Making appropriate parenting arrangements in family violence cases: applying the literature to identify promising practices
5.0 Emerging best practices: parenting arrangements in family violence cases
There has been very little research evaluating the application of specific types of parenting arrangements to different patterns of family violence. Obviously, ethical considerations preclude randomly assigning parenting arrangements. Too often, research has compared child adjustment outcomes for different parenting arrangements (e.g., joint versus sole custody) without including family violence (and other critical factors) as moderators. In this section we outline a range of parenting arrangements, and the definition, indications, and special considerations of each, with respect to family violence. We have applied the family violence literature to these arrangements within the context of our experience as custody assessors, trainers, and researchers, but acknowledge there is only a limited scientific foundation to build on.
The range of parenting arrangements discussed in this section includes co–parenting, parallel parenting, supervised exchanges, supervised access, and no access, as depicted in Figure 5. The legal frameworks of joint and sole custody are also discussed. In an ideal world, judges, lawyers, mediators and assessors would attempt to match a parenting arrangement with the unique needs and characteristics of individual children, parents and family systems.
The cases at the extreme ends of the family violence spectrum are most straightforward. At one end of the continuum, there is probably agreement that a perpetrator of chronic family violence who has demonstrated a pattern of abusive behaviour over time, with little remorse or investment in treatment, and whose main focus is on punishing an ex–partner rather than fulfilling a parenting role should have either no access or very limited access supervised by highly trained professional staff. At the other end of the continuum, an isolated incident of minor family violence (e.g., a shove), which is out of character, accompanied by genuine remorse, responsibility taking, and did not induce fear or trauma in the other parent, would not in and of itself preclude the possibility of a co–parenting arrangement. In between these extremes is a canyon of gray in which matching parenting arrangements to families is challenging, and dependent on analyzing a host of factors. Some of these factors relate to historical relationships and characteristics of individuals, some relate to available resources in a particular community, and others relate to the stage of proceedings and available information. In this section we will review each parenting arrangement and the factors under consideration.
We recognize that the dynamic nature of individuals and families compounds the complexity of this matching process. A family in crisis at the point of separation may present in a different fashion a year later, especially in the context of benefiting from available counseling resources. For other families, the state of crisis becomes chronic and litigation seems never–ending with professionals becoming enmeshed in the dispute. This reality means that complex cases require ongoing assessment and monitoring by the court with the assistance of court–related services.
[ Description ]
The Smiths separated 4 years ago. At the time of the separation there was an incident of violence when Mr. Smith grabbed Mrs. Smith by the shoulders, shook her and threw her to the ground upon discovering she was leaving him for another man. He was charged with assault and because there was no prior history of violence and no injuries, he was fast–tracked into a batterers' intervention program as part of a conditional discharge plea bargain. There have been no incidents of threats or harassment post–separation. Both parents have remarried and have developed a cooperative relationship with each other by necessity of the demands of their three children (7, 11 and 14), who require help with school assignments and transportation to sports events on the same days at different locations. Although the children reside primarily with Ms. Smith, each parent is involved in day–to–day decisions, as well as more important issues regarding health care and education. There is flexibility in changing the alternate weekend and one evening mid–week schedule based on the children's needs.
Definition and Description
Co–parenting refers to an arrangement in which parents cooperate closely post–separation in all aspects of raising their children. This arrangement approximates the pre–separation ideal for the children, where both parents are actively involved in the lives of their children, share information, and problem–solve the normal challenges of parenting as they arise. Within the broad definition of co–parenting, there may be a range of divisions of time spent in each parent's home, and an assumption of flexibility in scheduling, according to the distance between homes, children's needs and stage of development, and parents' schedules. From a legal perspective, the term "joint custody" is the typical legal framework for a co–parenting arrangement. The terms "co–parenting" and "joint custody" are often used interchangeably, especially as the word "custody" is being increasingly replaced with concepts like parenting time and contact. As we have noted previously, joint custody does not indicate a particular time split, but rather a non–conflictual parental relationship that accommodates the ongoing possibility of joint decision–making.
In appropriate cases, co–parenting is best for children whose parents separate as it helps maintain a positive ongoing relationship with both parents; children's stability and normal development are promoted. In dealing with specific cases, however, it is important for professionals and parents to be realistic in assessing whether co–parenting is appropriate and likely to promote the welfare of the children.
Indicators and Contra–indicators
Co–parenting requires two parents who are able to maintain a civil and child–focused relationship post–separation. Ideally, there should be mutual trust and respect that promotes good communication between parents. In reality, parents may vary along these dimensions from time to time during periods of crisis or major transition (e.g., jealousy over new partners, disputes about relocation, challenges over parenting adolescents), but overall the parents can make this arrangement work.
Co–parenting is contra–indicated by high conflict and/or incidents of family violence, before, during or after the separation, or lack of a foundation of any relationship between the parents. These contra–indications are usually demonstrated by a clear history of poor communication, coercive interactions, inability to problem–solve, and a lack of child–centred focus by one or both parents. A serious mental health problem or substance abuse suffered by one or both parents would also contra–indicate a co–parenting arrangement. Co–parenting may be more difficult (but no means impossible to arrange) if the parents have not lived together for any length of time with their children.
There are circumstances under which parents may overcome difficulties with time and/or counseling and are motivated to make a co–parenting arrangement work. On the other hand, there may be a parent who will frustrate the possibility of co–parenting, in spite of the best efforts of the other parent and third parties, such as mediators.
There is considerable debate about whether or not co–parenting can be imposed on an unwilling parent. These cases require special skills on the part of custody assessors, lawyers, and judges to properly assess the authenticity of the resistance to co–parenting. Understanding the underlying reasons for the resistance is important. For example, a parent who has felt bullied or victimized and experiences considerable anticipatory anxiety in dealings with the other parent may have a legitimate aversion to co–parenting. On the other hand, a parent who has never lived with the other parent may resent having to involve the other parent in her life as a result of co–parenting, but may be helped to develop an effective co–parenting relationship.
5.1.2 Parallel Parenting
The Smiths had an acrimonious marriage and separation. Their twin girls (age 7) are attached to each parent but are frightened by the thought of the two parents being in each other's presence at school events or at recreational events. The children report a history of spousal violence in the marriage where the two parents would yell and throw things at each other. Since the separation the children have alternated weeks at each parent's home with the exchange (changeover) taking place at the end of the school day Fridays (and at their cousins' home during holidays). Each parent has decision–making ability while the children are in their care. There are no disagreements about major issues such as religion, education and health care. In addition, a parent coordinator–social worker has been named to mediate or arbitrate any disputes. The parents are not to be in contact with the children while they are in the care of the other parent except by special agreement with the co–coordinator or in an emergency. Communication between the parents is by email which is monitored by the parenting coordinator.
Definition and Description
In contrast to the cooperative nature of a co–parenting arrangement, parallel parenting describes an arrangement where each parent is involved in the children's lives, but the arrangement is structured to minimize contact between the parents and protect the children from exposure to ongoing parental conflict, typically by having each parent make day–to–day decisions independently of each other when the children are in his or her care. There is limited flexibility in a parallel parenting arrangement, and the parents typically abide by a very structured and detailed schedule. Parallel parenting developed in recognition of high conflict separations in which both parents appear relatively competent. Rather than encourage co–parenting, the goal of this plan is to disengage the parents from each other and their long–standing hostilities (Federation of Law Societies, 2003). Natural transitions may be used to limit parental contact, such as having one parent drop the children at school and the other parent pick them up to begin their contact time. There must be a careful structuring of communication between the parents, for example by requiring all communication to be by email which can be monitored by a third party; children should not be expected to carry messages back and forth in high conflict cases.
There is controversy about this arrangement because some professionals view it as a compromise plan or a form of imposed joint custody. Some authors have pointed out that it is naïve to believe that parents can raise their children in an effective manner without meaningful communication and suggest that parallel parenting is fraught with more problems than it solves (Epstein and Cole, 2003). In light of the lack of genuine communication and cooperation between parents, the plan may involve active negotiations and arbitration by third parties, including parent coordinators when the parents have the resources to afford these additional supports. Therefore the legal framework for parallel parenting may be joint custody or sole custody depending on the philosophy of the intervener, and the resources available to counsel the family.
Parallel parenting will typically involve a child spending more time in the care of one parent, who will be the primary residential parent, though there can be roughly equal time in the care of each parent. The hope is that over time, parental hostility may decline and parallel parenting may develop towards some form of co–parenting, but this may take years and in some cases will never occur. Therapy for the parents to deal with their feelings of anger and hostility towards each other may help parallel parenting to evolve towards co–parenting, but this is not always a realistic possibility.
Indicators and Contra–indicators
Parallel parenting assumes that each parent has a positive contribution to make in his or her time with the children, but any direct parent–parent contact may be harmful to the children due to ongoing acrimony. This acrimony may be based on mutual mistrust, personality conflict, or inability of one or both parents to move past the separation and focus on the future. Any clinical or legal finding that one parent poses a physical, sexual, or emotional threat to the children, or that there are concerns of violence towards the other parent, would contra–indicate a parallel parenting arrangement.
The extent to which a parallel parenting arrangement might be appropriate in the aftermath of violence towards children or an adult partner requires a comprehensive assessment. Factors critical to this determination include whether or not the perpetrator of the violence has taken responsibility and successfully completed an intervention; whether or not the children have received any indicated services and are experiencing ongoing symptoms of trauma or distress; and, the developmental stage of the children. A clinical finding of ongoing risk to children and/or the other parent clearly contra–indicates a parallel parenting arrangement.
Although sole custody may be the legal framework for parallel parenting, it is definitely the framework for the parenting arrangements outlined in the following sections dealing with supervised exchanges, supervised access and no contact. By sole custody, the court is intending that one parent is clearly in charge of all major decisions and the non–custodial parent generally has more limited child contact but access to important information about the children (e.g., school reports). There may be a sole custody arrangement without supervised exchange or access, but a sole custody arrangement may have these additional restrictions in particular circumstances as discussed in the following sections. For supervised exchange, supervised access and no contact, the framework is one of sole custody with a clear primary parent responsible with whom the child resides with the majority of the time and who makes major decisions about the child.
5.1.2 Supervised Exchange
The Smiths have been separated for 6 months. Ms. Smith has interim custody and moved to her parents’ home 45 minutes outside the city. Ms. Smith describes her husband as a bully who has been verbally abusive during the marriage and threatening in his demeanor. He physically assaulted her on one occasion when she told him that she was having an affair with a colleague at her work, and wanted a divorce. There are court findings in this regard. However, she describes her husband as a caring father who uses his background as a teacher to help their only child, a 10 year old son with some mild learning disabilities. She is no longer frightened of her husband but doesn’t want to be in his presence to avoid any conflicts over outstanding financial issues, which are in litigation. He sees his son every Saturday afternoon to Sunday evening through an exchange at a supervised access centre. A court review is planned at the end of the school year—8 months away.
Definition and Description
Supervised exchange involves transferring children from one parent to the other under the supervision of a third party. The supervision can be informal, for example by a family member, neighbour, or volunteer, or through the utilization of a public venue for the exchange, such as the parking lot of a police station. The supervision can also be formalized through a supervised access centre or use of a designated professional, such as a child care worker or a social worker. The underlying premise is that by either staggering arrival and departure times or having third party witnesses, the parents will be on their best behaviour, or will not come into physical contact. These are cases where there is a high level of conflict between the parents, and sufficient concerns about one parent that parallel parenting is inappropriate and there is a need for supervision of the transitions. However, there is an expectation that the child will still benefit from a continuing relationship with both parents, and there is not a sufficient risk to the safety or emotional wellbeing of the children while in the care of the non–custodial parent that access needs to be supervised.
Indicators and Contra–indicators
Supervised exchange provides a buffer in cases where the ongoing conflict cannot be contained by the parents at transitions, exposing the children to high levels of conflict. It is also useful when there is historical pattern of spousal violence and the victim may experience distress / or trauma coming into contact with the other parent. However, supervised exchanges do not mitigate the risk of violence to a spouse if there are ongoing concerns about safety of children and their primary caretaker.
Supervised exchanges are sometimes inappropriately utilized to create a sense of safety when a more restrictive measure (such as supervised access) is warranted. As well, informal third party exchanges may be well–intended but inadequate; supervision may require a knowledgeable professional to monitor safety and inappropriate behaviours. For example, some parents may be involved in more subtle behaviours that are emotionally abusive, undermine the other parent, or signal threats to the other parent. These more insidious transgressions are difficult for lay people or family members aligned with the perpetrator to identify.
5.1.3 Supervised Access
Ms. Smith is an alcoholic who has endangered her children in the past through drinking and driving. She has assaulted her husband several times while she was drinking, including an incident which resulted in conviction for stabbing him in the shoulder with a kitchen knife. Her two daughters age 5 and 8 years are attached to her but frightened by her behaviour when she has been drinking. They want to see her and their father wants to promote an ongoing relationship if it can be done in a safe fashion. She has completed a residential program related to addictions and is involved in counseling about her violent behavior. She has joined AA and has been sober for six months. The court awards her 3 hours of supervised visits, twice a week at a supervised access centre.
Definition and Description
Supervised access is a parenting arrangement designed to promote safe contact with a parent who is deemed to be a risk due to a range of behaviour from physical abuse to abduction of the child. It may also be appropriate where a child has fears of a parent, for example because of having witnessed that parent perpetrate abuse or because of having been abused by that parent. Although supervised access is a long accepted practice in the child protection field, it has emerged more recently in the parental separation context with parents who pose a risk to the children and/or the other parent. Similar to supervised exchanges, supervised access may vary in formality from extended family or volunteers to a specialized centre with professional staff with expertise in these issues. Related to this plan is the concept of therapeutic supervised access, which involves a mental health professional who may be involved in healing a troubled parent–child relationship through counseling and support during the access visits.
Indicators and Contra–indicators
Supervised access should only be undertaken if it is believed that a child stands to gain some benefit from a parent maintaining an ongoing role in the child's life but there remain concerns about the parent's risk of physical or emotional abuse to that child. Supervision is usually only considered for what is expected to be a transition period while the parent proves that the supervision may not be required. Serious concerns demand more specialized centres and well–trained staff as opposed to volunteers. There are more extreme cases where the safety offered by the supervisor is not appropriate for the degree of risk and no contact may be a more appropriate plan.
There is great variability amongst supervised access centres, training of staff and mandate for programs. Some parents may require extensive assistance during access to say and do appropriate things that match their children's needs and stage of development. In some cases, there may be a strained relationship due to historical events, the anxiety of the custodial parent and the lengthy disruption of any meaningful parent–child relationship. In these circumstances parents may require more than a safe place and significant interventions by a trained professional may be required to promote healing and enhance parenting. There are situations where the demands on the supervisor outstrip his or her skills or mandate. There are also special considerations about refusing cases after intake due to the assessment of excess risk or terminating visits in mid–stream due to inappropriate parental behaviour and/or children's refusal to attend.
Supervised visits cannot be a substitute for a comprehensive assessment by a qualified mental health professional, and the court may draw inappropriate conclusions about the meaning of successful and unsuccessful visits out of context of the larger picture an assessment provides. Too often supervision is dropped (i.e., visits are no longer supervised) after a period of time where nothing overly negative has occurred. We would argue that the onus is on a perpetrator of the violence to show that he or she has made significant changes and is taking responsibility for past transgressions, not merely that he or she can contain inappropriate behaviour under close scrutiny (for extensive discussion see Bancroft & Silverman, 2002).
It has long been recognized that it is important for there to be clear expectations and contracts (between supervisor and court, counsel, and parents) for supervision, especially in cases such as where there has been a history of sexual abuse (see Saunders & Meinig 2000; 2001). If there has been a history of sexual or emotional abuse, the supervisor should have appropriate training to recognize subtle forms of abuse. More recently, supervised access centers that work with families who have experienced spousal violence are moving towards similarly articulated guidelines and contracts. These contracts have many benefits. Supervised parties have clear boundaries about acceptable and unacceptable behaviours; supervisors know what behaviours they are monitoring; court personnel have records and information upon which to base subsequent decisions; and, there is clear agreement among parties of the state of affairs (versus an informal arrangement where the supervisor and supervised party may both see the supervised party as the victim). The Supervised Visitation Network in the USA has excellent standards and guidelines, as well as sample contracts available on their website (Supervised Visitation Network, 2003; available at www.svnetwork.net/Standards.html).
5.1.4 No contact
Mr. Smith has a long history of spousal violence, which has never come to the attention of the police but has been reported to several counselors and the family doctor. He denies any responsibility despite medical evidence in regards to his wife's prior injuries and consistent observations of other family members. After separation the children disclosed to a social worker a history of physical abuse by their father and exposure to spousal violence. The court made a finding of spousal violence and ordered supervised visits and recommended entry into a batterers' treatment program. Mr. Smith refused treatment after attending an initial intake interview where he reported that his wife was his only problem. Mr. Smith goes to the supervised access centre earlier than ordered and confronts his ex–wife in front of the children. He threatens to kill his wife and himself if she doesn't return to the matrimonial home. The staff call police and new charges are brought before the criminal court. The Family Court judge suspends all child contact for six months pending new information from father's counsel on his attendance at treatment and a thorough risk assessment and risk management plan.
Definition and Description
In extreme cases where a parent presents an ongoing risk of violence to the child or parent, emotional abuse to the child, or abduction, no meaningful parent–child relationship is possible. In these cases, the court may be forced to suspend all access for the short or long term parenting arrangement. These cases present a significant challenge for lawyers and mental health professionals to provide thorough and credible information to the court to obtain an order to at least temporarily end the parent–child relationship. While in theory visitation should only occur if it promotes the best interests of the child, in practice judges presume that a child will benefit from a relationship with both parents and require significant evidence of risk of harm to the child before terminating access (Bala, 2004).
Indicators and Contra–indicators
When a parent has engaged in a pattern of abusive behaviour and has indicated no remorse or real willingness to change, termination of the parental relationship may be indicated. There are also cases where the abusive parent/spouse has changed over time but the level of trauma engendered historically in their family precludes a fresh start. For example, in cases of severe violence with potentially life–threatening injuries to a parent or child, the children may continue to experience flashbacks and nightmares triggered by any reminder of the perpetrator. Although the perpetrator may ultimately receive significant consequences in the criminal justice system and demonstrate appropriate change with intervention, the damage done to the parent–child relationship may be beyond repair. In cases such as these, successful parent–child contact depends on a whole family system undergoing change rather than one individual party successfully completing treatment. No contact would be contra–indicated when there is a solid foundation of a parent–child relationship and there is a demonstrated commitment for a reunion in the family system.
No contact is an extreme measure and should occur only after a careful assessment that documents the need for this type of arrangement. There are cases where perpetrators of spousal violence apply for access to children but are really seeking access to their ex–spouse. Domestic homicides are associated with separation, a history of spousal violence and some cases of stalking. Thorough reviews of risk assessment data may point to perpetrators of spousal violence who are seeking revenge against their ex–spouse by harming the children or planning a more extensive murder–suicide. Although family law makes assumptions about the benefit of maintaining every parent–child relationship, there are cases where any potential benefit is outweighed by the harm and risk to the child. Some clinicians have voiced concern that children prevented from seeing a parent are at risk for idealizing that parent and eventually seeking out this relationship without any preparation (Cunningham & Baker, 2004; Scott & Crooks, 2004). Research is lacking on this topic.
There are some very high conflict cases, even without a history of violence, in which a child may become aligned with one parent in order to avoid a loyalty conflict, and will express a strong desire to have no contact with the other parent. Therapeutic intervention may be useful in these cases, but there may be extreme cases in which a suspension of access may be necessary to promote the child's emotional well–being even if there has been no abusive conduct on the part of the parent from whom the child has become alienated (Johnston, 2005).
As discussed above, there is a wide range of patterns of family violence, and understanding the context and pattern of the violence is more informative than merely focusing on the most serious or most recent incident of aggression. LaViolette's continuum identifies a range of factors in considering the intent, impact and associated characteristics of different forms of abuse. This continuum can be added to the dimension identified of low—high risk interventions as shown in Figure 6. That is, a history of common couple aggression may not preclude co–parenting or parallel parenting, but a history of abuse, battering or terrorism/stalking would certainly contra–indicate these interventions. Furthermore, the presence or absence of a child maltreatment history must also be factored into these considerations. In effect, the type and severity of violence and the safety of the victim must be assessed for both child and adult victims.
[ Description ]
There is often a large gap between the ideal plan that a family requires and the actual resources available in a community. An ideal plan may involve the perpetrator of spousal violence seeking assistance for substance abuse–related problems, and then entering a batterer's intervention program. During this time, the children would receive counseling in a group program for children exposed to spousal violence, and the victimized parent may be in a support group to develop coping strategies for dealing with a history of violence. Access, if appropriate, would be dependent on successful entry into treatment by the perpetrator, the perpetrator's acknowledgement and responsibility taking for the violence, and the use and availability of a supervised access centre. Promising practices in this area include programs for perpetrators that simultaneously address issues of child maltreatment and spousal violence, such as the Caring Dads program (Scott & Crooks, 2004; Crooks et al., in press). The dimension of resource availability is an additional factor for consideration, as depicted in Figure 7. As noted in the diagram, lack of availability of resources may warrant a more conservative access plan.
Aside from concerns about the availability of resources, there is also an active debate about the effectiveness of various programs to change perpetrators of family violence. Some researchers have argued that batterer programs are moderately successful, particularly within the context of a responsive criminal justice system (Gondolf, 2002). A more pessimistic outlook has been voiced elsewhere, and contends that batterer intervention has been largely unsuccessful in changing either attitudes or behaviour of men with a significant history of intimate partner abuse (Office of Justice Programs, 2003). The research in this area is moving beyond whether intervention works, to a more complex picture of what works for whom. For example, some researchers suggest that indicators such as severe psychopathology, continuous drunkenness, and violations of court orders may predict poor outcomes in batterer intervention programs (Gondolf, 2002).
In reality, many courts have to "make do" with limited resources which may involve a community volunteer or grandparent supervising the visits, while parents and children wait for counseling resources that fall short in that they do not specialize in family violence. The timing for the visits is determined by the order, rather than treatment being completed or therapeutic goals being met. In the absence of available and coordinated services, the risk of physical and emotional harm to children and adult victims is substantially raised. In extreme cases, the lack of proper assessment of risk and lack of risk reduction strategies for perpetrators have resulted in spousal violence homicides (Ontario Domestic Violence Death Review Committee, 2004).
There are systemic problems in providing services for families where there has been spousal violence. First of all, timely access to services may be impeded by poverty, waiting lists, and a lack of culturally appropriate service providers. Often multiple services need to be accessed, including services for batterers, victims, and children exposed to spousal violence. If these services are in place, there is a critical need to coordinate service delivery and communication of information. Aside from confidentiality concerns, the nature of information required by child assessors, lawyers, and judges may be beyond the mandate, policy, and record–keeping practices of individual agencies involved. To compound these problems, it is often not clear that anybody is in charge of monitoring treatment compliance and progress. Practices vary from having a court officer (e.g., a judge, Master, or Commissioner) hold regular review hearings to monitor progress, to having no clear accountability for implementation of an intervention strategy or mechanism for court review.
Although monitoring individuals' compliance with intervention may provide useful information to the court, the use of specific behavioural goals may be more illuminating. In a best–case scenario, a parenting arrangement post–family violence would identify specific goals for the perpetrator of violence to achieve before progressing further with the plan. For example, if a particular perpetrator had substance abuse issues, behavioural goals could include completion of substance abuse intervention, as well as clean drug tests for a specified period of time before unsupervised access would be considered. Identifying specific goals provides a more useful framework for parties monitoring progress to make ongoing assessments about family needs, rather than relying simply on the passage of time. Other prerequisites for a change in parenting arrangement may be tied to the victim's or children's functioning. For example, successful completion of therapy for a child victim or witness, as indicated by the child's lack of symptoms, general functioning, therapist report, and the child's ability to articulate who was responsible for the violence, might be an important indicator that a less restricted plan of access could be considered. In our experience however, little ongoing monitoring takes place, and when it does, decisions are based on the passage of time without serious incident and the most superficial of information concerning program attendance, rather than the attainment of specified goals.
5.4 Timing of Disclosure / Stage of Proceedings: Establishing Validity of Family Violence Allegations
Disclosure of family violence usually triggers a crisis for a family system. Disclosures may happen while a couple is still together, at the point of separation, or after the separation. Disclosure of child abuse may be indirect (through a child's behaviour or a journal entry) or be directly made by a child, parent or other observer. A disclosure of child abuse to a third party would likely trigger reporting to the child protection services by a parent or other concerned adult (teacher, family physician, neighbour). If the disclosure involves exposure to spousal abuse, rather than direct child abuse, reporting responsibilities are less clear and depend on provincial statutes as well as local practice. For example, in Ontario, exposure to spousal abuse is not in and of itself grounds for child protection intervention; however, police services commonly report all family violence occurrences that involve children to the local child protective service. In some other provinces, exposure to spousal violence may itself be a legal basis for finding a child in need of protection, but this ground for intervention is rarely invoked in the absence of direct child abuse or neglect.
Critical factors in whether a disclosure of family violence leads to more intensive investigation are the nature of the allegations, the credibility of the party raising the allegations, and the professional receiving the allegations. There is a tendency for disclosures made in the context of parental separation to be considered suspect by police, child protection authorities and other justice system professionals. These allegations may be viewed as self–serving and made by the disclosing parent to buttress a claim for custody, or to make a claim for a restriction of access to the other parent. However, it must be recognized that in many cases victims of family violence feel unable to disclose their abuse until after separation, and that many post–separation allegations are valid.
A critical systemic issue for separating parents is whether allegations of family violence become part of a criminal or child protection process, or whether they are left to be settled as a private matter in family court. If the police or child protective services become involved in a case, and investigate and substantiate family violence concerns, then the family justice system does not have to resolve conflicting allegations. However, if reports of family violence are only made after separation, the public agencies may be reluctant to be involved. Child protection workers with heavy caseloads are often relieved when parents are seeking protection through the private family law system, and may decide not to aggressively pursue an investigation especially, if an allegation is made after separation and a parent's family court application is underway. Child protection workers are more likely to be involved if the allegations of child abuse are more serious, but even in these cases if a custodial parent is responsibly caring for the children, child protection may be inclined to close the file and leave any access arrangements to the family court (for case examples see the Ontario Domestic Violence Death Review Committee, 2004).
[ Description ]
In the absence of investigation and clear documentation of family violence by the police or child protection services, the family justice system may be faced with conflicting allegations and denials by the two parents. One California–based study of high conflict separation cases in the family courts found that more than half involved an allegation of spousal or child abuse (Johnston et al, 2005). About half of the abuse allegations were substantiated, and in about one quarter of the cases in the study some form of child or spousal abuse was perpetrated by both parents. The rate of substantiation of spousal abuse was much higher than the rate of substantiation of allegations of child abuse. This finding may reflect the fact that spouses in a high conflict separation are likely to be accurate in reporting their own victimization by a partner. However, in high conflict separation cases, parents may have considerable difficulty in accurately understanding and reporting on how their partner may have treated their children.
In cases where there are spousal abuse allegations but no conclusive police or child protection service investigation, the family court system is left to try to determine what occurred (Bala, 2004). Even in a family law case there is an onus on the party making an allegation to prove it, though the standard of proof is civil standard of "proof on the balance of probabilities," making it less difficult to establish in family court that abuse occurred than in a Criminal Court proceeding, where there must be "proof beyond a reasonable doubt."
In some family court cases, a genuine victim may be unable to establish the fact or significance of spousal abuse because of the lack of effective legal representation. Even a good family lawyer may have considerable difficulty in establishing that abuse occurred if there is a lack of corroborative evidence of the victim's allegations, for example from a doctor, neighbour or baby sitter.
It is increasingly common in contested child–related disputes for the court to appoint a psychologist or social worker to conduct an assessment of the case and report to the parties and the court, usually including recommendations for an arrangement that will promote the best interests of the child involved (Bala & Saunders 2003). The assessor will interview the parents and children involved, and will usually meet other significant adults, like new partners of the parents, and review records and reports; there may be psychological testing, home visits and contacts with various professionals, like teachers. Often, the parties will settle the case after the completion of the assessment, knowing that the assessor's recommendations are likely to be influential with a judge. While assessors are influential, it is clear that judges are not bound by the views of an assessor, and may reject an assessment, for example, one that is premised on erroneous understanding of the facts of the case or if the assessor lacked the educational background to deal with the particular case before the court. An assessment can help a court to determine the validity of an abuse allegation, provided that the social worker or psychologist conducting the assessment has appropriate training, knowledge and skills to deal with these especially challenging cases.
The issue of post–separation reports of child abuse is extremely complex. In some cases the child or parent feels too intimidated or guilty to disclose the abuse until after separation, and in other cases child abuse may not begin until after separation. However, there is a significantly higher incidence of unfounded allegations of child abuse in the post separation context than in other situations (Bala & Schuman 1999, Trocme & Bala 2005). In these studies, only a relatively small number of these unfounded post–separation allegations of child abuse were due to deliberate or malicious fabrication. More common are cases of unfounded post–separation allegations in which the accusing parent has an honestly held (albeit erroneous) belief about abuse, based on children's vague descriptions or symptoms; the parent's own abuse history, their poor view of the other parent, and lack of a trust relationship between parents may well contribute to the unfounded belief that abuse occurred. It is worth noting that many of the unfounded post–separation allegations of child abuse are made by non–custodial fathers against custodial mothers or their new partners (Johnston et al, 2005).
In some cases, the accusing parent holds erroneous beliefs of child abuse so strongly that the accusing parent will reject independent professional opinions refuting the allegations. In these cases, courts and community service providers have to manage their limited resources to ensure repeated assessments and the litigation process are not harming the children. If the accusing parent is the custodial parent, the family court may be faced with the dilemma of whether to accept that parent's reality if the children are strongly bonded to them or risk disrupting the attachment with the primary caregiver in favour of the noncustodial parent. The fact that a parent continues to hold unfounded beliefs about child abuse perpetrated by the other parent in the face of clear refutation by investigating professionals may be symptomatic of serious emotional problems.
5.4.1 Interim hearings / temporary orders
Once credible information is brought to the court's attention, an interim plan or temporary order has to be put in place. This plan is often based on minimal or conflicting information, but should be guided by concern over child and parental safety. The plan has to be time–limited to avoid jeopardizing the children's relationship with the alleged perpetrator in the event that the allegations are unfounded or based on misunderstanding. A complicating factor in family proceedings is that there may be parallel court proceedings in the child protection arena or criminal court. For example, allegations of spousal violence may lead to an arrest and a bail release condition forbidding contact with the partner or children. If there is some evidence about abuse and a lack of sufficient information to establish whether or not there are legitimate safety concerns, an interim supervised access arrangement may serve a dual purpose of protecting alleged victims from potential threat, and also protecting falsely accused perpetrators from further allegations. A more permanent arrangement could be made after father information is gathered. Figure 8 depicts this dimension of timing of disclosure / stage of proceeding as an additional consideration.
5.4.2 More permanent orders / reviews
If the abuse allegations are proven to be founded the court should require extensive information about the parents and children as well as the resources needed for rehabilitation and safe contact. These court orders are often intended to be indefinite, but there should be provisions for ongoing judicial review or monitoring to deal with changing circumstances, such as children's maturation, parents' compliance with and benefit from treatment regimes, and new adult partners. Although the courts may value settlements and closure as opposed to ongoing litigation, complex cases involving family violence require monitoring and possibly long–term involvement by the court or court–related services
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