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

Executive summary

This paper was written to assist policy makers and practitioners in dealing with the difficult issues that arise in making appropriate post–separation parenting arrangements in cases where there are family violence issues. There has been a movement in Canada and elsewhere to cease using the traditional legal concepts of "custody" and "access," which tend to promote a "winner" and "loser" mentality, and to start using concepts such as "co–parenting" and "parenting time" and such tools as "parenting plans" to facilitate the making of cooperative arrangements. However, cases in which there are family violence issues demand a different approach, one that recognizes the need to promote safety and accountability.

In the majority of cases involving separating parents, cooperative co–parenting arrangements are the ideal because these arrangements maximize children's ability to have the best of what both parents offer. At the same time, there is an extensive literature on "high–conflict" divorces, which focuses on couples that are unable to resolve their disputes without extensive court involvement. Within this high–conflict group, family violence allegations are present in the vast majority of cases (Jaffe, Austin, & Poisson, 1995; Johnston, 1994). Assessing the validity and context of these allegations provides a critical basis for appropriate post–separation parenting arrangements. In cases where there are findings of family violence, it may be appropriate for one parent to have more limited, supervised, or no contact with the children because of the potential harm they present to the children and the non–offending parent.

This document is based primarily on a literature review of the areas of family violence, child custody and access disputes, and high conflict divorce. In addition, several leading researchers in the area were contacted with the request for copies of articles that are in press, in order to benefit from the most up–to–date materials. The family violence literature was applied to the area of child custody and access within the context of the first author's extensive experience as an assessor, mediator, researcher and educator in the area. Finally, a draft of this document was circulated to several leading social science and legal researchers for feedback and input to increase its utility.

Six main findings emerged from this literature review and analysis. These findings are:

  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 co–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 into account the timing of family violence disclosures, the investigative process, and the availability of 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.

These findings suggest the need for a range of parenting arrangements, including co–parenting, parallel parenting, supervised exchange, supervised access, and no contact. The descriptions, indicators, contra–indicators and considerations for each of these are covered at length in this paper together with case examples. The highlights of the indications and contra–indications are as follows:

Co–parenting. Co–parenting arrangements consist of both parents working cooperatively to make collective decisions, typically within a joint custody framework. Co–parenting requires two parents who are able to maintain a civil and child–focused relationship post–separation. Co–parenting is contra–indicated by high conflict and/or a history 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 could also contra–indicate a co–parenting arrangement.

Parallel Parenting. 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. A joint custody or sole custody framework may provide the context for parallel parenting. 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.

Supervised Exchange. 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. 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 an 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 minimize the risk of violence to a spouse if there are ongoing concerns about safety of children and their primary caretaker.

Supervised Access. 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 fears a parent, for example because of having witnessed that parent perpetrate abuse or because of having been abused by that parent. 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. 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.

No Contact. In extreme cases where a parent presents an ongoing risk of violence to the child or other parent, emotional abuse to the child, or abduction, no meaningful parent–child relationship is possible. 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. No contact would be contra–indicated when there is a solid foundation of a parent–child relationship and there is a demonstrated commitment to re–establish this relationship.

Three other factors are identified in this paper to provide critical context for considering these various parenting arrangements. First, the context of the violence is an important factor. For example, violence that was more severe, accompanied by a pattern of power and control, engendered fear, and was part of an ongoing pattern indicates the need for more restrictive access than historical, minor, isolated incidents of violence that were out of character for the perpetrator. Second, decisions about parenting plans are predicated on the resources available to the family within their community. For example, safe access to the parent that has perpetrated family violence may depend on successful therapeutic interventions and access to a specialized access centre. Third, the stage of the court proceeding has implications for evaluating allegations of family violence. For example, interim decisions based on minimal information may underscore the importance of initial safeguards pending a more thorough analysis of possible findings or court ordered assessments.

On the basis of our analysis, several policy and resource development implications emerge. 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 by the perpetrator to the children may be appropriate. A second implication is that resource and policy development is needed to support a more sophisticated analysis and response to family violence cases.

Specific protocols are required to guide practitioners in managing cases with family violence allegations raising child safety issues addressed by both public laws (i.e. triggering criminal or child protection proceedings) and private family law. Family courts rarely have the resources beyond parenting education and mediation services, and these more complex cases require a more sophisticated set of resources. These resources include: timely access to specially trained assessors with expertise in family violence; supervised access centres; treatment resources for individual family members (including perpetrators, victims, and children); and ongoing court monitoring which may be needed in cases of child–related disputes with histories of family violence. There must also be better coordination between the family court system, and police, prosecutors and the criminal justice system. A special challenge for the justice system and community social services occurs in cases when there are simultaneous family law, child protection, and criminal proceedings.

Building systemic capacity also requires education and training for court–related professionals (e.g., mediators, child custody assessors). Training programs have to be available to help court–related professionals recognize family violence in all its forms, and to permit them to provide differential service responses to meet the level of need in an individual family. When spousal violence is recognized, there needs to be a distinction between minor, isolated acts, and acts that occur as part of a pattern of abuse which engenders fear and poses a risk of future harm for family members.

Finally, there are significant gaps in the existing research that limit our ability to fully understand the dynamics of these cases and identify best practices. Specifically, there is a lack of long–term follow–up studies to match children's adjustment with specific arrangements post–separation within the context of family violence. In addition, most research has been conducted with families in the formal judicial system, and less is known about the future outcomes of those who are unwilling or unable to engage this system. Research in the divorce area has been criticized for looking at the outcome of biased samples. For example, deciding that joint custody is good for everybody because research shows children do best after divorce with cooperative parents, belies the fact that most of the research is based on a biased sample of couples who were able to readily resolve conflict and did not involve serious allegations of domestic violence.

A starting point for an enhanced understanding is a better integration of the divorce literature and the family violence literature; these two literatures have largely developed independently of each other, reflecting the separate professional lives of practitioners and researchers in these two related fields (Jaffe, Poisson, & Cunningham, 2001). The high conflict cases involving family violence represent a minority of all separating parents. Leading experts in the field have pointed out that these cases should not be guided by the literature and policies that are applicable to those parents not involved in cases with family violence issues (Johnston, 1994). Our goal in this document is to assist policy makers and practitioners to apply the appropriate literature and policies to these difficult cases.