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Twice Victimized: Child Custody and Access and Family Violence

by Joan Braun, LLB

Recently, the British Columbia government announced that the budget for legal aid would be cut by 40%. There is no doubt that this decision will make it harder for women who are being abused by their partners to leave the relationship. Lack of access to legal help is already a problem commonly faced by women in this situation. For the past two years, the B.C. Institute Against Family Violence has managed a project, initiated by West Coast LEAF and funded by the Law Foundation, in conjunction with the Vancouver Custody and Access Advocacy Association. The goal of the project is to provide education to women's advocates who assist abused women who are engaged in civil litigation. A series of workshops were offered throughout the province, and the experiences of abused BC women in resolving legal issues related to custody and access were documented by the workshop presenters. Currently, the results of the surveys are being compiled, and a report on the project is being written. Although evaluation of the project is not yet completed, preliminary results show lack of legal representation to be one of the common difficulties faced by women leaving an abusive relationship.

This conclusion is based on information gathered from the women's advocates. During each workshop, specific questions were asked of attendees regarding their clients' experiences with the legal system. Workshop participants also completed written surveys. The information gathered provides some valuable insights into the legal difficulties that abused women face when considering leaving their partners.

In essence, their difficulties fall into two categories. First, there are difficulties inherent in the legal system itself. The adversarial court system requires allegations to be proven, and assumes that the participants in court cases are on a level playing field. The law is a blunt instrument - too blunt to deal with the subtleties present in situations where abuse has occurred. Second, there are difficulties caused by inadequate legal representation. Custody disputes are often legally complex, and are all the more so when abuse is involved. According to the advocates, a common problem is that many clients cannot get sufficient legal help. Even if women are eligible for legal aid, the number of lawyer hours allotted by legal aid regularly falls far short of what is required to resolve the custody dispute.

The survey results from this project also clearly reveal that the legal system does not protect women who are trying to leave an abusive relationship from further abuse. The women's advocates identified many problems similar to those previously identified in other studies. There is a significant body of literature on the topic of violence against women within the context of custody and access. Following is a brief summary of some of the key points discussed in academic literature that were also identified in the surveys used in this project.

Within the legal system, there is little recognition of the realities encountered by women who are leaving an abusive relationship. There is, for example, a frequent and well-documented pattern of escalation of violence after separation. The national Violence Against Women Survey reported that in 35% of cases, the violence escalated after the woman left the relationship.(1) One study found that almost 25% of women killed by their partners were murdered after leaving, and another 8% while attempting to leave.(2) Custody and access arrangements are often highly problematic. Abusive men commonly use access and visitation arrangements to harass their ex-partners.(3) In addition, women often experience a decline in income after a marital separation.(4) As a result, they may be unable to afford adequate legal representation and, out of necessity, may represent themselves in court, or may face their abusive partners during mediation. These situations are potentially unsafe.

Family laws have changed over the past twenty years to reflect the egalitarian views of our society. However, there is no recognition of the fact that within an abusive relationship there is no equality. By not acknowledging that there is a significant power imbalance between the parties, the courts create a situation where the abuse victim is disadvantaged. Abusive men will often threaten their ex-partners by telling them that they will lose custody. Fear of losing their children places these women in an unequal bargaining position. In some cases, abuse victims only retain custody by sacrificing their legal rights. Studies have shown that women may not pursue child support or an equal division of assets in exchange for a favorable custody arrangement.(5) In addition, a woman may be afraid of further violence by her partner, and may not insist on her legal rights in an effort to appease him. This is particularly the case if she can't afford a lawyer, and, as a consequence, is forced to come into contact with her abusive partner in court or in mediation.

An abuse victim's fear of losing custody of her children is not misplaced. It is possible for a woman to flee an abusive situation, and then lose custody of her children. Today, custody can be awarded to men or women, and is granted according to the "best interests of the child". Although, overall, more women have custody than men, this is usually because of a mutual agreement between the spouses. In contested cases, men receive custody just as often as women.(6) One study showed men receiving custody as high as 74% of the time in provincial court, and 91% of the time in Supreme Court.(7) The fact that a man has abused a woman during the relationship is not generally taken into consideration by the court when determining the "best interests of the child". In Canada, this is at least partly due to judicial interpretation of s. 16(9) of the Divorce Act which stipulates that the court shall not take into consideration the past conduct of any person, unless that conduct is relevant to the ability of the person to act as a parent to that child.

Even if a woman is awarded custody by a court, a court will generally determine that it is in the "best interests of the child" for the ex-partner to be awarded access. 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.(8) This is very problematic for a woman with an abusive partner. Ongoing access arrangements provide an opportunity for many abusive men to continue the abuse. It is well documented that perpetrators of violence continue to harass their partners after separation including threats during visitation, and using the children as spies.(9)

The adversarial legal system presumes that both parties in a dispute have equal opportunity to present their position, thereby enabling an impartial judge to weigh out contradictory evidence, and make the best decision possible based on the facts. However, in situations where there is family violence, this stance fails to take into account the power differential between the two parties. In cases of family violence, the power imbalance between the victim and her abusive partner can be enormous. In this situation, even if a woman tries to assert her rights she may not be successful. Such a woman may be suffering from post-traumatic stress disorder, and may appear unstable or emotionally over-wrought. In contrast, her abusive partner may appear calm, rational, and stable, and may seem more believable to a court.(10)

The advocates who participated in this project identified similar problems at a practical level. Many advocates knew of situations where women lost custody to abusive partners, or where women chose not to participate in the legal system at all out of fear. The results of the survey given to advocates in the Queen Charlotte Islands was particularly poignant - 100% of all participants in attendance knew of at least one client who lost custody to her abusive partner. A few examples of problems advocates identified as commonly occurring are the following: women having no choice but to force children to go on access visits when they didn't want to, women being compelled to go to mediation with abusive partners, women forced to participate in psychiatric evaluations initiated by the abusive ex-partners, women assaulted at custody and access exchanges, and women unable to move away from abusive ex-partners because of court ordered access.

Despite the inadequacies of the legal system, justice would be more likely to prevail if women had adequate legal representation. However, according to the information provided by the advocates in this project, many women in this situation are significantly under-represented. This finding also parallels the findings of previous studies. Following is a brief summary of some of the literature on the topic of legal coverage for women. It is worth keeping in mind that these problems will be magnified under the upcoming cuts in legal aid in British Columbia.

A study completed in 2000 drew very similar conclusions to those made by women's advocates in the BC Institute Against Family Violence project. The 2000 study was commissioned by the access to Justice Committee of the Law Society of British Columbia, and examined the effects of the 1997 legal aid cutbacks on women.(11) Some particularly relevant findings about women's ability to access legal aid for family law matters are as follows:(12)

There are many problems concerning assets, regarding both eligibility and coverage; this tends to be particularly problematic for women from traditional marriages, especially immigrants.

The availability of counsel to represent legal aid clients. has become an issue due to the combined effect of payment restrictions and tariff administration.

Those parties who are provided with counsel receive a restricted level of service. Some of the noted results are that women may not be able to pursue their share of family assets, and women who are trying to leave violent partners may have to deal with their spouses directly on issues of access enforcement and access to basic household assets, as well as divorce.

[W]omen dealing with violence issues. are appearing in court unrepresented on variation applications and custody and access matters, as well as restraining orders.

.Supreme Court judges [who participated in interviews] identified custody and access as particularly difficult to manage when there is an unrepresented party... there are serious difficulties for self-representers on matters of spousal support ad division of assets; some lawyers observe that women are walking away from these claims rather than pursue them on their own.

Advocates in this project reported similar problems. In specific, advocates reported regularly having clients who either had limited access, or no access, to legal representation. Women often had complicated legal problems, and insufficient legal assistance to resolve these problems. According to the advocates, in rural communities, women often have to travel to another community to find a lawyer who would take legal aid cases. This serves as a formidable obstacle for women who have no car and no money for transportation.

Similar problems were reported in another 2000 report entitled "Access to Justice Denied: Women and Legal Aid in B.C"(13) .

This report drew the following conclusions:(14)

Cutbacks and restrictions to accessing legal aid mean that women are increasingly representing themselves in complicated legal matters, or are failing altogether to access their legal rights and the rights of their children. The personal and financial consequences for women are far-reaching. One of the most serious consequences are the number of women who are losing custody of their children because they lack adequate legal representation, or even basic information about their rights. Single mothers who are particularly vulnerable to threats by their partners frequently abandon claims for child maintenance rather than face the possibility of losing custody. As a result of intimidation and lack of representation, women often forfeit property and income, surrendering themselves and their children to poverty.

Legal problems commonly experienced by women leaving an abusive relationship are well documented in the academic literature, and in the two B.C.-based qualitative studies described above. The B.C. Institute Against Family Violence project once again draws attention to the existence of these problems. In the face of these difficulties, the workshops gave advocates additional tools to assist them in their role as support for women who are facing legal disputes over custody and access. The results of the surveys clearly showed that the advocates believed the information they received to be highly beneficial. Nonetheless, although advocates have an important role to play, and it is worthwhile to provide them with training and support, the work of advocates should be a complement to the work of competent lawyers working on behalf of these women. By itself, it is not enough to train advocates to provide para-legal assistance, because many of the legal problems faced by abused women are very complex. Without adequate legal representation, it is extremely difficult for women to resolve their legal difficulties so they and their children will be safe. The impending legal aid cuts in B.C. will exacerbate these problems, and make it harder for women trying to leave abusive relationships.

Notes

1 Statistics Canada. (2000). Family Violence in Canada: A Statistical Profile 1999. Ottawa: Canadian Center For Justice Statistics.

2 Hart, B (1990). Gentle jeopardy: The further endangerment of battered women and children in custody mediation. Mediation Quarterly, 7, 317-330.

3 Saunders, D. (1994). Child custody decisions in families experiencing woman abuse. Social Work, 39(1), 51-49.

4 Weitzman, L.J. (1985). The divorce revolution: The unevven social and economic consequences for women and children. New York: Free Press.

5 Pagelow, M . Justice for victims of spouse abuse in divorce and child custody cases. Violence and Victims, 8(1), 69 83.

6 Boyd, S. (1990). Potentialities and perils of the primary caregiver presumption. Canadian Family Law Quarterly, 7(1), 1-30; McKie, D., Prentice, B. & Reed, P. (1983). Divorce: Law and Family in Canada. Ottawa: Statistics Canada.

7 Goundrey, S. (1998). Final report on court related harrassment and family law justice: A review of the literature and an analysis of case law. Vancouver: BC/ Yukon Women's Programs & FREDA; McClure, M & Kennedy-Richardson, K. (1987). Mr Mom is alive and well in Kitchener-Waterloo. Unpublished Manuscript, Provincial Court, Kitchener, Ontario, Canada; Bertoia, C & Drakich, J. (1983). The father's rights movement: Contradictions in rhetoric and practice, Journal of Family Issues, 14(4), 592-615.

8 Bourke, D. (1995). Reconstructing the patriarchial nuclear family: Recent developments in child custody and access in Canada. Canadian Journal of Law and Society, 10(1), 1-24.

9 Saunders (1994).

10 Lehrman, F. (1996). Factoring domestic violence into child custody cases. Trial, 32(2), 32-40; Pagelow (1993).

11 Vicki Trerise (2000) Where the Axe Falls: The Real Cost of Government Cutbacks to Legal Aid.) Vancouver: The Law Society of British Columbia.

12 IBID at 1-3.s

13 Bain, P. & Chrest, S. & Morrow, M. (2000) Access to justice denied: Women and legal aid in B.C. Vancouver: Women's Access to Legal Aid Coalition.

14 IBID at ix