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

3.0 Parenting arrangements in cases involving spousal violence

3.1 Why is Spousal Violence Relevant to Post–Separation Parenting Arrangements?

A finding of child maltreatment has long been recognized as a critical factor to consider in determining post–separation parenting arrangements and possible child protection intervention. The child protection movement has a long history of debating the role and threshold for state intervention and promoting safe contact with formerly abusive parents whenever possible. In contrast, it has largely been only within the last decade that legal and mental health professionals have acknowledged that spousal violence is relevant to the determination of child custody and access. Prior to this time, spousal violence was seen as an adult issue not relevant to the best interests of children, and it was believed that a man could be a violent spouse but could still be a "good father." Many groups have challenged this notion and encouraged legislative reform to recognize spousal violence as a critical factor to consider in these cases (e.g. National Council of Juvenile and Family Court Judges, 1994; American Psychological Association, 1998; Bala et al., 1998).

There have been very significant legislative changes in the USA, Australia and New Zealand to reflect spousal abuse concerns in post–separation parenting (and the accompanying challenges) (Jaffe & Crooks, 2004). Major program initiatives have been undertaken such as the US Department of Justice's Safe Havens Project, which provides funding and technical assistance for supervised visitation in cases of spousal violence, and new guidelines for judges in utilizing custody evaluations in cases that involve spousal violence (Dalton, Drozd & Wong, 2004). In Canada, with the exceptions of Newfoundland and Labrador, the Northwest Territories and Nunavut, there have not yet been changes in post–separation legislation to deal adequately with spousal violence; however, there have been changes in programs and policies in Canada that reflect a growing awareness of this issue (Bala et al., 1998; Jaffe & Crooks, 2004).

The rationale for legal, policy and program changes that include spousal violence as a relevant factor in determining the appropriate post–separation parenting arrangement is the following:

  • Spousal abuse often does not end with separation. Research has shown that physical abuse, stalking and harassment continue at significant rates post–separation, and may become more severe (Hotton, 2001; Statistics Canada, 2001; Liss & Stahly, 1993). In fact, promoting contact between children and a violent ex–spouse may create an opportunity for renewed spousal violence through visitation and exchanges of children (Leighton, 1989; Sheeran & Hampton, 1999; Jaffe, Crooks, & Poisson, 2003). While in a majority of cases (e.g., common partner / interactive violence) the incidence and risk of violence decreases after separation, in a significant minority of cases the intensity and lethality of spousal violence increase after separation.
  • High overlap between spousal violence and child abuse. The presence of spousal violence is a red flag for the co–existence of child maltreatment. In a review of studies investigating this overlap, results suggested that between 30% and 60% of children whose mothers had been assaulted by their male partners were themselves likely to be abused (Edleson, 1999), by the male partner.
  • Perpetrators of spousal violence are poor role models. Children's socialization with respect to relationships and conflict–resolution is negatively affected by exposure to a perpetrator of spousal violence. For example, when children witness one parent assaulting the other, or using threats of violence to maintain control within a relationship, their own expectations about relationships may come to parallel these observations (Bancroft & Silverman, 2002). The potential for violence in the subsequent intimate relationships of a spousal violence perpetrator represents a threat that children's exposure to poor modelling will continue.
  • Victims of spousal violence may be undermined in their parenting role. Perpetrators of spousal violence may undermine their (ex)–partners' parenting in a range of obvious and more insidious ways (Jaffe & Crooks, 2005). For example, male perpetrators may blame the children's mother for the dissolution of the family, or even explicitly instruct the children not to listen to her directions (Bancroft & Silverman, 2002). Intervention with these fathers requires that this facet of their parenting be addressed; fathers need to both recognize the ways in which they undermine their children's mothers and commit to stopping these behaviours (Scott & Crooks, 2004).
  • Perpetrators may use litigation as a form of ongoing control and harassment. The family court litigation process can become a tool for batterers to continue their abusive behaviour in a new forum (Jaffe et al., 2003a). Litigation exacts a high emotional and financial price for abused women already overwhelmed with the aftermath of a violent relationship. Some authors have suggested that some batterers have the presentation and social skills to present themselves positively in court and convince assessors and judges to award them custody (Bowermaster & Johnson, 1998; Zorza, 1995). In many cases, perpetrators are self–represented, heightening the possibilities for abuse through berating a former partner in cross–examination.
  • In extreme cases spousal violence following separation is lethal. Spousal violence and homicides are inextricably linked. National figures from the Canada and the US suggest that women are at a greater risk of homicide from estranged partners with a prior history of spousal violence than while they remain in an intimate abusive relationship (Fox & Zawitz, 1999; Statistics Canada, 2001; Websdale, 2003). The growing literature linking spousal violence, separation and homicide has raised awareness of the need for prompt police reaction and careful investigation of post–separation violence and stalking. To assist with this work, risk assessment tools have been developed (Campbell, 1995; Campbell, Sharps, & Glass, 2001). There have been many advances in Canadian research and practice in this area, including the work of Kropp and his colleagues in British Columbia, who developed the Spousal Assault Risk Assessment (SARA; Kropp, Hart, Webster, & Eaves, 1994; Kropp, Hart, Webster, & Eaves, 2000) and the ODARA (Ontario Domestic Abuse Risk Assessment) developed by researchers in Ontario (Hilton, Harris, Rice, Lang, Cormier, & Lines, 2004). In these extreme cases, children may become involved as witnesses to homicides or become homicide victims themselves (Websdale, Town, & Johnson, 1999). Child abduction represents another traumatic outcome in these cases, which represents a batterer's ultimate desire for control after separation and punishment of his ex–partner.
  • Spousal violence may negatively affect the victim's parenting capacity. Victims of spousal domestic may experience depression, low self–esteem and substance use difficulties, all of which can compromise their parenting. However, for many of these parents, separation from the perpetrator of spousal violence may lead to improvement in both general functioning and parenting. During the court process, these parents may present more negatively than they will in the future, once the stress of the proceedings and life change has attenuated (see Jaffe & Crooks, 2005 for review).

In summary, spousal violence is an important area of inquiry in addressing post separation parenting arrangements. A history of spousal violence demands a unique analysis. Legal and mental health professionals need a paradigm shift to view the information and competing allegations in the determination of a child's best interest. In the face of a real threat, a mother who lives in fear of her ex–partner is not paranoid, nor may it be appropriate for her to promote a paternal relationship.

Although the vast majority of separating parents do not need many legal resources to make their post–separation parenting arrangements, parents who have experienced spousal violence require greater resources and more support. When parents express concerns about their safety and their children's safety, the issue must be closely examined.