Sanctuary for the Abused
Wednesday, December 21, 2016
On Abuse, Shared Parenting, & the System
By Debbi Callander, Martin Dufresne, Janet Menezes and Ellen Murray
1. What is Joint Custody?
EM: The essence of custody is authority to make decisions about important issues for a child such as medical care. If custody is "joint", two or more persons share this authority. Joint custody does not mean that a child lives 50% of the time with each parent. The difference between sole and joint custody is not as stark as it may appear. Even a parent with sole custody can be limited in the decisions she can make (visiting times or non-removal from the jurisdiction can be specified by a court order). Furthermore, a parent with access rights is entitled to receive information from a child's school, doctor, and other important service providers.
There are variants of joint custody. With "full" joint custody, parents discuss and agree upon all important issues about a child. Their separation agreement will often provide that if here is disagreement they will mediate, with an option to go to court if disagreement persists. However, some joint custody agreements state that if there is disagreement after consultation that one parent (usually the "primary" parent with whom the child lives most of the time) can make the decision.
The Senate Committee has recommended that the Divorce Act be amended to remove the language of custody and access and instead require all divorcing parents file a "parenting plan". A "parenting plan" is an imprecise concept. It usually means a plan that sets out parenting rules (e.g., "The children will continue to attend Ryerson Public School.") and a dispute resolution process (e.g., mediation). However, it can simply set out the child's residential schedule and specify which parent shall make decisions if parents disagree.
2. What is mediation?
EM: Mediation is a process of dispute resolution. A mediator helps parties structure their discussion, consider alternatives and focus on mutually agreed-upon goals. A mediator does not have the power to make the decision for the parties if they do not agree. Mediation is not a regulated profession in Ontario. Anyone can call herself a mediator. However, there are training programmes and professional organizations for mediators.
Before mediation begins, the parties will sign a contract that sets out ground rules. It will specify whether mediation is open or closed (whether if mediation is unsuccessful, the mediator can give evidence in court about what was said in the process). Usually mediation is conducted between the parties without each party's lawyer being present. Mediation is not a substitute for legal advice. A woman should get legal advice before she mediates, so she knows what her legal rights are before negotiating.
3. What is your opinion on mandatory joint custody and parenting plans: Is joint custody a viable alternative for abused women in custody and access disputes? Why?
DC: The success of joint custody depends on key factors that are absent when there has been a history of abuse:
- Each party must be confident enough to have an equal say in decisions made for the children. When there has been abuse, the balance of power will never be equal.
- Joint custody requires ongoing communication between the parties. Abusers exploit this to harass their former partners.
- The abuser knows joint custody means that every significant decision for children needs to be discussed and resolved. He can exploit this too, to force the woman to continue to engage with him.
- The chances of escaping a violent relationship depend on the least possible contact with the abuser, reducing the risk of coercion to reconcile.
- Whether or not an abuser harms the children directly, witnessing violence against their mothers is an abuse of children in itself. The courts tend not to give this harm enough, if any, weight.
MD: Mandatory joint custody, quietly implemented everywhere, is a creation of the divorced men's lobby. Their goals: bring the State onside, terminate child support obligations, re-establish male control over women beyond separation and divorce, smear ex-partners as abusers, and generally make divorce a horrifying ordeal for the women they want to "punish." They aim their "rights" at children's best interests and at any entitlement and resources for primary caregiving parents. Any mandatory scheme will be especially hurtful for abused wives and children. Rebutting pro-Father presumptions is already proving an impossible burden, imposed on the most vulnerable parties. Wife battering will be swept under the carpet, or men will use so-called "therapy" or the promise thereof to trivialize past assaults and claim reform.
JM: This question is very difficult. To split children between parents is sometimes unfair to the child. How does the child benefit? There are some factors to take into consideration — school, friends, familiarity, and environment. When a Judge makes a ruling on behalf of the children to spend equal time with both parents this could have a negative impact or positive impact. When a woman leaves an abusive husband and still has to have contact with him because of the joint custody there are and can be a number of reasons it doesn't work:
1) The abuse could still continue;I originally wanted joint custody but now I am thankful that I did not get it. Because of my broken-ness, my husband could have used anything against me if I did not comply with the conditions of joint custody. This would also give him a reason to call me...contact me...control me...and because of the emotional abuse, I don't believe I could have handled the turmoil.
2) The Father could abuse the privileges and not follow Court Orders — conditions in various Peace Bonds or Undertakings;
3) The difficulty this brings is too complex, for the children, the Mother, the School, the Courts, the police, the Probation Officer;
4) The children may not want it — they should be considered first of all, especially if they are old enough to understand; and
5) Men who abuse their partners can and will use children to control many situations, privacy, for one.
4. What are the pros and cons of mediation for abused women?
DC: Mediation does not work or breaks down when there is a history of abuse. Yet women agree to it because they fear costs will be assessed if they hold things up.
Tactics that corrupt mediation are not always apparent, like a certain look or gesture that will silence the partner.EM: A basic premise of mediation is that it involves two parties who can recognize his/her interest and bargain as equals to reach an agreement. A woman leaving a violent relationship fears abuse, and develops strategies, including compliance, to avoid it. Some abused women wish to mediate. Mediation can — in some circumstances—be quicker, less expensive and less traumatic than court action. If I had an abused client who decided to mediate despite the problems involved, I would recommend that the lawyers take an active role in the negotiation.
Even when parties are in separate rooms, messages are transferred in language that is meaningful.
Victims are seasoned outside mediation not to challenge the abuser's agenda.
Mediation tempts victims to "compromise" needs and rights away to get it over with.
JM: Mediation is not suitable for women that have gone through abuse. The abuser's control can easily take over. I was frightened of my husband and would agree to almost anything he wanted. His overall body language scares me. It certainly would not be to my advantage to engage in this. I am afraid to see him, to hear him speak even when a mediator is present. I would be afraid that the mediator would not understand this or pick up on it. This information becomes defused when it is portrayed as a non-threatening exercise for the benefit of all involved.
MD: Mandatory mediation is also a creature of the men's rights movement. The premise is that fathers have absolute rights and have to be "happy" with the outcome. A father can start the process again whenever he gets unhappy. Abused women and children see their experience minimized, if not censored, in the name of "forgetting the past". Abusers have no difficulty manipulating mediation to their ends and locking themselves in their victims' lives, while avoiding accountability for their crimes, consequences of their minimal or abusive parenting and financial obligations to their children. No mediator can properly assess the intimidation, threats and previous broken promises underlying any "negotiation" with an abuser.
5. Given that feminists have noted that women do more than their fair share of the parenting work, isn't joint custody a way for men and women to share the parenting more equitably?
MD: Joint custody is about control, not tasks. Good fathers don't need to have their parenting legally-ordained, and egotistic men will not be pressed into decent caregiving by any law. One way to get men to do more parenting from the start might be to tie future entitlement to the actual work done before any break-up, to the real link created with the child(ren), as would a primary caretaker presumption. Joint custody does precisely the reverse, enshrining biology and guaranteeing the worst of parents equal "rights" to children.
EM: Joint custody is not necessarily about sharing work, but about sharing decision-making. Keeping control over a spouse is especially important to an abusive partner at the time of separation, and he will use joint custody as a vehicle to exert control, not to share work.
JM: For women that have gone through abuse, emotional or physical, the idea of equal parenting doesn't come into play. Some feminists might think differently, but when it comes to the safety of children, separating them from an abusive parent is all that really counts. Just because men father children doesn't mean that there good fathers and loving Dads. I think that mothers who have been abused and seen the impact on their children would gladly accept more responsibility when it comes to raising their children safely and in peace.
DC: The toxic parenting of an abusive spouse is not qualitatively equal to the parenting of a loving caregiver.
If father does not want more responsibility, he can put family or paid caregivers in place.
Parent relief is not effective if one is constantly worried about the children's safety.
6. What do you think needs to be done to shift public awareness and social policy issues about custody and access for abused women and their children?
MD: The goal should be to provide children and their caregivers with essential resources (safety, housing, child care, employment/income, autonomy, health services, etc.) instead of re-privatizing those needs and leaving women's and children's lot up to men's goodwill.
Raise awareness of abusers' behaviour in custody/access/mediation harassment.EM: Research about the effects of joint custody on women leaving violent relationships and their children must be available to everyone, including professionals who are influential in policy making and decision-making for separated families.
Instead of romanticizing father-hood, really hold men accountable for their parental work (or lack thereof) and for intra-family violence.
Track assaults against women and children, holding the system accountable for negligence.
Label Male Lobby tactics and propaganda.
Challenge the tactical use by men of "abusers therapy", "mother substitutes" and misogynist "syndromes".
DC: All services require comprehensive training on the impact of violence in intimate partnership.
This training must come from frontline agencies so that it reflects the reality of women's lives.
Tools are needed to track and assess the effectiveness and accountability of services to abused women and their children.
All parties need to endorse the Emergency Measures list of the Cross-Sectoral Violence Against Women Strategy Group, in which women are telling the Province of Ontario what they need to prevent further murders and remove obstacles to the flight from violence.
JM: This is a very sad subject for me. I lost custody of my son to my abusive husband. I became very ill with chronic depression and my husband used this against me. Although I had legal counsel, it did not help. My husband should not have won custody. The impact that the abuse has had on my son is very sad. My husband had money, a house, was able to give generous gifts. The service providers in my life at the time did not want to be involved — not my doctor, the shelter, the hospital, social workers, the school, or the police.
PUBLIC AWARENESS IS A MUST. Educate the service providers, have strong protocols for the Justice system in dealing with Domestic Violence, provide education in Domestic Violence in schools, Colleges, and Universities. Custody and Access is sometimes looked at with indifference.
Judges, Crowns, and Defence are skipping through these cases when quality time and assurance for the safety of children should be taken into high regard. There are long-term effects as a result of the decisions made by the so-called professionals who do not understand the pain caused by wrong decisions — my relationship with my children will never be the same.
The decisions made never took into consideration the emotional abuse my husband and the children's father caused. The system failed me. In order for the Public to know what is really happening behind closed doors, abused women need to be able to speak openly in any and all public forums to share how the system fails us and our children.
Debbi Callander (DC) is the Legal support worker/women's advocate for Rosewood Shelter and the Sexual Assault Centre of Simcoe County. A member of the OAITH Lobby committee, she is also a single mother and a survivor.
Martin Dufresne (MD) is a profeminist activist based in Quebec City. Long involved with Montreal Men Against Sexism, he monitors Male Lobby activity, notably the so-called "fathers' rights" movement and "alternatives to justice" for wife batterers and child rapists. He is a co-founder of FIVERS (Feminists against Intimate Violence Empowerment, Resistance and Support), an international Internet discussion list dedicated to ending sexist violence. (To join, e-mail: email@example.com).
Janet Menezes (JM) is a survivor of woman abuse. She is currently a member of the Accountability Committee of the Woman Abuse Council of Metro Toronto.
Ellen Murray (EM) is a partner in Murray & Gregory and practices primarily in the field of family law. She currently serves as a Dispute Resolution Officer in the Superior Court of Justice. She is a member of the Legal Aid test case committee and the Advisory Board for the Barbara Schlifer Clinic. She has worked and lobbied on issues concerning abused women throughout her career.
Editor's note: Each contributor was asked the following questions, with the exceptions of #1&2, where only Ellen Murray was asked to provide legal definitions.
IN THE U.S.A. - report all verbal, emotional, physical abuse of the co-parent to your attorney and the judge. Report any slandering of you as well. And push for SUPERVISED VISITATION if the co-parent does this. Push for 'CONTEMPT OF COURT' orders every single time Child Support is 24 hours late.
This article mentions the male as the abuser, your abuser may well be female.