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

1.0 Introduction

Interest in legislation and practice in resolving post–separation parenting disputes has never been higher in Canada. While the divorce rate has increased dramatically compared to previous generations, parental desire to be part of their children's lives has not changed. Traditional gender roles have evolved as more individuals seek equality in their relationships. In fact, current generations of fathers have been more actively involved in the day to day care of children (Fthenakis & Kalicki, 1999) and current generations of mothers have been more actively involved in the workforce compared to previous generations of parents (Zimmerman, 2000). Old presumptions and stereotypes about the role of mothers and fathers during marriage and after separation are gradually disappearing. Based on recent Canadian Parliamentary hearings and a zeitgeist that exists all over the Western world, separating parents are being encouraged to put their differences behind them and focus on the best interests of their children as co–parents. There appears to be a widespread movement to abandon the concepts of "custody" and "access."

At the same time, Canadian society is more aware of child abuse and spousal violence (together these terms are referred to as "family violence"). There is widespread acknowledgement that family violence is a serious social problem that demands effective intervention by the court and community services. Recent inquests across Canada and notably the work of the Ontario's Domestic Violence Death Review Committee provide reminders that tragedies often appear predictable, and preventable with better training, more resources and closer professional collaboration. Many of these tragedies involve separating parents who place both their victimized children and former spouse in danger of significant harm and death. These cases are reflective of a broader population of parents for whom co–parenting is not only inappropriate, but also potentially lethal.

The two realities outlined above—growing support for co–parenting and growing awareness of family violence—are on a collision course when it is time for courts and court–related professionals such as lawyers, mediators and custody assessors to assist parents in settling their differences about post–separation parenting arrangements. While the majority of separating parents may be able to work out a co–parenting (joint custody [1]) plan, those parents with a history of family violence may need different resolutions. These resolutions may involve limited, supervised or no contact with children, depending on safety concerns for children as well as the non–offending parent. Some advocates of co–parenting argue that most of the parents who raise concerns about family violence are making false or exaggerated claims of abuse to further their desire to not share their children. There are legitimate issues related to proof of claims, but it should be appreciated that denial and minimization of abuse by genuine abusers are more common than false or exaggerated claims of spousal abuse by alleged victims. The need for proper assessment and investigation into all claims is essential to ensure that appropriate parenting arrangements are matched to each family system.

The search for ideal co–parenting arrangements after separation and the search for child and parent safety and accountability after family violence represent two solitudes. The purpose of this report is to start to bridge the gap between these two solitudes. This discussion paper represents an important starting point in addressing this gap. The paper offers a review of the current literature on the impact of family violence on children's adjustment and the implication for parenting arrangements in these circumstances. The paper offers a model of how to consider findings of family violence in child custody and access disputes, and how to appropriately match post–separation parenting arrangements to needs of children and their caregivers. The critical role of court–related resources, training and collaboration amongst professionals in the field is addressed.

1.1 Methodology

This document is based primarily on an extensive literature review of the areas of family violence and post–separation child–related proceedings. In addition, several leading researchers in the area were contacted with a request for copies of articles that are in press, to obtain the most up–to–date materials (see Acknowledgements for list of experts). The family violence literature was applied to the area of child–related disputes within the context of the extensive experience of the first author (Peter Jaffe) as an assessor, educator, and researcher in the area. Finally, a draft of this document was circulated to several leading social science and legal and researchers for feedback and input to increase its utility. Although many of their comments were integrated into this report, the final product reflects the views of the authors and may not capture particular perspectives raised by some of the experts.

1.2 A Guide to the Report

This report is divided into sections that provide an overview of the literature on family violence followed by sections on post–separation parenting arrangements in cases involving family violence. The reader is provided with a model for a paradigm shift in regards to assessment and intervention strategies in cases of family violence and child–related parental disputes. A model for best practice is outlined in the text together with a summary diagram to illustrate the host of factors to consider in matching parenting arrangements to families in which violence is a factor. The implications for policy, legislation and practice in the family court and court–related services are outlined in the concluding section.

[1] The terms co–parenting and joint custody refer to a broad array of parenting arrangements that may vary with respect to the amount of time spent with each parent and the actual process for decision–making. In general, this range of arrangements shares the common feature of significant involvement from each parent and cooperation, or at the very least the absence of conflict, between parents. Although joint custody is often misunderstood as a 50/50 residential split, in many cases the term is utilized to capture the spirit of parental cooperation or the avoidance of a winner–loser mentality, and in reality one parent may have the vast share of both residential time and day–to–day decision–making. Many jurisdictions have dropped the term "custody" in favor of "parenting arrangement" and "residential parent", and similar changes have been proposed in Canada—under the former Bill C–22. However these changes have not been enacted and the Bill died on the Order Paper in November 2003. Alberta did proceed to amend provincial legislation to make it broadly consistent with the proposed federal changes; the new Alberta Family Law Act is scheduled for implementation October 1, 2005.