Speaking for Themselves: Hope for Children Caught in High Conflict Custody and Access Disputes Involving Domestic Violence[1]

Jean Dunbar, Sarah Fotheringham& Dale Hensley QC

The Speaking for Themselves (SFT) project sought to enhance the physical, emotional and psychological safety of children exposed to domestic violence and high conflict custody and access disputes. Children were provided with both a trauma therapist and a lawyer, in an attempt to ensure their well-being while providing decision-makers with reliable and authentic information about these children’s circumstances: an attempt to balance the “best interests” approach applied in family law decision-making with the value placed on a child’s right to be heard, an approach espoused by children’s rights advocates. This article presents the SFT philosophy, model program and evaluation results.

Keywords:high conflict; custody and access; parenting; domestic violence; best interests; children’s rights, interests, and viewpoints

INTRODUCTION

Children exposed to their parents’ high conflict custody and access disputes involving domestic abuse[2], experience significant trauma, including stress, depression, social isolation, academic challenges, suicidal tendencies, aggressive behaviour, and self-harm (Bream & Buchanan, 2003; Dalton, Carbon, & Olesen, 2003; Jaffe, Crooks, Poisson, 2003; Kelly & Emery 2003). Decisions about these children’s residency, custody and access/parenting or visitation[3], are frequently made in the context of the family law system and therefore involve lawyers, courts and judges. Often such decisions are made with insufficient information about the childrenand the dynamics of domestic violence with few supporting resources for families. Judges and others involved in the legal system are frequently faced with a contest between parents, “he said/she said” situations, with little focus on the welfare of the children or the added dimensions of power, abuse and control. The decisions in these multi-layered and complex cases are often not beneficial to the children (Hensley & Dunbar, 2011, p. 225).

Professionals working with these families are often challenged and frustrated. Counsellors struggle with providing the necessarysupport, guidance, information and advocacy for children whose parents are in bitter family law disputes. Lawyers working with these children often do not have sufficient resources, reliable information, or appropriate skills to provide adequate legal and social support to the children. Typically, children’s best interests become buried in the rhetoric of parents’ statements and positions and, as a result, those involved in family law litigation and systems often have little information and therefore have insufficient regard to the true circumstances and needs of the children trapped in these situations(Hensley & Dunbar, 2011, p. 226).

There are no easy solutions to these legal conflictsand disagreements have developedinmany jurisdictions as to how to manage and resolve the disputes and how best to assist and support the children in these families. Should services for children take a “best-interests” approach, reflecting an adult’s opinion of conditions that will promote a child’s development, well-being and safety, but not necessarily including consultation with the child or reflecting the child’s perspective? Or, should an advocacy approach prevail, whereby a child’s perspectives, opinions, interests and right to be heard are respected and promoted, but which may not address a child’s best interests and, some argue, could therefore result in harm to the child? Can both objectives be served? This article describes the Speaking for Themselves project, which sought to integrate both approaches by offering both therapeutic counselling and legal representation for children enmeshed in their parents’ bitter and adversarial parenting disputes in which domestic abuse or allegations thereofwere also present (Hensley & Dunbar, 2011, p. 226).

literature REVIEW

Domestic Violence

Domestic violence remains one of the most complex and challenging social issues of our day. Despite positive developments in practice and policy, domestic violence continues to be an extraordinarily prevalent and unique social issue in which one’s gender plays a key role. Statistics Canada (2011) reports that, while self-reported incidents of domestic violence remain relatively equal between genders (6% of Canadians in the last five years), police-reported data do not reflect this trend. In 2008, over 40,000 incidents of domestic violence were recorded by police departments across the country, with women victimized in 83% of cases (Statistics Canada, 2009).Women are more likely to be injured, experience multiple victimizations, and endure more severe forms of violence such as sexual assault, choking and threats with a knife or gun (Statistics Canada 2011). Furthermore, women continue to be at greater risk of homicide by their male partner – up to four times higher; a finding that has been consistent for 30 years (Statistics Canada, 2011).

Children, once thought to be silent, unaffected observers and passive bystanders in situations of domestic violence, are also significantly impacted both as witnesses to parental violence and as direct victims of abuse or neglect. The Canadian Incidence Study of Reported Child Abuse and Neglect (2008) reported that neglect (34% or 28,938 children), exposure to domestic violence (34% or 29,259 children), and physical abuse (20% or 17,212 children) were the three most common forms of substantiated child maltreatment in Canada (Public Health Agency of Canada, 2010). The impact of living in such a home environment can be particularly detrimental because children are dependent on their parents for protection, emotional and physical safety, nurturance and well-being (Holt, Buckley, & Whelan 2008; Osofsky, 2003; Spilsbury et al., 2007). When parents fail or are unable to protect and nurture their children, children can become extremely anxious, distressed, frightened, and physically and/or emotionally injured, impacting both short and long term outcomes (Kitzmann, Gaylord, Holt, & Kenny, 2003; Levendosky, Huth-Bocks, Semel, & Shapiro 2002; Holden, 2003; Holt et al., 2008; Margolin & Vickerman, 2007; Osofsky, 2003).

Neglect, abuse and witnessing domestic violence burden children with acute and chronic traumatic stress which research demonstrates, weakens the biological structure of the developing brain, affecting learning capacity, and physical and mental health (Anda et al., 2006; Perry & Hambrick, 2008; Shonkoff, 2009). The longer term impact of these violent circumstances can affect children’s developmental outcomes over the course of their lives resulting in challenges with addiction, violence, mental health, and physical illness (Felitti, 2009; Perry, 2006).

Despite the obvious impact of domestic abuse on women and children, many women find it difficult to leave their abusive partners. Among the reasons cited are fear of increased violence, fear of losing children through custody disputes or to child protection agencies, embarrassment and shame, lack of emotional support, and/or lack of affordable housing and financial stability (Tutty, 2006). Yet, for many women who do leave their abusive partners, the abuse does not end on separation. In fact, domestic abuse, both lethal and non-lethal, often increases during separation and divorce as the abusive partner becomes more desperate for control (Brownridge et al., 2008; Brownridge, 2006; Doyne et al., 1999; Jaffe, Crooks, & Bala, 2008). Common experiences for women following separation from abusive partners include threats of physical harm and/or child abduction, financial abuse (i.e. restricting or removing access to funds or child support) (Jaffe, Crooks, & Poisson, 2003) as well as sexual assault, stalking and homicide (Statistics Canada, 2001). The Canadian Centre for Justice Statistics reports that approximately one quarter of abuse victims (24%) indicated that the abuse became more severe after separation and for an additional 39% the abuse started only after separation (Statistics Canada, 2001). Other Canadian studies have demonstrated similar results. In a nationally representative sample of 7,369 women, separated women reported being victims of domestic abuse nine times more frequently than married women (Brownridge, et al., 2008).

Separation however, is but one risk factor for increasing levels of violence against women. In a review of the post-separation divorce literature, Brownridge (2006) concludes that the presence of children is another. According to Brownridge, the presence of children poses a risk factor for continued and increasing levels of abuse after separation in four important ways: 1) when abusive men use custody and access as a means to maintain power and to punish their ex-partner; 2) when men feel their former partner is obstructing access (often in the context of unpaid child support); 3) in access and visitation situations which usually increase contact between the parents and provide opportunities for on-going abuse; and, 4) when children are used as a tool for violence through threats of harm or abduction. Others have drawn similar conclusions (Elrod, 2002; Jaffe et al., 2003).

Domestic abuse, separation and the presence of children often create high risk situationswhich then come before the courts. The courtroom and litigation procedures are inherently competitive and adversarial, providing opportunity for ongoing control and abuse (Dalton, Carbon & Olesen 2003; Kelly, 2002). Moloney (2006) articulates how this adversarial process “model[s] inappropriate ways of dealing with postseparation conflict...[through] denigration of the other parent and a win-lose mentality” (p. 42). In litigation interparental conflict is greatly increased rather than dissipated. Former partners, who are abusive, are able to exert ongoing control and harassment and continued emotional and psychological abuse through contesting custody arrangements with the intent to punish or hurt their former partners and their children (Doyne et al., 1999; Elrod, 2002; Jaffe et al., 2003). Research demonstrates that this continued abuse and violence during separation and divorce, as well as the lengthy and protracted processes and an adversarial approach to resolution, are critical predictors of child maladjustment (Ayoub, Deutsch, & Maraganore, 1999; Bream, & Buchanan, 2003; Doyne, et al., 1999; Elrod, 2007; Elrod, 2002; Grych, 2005; Kelly, 2000; Lansford, 2009; Moloney, 2006). Sample data collected from detailed mental health evaluation reports of 105 children who were involved in visitation and custody disputes, found that level of marital conflict, abuse against partner and child, parent’s mental health and changes in visitation significantly contributed to a child’s emotional distress (Ayoub, Deutsch, & Maraganore, 1999).

Domestic Abuse & High Conflict Custody & Access in Court

A significant problem in attempting to work in both the areas of high conflict custody and access disputes and the domestic abuse is the divorce (custody) literature has developed separately from, and often in conflict with, the domestic violence literature (Doyne, et al., 1999; Jaffe et al., 2003). The divorce literature emphasizes both the benefit to children of co-parenting in which both parents maintain a relationship with their children and the negative impact on children of inter-parental conflict (Birnbaum 2006). In contrast, the domestic violence literature is concerned with co-parenting fraught with conflict and abuse, as it damages children emotionally, physically and increases their risk of harm (Jaffe et al., 2008; Perry, 2006; Perry & Hambrick, 2008). The divorce literature, often without regard to situations of abuse, encourages parents to promote positive relations with the other partner which may, in a domestic violence situation, put them and their children in serious danger (Doyne, et al., 1999). Jaffe et al. (2008) summarize this state of affairs:

Part of the problem lies in the philosophy of the Family Court, which encourages parents to resolve conflict by putting the past behind them…while this approach is appropriate for the non-violent majority, it is often contraindicated for abuse victims…the growing support for co-parenting and the growing awareness of domestic violence are on a collision course when it is time for Family Court (p. 255).

As a result of this rift and divergent approaches and vision, the significance of domestic violence is often overlooked or minimized in family law litigation and court systems (Jaffe et al., 2003). While there is some evidence of this changing, including increased understanding of the effects and risks of harm of domestic abuse on children, too often family law professionals still fail to appropriately respond to indications that they are dealing with a domestic abuse situation and consequently children are endangered (Shaffer & Bala, 2004). In response to the minimization of domestic violence and the risk to children, many have called for greater involvement of children in the family court system (Birnbaum, 2006), representing what has been labelled as the “children’s rights” perspective. Others oppose this stance however, supporting instead the traditional “best interest” approach.

In an extensive review of the literature for the Department of Justice Canada, Birnbaum (2009) outlines the debate. According to Birnbaum’s review, children’s’ rights advocates believe children should be entitled to participate in decisions that affect their lives. With supporters such as Elrod (2002 & 2007) and Boshier and Steel-Baker (2007) arguing that children’s right to participate in decisions affecting their lives is foundedon the value of human dignity. This value is upheld by the United Nations Convention on the Rights of the Child which is grounded in the belief that children are not property;they are human beings with agency and rights, and these rights must be respected for children to develop to their full potential (Unicef, 2008). Article 12 of the United Nations Convention specifically addresses children’s right to be heard in decisions affecting their lives. In effect article 12 says that “when adults are making decisions that affect children, children have the right to say what they think should happen and [commensurate with their age and maturity] have their opinions taken into account in decisions affecting their lives” (Unicef, n.d.). This perspective and accordingbasic fairness to the individual most affected by the decisions are motivators of children’s rights supporters in the context of family law disputes.

Others who support the children’s rights perspective, contend that many children want to be involved in decisions that affect them (Cashmore & Parkinson, 2007; Low & Murch, 2001; Douglaset al.,2001) and that their involvement can work as a protective or mitigating factor against the harm of high conflict disputes by enhancing self esteem, increasing a sense of personal control and thus, enhancing resiliency (Boshier & Steel-Baker, 2007; Kelly, 2002; Douglas et al., 2001; Douglas, Murch & Perry, 1996).

Children’s rights advocates nonetheless, support various means of involving children in the family court process including the use of legal counsel representing children, child interviewers and child specialist coordinators (Boshier & Steel-Baker, 2007; Birnbaum, 2009; Hensley,2006; Moloney, 2006; Elrod, 2002). Such measures can bring the voice of the child forward, as Birnbaum (2006) argues, rendering the child “visible” in a process where they have been historically “invisible”. The argument for child legal representation is one of the most common themes of children’s rights supporters. Birnbaum (2006) summarizes how this approach has been implemented in Ontario primarily through the Office of the Children’s Lawyer:

The lawyer acts as a broker for the child and advocates the child’s interests so that they may be understood and communicated not only to the parents but to the court as well. Children do not “instruct” their lawyer. Rather, the lawyer conveys the child’s wishes and views by providing context to those wishes and views to the family and the court. It is the context that allows the child’s lawyer to present all the information that has been gathered through interviews with parents, significant caregivers, relatives and other professional sources, as well as the child’s views and wishes (p. 287).

Birnbaum and Moyal (2003) suggest the Ontario model is effective as clinicians and lawyers collaborate, with each discipline informing the other and providing a strong voice for the child, rather than separate legal representation or separate clinical assessments (Birnbaum & Moyal, 2003).

Those who do not support the children’s rights perspective, oppose children’s involvement in family litigation and argue that research supporting the benefits to children of such involvement is weak. Warshak (2003) declares his opposition on the grounds that direct involvement risks the emotional well-being of children. He argues that children may not know what is best for them and that they are easily pressured and manipulated by warring parents. Emery (2003) elaborates on this position by arguing that giving children too many rights creates an emotional burden and in essence shifts that which is an adult responsibility onto the shoulders of children.

A “best interest” approach is preferred by many who do not support the children’s rights perspective. The “best interest” approach is the traditional approach to custody and access/parenting decisions in which adults make decisions on behalf of children often independent of the children’s views and opinions. The overriding assumption is that the needs and well-being of children can be fairly and adequately determined by adults (Birnbaum, 2009). This is the approach to custody and access/parenting decisions which continues to dominate Canadian family law legislation and case law (Birnbaum, 2006). Not surprisingly, however, the best interests approach is also criticized by domestic violence experts, as it raises many ethical and safety issues, for example when custody of children is awarded to persons who have battered their partner and potentially exposed their children – something domestic violence experts would clearly argue is not in a child’s best interest (Doyne, et al., 1999; Jaffe et al., 2008).