Making appropriate parenting arrangements in family violence cases: applying the literature to identify promising practices

4.0 The need for a paradigm shift for family violence cases

Trying to understand the dynamics that led to a marital breakdown and sorting through allegations of mistreatment and fault is a highly complex undertaking. When children are involved and their future care is at stake, intense emotions may cloud parents' portrayal of the marriage to an independent third party, such as a police officer, assessor or judge. There are strong psychological tendencies to deny or minimize abuse, as well as tendencies to colour one's perceptions of responsibility for breakdown of the relationship.

The resolution of disagreements about post–separation arrangements for children may take a number of different pathways. Many parents are able to develop amicable co–parenting arrangements without court intervention, but others require an assessment of the nature of the conflict and the potential existence of spousal violence.

Even in spousal violence cases, there is a range of methods of resolving disagreements that need not include the formal court system. For some abuse victims, their abuser leaves the jurisdiction and may move on to other relationships, showing no interest in maintaining an ongoing relationship with their former partner or children. In other cases, a spousal abuse victim may flee for her safety and the perpetrator takes no action to pursue her and their children. In some cases, the perpetrator may reappear years after separation when ordered to provide child support and try to re–establish a relationship with the children and some custodial rights in order to avoid this financial commitment. In one survey of abuse victims, some avoided any engagement with their perpetrator over financial or child related issues by ignoring their legal rights and entitlement (e.g., living in poverty was seen as preferable to living with ongoing violence and harassment) (Jaffe et al., 2003a).

In some cases, there have been police and criminal justice system involvement, and there is ample evidence of a pattern of spousal violence and child abuse. With the growing awareness of spouse abuse concerns, the criminal and family courts will generally terminate or suspend contact rights between the abuser and his children in these cases, though the protection of victims and their children can be very difficult to effect. Perhaps the cases that pose the most significant challenges to legal and mental health professionals in the family court system are ones in which the parties present diametrically opposed versions of reality with respect to their relationship, post–separation events and abuse issues.

4.1 Assessing Family Violence Allegations

The ultimate decision about what happens to disputes before the court rests with a judge who hears the evidence and determines the validity of the allegations. Judges and lawyers may give significant weight to independent third party mental health professionals who prepare assessments or custody evaluations based on interviews with all of the parties, and collateral information from community professionals and psychological testing. All court–related professionals are involved in an assessment process whether it is a formal or informal exercise in gathering and weighing relevant information about the individual parents and children in the dispute. To understand the context for these assessments, it is important to be cognizant of the current climate in family courts in North America and elsewhere (Jaffe & Crooks, 2004). Family court judges generally want cases settled in a cost–efficient and timely manner by pre–court interventions, such as mediation and settlement conferences. Judges and lawyers often encourage parents to co–operate with each other, suggesting that this is synonymous with the promotion of their children's best interests. It is true that in cases in which family violence is not at issue, children generally benefit from having their parents resolve their differences in a co–operative and non–adversarial fashion. Common wisdom in the divorce field suggests that the "friendly parent", i.e., the parent who is best able to promote a relationship between the child(ren) and the other parent, is more appropriate for a custodial role, and this is reflected in provisions like section 16(10) of Canada's Divorce Act. Unfortunately, the "friendly parent" concept can be misleading in cases where the lack of friendliness is based on abusive and violent behaviour (Dore, 2004).

Family violence allegations raised in the context of parental separation are often met with skepticism and a concern that the allegation is being utilized to limit the involvement of the other parent, especially if there has not been significant police and criminal justice system involvement. The making of abuse allegations can be a double–edged sword for abuse victims. If the allegations are proven on the preponderance of evidence, the victim and her children may find a degree of safety, with recent legal reforms and improvements in community resources providing a greater degree of safety than in the past. However, if the allegations appear unfounded and are considered by the judge to have been made "maliciously", the abuse victim may lose custody. In some of these cases, mothers are accused of willful alienation of the children against their father. This alienation has even been labeled as a "syndrome", although there is no research to support the reliability and validity of this diagnosis (e.g., Ragland & Fields, 2003). Sometimes abuse allegations appear suspect because perpetrators of violence arrive in court with new partners whom they describe in positive terms, reserving their negative statements for their previous partners. This contrast may lead observers to discount a general hostility or bias, and attribute more credibility to their claims about their ex–partners (Schuldberg & Guisinger, 1991). Clearly, a thorough assessment of abuse allegations is warranted as part of a family court decision–making process, given the high stakes of a finding of spousal violence.

A psychologist or social worker who is assessing a case involving allegations of family violence should identify whether there are patterns of behaviour as opposed to isolated incidents. Incidents of abuse that may, in isolation, seem less severe, may give rise to greater concerns if they fit within a larger pattern of abuse and domination. A multi–method, multi–informant approach is required. Figure 3 identifies the additional elements of assessment for cases where either party has made allegations of violence. The first layer of the pyramid identifies the principal elements of a custody and access assessment in a typical case, including understanding the children's individual needs, parents' skills, the ability of the parents to cooperate, and the developmental considerations of any parenting plan. In a high conflict case, these initial assessment domains are still pertinent; however, the second layer of the pyramid identifies additional concerns, such as the history of the parental conflict, children's coping strategies, and the identification of the less toxic parent. In high conflict cases involving family violence, the assessment challenges are significantly increased, as it is also necessary to consider such issues as: the risk of recurrence of violence, including homicide risk assessment, and an understanding of the impact of violence on the children.

To competently complete this final layer of assessment, practitioners require an awareness of indicators of dangerousness and/or lethality. These risk factors have emerged from research and domestic violence death review committees, which have identified characteristics most closely associated with lethal violence (see Campbell, 1995; Campbell et al., 2001; Kropp et al., 1994; Kropp et al. 2000; Hilton et al., 2004). Commonly reported factors include separation within the context of a history of spousal violence, access to firearms, substance abuse, controlling and stalking behaviour, threats of homicide or suicide, and violations of previous court orders. The 2004 Ontario Domestic Violence Death Review Committee contains a more detailed review of this literature (Ontario Domestic Violence Death Review Committees, 2004).

In conducting an assessment where spousal violence has been alleged, collecting all of the information is a complex process. Every assessment should include individual interviews with both parents on more than one occasion. While perpetrators may present as very reasonable individuals on one or two occasions, interviewing them over time, and beginning to challenge their perspective on the basis of other information that has been gathered, may provide the assessor with the opportunity to see past the veneer. Another important element in an assessment is the administration of a structured inventory instrument of abusive behaviour that includes frequency and severity of physically, sexually, verbally, and psychologically abusive behaviour experienced by each partner, as well as injuries suffered (e.g., Abusive Behaviour Observation Checklist; Dutton, 1992). A follow–up interview to the abuse inventory is helpful for ascertaining the context of the abuse. For example, assessors should gain a better understanding of the impact of the abuse, coping styles, disclosures to friends, family, and professionals, and effects of the violence on the children.

Given that the credibility of claims, counterclaims and denials is an important determinant of custody and access decisions, collateral information is critical. Therefore, the assessor should include interviews with informal and formal support systems, as well as review of records (police, child protection, emergency room physicians, etc.). Emphasis on this documentation is not meant to imply that allegations of spousal violence are credible only if there is third party evidence; indeed, many spousal abuse victims do not disclose to other professionals or involve the police. Rather, it is important to review this documentation in cases where it does exist, while remaining mindful that lack of such evidence does not imply fabrication.

It is also important to keep the needs of the children front and foremost while assessing these relationship dynamics. In assessing families where family violence has been alleged, it is essential to include interviews with the children to assess their understandings and observations of events and the impact of exposure to violence. Collateral sources for children should also be reviewed (e.g., teachers, doctors, counselors) to gain an understanding of the children's reaction to the events they may have witnessed or experienced.

Figure 3 - Child Custody: Specialized Assessment Needs in Spousal Violence Cases

Figure 3 Child Custody: Specialized Assessment Needs in Spousal Violence Cases

[ Description ]

Analyzing the information gathered requires an understanding of spousal violence. For example, although a prevailing belief of some professionals may be that women may lie or exaggerate claims of abuse to gain custody, our experience is more that abuse victims minimize or are reluctant to disclose the extent of abuse that they endured. For example, in one study based on interviews with abused women, they reported that they rarely volunteered information about sexual abuse by their partner. Their reluctance stemmed from feelings of personal embarrassment, lack of trust or rapport with the professional, and the concern that the professional could not handle the information (Jaffe et al., 2003a). This finding stresses the importance of asking direct questions about a range of abusive behaviours, as victims may be reluctant to volunteer sensitive information. Perpetrators of spousal violence often deny or minimize the abuse as part of their skill in avoiding responsibility for their behaviour and externalizing blame for any difficulties (Bancroft & Silverman, 2003). Without a careful spousal violence analysis, these allegations may be misunderstood as more of "he said / she said" perspectives on a relationship, found in high–conflict divorce. Once spousal violence has been identified, this analysis should provide the context for assessing other information, such as communication patterns between the partners. For example, a mother who avoids phone contact with an abusive former partner might be seen to be neglecting her duties for information sharing about the children's activities; however, within the context of spousal violence, this same behaviour can be understood as an attempt to protect herself and her children from further harassment and abuse.

4.2 Strategies for Intervention

Intervening in child–related disputes with parental histories of spousal violence is a complex undertaking. In dealing with abusive parents there may be a range of responses over time that depend on access to appropriate services and documented changes in the abuser's behaviour. Within the family court system, judges have to consider a range of options in dealing with a violent spouse. These options include no contact, supervised visitation, supervised exchanges, exchanges in a public place, unsupervised visitation, liberal and regular visitation, and joint custody / co–parenting. Independent of legal terminology, the court still has to decide a multitude of parameters for parenting arrangements, such as the length of a visit, advisability of overnight access, determination of suitable supervisors and safe locations for exchanges.

As noted, all of these options exist within a culture that promotes parental cooperation and involvement of both parents as much as possible. The number of separating parents who enter into some form of joint custody has been steadily increasing, with about 42% of parents who divorced in 2002 having this type of arrangement (Statistics Canada, 2004b). In our experience, most of these cases are a result of situations in which parents have chosen this arrangement in a process of negotiation or mediation, with only a relatively small number having been imposed by a court. Joint custody is often the best arrangement for children, but it can be very problematic in high–conflict cases, and will most likely be inappropriate (if not dangerous) in high–conflict cases where there are family violence concerns.

Figure 4 tries to capture this reality by the analogy of a highway leading to co–parenting in which spousal violence cases need an off–ramp to avoid being carried along with the traffic. It is a schematic diagram portraying the broad picture. A more fine–grained analysis of specific considerations within a history of family violence is discussed later in this paper. At the broad level, a history of spousal violence contra–indicates co–parenting. Whereas the majority of families benefit from educational programs and mediation, in cases where there are spousal violence concerns, there is a need for specialized intervention, including supervised visitation, intervention for batterer, and support services for children. Dispute resolution processes that require victims and perpetrators to be together in mediation or settlement conferences have the potential to endanger victims or intimidate them into accepting parenting arrangements, such as co–parenting, which may pose a risk to their safety or the safety of their children.

High conflict cases involving couples without a history of spousal violence also require specialized intervention. Although the physical safety concerns are diminished, children's exposure to ongoing conflict is clearly harmful. Parallel parenting may be an option in high conflict cases without family violence issues or in a limited number of family violence cases where the abuse is minor, historical and does not represent a pattern of behaviour. Parallel parenting recognizes that each parent is capable of meeting their children's needs by themselves. Parents function relatively exclusively from each other but do no harm to the child. Each parent is a beneficial influence for the child, but any expectation of collaboration between the parents is futile and potentially harmful for the children. Parallel parenting arrangements usually include specific guidelines to minimize contact and communication between the parents. It should be appreciated that some high conflict couples can, with appropriate therapeutic intervention and the passage of time, be helped to achieve more amicable parenting arrangements. Thus, for some families, parallel parenting may be a transition phase to bridge the troubled waters of a high conflict separation, and for other families parallel parenting may be all that is possible on a long–term basis.

Figure 4 - Differentiated Custody Interventions in Spousal Violence Cases

Figure 4 Differentiated Custody Interventions in Spousal Violence Cases

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Adapted from Jaffe, P.G. & Crooks, C.V. (2004). Visitation and custody in cases of domestic violence. In J.L. Edleson & O.J. Williams (Eds.), Parenting by Men Who Batter. London, UK: Oxford University Press.

4.3 Barriers and Challenges to Making Parenting Arrangement Decisions

Before taking a closer look at the paradigm shift that is required to properly relate the growing emphasis on post–separation shared parenting with family violence issues, the current culture within the family courts deserves closer attention. There are several systemic barriers that have an impact on the reporting and analysis of family violence: the involvement of multiple systems (i.e., family court, child protection services, and criminal proceedings), the increasing number of unrepresented litigants, concerns about parental alienation, children's wishes, proving abuse and false allegations, and the gap between theory and practice.

4.3.1 Multiple Systems

Some confusion exists among mental health and social work professionals as well as parents in regards to the role and responsibilities of different parts of the justice system in dealing with children in the context of family violence. There are clear implications for enhanced efforts to coordinate services, share information and develop expertise in all parts of the multiple systems involved. A promising practice in Canada that illustrates the complexity of these issues is the work being done in Durham Region, Ontario where there are interdisciplinary committees trying to promote safety and accountability in the family court when there are custody or access disputes involving family violence (Violence Prevention Council of Durham Region, 2000).

The courts in which criminal matters are heard ("criminal courts") properly presume innocence unless allegations are proved beyond a reasonable doubt. Responsibility for investigation of cases and presentation of evidence rests with the police and crown prosecutor respectively. The process of preliminary hearings and trial may take many months and in some cases, years, to resolve. However, the victim of spousal violence and the children, whether or not direct victims, may need an immediate safety plan that either suspends contact with the perpetrator or supervises visits with the children or exchanges between the parents. The challenge to the justice system and community services is how to manage such a plan while respecting the presumption of innocence. In some cases, protection may be provided by detention of the alleged perpetrator pending trial, but this is only possible and appropriate if detention is necessary to assure the court attendance of the perpetrator at criminal proceedings; to assure the protection and safety of the public, including victims; or to maintain confidence in the administration of justice (Criminal Code, s. 515(10)). Where there is a prior history of offending or evidence of a significant risk of further offending before the case can be resolved detention is often ordered to assure the protection of the victim. More commonly, the criminal justice system will impose some conditions on release pending trial, which may afford some limited protection to victims and children.

The courts hearing family matters ("family courts") can make findings on the balance of probabilities if proper evidence is presented, and may, for example, conclude that abuse has occurred even if this is not proved in criminal court. A party is responsible for gathering evidence and presenting it in family court, either with the assistance of a lawyer or on his or her own. There are often conflicting allegations and claims in high conflict cases in family court. There is an onus on parties to prove their cases, and in the absence of corroborating evidence from independent witnesses like doctors or police officers, there may be a degree of scepticism about abuse allegations in family court. There is some emphasis in the family court on promotion of settlements and cooperation between separated parents, and allegations of family violence are sometimes improperly dismissed.

The agencies providing "child protective services" (CPS) may also be sceptical or reluctant to be drawn into cases where there are allegations of family violence and there is already a legal dispute between separating parents. The CPS worker has to decide whether a particular case triggers the agency's protection and/or counselling mandate, or whether the case can be managed by the parents in Family Court using resources such as family law specialists, supervised access centres, mediators and assessors. In some cases the CPS may decide that the primary victim of spousal abuse may be unwilling or unable to protect the children, and may decide to apprehend the children.

The CPS decision is made in a context of having a legal mandate to protect children, and of not wanting an abused spouse feeling re–victimized by the intervention (i.e. "You're an abuse victim but also a bad parent for letting your child live with this violence"). This balance can be very difficult, and not always successfully achieved. The Ontario Domestic Violence Death Review Committee noted in their second annual report: "Without assigning blame in the cases we reviewed, it appeared that the [CPS] .... workers were well intentioned in their contact with the abuse victim, but failed to assess the perpetrator, support safety planning or risk reduction or coordinate their efforts with other professionals" (Ontario Domestic Violence Death Review Committee, 2004, pg. 40).

4.3.2 Self–represented Litigants

A further complication in the resolution of high conflict cases, especially those involving family violence, is the increasing number of self–represented litigants, who may not be aware of the available legal remedies and community services (Thompson 2002, Trussler 2002). If a victim of spousal abuse does not have counsel, she may well be easily intimidated into accepting a settlement that is unfair and does not provide adequate protection to herself or her children. Legal aid plans in Canada now give some priority to ensuring that low income victims of alleged spousal abuse have access to legal services, but this only helps victims who are prepared to self–identify to legal aid officials, and the income thresholds for eligibility are at or close to welfare levels, so many women are not eligible.

It is not uncommon for one or both parties in a high conflict case to be unrepresented. Some abusive men have difficulty in accepting advice from lawyers, and may actually prefer not to have a lawyer so that they can have an opportunity to directly confront their former partners, including through cross–examination. Cases involving one or both parties as self–represented litigants are more emotionally charged, and less informative and more challenging for judges. Competent family lawyers provide an important buffer between antagonistic parents, will gather and present evidence, and can facilitate communication between the parents and with the judge.

4.3.3 Children's Wishes

In making post–separation plans for children, judges, assessors and parents generally give significant weight to the wishes of children, especially those who are close to or have reached adolescence. Indeed, the children's wishes are specifically listed as a criterion for consideration of best interests of the child in most provincial legislation. However, children's wishes can be a very problematic factor in spousal abuse situations. In some cases the abusive parent may coerce or intimidate the children to express views favourable to himself, and in others the abused parent may be seen by the child to be weak and "ineffectual," and the children may wish to align themselves with the "stronger," more powerful, abusive parent. An abusive spouse can be very manipulative and the denigration of the other parent may influence a child's relationship with a victim of abuse.

Judges and assessors must have appropriate education about family violence, including an understanding of its effects on the stated wishes of children. While a child's views should always be considered, a child's stated desire to live with an abusive spouse should have less weight in cases where there has been spousal abuse than in other contexts (Bala, 2004). Furthermore, the child's purported reasons for wanting to live with a parent who has perpetrated spousal violence may shed important insight to underlying dynamics of one parent undermining another or exposing the children to inappropriate information.

In cases where there has been a history of family violence, the victim and children may have continuing fears of the abusive partner, even if there appears to be no immediate threat of further violence. If a child expresses fears and negative attitudes towards a parent based on a prior history of abuse, this factor should be given very significant weight in making any arrangements for the care of the child.

In all high conflict cases, parents should be strongly discouraged from directly asking their children about their preferences for living arrangements, as children may feel intense loyalty conflicts, guilt or fear in expressing their preferences to their parents. In high conflict cases, interviewing of a child about preferences should be done by an appropriately trained assessor, or by a lawyer appointed for the child. The professional must ensure that the child's views are shared with the parents and the court in a sensitive, contextual fashion. This undertaking requires appropriate training for assessors and lawyers for children, which must include education about the complexity of cases in which there are family violence allegations.

4.3.4 Parental Alienation

One of the thorniest issues in the making of post–separation plans for children is parental alienation; that is, when a child actively and ardently rejects one of the parents. The late Richard Gardner (1998a; 1998b), an American psychiatrist, initially conceptualized this as "Parental Alienation Syndrome" and proposed a pathology framework where a parent (typically considered by Gardner to be mothers) would coach and "brainwash" the children to reject the other parent (typically considered by Gardner to be the father). There is no empirical evidence for "Parental Alienation Syndrome" as a diagnostic category (Garber, 2004). At the same time, there is no question that some separating parents actively undermine children's relationships with the other parent. However, children may actively reject a parent post–separation for a host of reasons.

More recently, increasingly sophisticated frameworks have been proposed to understand this rejection process and to develop appropriate interventions (Bala & Bailey, 2004; Drozd & Olesen, 2004; Johnston & Kelly, 2005; Johnston, 2005). In high conflict cases it is quite common for both parents to make hostile and derogatory comments about the other to the children, and attempt to enmesh the children in their disputes. While children emotionally suffer in these cases, it would seem that most children struggle to maintain a relationship with both parents, despite the parental conduct. When children do reject one parent, it is necessary to consider the role that both parents are playing in the lives of their children, and the specific circumstances of the child. In some cases, a child will become aligned with the warmer and more effective parent and reject the other as a way of resolving conflicting feelings of loyalty.

An alienation analysis is especially inappropriate in cases of family violence, where children's reticence about contact with a parent is better understood as hypervigilance or fear (Drozd & Olesen, 2004). A decision tree framework has been proposed by Drozd and Olesen to assist judges, lawyers and assessors in dealing with the difficult issues surrounding perceived alienation. Other advances in the area include a framework that looks at multiple contributors to parental rejection, including the stage of children's development, events surrounding separation, primary caregiver's behaviour, and the rejected parent's behaviour (Johnston & Kelly, 2004).

In contrast to the empirically unsupported notion of Parental Alienation Syndrome, these more complex multidimensional models have received preliminary research support. A comprehensive assessment identifying reasons for rejection is critical, because it provides the basis for appropriate intervention. If a parent is being rejected primarily for reasons such as moralistic thinking by the children (e.g., tied to developmental stage), lack of resources (e.g., not as many toys as the other parent's house), and negative comments by the custodial parent, then therapeutic intervention to rebuild the relationship between the rejected parent and children would be indicated. In contrast, if a careful assessment found that rejection was more closely tied to the non–custodial parent's history of violence and continued attempts to monitor and harass the children and primary caregiver, then interventions to create safety for the children and caregiver would be more important that treating the "alienation."

4.3.5 Gap Between Theory and Practice

There are conflicting claims about the progress of legal and mental health professionals in understanding spousal violence. Clearly, there has been an increase in the number of training programs available to assist various professionals in becoming more sensitive to the dynamics of spousal violence and more skilled in intervention strategies. The debate focuses on the rate of change in actual practices among professionals. It is clear that until about a decade ago most professionals working in the justice system did not adequately appreciate the effects of spousal abuse on children who witnessed violence or lived in the homes where it occurred, but since then there has been more research and education about this issue. Nonetheless, the evidence for widespread systemic change remains inconclusive at best.

In a study of family law cases in New Brunswick between 1998 and 2001, Neilson (2004) found that many mediators, family lawyers and judges still did not appreciate the effects of spousal abuse on children. In the absence of clear evidence of physical abuse of children, mothers who were victims of spousal abuse were regularly pressured by mediators, lawyers, and judges at settlement conferences to accept arrangements that gave their abusive former partners significant contact with their children and to accept joint custody. Concerns about the safety of mothers were given relatively little attention in the resolution of family proceedings even if there was a clear history of spousal abuse.

In the field of child custody and access assessments, two recent studies present very different pictures of the extent to which practices have changed. Bow and Boxer (2003) surveyed custody assessors across the USA and found the vast majority reported that they now recognize spousal violence as a critical factor in their work. These practitioners indicated that they considered utilizing specialized assessment resources and made differential custody and visitation recommendations when spousal violence was identified. In contrast, recent studies in the Louisville, Kentucky courts found that spousal violence was often overlooked in court assessments. Analysis of custody assessment reports suggested that spousal violence was not a factor in recommendations, even when it was mentioned in a report (Horvath, Logan, & Walker, 2002). Furthermore, an analysis of court records found that court settlement methods (e.g., mediation, adjudication) did not vary for families with and without spousal violence histories. Parents with a spousal violence history were as likely to be steered into mediation as those without, despite the inappropriateness of mediation in these cases. In addition, custody outcomes did not differ between families with and without this history (Logan, Walker, Horvath & Leukefeld, 2003).

The extent to which these findings can be generalized is not clear; nonetheless, we would hypothesize that similar audits in many other courts would result in similar findings. Consistent with this posited gap between theory and practice, a recent California study found that mediators held joint sessions in nearly half of the cases in which an independent screening interview had identified allegations of spousal violence, in direct violation of state regulations for separate sessions in these cases (Hirst, 2002). Furthermore, other research has indicated that mediators were more likely to effect settlements with batterers having custody than men who did not abuse their partners (Johnson & Saccuzzo, 2005). Some perpetrators of spousal violence make a good impression on others

4.4 The Need for a New Paradigm

To summarize, we have made the argument for a different approach to the resolution of post–separation cases involving children when there is a history of family violence. Even within this broad category of cases, there is a wide range of considerations to meet the heterogeneity of the families. In the next section we identify the range of parenting arrangements and the general considerations that should be taken into account when determining which arrangement is appropriate. We then move to a discussion of three of the most critical factors in determining the most appropriate arrangement: the type of violence, timing of disclosure, and access to resources.

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