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

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6.0 Conclusions

6.1 Project Summary

The purpose of this document was to provide a succinct literature review of the impact of family violence on children and the implications of this research on parenting arrangements following separation. The goal in creating this document was to provide a foundation for policy makers and practitioners working in the area of separation and divorce to better recognize the impact of family violence on children. The need for this foundation is based on the fact that the majority of separating parents are appropriately encouraged to seek cooperative solutions that promote co–parenting and maximum contact between children and both parents, and as a result some practitioners and policy makers assume that this approach is appropriate for all cases. It is also a sad reality that a significant number of cases of parental separation (though clearly a minority of all cases) involve family violence issues and require a different response, with comprehensive assessment and intervention planning that promote safety, accountability and healing.

6.2 Highlights

Six main findings emerged from this literature review and analysis. These findings are highlighted in the box below, and then discussed briefly in the following section.

1. Family violence has the potential to affect every domain of the functioning of children.
   
2. The impact of family violence on any particular child varies greatly and may be related to a host of risk and protective factors.
   
3. Parental separation can heighten or reduce the impact of family violence on children, depending on the nature of the case and whether appropriate assessment and intervention strategies are used.
   
4. There is a critical need to move from a one-size-fits-all focus on shared parenting to a differential response focus in cases of family violence, including a comprehensive assessment by a social worker, psychologist or other mental health professional.
   
5. Assessment findings must be matched to appropriate interventions that take account of the timing of family violence disclosures, the investigative process, and available resources.
   
6. High conflict separations often involve conflicting allegations and pose special challenges for family courts and professionals, especially when there are family violence issues.

 

1. The impact of family violence on children may potentially affect every domain of their functioning.
   
   In general, children who experience family violence have higher rates of difficulties in a range of psychological, behavioural, social and academic spheres compared to children who do not experience violence. These negative effects emerge differently depending on children's stage of development, and may continue to exert a negative impact into adulthood.
   
   
2. The impact of family violence on any particular child varies greatly and may be related to a host of risk and protective factors.
   
   While many children are profoundly affected by family violence, others seem to fare quite well in similar circumstances. The resilience of some children has been conceptualized as the ability for protective factors to offset negative experiences. On the other hand, some children face multiple risk factors (including severe poverty, familial alcohol abuse and/or mental illness), which serve to exacerbate the impact of the violence that they experience. The characteristics of the violence (e.g., severity, chronicity, relationship of child to the perpetrator) may play a significant role in determining the impact on children, though it is not uncommon for children in the same family to be differentially affected by family violence.
   
   
3. Parental separation can heighten or reduce the impact of family violence on children, depending on whether appropriate assessment and intervention strategies are used.
   
   In different families where violence has occurred, separation may offer greater safety or greater danger for children and adult victims. If separation results in ongoing unsupervised contact with a perpetrator of family violence, the risk to children may continue or increase. Separation itself may be a risk factor for dangerous or lethal violence. In other families, separation offers children respite from ongoing violence, especially when safety planning and accountability become part of the process.
   
   
4. There is a critical need to move from a one–size–fits–all focus on shared parenting to a differential response focus in cases of family violence, including a comprehensive assessment by a social worker, psychologist or other mental health professional
   
   The prevailing culture in family law is one of promoting settlements that encourage parents to make arrangements premised on some form of post–separation shared parenting. Within this culture, parent education programs, collaborative law, and mediation are the preferred vehicles for resolving differences between parents. However, in a minority of cases, these approaches are not only inappropriate, but may place victimized parents and children at risk of ongoing harm. This harm is most likely to be associated with severe and frequent abusive behaviours associated with perpetrators who have been identified as "batterers." A careful multi–informant, multi–method assessment by a trained psychologist or social worker is required in these cases to assess risk and serve as a foundation for appropriate parenting arrangements.
   
   
5. Assessment findings must be matched to appropriate interventions within the context of the timing of family violence disclosures, the investigative process, and available resources.
   
   Based on the assessment process, strategies to allow for safe contact can be properly considered. These strategies may include no contact with perpetrators of family violence, supervised access, supervised exchange, parallel parenting, and co–parenting. Matching strategies to the assessment findings requires an understanding of systemic issues such as stage of process and availability of community resources. The recommended interventions are only as strong as the community's ability to provide the indicated resources.
   
   
6. High conflict separations often involve conflicting allegations and pose special challenges for family courts and professionals, especially when there are family violence issues
   
   High conflict separations take up a disproportionately large amount of time in the family courts, and pose special challenges for judges, lawyers, assessors, mediators and police. Some high conflict cases do not involve family violence and may be attributable in part to parents with major personality disorders or personal hurt and rejection over historical events. One or both parents may stay engaged in litigation until they are emotionally and financially exhausted. In this paper, our concern is with the majority of high conflict separations that are characterized by conflicting allegations and denials of child abuse or spousal violence. While in some cases there is deliberate fabrication, not infrequently conflicting stories reflect differences in perception and understanding, and exaggeration and minimization are more common than outright lying. In cases where the police and criminal courts are involved, there is usually better documentation of abuse. In cases dealt with solely in the family court process there is a significant incidence of unfounded allegations (see pages 51, 52), but even in this context the existing research indicates that a majority of allegations of spousal abuse are valid (Johnston et al, 2005). Although an investigation by a court appointed–assessor can help the court to determine what happened in a family and what arrangements are best for the child, ultimately it is for the judge to resolve factual disputes and determine what plan will best promote the child's interests.

6.3 Implications

Based on these findings, several policy and resource development implications are evident. These include the need for legislation to find the necessary balance between promoting co–parenting arrangements and recognizing family violence cases where more limited or no access to the perpetrator may be appropriate. Other countries have struggled with finding this balance (Jaffe & Crooks, 2004; Bala et al., 1998), and in some cases, the negative and unintended consequences of legislative reform were striking, and highlight the importance of systemic readiness before the adoption of any new legislation (Jaffe, Crooks, & Wolfe, 2003). Review of changing legislation in Australia found that an ill–prepared system asked to make a more sophisticated differential response (in the Australian case balancing a presumption of contact versus spousal violence restrictions) tended to overvalue the presumption of contact (Rhoades, Graycar, & Harrison, 2000). In Australia, interim orders restricting access were greatly reduced (even when there were allegations of violence) for fear of prejudicing future hearings considering parents as equal partners. In our view, the most important legislative reform needed in Canada is codified recognition of family violence as a factor to consider in determining parenting arrangements, while also recognizing the need for judicial discretion in meeting the unique needs of individual families. However, codified recognition alone risks being meaningless without adequate resources, education and training.

A second implication stems from the need for resource and policy development to support a more sophisticated analysis and response to family violence cases. A special challenge for the justice system and community social services is the overlap between family law and child protection proceedings. Specific protocols are required to guide practitioners in managing cases with family violence allegations that fall into the area between public safety for children (i.e., triggering criminal or child protection process) and private family law matters. In addition, family courts rarely have access to the resources that they require to handle these more complex cases that go beyond the mandate of parent education and mediation services. These resources include timely access to specially trained child custody and access assessors with expertise in family violence, supervised access centres, and treatment resources for individual family members (including perpetrators, victims, and children). Further, the different components of a full spectrum of services need to be well coordinated in order to monitor family members' progress and make revisions to parenting arrangements as needed. It is not sufficient to assume that no news is good news in these cases. Ongoing court monitoring may be indicated in child custody disputes with histories of family violence.

Building systemic capacity also includes the need for education and training for the professionals who work in the family court system including judges and lawyers. Education programs have to be available to help court–related professionals recognize family violence in all its forms, and have the skills to provide differential service responses to meet the level of need for a family. When spousal violence is recognized, there still needs to be a distinction made between minor, isolated acts versus acts that occur as part of a pattern of abuse that engenders fear and harm for victims and children exposed to this behaviour. When the most intensive spousal violence interventions are misapplied to families who may be better characterized as experiencing transitory high conflict, there is the potential to harm parents' reputations, impede their problem–solving abilities, and undermine parent–child relationships. Furthermore, it is inefficient utilization of scarce resources. Conversely, an abusive husband who engages community members and the court system in a dialogue about his wife making false allegations and being an unfit parent has to be identified early in the process. Failure to identify these cases allows the batterer to manipulate the justice system as a tool to revictimize his ex–partner. In some jurisdictions (e.g., California), mandatory training in family violence is a prerequisite for being a court–appointed child custody assessor.

Finally, there are significant gaps in the existing research that limit our ability to understand cases and identify best practices. Specifically, there is a lack of long–term follow–up studies to match children's adjustment with specific post–separation parenting arrangements in cases involving family violence. In addition, most research has been conducted with families in the formal judicial system, and less is known about the long–term experiences of those who choose not to engage this system. Research in the divorce area has been criticized for looking at the outcome of biased samples. For example, the promotion of joint custody as a good outcome is largely based on retrospective studies of cooperative couples. In addition, the outcome may be linked to a simple factor when the reality is more complex; for example, negative outcomes associated with parental relocation may overlook the risk factors of family violence and poverty that triggered the move. There has been little attention to understanding the process of perpetrators changing their behaviour and appropriately healing the relationship with children in a respectful and safe manner. When it comes to individual cases, it is often hard to predict whether terminating contact promotes child healing or conversely, triggers idealization of the perpetrator and anger towards the victim parent. We know little about the restoration process, and the circumstances under which healing the parent–child relationship is possible.

A starting point for an enhanced understanding is a better integration of the divorce literature and the family violence literature, which have largely developed independently of each other (Jaffe et al., 2001). Leading experts in the field have pointed out that high conflict cases involving family violence are often misguided by a divorce literature focusing on parents who were never involved in litigation (Johnston, 1994). Our goal in this document is to assist policy makers and practitioners by bridging the family violence and divorce literatures and outlining a framework for examining situations where these issues may be present.

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