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FAMILY VIOLENCE: an essential factor in determining custody and access

Penny Bain, LLM

Divorce Act

Reform Consultations

Any reforms to the Canadian Divorce Act must take into account family violence. Family violence is a significant social problem that is not reflected in current Federal and provincial family law legislation. The risk of family violence increases post-separation, particularly in contested custody cases (Jaffe, 1995). The Federal Minister of Justice is currently undertaking a three year review of the Divorce Act to determine what changes should be made to the provisions relating to child custody and access. The child-centered focus of the proposed reforms must make the safety of children and their prime caregivers paramount. It is not in the best interests of a child to be exposed to family violence. The BC Institute Against Family Violence urges that any reforms include a specific direction to the Courts to take into account family violence as an essential factor in determining custody and access.

Impact of

Family Violence

Research consistently demonstrates that children who are exposed to the abuse of one parent by the other show significantly greater psychological and physical problems than do children who are not exposed to family violence. Also, surveys show that between 47% and 54% of men who batter a partner also physically abuse their child (Field, 1999).

Some of the effects on children exposed to violence include: aggressive and non-compliant behaviour, emotional problems such as depression, anxiety, suicide attempts, low self esteem, shame and guilt. In addition, when children witness their parents abuse each other, they are shown by example that power, control, and ultimately, violence, are acceptable means for getting what one wants. In homes where children witness violence against mothers, for example, there is often "an atmosphere of severe lack of respect for their mother by the abuser, and their mother is disempowered in many ways" (Sudermann and Jaffe, 1998).

Given what we know about the effects on children of witnessing abuse, it is crucial that family violence be one of the determining factors against awarding custody and generous access to abusive parents. When joint custody is granted to abusers, primary caregivers are at risk because they must have ongoing contact with their abuser. Abusive parents can use joint custody to further control and harass their ex-partners because they have equal say in the major decisions affecting the children. Even when a supervised access order is granted, the supervisor role is often put in the hands of the abuser's family member, which can increase the opportunity for abuse.

Canadian Courts Do Not

Adequately Address

Family Violence

Unlike many other jurisdictions described below, the Canadian Divorce Act does not specifically include family violence as a factor in determining custody and access. In addition, the Act makes it very difficult for the abused parent to bring evidence of family violence to the attention of the Court. Section 16 (9) of the Divorce Act provides that: "The court will not consider past conduct unless it is relevant to the ability of the person to act as a parent of the child." The judge may or may not consider conduct that indicates risk of harm to the child is relevant to the ability of the person to parent the child. Further section 16(8) provides that: "The court, in making an order for custody or access, shall only take into consideration the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child." The Act does not specify that spousal abuse or related risk of harm must be considered in determining the needs of the child.

Finally, section 16 (10) provides that: "In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child. For that purpose, the court shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact." Therefore, a parent who alleges spousal abuse by the other parent risks losing custody because of the implied lack of willingness to facilitate contact under the "friendly parent" rule.

Equality Rights

Canadian women suffer significant social and economic inequality that increases their exposure to and the consequences of family violence. In particular, women of colour, immigrant and/or refugee women, lesbians, poor women, Aboriginal women and women with disabilities face substantial systemic discrimination. Women are primary caregivers of children, both before and after separation. In 1996, women headed nine in ten single parent families (Statistics Canada).

In the past, equality was seen as equal treatment. Currently, Federal government policies and Supreme Court of Canada decisions recognize that equal treatment does not necessarily yield equal results. A policy that discounts the impact of family violence in the best interests of children discriminates against mothers, and particularly against mothers who otherwise suffer systemic discrimination. Applying the current Divorce Act custody and access provisions in a gender neutral manner that does not routinely consider the impact of family violence ignores the realities of women and children's lives and discriminates against female parents.

Make Safety Paramount

We recommend that all Canadian jurisdictions enact statutes that specifically list family violence as a factor in determining custody or access. As provided in the 1994 American National Council of Juvenile and Family Court Judges Model Code on Domestic Violence, we strongly recommend that consideration of family violence be required in custody and access disputes, and that the well-being of the child and the abused parent be the primary consideration in determining the best interests of the child when there has been a finding of violence against the primary care giver.

American Legislation

American custody and access law is regulated by individual state legislation. In recent years, a number of state statutes have included domestic violence as a factor that judges must consider when making custody and access decisions. As of 1995, 44 states and the District of Columbia had statutory provisions relating to domestic violence as a factor in custody and access.

The Revised Code of Washington creates a process for developing parenting plans. However, the Code states that the plans cannot provide for mutual decision making or alternative disputes resolution if: ".a parent has engaged in any of the following conduct: a) willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions; b) physical, sexual, or a pattern of emotional abuse of a child; or c) a history of acts of domestic violence as defined in RCW 26.50.010(1) or an assault or sexual assault which causes grievous bodily harm or the fear of such harm." [Section 26.09.191(1)] Also, the Court must limit the parent's residential time if he or she is convicted of an adult sex offence or engages in the above conduct. [Section 26.09.191(2)] The Code creates rebuttable presumptions that abusers pose a danger to children and provides for supervised access. The Code defines domestic violence as: a) physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault, between family or household members; or b) sexual assault of one family or household member by another. [Section 26.50.010(1)]

The Minnesota Statutes 1996 takes into account the impact of abuse of a parent on the child and provides an exemption for the "friendly parent" rule: ".when determining the custody arrangements of a child, the court will take into account the effect on the child of the actions of an abuser, if related to domestic abuse that has occurred between the parents; and, except in cases in which a finding of domestic abuse has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child." [518.17, sub. 1 (12), (13)]

In joint custody applications ".the court will consider whether domestic abuse has occurred between the parents. The court shall use a rebuttable presumption that upon request of either or both parties, joint legal custody is in the best interests of the child. However, the court shall use a rebuttable presumption that joint legal or physical custody is not in the best interests of the child if domestic abuse has occurred between the parents." [518.17, sub. 2(d)]

If the person seeking custody or access is convicted of certain offences ".the person seeking custody or visitation has the burden to prove that custody or visitation by that person is in the best interests of the child if: (1) the conviction occurred within the preceding five years; (2) the person is currently incarcerated, on probation, or under supervised release for the offence; or (3) the victim of the crime was a family or household member. If this section applies, the court may not grant custody or visitation to the person unless it finds that the custody or visitation is in the best interests of the child. If the victim of the crime was a family or household member, the standard of proof is "clear and convincing evidence"." [518.179(1) and (2).]

On January 1, 2000, an amendment to the California Family Code added section 3044, which creates a rebuttable presumption that a person who has committed acts of domestic violence within the past five years should not be granted custody. The presumption does not apply in cases in which both parents are perpetrators of domestic violence. Section 3044, section 1, provides that: (a) Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child's siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence. (b) In determining whether the presumption set forth in subdivision (a) has been overcome, the court shall consider all of the following factors: (1) Whether the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child. (2) Whether the perpetrator has successfully completed a batterer's treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code. (3) Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate. (4) Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate. (5) If the perpetrator is on probation or parole, whether he or she is restrained by a protective order granted after a hearing, and whether he or she has complied with its terms and conditions. (6) Whether the perpetrator of domestic violence has committed any further acts of domestic violence. (c) In cases in which both parents are perpetrators of domestic violence, this presumption shall not be applicable. (d) For purposes of this section, a person has "perpetrated domestic violence" when he or she is found by the court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which a court may issue an exparte order pursuant to Section 6320 to protect the other party seeking custody of the child or to protect the child and the child's siblings.

Further, the California Family Code, sections 3030-3031 provide that:

Section 3200 provides that the Judicial Council shall develop standards for supervised access and that: "It is the intent of the Legislature that the safety of children, adults, and visitation supervisors be a precondition to providing visitation services. Once safety is assured, the best interest of the child is the paramount consideration at all stages and particularly in deciding the manner in which supervision is provided." [Subsection c]

Anyone hired as part of Family Court Services staff must have training in the effects of domestic violence on children and staff must receive ongoing training on domestic violence issues in co-ordination with local domestic violence agencies. [Sections 1815 and 1816] Further, psychologists who prepare custody assessment reports must supply a certificate that they have had training in the effects of family violence on children.

New Zealand Legislation

New Zealand has one of the most comprehensive legislative schemes in the world concerning domestic violence. In addition to its child welfare and domestic violence statutes, it includes in the Guardianship Act, a presumption against making any order giving the violent party custody of a child, or access other than supervised access, unless the Court is satisfied that the child will be safe. This presumption is raised where, in any proceedings, the Court is satisfied that a party to the proceedings has used violence against the child or against any other party to the proceedings.

The Domestic Violence Act 1995 section 3 defines the scope of the term "violence" as including physical abuse, sexual abuse, and psychological abuse including intimidation, harassment, damage to property, and threats of physical, sexual or psychological abuse. The Act provides for a person who is a victim of family violence to apply for a protection order. The Children, Young Persons, and Their Families Act, 1989 section 8.7 provides that: ".in any proceedings under the Domestic Violence Act 1995 for protection orders, a Family Court may make such interim order or orders with respect to the custody of or access to any child of the applicant's family, or such interim order or orders varying any custody order or access order relating to such a child, as the Court considers necessary to protect the welfare of that child." The person subject to a protection order is prohibited from possessing weapons and must attend anti-violence counselling (section 32).

The companion legislation, the Guardianship Amendment Act 1995, provides that no party who has used violence against a party to the proceeding or the child shall have custody or unsupervised access: ".where in any custody or access proceedings, it is determined that a party to the proceedings has used violence against the child or a child of the family or against the other party to the proceedings, the Court shall not: a) make any order giving the violent party custody of the child to whom the proceedings relate; b) make any order allowing the violent party access (other than supervised access) to that child, unless the Court is satisfied that the child will be safe while the violent party has custody of or, as the case may be, access to the child." [section 16 b(4)a), b)] Similarly, in an application for access "where the court is satisfied that the parent has used violence against the child or the other parent of the child, the court shall consider whether or not the order should be subject to any conditions for the purpose of protecting the safety of that other parent while the right of access conferred by the order is being exercised including while the child is being collected from, or returned to, that other parent." [section 15(2)(b)]

In the Guardianship Amendment Act 1995, section 16b sets out the factors that the judge must consider in making a custody or access order as follows: "In considering whether or not a child will be safe while a violent party has custody of or access to the child, the Court shall have regard to the following matters:

a) the nature and seriousness of the violence used;

b) how recently the violence occurred;

c) the frequency of the violence;

d) the likelihood of further violence occurring;

e) the physical or emotional harm caused to the child by the violence;

f) whether the other party to the proceedings i) considers that the child will be safe while the violent party has custody of or access to the child, ii) consents to the violent party having custody of or access (other than supervised access) to the child;

g) the wishes of the child, if the child is able to express them, and having regard to the age and maturity of the child;

h) any steps taken by the violent party to prevent further violence occurring;

i) such other matters as the Court considers relevant."

The legislation creates a legal presumption that a person who has committed violence against the child or the other party to the proceeding (usually the other parent) should not be granted custody or unsupervised access. The court cannot make an unsupervised access order unless it is convinced that the child will be safe during the visit. In cases where the judge believes that it is the only way to ensure the child's safety, the court can make an no-access order.

Australian Legislation

The Family Law Reform Act 1995 emphasizes parental responsibility and replaces "custody" with "residence" and "access" with "contact". Relevant factors include the child's right to know and be cared for by both parents and the child's right of regular contact with both parents. [Sections 60B(2)(a) and 60B(2)(b)] However, the list of factors also explicitly includes: ".. the need to protect the child from physical and psychological harm that may be caused by being subjected to abuse or by being directly or indirectly exposed to abuse, ill treatment, violence or other behavior that is directed towards or may affect another person." [Section 68(t)]

Various state laws provide for family violence orders. Where the Federal court has made an order requiring contact, the Federal court may vary or suspend the order if it is inconsistent with a state family violence order: "the purpose of this provision is to resolve inconsistencies between family violence orders and Family Law Act orders, to ensure people are not exposed to family violence, and to respect the right of the child to have contact, on a regular basis, with both parents." [Section 68(r)] Similarly, the summary jurisdiction court may make an order varying or discharging the Federal contact order. [Section 68(t)] There is a registry of state family violence orders.

Our Recommendations

We recommend that a definition similar to the American Model Code on Domestic Violence be included in the statutes. "Family violence" should include: attempting to cause or causing physical harm to another family member; causing a family member to have reasonable fear of physical harm; causing another family member to engage in involuntary sexual activity; or forcible confinement of the other parent.

As in New Zealand, we further recommend the inclusion of "psychological abuse" as a factor ".when he or she is found by the court to have . to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or disturbing the peace of another..".

2. Make the Safety of the Abused Parent and Children Paramount

Canadian statutes should specify that the issue of safety shall always be the paramount concern for the court. For example, in making an order for access safety of the primary caregiver and the child should be the first consideration.

3. Include Violence as a Factor in Determining Custody and Access

We recommend that Canadian statutes include the provision that, as in Minnesota, ".the court will take into account the effect on the child of the actions of an abuser.." and as in Australia, consider ".. the need to protect the child from physical and psychological harm that may be caused by being subjected to abuse or by being directly or indirectly exposed to abuse, ill treatment, violence or other behavior that is directed towards or may affect another person."

As in New Zealand, the Canadian statutes should also specifically set out the following factors: "In considering whether or not a child will be safe while a violent party has custody of or access to the child, the Court shall have regard to the following matters:

a) the nature and seriousness of the violence used;

b) how recently the violence occurred;

c) the frequency of the violence;

d) the likelihood of further violence occurring

e) the physical or emotional harm caused to the child by the violence;

f) whether the other party to the proceedings i) considers that the child will be safe while the violent party has custody of or access to the child, ii) consents to the violent party having custody of or access (other than supervised access) to the child;

g) the wishes of the child, if the child is able to express them, and having regard to the age and maturity of the child;

h) any steps taken by the violent party to prevent further violence occurring;

i) such other matters as the Court considers relevant."

The Court should also have regard to whether the primary caregiver feels safe from further violence.

4. Include Violence as a Factor in Variation of Custody and Access

The Canadian statutes should specifically include family violence as a factor in considering whether to vary a custody or access order. As in Australia, where a criminal court has convicted a parent of an offence relating to family violence, the criminal court should also have the specific power to vary a civil custody or access order.

5. Create a Rebuttable Presumption Against Custody if There is Family Violence

As in some American states and New Zealand, we strongly recommend that Canadian statutes include a statutory presumption that it is not in the best interests of child to be placed in the custody of a parent who has perpetrated acts of family violence against the child or the parent of the child. As in California, we recommend that: "Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child's siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child...This presumption may only be rebutted by a preponderance of the evidence."

In determining whether the presumption has been overcome, the Canadian statutes should require the court to consider all of the following factors:

(1) Whether the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child. (2) Whether the perpetrator has demonstrated clear evidence of change that ensures the safety of the primary caregiver and the children; successful completion of a batterer's treatment program, a program of alcohol or drug abuse counselling, or a parenting program is not necessarily sufficient. (3) If the perpetrator is on probation or parole, whether he or she is restrained by a protective order granted after a hearing, and whether he or she has complied with its terms and conditions. (4) Whether the perpetrator of domestic violence has committed any further acts of family violence or intimidation.

Finally, the legislation should clarify that it is not in the best interests of the child to be exposed to the risk of family violence.

6. Create a Rebuttable Presumption Against Access if There is Family Violence

The Canadian statutes should similarly make the safety of the child and primary caregiver paramount and therefore create a rebuttable presumption that unsupervised access is not in the best interests of the child. Sometimes no access is in the best interests of the child.

7. Require Supervised Access if There is Family Violence

As in New Zealand, the Canadian statutes should require that in an application for access "where the court is satisfied that the parent has used violence against the child or the other parent of the child, the court shall consider whether or not the order should be subject to any conditions for the purpose of protecting the safety of that other parent while the right of access conferred by the order is being exercised including while the child is being collected from, or returned to, that other parent."

8. Provide for Supervised Access and Exchange Resources

Canadian statutes should contain specific provision for access supervision and exchange supervision. The safety of parents and children should be paramount. As in California, the Canadian statutes should require those responsible for the administration of justice to develop standards for supervised access and state that: "It is the intent of the Legislature that the safety of children, adults, and visitation supervisors be a precondition to providing visitation services. Once safety is assured, the best interest of the child is the paramount consideration at all stages and particularly in deciding the manner in which supervision is provided." In particular, the Court should order that the access be supervised by trained third parties who are not related to the abuser.

9. Create a Rebuttable Presumption That the Court Will Not Change a Supervised Order to an Unsupervised Order

The Court should be directed by the legislation that the applicant to vary a supervised order to an unsupervised access must establish beyond a reasonable doubt that the safety of the primary caregiver and the children is ensured.

10. Create an Exemption to the "Friendly Parent" Rule

The presumption that access is in the best interests of the child should not apply in cases of family violence. As in Australia, the "friendly parent" rule should not apply where there is a greater need: ".. to protect the child from physical and psychological harm that may be caused by being subjected to abuse or by being directly or indirectly exposed to abuse, ill treatment, violence or other behavior that is directed towards or may affect another person."

11. Require Lawyers to Disclose Violence-Related Orders to the Court

As in Australia, lawyers in civil custody and access applications should be required to make judges aware of related criminal court orders.

12. Require Judges to Consider Conflicting Orders

As in the California Family Code sections 3030-3031, judges should be required to consider conflicting orders and encouraged not to make a custody or access order that is inconsistent with a criminal no contact order or a civil restraining order.

13. Require Child Custody Assessors to Take Family Violence Training and to Consider Cultural Issues

Both family court counsellors and private psychologists who conduct custody and access assessments for the court, should be required by Canadian statutes to take family violence training. In California, anyone hired as part of Family Court Services staff must have training in the effects of domestic violence on children and staff must receive ongoing training on domestic violence issues in co-ordination with local domestic violence agencies. Further, psychologists who prepare custody assessment reports must supply a certificate that they have had training in the effects of family violence on children.

Also custody assessors who are not from the same cultural background as the parents should be required to consult a cultural interpreter to explain standards of conduct that may be different from those in the assessor's culture.

14. Require Child Custody Assessors to Include Disclosures in Reports

Canadian statutes should require that child custody assessors include disclosures of family violence in their assessment reports.

15. Require Non-Disclosure of Abused Parent's Address

Canadian statutes should provide that an abused parent can request non-disclosure of her address if she is concerned about her safety or the safety of her children. Court documents can be served on a third party such as her lawyer.

16. Flight from the Home Not a Factor

Canadian statutes should specify that judges not hold flight from the family home due to a reasonable fear of family violence against the fleeing parent. Canadian statutes should also direct judges not to order the return of a child to another jurisdiction where doing so would create a significant risk to the safety of the child or a parent.

17. Restrict Use of Mediation

Canadian statutes should restrict the use of mediation in cases where there is family violence. For example, in Australia, regulations expressly prohibit mediators from dealing with a dispute between parents where mediation is inappropriate because of family violence between the parties or where there is any concern about the safety of the parties or their emotional, psychological, or physical health.

18. Authorize Judges to Set Aside Agreements Made Under Threat of Violence

Canadian statutes should specifically authorize a judge to set aside an agreement made under the threat of family violence.

19. Availability of Legal Aid

The Federal Government should require all provinces to provide civil legal aid in all cases where there is family violence and a contested custody or access application and the victim of family violence cannot otherwise afford a lawyer.

Conclusion

In conclusion, it is not in the best interests of a child to be exposed to the risk of family violence. The safety of primary caregivers and their children must be paramount when determining child custody and access arrangements. Legislation should require that all evidence relevant to the issue of family violence is presented to the Court and that the Judge carefully consider evidence of family violence in making determinations about custody and access. The BC Institute Against Family Violence urges organizations and individuals concerned about the safety of children and their caregivers to make recommendations similar to those above during the up coming Divorce Act reform consultations.

References

Bala, N.M.C., et al. (1998). Spousal violence in custody and access disputes: Recommendations for reform. Ottawa, Status of Women Canada.

Department of Justice Canada. (1999). Strategy for reform. Ottawa, Government of Canada.

Field, J.K. (1999). Judicial actions that can help keepchildren and victims safe. The Journal of the American Judges Association, Vol 35, 3.

Jaffe, P. (1995). Children of domestic violence: Special challenges in custody and visitation dispute resolution. In Carter, J., Hart, B. & Deisler, C. (Eds.) Domestic violence and children: Resolving custody and visitation disputes. San Francisco: The Family Violence Prevention Fund.

Justice Reform Committee. (1988). Access to justice: The report of the Justice Reform Committee. Victoria, BC: Ministry of Attorney General.

Statistics Canada. (1996). Family violence in Canada: A statistical profile. Ottawa, Government of Canada.

Sudermann, M. and Jaffe, P. G. (1998). Handbook for health and social service providers and educators on children exposed to woman abuse/family violence. Manuscript submitted for publication.