The Problem with Family Court
By Esther Gieringer
Intimate partner violence – which for the purposes of this article refers to male violence against women – does not end when couples separate. What was once direct physical, sexual, emotional, mental, or economic abuse changes shape as abusers seek new ways to gain power and control over their former partners and families. One of the most common ways that men seek control is through the adversarial family court process.
On-going abuse can take the form of legal bullying when a mother enters family court, whether she initiates the process or not. A woman negotiating separation and custody arrangements has refused to accept continued abuse of herself and her children. She is often given the impression – or told explicitly by lawyers – that it is her personal responsibility to learn to deal with the conflict with her ex-partner. Lawyers and judges need to recognize that the issue in these cases is not conflict, the issue is abuse.
As Lundy Bancroft explains in his book, Why Does He Do That? Inside the Minds of Angry and Controlling Men, “Many abusers see the legal system as another opportunity for manipulation. Whether or not he succeeds in that approach will depend largely on how well trained the crucial public officials are on the subject of abuse–-and on how many of them think as he does”. Custody arrangements are a means for abusers to use children as tools to gain power and control over their ex-partners.
This problem is widely acknowledged. According to CBC News, Harmony House shelter in Ottawa received a $400,000 federal grant from the Status of Women Canada and is now in the midst of a three-year study of the Canadian family court system to examine issues like these. This study will help develop recommendations and revise curriculum for law students at the University of Ottawa.
In the meantime, there are far too many stories about loving, competent, and responsible mothers losing custody to abusive fathers. Even when there is evidence of abuse, it is ignored and minimized. After bringing forward a child’s disclosure of sexual abuse, mothers have been accused of coaching the child and making false accusations. Instead of being supported to put safety measures in place for the children, the mothers are re-traumatized by the disbelief and blame directed at them. In these situations, women have lost custody, had their contact reduced to supervised access, or have lost access entirely.
Stories like these are depicted in the original play “Forbidden to Protect” by Patrice Lenowitz and Lundy Bancroft. It presents six real US family court cases where children were taken away from non-violent mothers and placed with violent and sexually abusive fathers. Francesca Amato-Banfield tells her personal story of this process in her book, “Punished 4 Protecting”. Canada is not immune to this torment for protective mothers who are telling the truth and trying to keep their children safe.
As Pamela Cross, Canadian feminist lawyer and women’s advocate stated when she recently received the Law Foundation of Ontario Guthrie Award, “Women who have been subjected to male violence…face numerous and significant barriers when they look to the family and criminal legal systems for accountability and for protection”. In addition, “With few exceptions, laws have not been written to respond to the unique realities of male violence against women”.
How can the family court help families where male violence against women is an issue? Here are three suggestions:
- Courts can award sole custody to the mother.
Joint custody and shared parenting are not appropriate because these include the expectation that parents will collaborate effectively and safely on decisions that have to do with the child. Pamela Cross explains this in her article “When Shared Parenting and the Safety of Women and Children Collide”.
- Hire violence against women experts in Canadian courthouses to review and monitor all family law cases.
Trained and experienced in using a gender-based violence lens, these workers would be a valuable addition to the team. They have expertise in looking for and recognizing the many faces and patterns of male violence against women.
- Take these cases out of the adversarial family court and replace the judge with a family court tribunal.
Courts create win-lose scenarios but custody shouldn’t be a battle between parents where children are the prize. The tribunal or panel would include a violence against women expert and have a mission to promote the best interests of the child with non-violence, accountability, and safety while maintaining ethical and just negotiations until all issues are resolved.
Lundy Bancroft has a message on his website for protective mothers: “The custody system in the US and Canada is broken. You are not the only person who has experienced unhealthy and biased responses, and you are not the crazy, paranoid, vindictive person they may be painting you as”. During the 16 Days of Activism, we need to consider how all aspects of our society perpetuate violence against women and what we can do to address it. The family court process is one system where change is both necessary and possible.
Esther Gieringer is a founding member of HER Grey Bruce.