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Law Reform Update: Child Custody and Access & Family Violence

by Penny Bain, LLM

As mentioned in the Executive Director’s column elsewhere in this issue, the BC Institute supports proposals to reform the federal Divorce Act and the provincial Family Relations Act to require judges to consider family violence in child custody and access proceedings.

The Federal/Provincial/Territorial Consultation document entitled Custody, Access and Child Support in Canada: Putting Children’s Interests First (March 2001; Justice Canada) requested feedback from Canadians on five issues relating to the possible reforms, including: roles and responsibilities of parents, best interests of the child, family violence, high conflict divorces, and child access issues. This article summarizes the position that the Institute has taken in relation to these issues. We urge you to write to the Minister of Justice and to your MP (c/o Parliament Buildings, Ottawa) to support these positions.

Roles & Responsibilities of Parents

Regardless of the terminology used to define parenting roles and responsibilities, the Divorce Act must provide for the protection and safety of women and their children.

We recommend that all Canadian jurisdictions enact statutes that specifically list family (i.e., relationship) violence as a factor that must be taken into account in determining custody or access. As proposed in the 1994 American National Council of Juvenile and Family Court Judges Model Code on Domestic Violence, we strongly recommend that consideration of relationship violence be required in custody and access disputes. Further, the safety and well-being of the child and of the abused primary caregiver should be the primary consideration in determining the best interests of the child.

The proposed introduction of the concept of shared parental responsibility will not address the difficult issues arising in separations characterized by the abusive use of power and control by one parent over the other. The shared parental responsibility model has been tried in jurisdictions such as England and Australia, where research indicates that it has not succeeded in shifting the focus towards parental co-operation. Legal disputes have increased and children have been exposed to potential violence pursuant to interim access orders. Shared parental responsibility has become a new "tool of control" used by abusive non-residential parents. Attention by judges to the impact of relationship violence on children has decreased (Crossman & Mykitiuk, 1998).

Washington State uses a mandatory "parenting plan" which attempts to allocate all the potential parental rights and responsibilities that were formerly addressed in a conventional custody order. However, in follow-up studies of the Washington State model, families divorcing under the parenting plan approach experienced significantly more parental conflict, more negative long-term adjustment outcomes, as well as continuing safety and well-being concerns, particularly on the part of domestic abuse victims (Sheepwash, 2000).

If introduced in amendments to the relevant Acts, shared parental responsibility must take into consideration the impact of relationship violence on the child and the child’s need for safety and protection. The legislation should state that there is no presumption that shared residence or shared decision-making is a preferred scenario.

The court should only consider a joint custody or shared parenting order in cases where both parties are in agreement, both parents have an amicable relationship and where there is no history of violence against the female partner or children. Where the parties are not in agreement or where violence is used to obtain "agreement", shared parenting can result in an escalation of conflict and trauma for the children and the primary caregiver.(See the Washington and Australian experience with shared parenting [Crossman & Mykitiuk, 1998; Sheepwash, 2000].)

Best Interests of the Child

As discussed above, the Institute urges the federal government to specify that a judge must consider the impact of family violence in making a determination of the best interests of the child.

Extensive research in the field of child development documents the adverse impact of exposure to family violence on child development. For example, the National Longitudinal Survey of Children and Youth (1999), a snapshot of child protection cases in Canada, concludes that "children who are exposed to adults …fighting in the home were more likely to exhibit physical aggression, indirect aggression, emotional disorders, hyperactivity, and to commit delinquent acts against property." Through psychological testing, a child psychologist can provide the court with expert evidence of the impact of exposure to violence on a particular child’s cognitive, social and emotional development.

Research reveals that children under age three exposed to relationship violence, which can stimulate a prolonged, physiological "fight-or-flight" stress response, may suffer a kind of brain damage. This damage can lead to dissociative disorders, in which the individual becomes emotionally detached from his or her surroundings, and may lead to what was formerly referred to as "multiple personality disorder". Post-traumatic Stress Disorder (PSTD), which is characterized by hypervigilance to threatening stimuli, physiological and emotional over-arousal and persistently intrusive traumatic memories, among other traumatic stress responses, is a possible unfortunate result of environmental adversity.

An individual with PTSD has an excruciatingly low tolerance for environmental change. Even a sudden change in light or temperature, or a sound that’s not loud but unexpected, can evoke an aggressive outburst. Or the individual can move back and forth between dissociative disorders. Other ("co-morbid") psychiatric diagnoses, such as substance abuse, depression and dissociative and anxiety disorders also present within individuals with histories of traumatic stress. Some who suffered at the hands of others go on to perpetrate abuse in adult relationships, and others are at greater risk for re-victimization in abusive adolescent and/or adult relationships.

The Divorce Act should direct the judge in a divorce proceeding to inquire whether there has been family violence. Judges should have the power to order assessments that include investigation of whether the violence occurred (including collecting third party evidence), the impact of the violence on the children (including psychological assessments of trauma and impact on child development) and the risk that violence will occur in the future.

The presumption that access to the child by the non-custodial parent 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" [Family Law Reform Act, 1995, section 68 (t)].

Family Violence

We recommend that a definition similar to that proposed in the U.S. Model Code on Domestic Violence be included in the Divorce Act and the Family Relations Act. "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 [National Council of Juvenile and Family Court Judges, 1994]

As in New Zealand’s Domestic Violence Act we further recommend the inclusion of "psychological abuse as a factor" "…when he or she is found by the court … 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…." [Domestic Violence Act, 1995, section 3].

In addition, the definition of family violence should include recognition that it may include a prolonged pattern of behaviour intended to control the victim through intimidation and isolation.

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…." [Minnesota Statutes, 1996, Sec. 18.17, subsection 1] 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" [Family Law Reform Act, 1995, section 68 (t)].

As in New Zealand, the Canadian statutes should also specifically set out the following risk 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

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" [Guardianship Amendment Act, 1995, section 16 (b)].

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

The Canadian statutes should also 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 [Family Law Act, section 68].

As in a number of U.S. 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 violence against the child or the other 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 family 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" [Family Code, section 3044, section 1].

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.

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

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

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. Legislators and judges also must be aware of the disturbing possibility that abusive partners may attempt to use the legal system itself as a weapon to threaten and harass victims of domestic abuse. "Especially in situations where domestic violence has been an issue, the batterer discovers the subpoena power of the court is the method of control par excellence…fil[ing] numerous false allegations against the victims, her support network (such as the children’s daycare providers), and even her attorney and the judge…" (Normalvanbreucher, 1999).

Canadian statutes should specify that judges not hold against a parent the fact that that parent has fled the family home due to a reasonable fear of family violence. 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.

High Conflict Relationships

Conflict that involves, as the Federal Government’s Consultation booklet states, "one parent belittling the other parent’s values to vicious verbal attacks and threats of violence, and can be as extreme as direct threats to emotional well being and physical safety of the children or either parent" is psychological abuse and therefore, family violence. Research indicates that psychological abuse can cause greater trauma and negative impact on child development than physical abuse. To distinguish between relationships characterized as "High Conflict" and "Violence" is to suggest that a certain level of abuse within a relationship is acceptable. We emphatically state that "High Conflict" must not be separated from the category of "Violence." Therefore, all of the above noted information and research must be factored in the decision making process.

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

The law should not only discourage, but should not permit arrangements requiring co-operation and joint decision making where there are concerns about "high conflict" or violence between the parents. Canadian statutes should prohibit the use of mediation or any other dispute resolution mechanism that requires the abused party to meet with the abuser to discuss resolution of the problems in cases where there is violence against women in relationships. As an example, in Australia, regulations expressly prohibit mediators from dealing with a dispute between parents where mediation is inappropriate because of violence or where there is any concern about the safety of the parties or their emotional, psychological, or physical health.

The law must be changed to specify that judges must consider the incidence and impact of relationship violence, including psychological abuse, in determining custody and access.

As in Australia, lawyers in civil custody and access applications should be required to make judges aware of criminal court orders [Family Law Act, section 68 J]. If the parties are not represented, the judge should be directed to inquire if there are relevant orders.

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

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.

Canadian statutes should specify that judges not hold against a parent the fact that that parent has fled the family home due to a reasonable fear of family violence. 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.

Access Issues

Parents may deny access in order to protect the safety of their children. Children have a paramount right to safety. Parents should not be punished or penalized for denying access under such circumstances.

The Canadian statutes should make the safety of the child and primary caregiver paramount and therefore create a rebuttable presumption that in cases of family violence, unsupervised access is not in the best interests of the child. Sometimes no access is in the best interests of the child. There should be a positive inclusion that will allow Courts to consider "no access" as a possibility.

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" [Guardianship Amendment Act, 1995, section 16 (4)].

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" [Family Code, section 3200, subsection c].

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

In circumstances in which family violence exists there is a significant risk that the abuser will use access visits to continue the abuse of the primary caregiver.

Fathers’ Rights Movement

[The following is an excerpt from Braun, J. (2001) Child custody and access in the context of family violence. Vancouver, BC: BC Institute Against Family Violence.]

The legal system has been criticized for not adequately protecting victims of family violence. Family laws have changed over the past twenty years to reflect the egalitarian views of our society. Today either a father or a mother may receive custody of a child. Custody orders are made on the basis of the "best interests of the child". However, these gender neutral laws have been criticized by some authors. In particular, it has been argued that although gender neutral laws purport to promote equality, in practical terms, they simply mask gender inequality, and may negatively impact women. For example, Susan Boyd points out that gender differences and societal expectations around matters such as the division of labor within and outside the family are not taken into consideration by the courts (Boyd, 1989).

The family law system poses difficulties for families experiencing violence. An unfortunate result of the gender neutral language entrenched in our laws is that it is possible for a woman to flee an abusive situation and then lose custody of her children. In the past, custody of small children was almost always given to the mother according to the "tender years" doctrine. Today, a child’s age still may be considered as a matter of common sense, however it is no longer the deciding factor. Although, overall, more women have custody than men, this is usually because of a mutual agreement between the spouses. In contested cases, men are awarded custody as often as women (Boyd, 1989; McKie, Prentice & Reed, 1983). Studies have shown men receive custody as high as 74% of the time in provincial court, and 91% of the time in Supreme Court. (Goundry, 1998; McLure & Kennedy-Richardson, 1987; Bertoia & Drakich, 1993). In some cases, abuse victims who retain custody of their children may do so by sacrificing legal rights. Women considering leaving an abusive relationship are subject to fear and intimidation, and concern for losing custody of her children may influence a woman’s actions. For example, studies have shown that women may not pursue child support or an equal division of assets in exchange for a favorable custody arrangement (Pagelow, 1993).

How is it that men who have abused their wives win custody of their children? Provincial and federal legislation both stipulate that custody determinations should be based on what is in the "best interests of the child". Unfortunately, domestic violence is not normally a factor that is taken into account when making the determination of the child’s "best interests" (Keenan, 1985; Lehrman, 1996). In Canada, this is most likely because of judicial interpretations of s. 16(9) of the Divorce Act that stipulates 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.

The results of one Canadian study affirmed that judges consider domestic violence to be irrelevant to parenting ability and thus are placing it under the rubric of irrelevant past conduct according to s. 16(9). The author of this study drew this conclusion after reviewing all custody and access cases published in the Reports of Family Law over a two year period. (Rosnes, 1997). This result is very similar to American research which shows that family violence is typically not given proper weight by the court when making custody determinations (Keenan, 1985; Pagelow, 1993).Beyond Rosnes’ study, there has been little Canadian research on this topic. At the time of writing, the only other Canadian study was conducted by Lorene Clarke in 1991. Clarke, in contrast to Rosnes’ findings, concluded that Canadian courts are taking domestic violence into consideration when making decisions. Rosnes suggests that the discrepancy between the results of these two cases may be due to differing research methodologies. Clarke seems to have confined her examination to case results, whereas Rosnes also looked at the language and rationale evident in judicial decision making.

Determining "best interests" is largely a matter of judicial discretion. The Federal Divorce Act does not dictate the factors that are to be considered in determining the best interests of the child in custody and access determination. The Provincial Family Relations Act, however, lists a limited number of variables that the court must consider, including 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. These principles are so broadly stated, however, that determining "best interests" remains largely a discretionary matter despite these references in provincial legislation.

Therefore, in each case, judges weigh the evidence presented to determine which custody arrangement is in the child’s "best interests". Decisions may thus vary from case to case. However, by looking at previous court decisions, we can discover which factors are most often taken into consideration in judicial determination of custody and access arrangements.

According to the results of one study, in nearly every case, and eclipsing virtually all other factors, access of the non-custodial parent (usually the father) was considered paramount to the "best interests of the child". This was irrespective of the quality or regularity of his parenting (Bourke, 1995).

 1 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 valid today. According to the court in Young, the sole consideration is the "best interests of the child".

References

Bertoia, C. & Drakich, J. (1993) "The Fathers’ Rights Movement: Contradictions in Rhetoric and Practice." Journal of Family Issues, 14 (4), 592-615.

Bourke, D. (1995) "Reconstructing the Patriarchal Nuclear Family: Recent Developments in Child Custody and Access in Canada." Canadian Journal of Law and Society, 10 (1), 1-24

Chesler, P. (1991) "Wife Battery and Determinations of Custody: A Comparison of US and Canadian Findings" Ottawa Law Review, 22, 691-674

Delorey, A.M. (1989) "Joint Legal Custody: A Reversion to Patriarchal Power." Canadian Journal of Women and the Law, 3, 33-44

Geffner, R. & Pagelow, M.D. (1990) "Mediation and Child Custody Issues in Abusive Relationships." Behavioral Sciences and the Law, 8(2), 151-161.

Goundry, S. Final Report on Court Related Harassment and Family Law Justice: A Review of the Literature and an Analysis of Case Law. Vancouver: BC/Yukon Women’s Program and FREDA.

Kaye, M., & Zigler, E. (1987) "Do Abused Children Become Abusive Parents?" American Journal of Orthopsychiatry, 57, 186-192.

Keenan, L. (1985) "Domestic Violence and Custody Litigation: The Need for Statutory Reform." Hofstra Law Review, 13, 407-441.

Lehrman, F. (1996) "Factoring Domestic Violence Into Child Custody Cases" Trial, 32(2), 32-40

Munroe, K. (1992) "The Inapplicability of Rights Analysis in Post-Divorce Child Custody Decision-Making." Alberta Law Review, 30(3), 852-899

Normalvanbreucher, J. Stalking Through the Courts, 1999. Available at http://www.gate.net/~liz/liz/FRtactic.html

Rosnes, M. (1997) "The Invisibility of Male Violence in Canadian Child Custody and Access Decision-Making." Canadian Journal of Family Law, 14, 30-60

Ross, S. (1966) "Risk of Physical Abuse to Children of Spouse Abusing Parents" Child Abuse and Neglect 20 (7), 589-598

Sheepwash, K. "Current Trends in Canadian Child Custody Law Reform: Lessons From the Washington State Parenting Act", Child Custody Law Reform: Six Feminist Working Papers, December 2000, edited by Susan Boyd.