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Custody Order or Disordered Custody?

By Joan Braun

When a couple with children divorces, contact continues between the separating parties because of the children. Although it may be desirable for children to maintain contact with both parents, custody and access arrangements can be highly problematic in situations where there has been family violence. Where a couple can not come to an agreement about custody arrangements, a court will make an order based on the judge's determination of what is in the "best interests of the child". In reality, however, in relationships where family violence is a factor, custody and access orders often do not meet the needs of children, and do not protect the victim from further violence. This article will examine this issue in more detail, and will show why the current divorce laws are inadequate in meeting the needs of abuse victims and their children.
Violence in the home is an all too common problem. The 1993 Statistics Canada Violence Against Women Survey found that 29% of ever married women had been assaulted by a live-in partner (Rodgers, 1994). According to police statistics, in 1997, 88% of reported spousal assaults were against women (Police Services, 1997. The victim continues to be vulnerable after separation. The national Violence Against Women Survey reported that in 35% of cases the violence escalated after the woman left the relationship. One study found that almost 25% of women killed by their partners were murdered after leaving and another 8% while attempting to leave (Hart, 1990). A literature review did not uncover a similar pattern of escalating violence against men post-marriage. As a response to the seriousness of the situation faced by many women, this article will limit its scope to an examination of the problems faced by female victims of family violence during custody and access disputes.

An overview of the court process may be helpful. After a marriage ends, an agreement must be reached about property division and child custody. Although these negotiations can be very difficult, most couples manage to forge an agreement without going to court. In only a minority of cases does the dispute end up before the court. If the dispute requires the judge to determine which custody arrangement will be best in the given situation, he or she will do so based on the principles laid out in the federal Divorce Act or in provincial legislation (in B.C. the Family Relations Act). Custody orders can be made under either legislation. The Divorce Act and the Family Relations Act have similar provisions, which state that the custodial decision should be made based on what is in the "best interests of the child". It is important to note that the Divorce Act does not dictate the factors that are to be considered in determining those best interests. As a result, when a divorce is obtained under federal legislation, the court is left to determine which factors are pertinent to a consideration of the child's "best interests". The Family Relations Act lists a limited number of factors to consider. However, since these are so broadly stated, the determination of "best interests" is still largely a discretionary matter.1

Most cases that appear in family court are highly conflictual. It is likely that within this group there is an over-representation of family violence. It is a common belief that courts always award women custody, however, studies show that when a custody dispute does go to court, it is at least as likely that a woman will lose custody of her children as it is that she will win (Goundry, 1992). In the past, decisions were made based on the "tender years doctrine", whereby courts assumed that young children were better off with their mother unless she was shown to be morally unfit. This is no longer the law in Canada. 2 Statistically, women still have custody of their children more frequently than men do, however, in most cases, this is by mutual agreement. In fact, several studies have shown that in contested cases, men are granted custody more often than women (Goundry, 1992). The problem with this is not that men are winning custody, but that many of the men that do so have a history of violence against their partners. In one study, 59% of men who were successful in winning custody had physically abused their wives (Chesler, 1991).

How is it that men who have abused their wives win custody of their children? Of great significance is the judicial interpretation of s. 16(9) of the Divorce Act that stipulates that the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of the person to act as a parent to that child. According to the author of one Canadian study (Rosnes, 1997), in many instances, courts placed domestic violence under the rubric of irrelevant past conduct, unless there is also evidence of violence directed at the children. 3 Unfortunately, when courts dismiss evidence of domestic violence as being "irrelevant", there is a failure to recognise the significant power imbalance that exists in violent intimate relationships. The adversarial system assumes that both parties will have a fair opportunity to present their side of the dispute, and a fair determination will be made based on the facts presented. However, in situations where there is marital violence, the power imbalance may significantly impede the victim's ability to present her case.

In an abusive relationship, the physical violence is most often accompanied by emotional abuse, including attempts to control the woman through such means as limiting her access to money, and isolating her from family and friends. As a result, when the marriage ends, the woman may find herself having to build a new life from scratch with few resources financial or otherwise. Her circumstances may adversely affect her case in a variety of ways. She may be terrified of her ex-husband and may compromise her future rather than insisting on her legal rights due to fears about potential repercussions. This is particularly the case if she can't afford a lawyer and represents herself in court. She also may be suffering from post-traumatic stress, and as a result may appear unstable or emotionally overwrought. In contrast, her abusive partner may appear calm and rational, and, therefore, may seem more believable to the court.4

Even after the divorce is granted and the custody order made, litigation does not necessarily end. The Divorce Act makes it possible to apply to have orders varied when familial circumstances change. As a result, the abusive partner can use the threat of repeated court proceedings in an attempt to punish his ex-wife, and to wear down her energy and resources. The B.C. Law Society reported one case where a woman was brought into court over one hundred times during a six year period to deal with applications for variations of maintenance or access (Gender Bias Committee, 1992). The following two examples illustrate the difficulties victims of family violence may face: 1) An abusive man may never pay support, and may rarely see the kids, yet may threaten litigation when his ex-wife wants to move because this will deny him access. 2) When a woman gets involved in a new relationship, the abusive ex-partner may apply to the court to have his access increased, based on the argument that the children's mother is away from home more often. Even if there is no substance to these claims, the perpetual threat of litigation can be very tiring. As a result, the custodial mother may monitor her own behaviour, basing her actions on how things will appear to a court rather than on what is actually best for herself or her children.

During the original court case, and in any subsequent variation hearings, the judge will listen to evidence presented by both sides and then will make a decision based on what is in the "best interests of the child". Although the determination of the "best interests of the child" is largely a matter of judicial discretion, principles developed in other cases may be applied. Numerous studies have examined court records to see which factors are most often taken into consideration by judges. In many cases authors of these studies have criticized the subjectivity of the "best interests" standard. One concern is that, because the Divorce Act offers no direction to the court about which factors must be taken into consideration, it is possible that the judge's own biases will affect the determination of "best interests". In many cases, the specific factors considered work against a woman who has just left an abusive relationship. For example, the stability of a prospective parent and the continuity of living arrangements for the child are often taken into consideration. However, during the period of time immediately after a woman leaves an abusive relationship, her life may seem unstable, or at least can be portrayed that way. For example, the woman may not have suitable accommodation, or may be forced to take an entry-level job that requires a lot of time to be spent away from the child. The abusive partner, in contrast, may have a job with regular hours, and may have remained in the family home. Based on these facts, the father can argue that he can provide more stability for the child than the mother is able to.

Although judges may differ on which factors are to be included in the consideration of the "best interests of the child", studies have shown that one factor that is always considered is contact with the "non-custodial parent" (usually the father). One study surveyed family law cases published in the Reports on Family Law between 1990 and 1993. In nearly every case, and eclipsing virtually all other factors, the judge viewed paternal access as paramount to the "best interests of the child". This was irrespective of the quality or regularity of his parenting (Bourke, 1995). The Divorce Act does seem to potentially place a limitation on contact with parents under some circumstances by stipulating that children should have as much contact as is in their best interests. Nonetheless, studies have shown that courts have been reluctant to deny access even in situations of family violence. If the abuse is directed at a child, supervised access will usually be ordered if the abuse is proven. If unproven, supervised or unsupervised access will be ordered depending on whether or not the court believes the child to be at risk (Zarb, 1994). Access is rarely denied completely.

Problematically, raising allegations of child abuse can actually work against the one raising them. S. 16(10) of the Divorce Act states that, in making custodial determinations, the courts are to consider the willingness of the custodial parent to facilitate contact with the other parent. This has been called the "friendly parent presumption". As a result, if a woman raises safety concerns, but is unable to prove her allegations, she risks having the court conclude that she is merely being vindictive in order to prevent her ex-partner from having contact with his child. On the other hand, if she does not raise legitimate concerns she is putting the child's safety at risk. 5

It is not surprising that there are often concerns about the child's safety in these types of situations. Studies have shown that marital violence is a statistically significant predictor of physical child abuse. One study found that the greater the amount of violence against a spouse, the greater the probability of physical child abuse by the physically aggressive spouse. The probability of child abuse by a violent husband increased from 5% with one act of marital violence to near certainty with 50 or more acts of marital violence (Ross, 1996). However, child abuse can be hard to prove in court, because the crime usually occurs with no witnesses beyond the family. The only adult witness may be the ex-wife, who is often perceived as less than credible. This may be due to a commonly held belief that false allegations of abuse are often made as a maliciously motivated tactic during custody hearings (Humphreys, 1997).This belief is not supported by research. Two major studies found that child sexual abuse allegations are only made in 2% of all litigated custody cases (Thoennes, 1990; MacIntosh, 1993).6 Within this 2%, it is hard to know how many allegations are false. We know that courts substantiate allegations at a rate of somewhere between 25% and 75%. However, it would be incorrect to conclude that the unproven allegations are necessarily untrue. For example, in one study, the court only substantiated allegations in approximately 35% of the cases it heard, but clinicians substantiated 73% of the allegations in the same cases (Faller, 1995).

The combined effect of ss. 16(9) and 16(10) of the Divorce Act is highly problematic for abused women. When s. 16(9) is interpreted so that previous domestic violence falls under the rubric of irrelevant previous conduct, women are placed in an impossible situation because of the "friendly parent" provision in s. 16(10). For example, if a woman tries to limit contact with her ex-partner, or makes a geographical move for safety purposes, she can be accused of being unfriendly. If evidence of abuse has not been placed before the court because of s. 16(9), the court cannot properly understand the danger she is in, and her case may be adversely impacted as a result. On the other hand, if an abused woman co-operates with court ordered custody and access arrangements, her safety is at risk whenever she comes into contact with her abusive ex-partner. For example, he may use the excuse of communicating about the children to make threatening telephone calls, and he may verbally abuse her whenever he picks up or drops off the children. As this harassment continues, so does the children's exposure to conflict and violence.

Allowing children to continue to be exposed to conflict and violence is clearly not in their "best interests". The psychological evidence is clear. Witnessing violence is harmful to children. The national Violence Against Women Survey revealed that 39% of children in homes with marital violence had witnessed an assault on their mother. Witnessing violence is a significant predictor of post -traumatic stress disorder (Kilpatrick, 1997). Children exposed to violence have an increased risk of behavioral and developmental problems (Jaffe, 1990) and, in the long term, may experience a higher incidence of relationship problems and substance abuse (McNeal, 1998).

It is clear that changes to family law legislation are needed. Many groups with diverse concerns have lobbied for changes to the law. As a response, the government of Canada is currently working with provincial governments to develop reform proposals. As part of this process, the government has stated that it plans to carry out research in certain key areas such as domestic violence and false allegations of abuse. In this effort, it is wise to take a cautious approach in order to ensure that changes are based on the best research available. Changes to the legislation must be designed to ensure that the courts protect women and children from further abuse. At a minimum, legislation should require the courts to consider domestic violence as a factor relevant to determining the "best interests of the child". In addition, women who raise concerns about abuse should be protected from having the "friendly parent presumption" used against them. Beyond legislative questions, more services are needed to assist victims of family violence throughout the court system, including access to legal assistance for women who are abused. Hopefully, the public debate about custody and access issues will lead to laws that are truly in the "best interests of children", and services that protect the victims of family violence from further abuse.

-Joan Braun recently completed study in second year law at the University of British Columbia and is currently working with the Institute in developing a literature review on custody and access in situations where violence or abuse is a factor. Before entering law school, Joan was employed in the social welfare field counselling individuals and families.

Notes

1 S. 24 of the Family Relations Act states that the court must consider the following: the health and well being of the child, the view of the child (if appropriate), the love, affection, and ties between that child and other persons, the child's education and training, and the capacity of the adult seeking custody or access to exercise those rights and duties adequately.

2 See, for example, Williams v. Williams (1989) 24 R.F.L. (3d) 86 (B.C.C.A); Young v. Young [1993] 2 S.C.R. 3. According to the court in Williams, neither the "tender years doctrine", nor the argument that the needs of female children are best served by their mother are of any validity today. According to the court in Young, the sole consideration is the "best interests of the child".

3 Very little Canadian research has been done on this topic beyond that done by Rosnes and Clarke (1991). Rosnes' results are similar to those found in various American studies. Clarke takes the view that the Canadian situation is different than the American. She concludes that, although theoretically s. 16(9) could be interpreted as irrelevant conduct, this is not happening in Canada. For a comparison of the methodologies used in the two Canadian studies see Rosnes.

4 For a discussion of these issues see Lehrman, 1996; Pagelow, 1993.

5 Rosnes looks at Canadian case law and concludes that the friendly parent presumption is being used to the detriment of Canadian women who are dealing with violent partners

6 Some researchers have suggested a higher percentage, but still less than 10% (Bala, 1999).

References

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