Auberge Shalom Counsellor Says Courts Biased Towards Shared Custody, Even Where There’s History of Violence
When Mandy and her estranged husband separated a few years ago, initially, it came as a relief to Mandy.
The marriage had long been mired in what Mandy describes as her ex’s emotional, verbal and physical abuse.
Her relief quickly turned to fear when the man reported her to youth protection, claiming she was turning their children against him.
I was blindsided,” said Mandy, who CBC has agreed not to call by her real name.
She says social workers dismissed both her own and her children’s accounts of what life had been like with her estranged husband.
“Nobody cares about the domestic abuse at all,” she said.
Worse, she feels her allegations are being used against her in her battle for custody, presented as proof she’s trying to distance her children from their father.
“I’m drowning in an ocean of his lies, and he’s the victim,” said Mandy. “And nobody wants to hear anything about what was going on in the house.”
‘Battering Ram’ in Legal Proceedings
About 20 per cent of custody cases end up in litigation, said University of Western Ontario psychology professor Peter Jaffe, and many of those involve domestic violence.
The concept of “parental alienation,” of which Mandy’s being accused, is often being misused in custody battles to divert attention away from allegations of child abuse or conjugal violence, he said.
“Over the last 20 years, this is probably one of the most common issues judges are facing,” Jaffe said.
Described in the 1980s as a syndrome, it’s since been debunked by the American Psychological Association, Jaffe said, but there are practitioners who continue to use the term and judges who still buy it — making it difficult to suss out real versus false allegations of estrangement.
“It’s become a battering ram, a secret weapon to use in family court,” said Jaffe. “Even if it’s not successful, it can be emotionally and financially exhausting for the parent caught in the middle of it.”
In Mandy’s case, her divorce proceedings are on hold until a custody arrangement is hammered out in youth court. That means any child or spousal support is in limbo. Meanwhile, her legal bills keep piling up.
“I don’t think I’ll ever be able to get out of the debt I’m in,” she said.
Some of the women at the shelter she goes to have had to settle for a custody arrangement they’re not happy with because they can’t afford to keep going through the courts.
Label Hard to Shake
Over the past decade, Marielle Albert, a clinical counsellor at Auberge Shalom, a Montreal-area women’s shelter, has noticed more and more of the women she advises are fighting allegations of parental alienation.
From her standpoint, Albert believes the courts have become preoccupied with re-establishing the relationship between the children and the estranged parent rather than examining the reasons why the estrangement happened in the first place.
The conjugal violence is considered to be “in the past,” she said, and the courts instead focus on what the parent that’s been accused of parental alienation is doing.
“The evaluator assumes the aversion to dad is because of the mom’s negativity towards dad,” said Albert.
Although police reports or documentation of physical assault can strengthen a woman’s case, when conjugal violence is in the form of psychological, financial or sexual abuse, it can be impossible to prove.
Bias Toward Shared Custody
Albert says there also appears to be an inherent bias in the court system toward shared custody, even if one of the parents has a history of being abusive.
Albert said her clients often find themselves in a catch-22: if there is conjugal violence, women are encouraged to leave or go to a shelter to protect themselves and their children.
But when it comes to custody, that same behaviour — an attempt to keep their children safe — can be portrayed as alienation.
“Once the parental alienation label is in place, it can be very difficult to counter,” Albert said.
And it doesn’t help that some women aren’t able to articulate well for themselves in court.
Many women who have endured long-term abuse may suffer from post-traumatic stress disorder. In the witness box, Albert says, a judge may view them as appearing distant, difficult to follow, hypervigilant or overprotective.
If the judge doesn’t have a good understanding of trauma, the mother can be portrayed as “crazy” — suffering from mental health issues — by the alleged abuser, she said.
The consequences can be devastating, Albert said.
If the woman can’t make a convincing case, or doesn’t have the money to pay an experienced lawyer to help her do that, she will sometimes be forced to accept a custody arrangement in which the child is exposed to more harm.
“I have a situation right now where there is a high risk of the children being placed in foster care, even though they are living with the mother and they are safe.”
“Worst case scenario, we’ve actually seen custody being given to the father, the abusive parent,” said Albert.
Cases Need More Thoughtful Handling, Lawyer Says
Alfred Mamo, a family lawyer in Ontario, says there are usually very complicated reasons why a child’s relationship with a parent is fractured or nonexistent. In cases in which children have witnessed or been the target of abuse, they may not feel safe with the abusive parent.
“At what price do you force the relationship?” asked Mamo.
“The solution of taking them away from the favourite parent and in effect, taking away their foundation so they can have a relationship with the parent they don’t really know or don’t want to know — they end up with no foundation.”
Mamo says the courts need to approach these kind of disputes cautiously.
Custody cases can’t be decided overnight.
Rather than an all or nothing order, he believes judges should take small steps. That could mean trying out increased visitation and continually checking back with the child’s therapist to see how it’s going.
“That’s the only way you can get any lasting solution,” said Mamo.
Awareness, Education Needed
Both Jaffe and Albert believe everyone from social workers to lawyers to judges need to be educated about the lasting impact of domestic violence.
Just because the relationship is over does not mean the psychological, verbal or financial abuse isn’t continuing, Jaffe said.
“It’s a significant factor that needs to be considered in terms of protecting the kids, both from the danger, but also from a poor role model,” said Jaffe.
Jaffe says if the court system helped triage “high-conflict” cases from the outset, it could help sort through which allegations are credible and which may be false. Judges knowledgeable about domestic violence issues should be assigned to these cases and stick with them to ensure continuity, which often doesn’t happen now.
That could save both court time and money.
“We know from research that conflict does the most harm to children,” said Jaffe.
Mandy says her children haven’t had a moment’s peace in the last few years. They attend court-ordered therapy, and Mandy says it’s stressful for them to continually recount the abuse they witnessed.
The uncertainty of not knowing what’s going to happen and which parent will get custody weighs on them.
“It breaks my heart to see my kids going through that,” she said.
Originally published May 17, 2018.