Excerpts from my keynote address at the Diverse Voices Conference, Edmonton, Canada, November 17, 201. You can find the full address elsewhere on this website.
A family court system premised on “friendly parenting” that does not understand the prevalence of post-separation violence creates serious challenges for women dealing with ongoing abuse and often results in custody outcomes that force them into close and unsafe – even lethal – contact with their abuser for many years.
Yet an unwritten shared parenting presumption seems to have taken hold in Canada, perhaps because unrepresented litigants do not put needed evidence effectively before the court, perhaps because some judges are looking to resolve these difficult and complicated situations as “win-win” for both parents, perhaps because the family court system is driven by time and resource constraints, perhaps because courts and some of those who work within the court system do not understand the reality and complexity of violence against women.
Whatever the reasons – and I will explore some of them in this address – it is women and children who pay the price, and it is often a high one. . . .
Women and children deserve better
Women who have left abusive partners need and deserve a legal system that is able to adequately assess and address the violence they have experienced in its decision-making about child custody and access. Outcomes of family court decisions about custody and access should contribute to the safety of women and children, not detract from it. Yet this is not what many women get.
Instead, even women who have left relationships defined by ongoing and severe, controlling, fear-provoking abuse too often leave family court with orders for joint custody, shared time, collaborative decision making or extensive, liberal and unsupervised access. The environment for such an arrangement simply does not exist in these families, because the abuser is motivated by his need for ongoing power and control and not by concern for what is best for his children. Often, he has not entered the process – either litigation or alternative dispute resolution– in good faith. The mother’s ability to collaborate with her former partner – or, often, to even just communicate with him – will be compromised by her ongoing fear. . .
Research has well documented that women are at the highest risk of lethality at the point of separation and for the year immediately following. In Ontario, the annual reports of the Domestic Violence Death Review Committee repeatedly identify recent or pending separation as the second highest risk factor for lethality. . . . And, yet, this risk (and reality) of increased abuse often goes unrecognized or acknowledged by the systems to which women turn for support and protection because of an underlying societal attitude that abuse ends at the point of separation. . . .
What makes a good parent?
While not said in so many words, and certainly not set out explicitly in the law, there appears to be a culture in many Canadian family courts that “good” parents – parents who put their children’s best interests first – will find a way to parent collaboratively post-separation, regardless of any historical or ongoing abuse. . . .This approach denies the realities of the violence that these women have experienced and undermines their attempts to gain the court’s support for long-term safety of themselves and their children. . . .
Women often feel that they are confronted by a court system that assumes any father is a good father and that expects them to prove why and how they are good mothers, that thinks children always fare better when both parents are closely involved in their lives and that wants to believe that both parties are operating in good faith and placing the best interests of their children first. . . .
When women raise the issue of abuse or refuse to follow court-ordered access arrangements, parental alienation syndrome (PAS) can become a convenient label for the father to put forward. Once raised, the case becomes refocussed on the mother’s post-separation behaviour and not on the underlying issues in the family that have led to this point. This labelling makes it even more difficult to raise legitimate issues of abuse, violence and control. . . .
An unsafe parent cannot parent as well as a parent who feels safe. This would appear to be self-evident; yet ongoing orders for joint custody and shared parenting place women with abusive ex-partners in unsafe situations, often for many years. Both joint custody and shared parenting require extensive contact, conversation, cooperation and collaboration between the parents. An abuser who is motivated by his need for power and control rather than the children’s best interests can best maintain that power and control by creating fear in his former partner.
What can be done?
If the issue of custody and access when family violence is present is to be dealt with more appropriately in Canada’s family courts, legislative and policy reform, education for those who have responsibility for implementing and applying the law, increased access to legal representation for family court litigants and changes to family court culture are all needed. Fortunately, there are best practices in all these areas on which future work can be built. . . .
With change, family courts will be able to understand the gendered reality of violence within the family as well as of parenting in many families. Custody and access decisions, in such a family court process, will still be made based on the evidence in each individual case. However, they will also keep mothers and children safe and reflect what is truly in the best interests of the children.