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2001 Archives > Summer 2001
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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
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" [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.
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