An Analysis of Options for Changes in the Legal Regulation of Child Custody and Access

2001-FCY-2E

OPTION ONE: CUSTODY AND ACCESS (continued)

VIOLENCE, HIGH CONFLICT AND INADEQUATE PARENTING (continued)

Specific Provisions Addressing Domestic Violence

Alternatively, or additionally, the Divorce Act could be amended to include more specific provisions dealing with the relevance of domestic violence.

Presumptions and Principles

One approach that has been adopted in other jurisdictions has been to establish a rebuttable presumption that violence is not in the best interests of the child, and a mandate against the award of custody to a perpetrator of violence or both. A number of American jurisdictions have done this, and several also presume that an award of sole custody to a perpetrator of domestic violence is not in the best interests of a child.195 Jurisdictions with a presumption against joint custody being awarded upon a finding of domestic violence include Arizona, Colorado, Florida, Idaho, Iowa, Minnesota, Texas and Washington DC. States with a presumption against both sole and joint custody upon a finding of domestic violence include Alabama, Delaware, Hawaii, Oklahoma and North Dakota.196

One of the guiding principles for reform is the recognition that no one model of post separation parenting is ideal for all children. The Government of Canada and the Special Joint Committee agree "that no one model of post-separation parenting will be ideal for all children and reject the use of legislative presumptions."197 This position was adopted specifically in relation to presumptions in favour of particular parenting arrangements, such as joint custody and a primary caregiver rule. The Special Joint Committee was of the view that any such presumption would obscure differences between families, as well as encourage otherwise amicable families to litigate their parenting issues in order to avoid the presumption.

One reading of this position is that it would preclude any further consideration of presumptions in the context of violence. However, there is a significant distinction in the reasoning behind presumptions regarding custody arrangements, such as joint custody or primary caregiver, and presumptions regarding violence. The former is a general presumption that would apply to the parenting arrangements of all Canadian families. The latter is a highly specific presumption that would apply only to families that have experienced violence. In the context of violence, it would be appropriate to consider the possibility that children do not, in general, benefit from continued exposure to a violent parent or, at a minimum, not without supervision. It is, therefore, quite consistent to conclude that the general position against statutory presumptions on custodial arrangements does not apply to the narrow issue of violence.

The Divorce Act could then be reformed to include a presumption that violence is not in the best interests of the child, or against the award of custody to a perpetrator of violence or both. This could include a presumption against the award of joint custody in the context of family violence.

Alternatively, the Divorce Act could be reformed to include a strong statement of principle against family violence, short of a presumption. This could be done in the form of a general statement of objectives or, as discussed above, in the best interests of the child test. It might also be accomplished through a specific statement of objectives dealing with family violence. Several jurisdictions, most notably Australia, include numerous statements of purpose in their legislation. Each division of the Act is preceded with a statement of its object. A specific section dealing with violence in the Divorce Act could include such a statement of objective to the effect that children must be protected from family violence and threats of family violence. This might be a way of avoiding an actual legal presumption, but still providing the courts with guiding principles to take violence seriously.

For example, the Maine Domestic Relations Act includes the following general statement of legislative finding and purpose about relationships among family members when determining the best interests of the child:

The Legislature finds that domestic abuse is a serious crime against the individual and society, producing an unhealthy and dangerous family environment, resulting in a pattern of escalating abuse, including violence, that frequently culminates in intrafamily homicide and creating an atmosphere that is not conducive to healthy childhood development.198

It is unclear, however, how the courts would interpret such a general statement of principle. For example, would the courts interpret it, alongside the specific factors listed in the best interests of the child test, to mean that joint custody is not generally a wise order in the context of family violence? Or the granting of sole custody in favour of a violent parent is not generally a wise order in the context of family violence? One of the objectives of legislative reform in the area of family violence is to "increase public and professional awareness and assist in the education of judges, lawyers and other individuals involved in the justice system as well as victims, perpetrators and the public."199 While a general statement of principle would be an important advance over the current statutory violence, by effectively telling the courts that they must take family violence seriously, it would not provide guidance on how that violence is to be taken into account.

The highest level of protection could therefore be provided by a presumption that indicated how violence ought to be taken into account. However, any reform to the Divorce Act that included a strong statement against violence would be a substantial improvement over the current regime. While it would remain within judicial discretion to determine how a general statement of principle against violence would be taken into account, it is possible in practice that if courts took the statement seriously, there might be very little difference between a presumption and a principle.

Joint Custody

If the custody and access regime within the Divorce Act continued to allow for an order of joint custody, family violence could be included as a specific factor that would limit the appropriateness of joint custody. Family violence seriously compromises the cooperative conditions that are necessary for a joint custody arrangement to work.200 Moreover, joint custody can create a situation in which a spouse or child is placed at serious risk. As noted above, a number of U.S. jurisdictions have established a presumption against the award of joint custody in the context of violence. This presumption would provide the highest level of protection for children.

Alternatively, the amended Divorce Act could include a general statement of principle such as "the court shall not order joint custody when a parent’s conduct may adversely effect a child’s best interests." The Act could then include family violence within a list of factors that would not be in the child’s best interests, or simply within a list of factors that the court must take into account when determining the appropriateness of joint custody. Again, if the statutory framework included a strong statement of principle, and specifically included family violence as a factor that the court must take into account when considering joint custody, it may be that, in practice, there would be little difference between a presumption and a principle. This would ultimately depend on judicial interpretation.

Friendly Parent Rule

Within the existing custody and access regime, family violence would have important implications for the friendly parent rule. The research on family violence suggests that the friendly parent rule in section 16(10) is highly inappropriate for separating and divorcing families that have experienced violence. If section 16(10) was retained within a reformed Divorce Act, it might be desirable to include a specific reference to the unique needs of these families.

Alternatively, if section 16(10) was incorporated in the best interests of the child test, reworded as a general statement of principle that encouraged ongoing relationships with both parents after divorce, or both, it would again be important to include a specific reference to the unique needs of families that have experienced violence.

Conditions of Access

The Divorce Act could also be amended to include more specific provisions for the conditions of access in the context of family violence. Several states provide that if custody or visitation is to be ordered when domestic violence has occurred, the court must ensure appropriate protective measures for the child and the parent.201 Other states provide that the courts must make arrangements for visitation that best protect the child and parent from harm.202

A few jurisdictions impose supervised access requirements in the case of domestic violence. Louisiana provides that when a parent has a history of perpetrating family violence, the court will only allow supervised visitation with that parent upon proof that the parent has participated in and completed a suitable treatment program. In Minnesota, the law states that the court must consider supervised visitation if the visiting parent is under a domestic protection order for domestic violence. North Dakota law provides that only supervised visitation is allowed to a parent who has perpetrated one serious incident of domestic violence, or there is a pattern of domestic violence within a reasonable time of the proceedings.

Another model is found in the Maine Domestic Relations Act, which extensively addresses the conditions of parent-child contact in the context of domestic violence, setting out and authorizing the use of a range of specific protective measures. The Act provides conditions that a court may attach to parent-child contact, including ordering that any exchange of a child take place in a protected setting, that contact be supervised, and that the person who has committed the domestic abuse pay a fee to defray the costs of the supervised contact.203 The court may also prohibit overnight visitation, order that a person who has committed domestic abuse attend a domestic-abuse intervention program or other counselling, that a parent abstain from the possession or consumption of alcohol or controlled substances during and immediately preceding visitation periods. It further provides that the court may require security from the parent who has committed domestic abuse for the return and safety of the child204 or order that the address of the child and the victim be kept confidential.205 The Act specifically provides that the court may not order a victim of domestic abuse to attend counselling with the parent who has committed domestic abuse. Finally, it sets out further conditions that the court can order in the event that it allows a family or household member to supervise contact.206

The New Hampshire legislation similarly outlines specific protective measures that can be ordered to protect the safety of domestic abuse victims.207

The Divorce Act could, thus, be amended to include a list of similar protective measures that the court could order in order to protect the safety of family violence victims, with the same focus on conditions of access.

Violence, Parenting Plans and Services

It might also be necessary to include specific provisions relating to evidence if the Divorce Act were reformed to include some reference to parenting plans, resolution services or both, as discussed below. Violence might be identified as a specific limitation to a principle of otherwise deferring to the private arrangements of the parties, a specific limitation to the principle of otherwise mandatory parenting education, or both. Or it might be that families that have experienced violence ought to be provided with special parenting education programs that address their unique problems and challenges related to separation and divorce. Similarly, in the context of mediation and other services, violence might be identified as a specific limitation to a principle of encouraging primary dispute resolution. The particular way in which violence was addressed and included would, however, depend on the particular way in which a range of policy choices about parenting plans was resolved, which is discussed in further detail in the sections below on parenting plans and resolution services.

High Conflict

Although growing attention has been directed to designing appropriate services and interventions for high conflict families, there has been very little attention paid to incorporating the needs of high conflict families into legislation. As discussed above, one of the few statutory regimes to incorporate some reference to the kind of factors that would undermine cooperation in a high conflict family is Washington’s Parenting Act.208 The Act states that in making an order for mutual decision-making in a permanent parenting plan, the court must consider whether the parents have a demonstrated ability and desire to cooperate with one another in decision-making regarding the child. In the limitation sections, it further states that a court shall not order shared decision-making when a parent’s conduct may adversely affect a child’s best interests, including "the abusive use of conflict by the parent, which creates the danger of serious damage to the child’s psychological development." The Washington scheme is, however, one in which the idea of parenting plans has replaced the language of custody and access. There is very little other guidance, and virtually no precedent, for incorporating a reference to the needs of high conflict families within the existing custody and access regime. The following outlines several options for doing so.

Best Interests of the Child

The idea that children are harmed by exposure to high degrees of conflict could be incorporated into the best interests of the child test.

General Statement of Principle

Alternatively, the idea that children are harmed by exposure to high degrees of conflict could be included in the Divorce Act in a statement of principle or objective, using the Maine legislation in the context of violence as a model.

Joint Custody

If the custody and access regime within the Divorce Act continued to allow for an order of joint custody, the considerations found in the Washington regime might be incorporated as a limitation on the conditions in which such a joint-custody order would be appropriate. For example, it could specifically include as a factor whether the parents have a demonstrated ability and desire to cooperate with one another, an express limitation on an award of joint custody when a parent’s conduct may adversely affect the child, including an abusive use of conflict, or both.

Friendly Parent Rule

Within the existing custody and access regime, a specific area of concern for high conflict families is the friendly parent rule. The research on high-conflict parents would suggest that the friendly parent rule in section 16(10) is highly inappropriate for these separating and divorcing families. If section 16(10) was retained within a reformed Divorce Act, it might be desirable to include a specific reference to the unique needs of high conflict families.
Alternatively, if section 16(10) was incorporated into the best-interests test, replaced by a general statement of principle that encouraged ongoing relationships with both parents after divorce, or both, it would again be important to include a specific reference to the unique needs of high conflict families.

Parenting Plans and Resolution Services

It might also be necessary, or desirable, to provide specific provisions addressing the unique needs of high conflict families if the Divorce Act were reformed to include parenting plans or services, as discussed below. For example, if a reference to parenting plans or mediation services were incorporated into the Act, it would be important to include some reference to the unique needs of high conflict families. These families ought not to be encouraged to form cooperative parenting arrangements, nor to resolve their disputes in a cooperative forum. High conflict then, might be identified as a specific limitation to a principle of encouraging parents to enter parenting plans or resolving their disputes through primary dispute resolution.