Concurrent Legal Proceedings in Cases of Family Violence: The Child Protection Perspective

III. The Context of Family Violence & ‘High-Conflict’ Separations

Types of High-Conflict & IPV Cases

Any relationship characterized by high conflict and/or IPV poses risks to children, and often their parents, but the dynamics and impact varies from case to case, and the nature of the legal and social responses should vary depending on the nature and intensity of the conflict, as well as the assessment of future risk. Cases involving parental alienation, for example, require different intervention than those involving hostile parental communication; intimate partner violence cases pose special risks and raise concerns about continued contact between separated parents and children.Footnote 6 An appreciation of varying situations of high-conflict and IPV is helpful, even though in practice many cases will not fit neatly into only one category.

Exposure to Intimate Partner Violence

In homes where there is intimate partner violence, children are very likely to be aware of the violence, even if the parents do not realize this:  these are children “exposed” to intimate partner violence.  Even if they do not witness an assault, they are likely to hear the violence or see the aftermath in terms of damages to the home or injury to a parent, or to sense the fear that one parent has of the other. Research has established that exposure to intimate partner violence (living in a home where there has been spousal abuse) has significant negative effects on child development, and, even if the child is not directly victimized or has not directly witnessed the violence, this is a form of emotional maltreatment of children with potential long term negative effects. Further, intimate partner violence sometimes creates or contributes to mental health and substance abuse challenges for victims, compromising the parenting capacity of the person who is often the child’s primary caregiver.

Studies show that children who are exposed to intimate partner violence are more likely to have:

In cases of intimate partner violence, when a decision is being made about the future care of the children, it is important for the pattern of violence to be properly understood, and future risk of physical or emotional harm assessed.Footnote 8 It is useful to be aware of typologies or categories of intimate partner violence, though it is also important to appreciate that the types of spousal abuse that will be discussed here are based on generalizations, and many cases of intimate partner violence do not fall neatly into a particular category.  These typologies have been described as “heuristic frameworks for descriptive purposes” which do not have predictive value; they should not be relied upon to determine the child’s best interests or the level of risk to the targeted parent or child in any individual case.Footnote 9

In some cases, intimate partner violence reflects an escalation of a verbal argument and mutual conflict, with some responsibility by both spouses for the situation while they continue to cohabit, and reasonable hopes of de-escalation of violence if they separate.  In other cases, there are only a few incidences of violence close to the time of separation reflecting intense anger or feelings of betrayal or loss of trust by one partner – separation engendered violence – and there is only limited risk of further post-separation violence (although it has been noted that separation can be a very dangerous time and that separation engendered violence can escalate into severe violence and even homicide).Footnote 10

The greatest risks are usually in cases of coercive controlling violence, where one spouse, usually the husband, is the primary perpetrator and the violence is used to control and dominate a partner, and continues or escalates after separation; there may be a pattern of separation after a violent incident and then resumption of the relationship. It is also important to note that these categories of violence are generalizations, and not all cases of violence will necessarily fall into a particular category. For example, it has been noted that there may be a risk of lethality (homicide of the targeted parent or child, and/or suicide of the perpetrator) even where there has not been severe or coercive controlling violence.Footnote 11

Depending on the nature of the violence, the likelihood of recurrence, and the child’s level of fear, it may be necessary to suspend or terminate contact between an abusive parent and the child, or at least require supervision of contact.Footnote 12 However, if intimate partner violence has ceased after separation, safety concerns have been adequately addressed, and the children have a positive relationship with both parents, it may well be appropriate for the children to have continuing contact with both parents, and possibly even to be in a joint custody arrangement. If an abusive spouse has been the children’s primary care-giver and does not pose a risk to the children, it may even be appropriate for that person to retain custody of the children.Footnote 13

High-Conflict Separations (Without Intimate Partner Violence)

While many high-conflict separations are characterized by intimate partner violence, there are also cases where there is no physical violence, but there is intense and continuing anger and hostility between the parents. Over the past two decades there has been a growing awareness that high-conflict spousal relationships and separations pose significant risks for emotional harm to children, even in cases where there has not been significant intimate partner violence or child abuse. These cases also pose significant challenges for professionals, agencies and the courts, and they too may raise issues of concurrent child protection, family and possibly criminal proceedings (for example, where there have been threats or perceived threats, or calls to police regarding very minor incidents).

While in most situations of parental separation there is an understandable focus on settlement by mediation or negotiation and resolution outside the family court system, separation cases involving high conflict or intimate partner violence are less likely to be appropriate for resolution outside the court system, and are likely to only be resolved through the court process, with the prospect of multiple court appearances, and not infrequently proceedings in more than one court.

High-conflict separation cases usually have different dynamics and present different challenges for agencies, professionals and the courts than the more common child protection cases that child protection professionals are most familiar with involving allegations of abuse or neglect outside of parental separation.    In many high-conflict separation cases that do not involve intimate partner violence, each parent may function reasonably well alone, and when the parents were living together, the children may not have been at risk of serious abuse or neglect.  It may be only after separation (and in the period leading up to separation) that there are serious concerns about parental deficits, which often reflect personality disorders, exacerbated by the feelings of betrayal, anger and mistrust related to the separation. 

In cases involving high-conflict separation, a primary focus of the child protection agency may be to reduce the level of conflict and allow both parents to continue to have a role in their children’s lives, but in some of these cases the agency may determine that the interests of the child require supporting one parent, and limiting or even terminating the involvement of the other parent in the child’s life, at least for a period of time.

Alienation and Estrangement  

In many cases parental conflict around the time of separation may abate and the parents, perhaps with professional assistance, may be able to establish a good co-parenting relationship.  However, an important characteristic of some high-conflict separation cases is that one or both parents fail to support the child’s relationship with the other parent,Footnote 14 and indeed continually attempt (consciously or unconsciously) to undermine the child’s relationship to the other parent.  In some of these cases, children manage to maintain a good relationship with each parent, despite stress caused by one or both parents being unsupportive or even highly negative about the other.   However, in a significant portion of high-conflict cases children become resistant to having contact with one of their parents.Footnote 15

A child’s resistance to contact with a parent may be due to the alienating attitudes or actions of a favoured parent. Parental influence in alienation cases can range from a parent sharing frustrations and anger about the other parent with the child to unfounded allegations of sexual or physical abuse of the child. The alienating parental behaviour is emotionally damaging, and causes the child to develop distorted views of the rejected parent and reality.  Alienated children are more at risk for behavioural, emotional and social problems, which may continue well into adulthood and are reflected in higher rates of adult depression and relationship difficulties.

It is not uncommon in high-conflict separations for both parents to engage in alienating conduct, consciously or unconsciously attempting to undermine the child’s relationship with the other parent.  In most of these cases, children will align with the parent with whom they primarily reside, who is often the mother.  In cases where fathers have sole or joint custody, they are also able to alienate their children from their mothers. It is less common for children to become alienated from a parent with whom they reside by a parent with access, though this too can occur. 

However, in some cases a child may be resistant to having contact with a parent due to the child’s own experiences with that parent of abuse or poor parenting or problems in the step-family. These cases of justified rejection of a parent are often referred to as situations of justified estrangement. Indeed, in a large number of cases where intimate partner violence or child abuse is alleged by one parent (usually the mother), the other parent (usually the father) alleges alienation in response. Determining whether a child’s rejection of a parent is due to alienation, estrangement or a combination of factors is a major challenge for child protection agencies and the justice system. 

There is a need for caution in identifying a case as alienation, since a situation may be misidentified as a mutually antagonistic high-conflict separation when in reality one parent (usually the mother) is a victim of intimate partner violence and requires protection, and the child’s estrangement from the other parent is caused by the violence.

Although many children who witness intimate partner violence are afraid of an abusive parent and hence may be reluctant to visit with that parent – justified estrangement  –  in some cases children will become aligned with the abusive, “more powerful” father and become alienated from the “weaker” victimized mother.