he's got the major weapon to make her do all kinds of things around dropping charges and so forth.

When she first leaves, she has no custody order at this time, no access order, no nothing. Unless she has an order of the court, both parents have equal rights to those children. She should get a custody order right away. I do it as part of my application for a restraining order. It's called an interim custody order. I say, worry about access after you're in a safe place.

Q: Should a battered woman try to stay in her own home after separation?

A: There's legal protection under the Family Relations Act to give you exclusive occupation of the house. You need to show that, on the balance of convenience, it is more appropriate that you have occupation of the house than the other party. Often it's a great problem with groups who have the extended family in the same home, because often she's living in his parents' home and she doesn't have a choice in that. I use that one a lot. He has a place available for him, but she has no place available for her.

What I find surprising, although one can understand it, is that on average (if there is such a thing), a battered woman doesn't want to go back to the house because even if she gets all the locks changed, which I recommend instantly, he knows ways of getting into the house. She feels very much like a sitting duck. Despite the fact that I think it's better financially and economically for the mother and children to be in the matrimonial home, it is often the least safe place she feels that she wants to be. All the restraining orders in the world aren't going to keep him from coming back.

Q: What do you think about the idea that there should be cultural distinctions about wife battering?

A: I have concerns with that, and I certainly experience it a lot with my clients who are members of a culture that is based on this certain incredible submission of women. The problem I have is the sense in a multi-cultural society that we encourage different cultures to maintain their cultural differences, but we have a legal system. I think it is a matter of educating people who come to this country that, regardless, we consider assault a crime. I run into this with clients who see me as not understanding that dynamic, that ostracization within the community for women taking that step. I don't know what the answer is. I don't see it as calling it something else simply because it conflicts with the cultural sense of it. I think it is a requirement of education - that you come to a country and here are the laws of the country and within the legal framework of that country you are encouraged to enjoy your own culture. The reason why I think we have trouble with that in Canada is that the Canadian culture, if there is such a thing, has never said that it's a serious crime to assault your wife and now we seem to be saying that "ah, well, we cannot make assault as serious as I want it to be, for example, because we have to recognize the different cultures within this country." We cannot say, well, if the other culture is doing it.... We don't beat up on people in Canada.

It's a difficult problem because I have a very large number of immigrant women who return time and again to their assaultive husbands because of so much pressure. There is nowhere to go. But we can't say that this problem is unique to any given culture or class. You may have a battered woman in an upper middle-class suburban home and married to a professional man. There's a lot of pressure not to leave him for starters and not to press charges, not to humiliate him. So the pressures are the same and what we have to recognize is that it affects all women.

And they do go back. Immigrant women often do not have the language skills nor the social support. It is an act of courage for all women to leave a battering situation. It is an act of incredible courage for immigrant women, because often they find themselves leaving their entire community. It's not because that community condones the assault. It's because that community as a whole sees it as humiliating in a dominant society and they do not want to bring disgrace on their community.

It's not as much of a cultural thing as they say. It's a way I think of being discriminatory by saying this culture or that culture. It creates difference, so their experience is often different in how they are treated by the police, how they are treated by the entire legal system.

Added to things I have said already, a new Canadian woman is vulnerable to special threats against her as well, such as "You leave me, and I'll have you thrown out of the country," and he withdraws sponsorship. Her situation depends largely on how she obtained landed immigrant status. If she has landed immigrant status, he can't do anything to her position, but it's another weapon they use very often. She doesn't have the language skills very often; she hasn't needed them because her role in the community is very closely knit. It is a strange alien world outside of that community.

No woman of any culture has any wish to be assaulted. There can be educational points made in immigration and as part of assaultive men's behaviour modification to which the various communities in Canada are invited to take part. In B.C. we have people dealing within individual cultures with the problems of assault. We need to have that funded in a reasonable way. We need something besides. There needs to be a zero tolerance in our society and we need money to build towards that, money to fund assaultive men's behaviour and modification programs. We as a society, whatever that is, have never said that we have zero tolerance, and so to say, well we have to recognize that some cultures have a different view of assaultive behaviour, to my mind is patronizing and discriminatory. There is no woman anywhere who tolerates assaultive behaviour. To say that in some cultures assault is tolerated and therefore should be ignored is incredibly patronizing and incredibly insulting.

This interview was conducted by BCIFV Editor Barbara Sherman in Spring of 1994 at Ms. Taylor's office in Vancouver.