Protective Mothers in Family Court

By Esther Gieringer
During the 16 Days of Activism it is important to hear the voices of protective mothers who continue to be re-traumatized by the family court process. A protective mother is one who has left an abusive family environment and is working towards putting safety measures in place for herself and her children.

Regardless of the steps these mothers take, most will end up in the adversarial family court system because the relationship dynamics are not conducive to working towards a child-centred agreement. Some mothers think they would have been better off to stay because the orders made by family court judges put them and their children at greater risk. Have you ever thought about what happens to these protective mothers when they step into the family court arena?

In a CBC News article posted on September 27, 2020, Tara Carman tells us “Survivors of domestic abuse told to keep quiet about it in court or risk jeopardizing child custody.” She describes how protective mothers are treated by family court judges in Canada. In British Columbia, the police referred to one mother’s file as having “a substantial likelihood of grievous bodily harm or death.” Despite evidence showing injuries to both this mother and her son, no charges were laid. She was directed to the family court for protection. She heeded this advice, but the judge accused her of parental alienation and threatened that she “…would lose custody of [her] child if [she] kept going down that path.” Going forward, her lawyer advised her to keep quiet about the domestic abuse.

What these judges and lawyers fail to recognize, acknowledge and address is that when a mother asserts her responsibility to protect herself and her children, it has nothing to do with parental alienation. It is neither “conflict between the parties”, nor “animosity or hostility towards her ex.” When a court adopts these mischaracterizations, it violates the principle of “the best interests of the child.” It re-traumatizes the protective mother by ignoring her valid safety concerns and enabling court-licenced abuse. The court becomes, at least, the bystander and at worst, the abuser by proxy.

Unfortunately, some lawyers for the perpetrators successfully argue parental alienation and gain child custody for their clients. Carman’s article explains that, “…the consequences of an alienation finding were significantly worse for women” and this is confirmed later when it states, “Mothers are twice as likely as fathers to lose primary custody or some degree of access to their children when findings of alienation were made against them.” This is particularly disturbing because as Kim Hawkins states in the article, “…parental alienation claims are being brought by parents who’ve been accused of family violence.” This concept is being used as a weapon to silence domestic abuse survivors, stripping them of their maternal rights, and doing nothing to address the need for safety measures for these children and their mothers. In fact, it negligently results in custody and access orders that have little, or nothing, to do with the best interests of the child.

A Grey Bruce mother who lives in a remote and isolated area called for police assistance on different occasions. The police were very kind, stating to call any time because that is what they are here for. When reviewing these police reports in family court, the judge chastised this protective mother stating that the police should only be called in the case of rape. He went on to ignore an expert report which made recommendations that referenced the domestic violence which was corroborated by those police reports.

An Ontario mother has spoken about her devastating family court experiences, explaining that she brought forward her child’s disclosure of abuse when a counsellor advised and insisted it be reported. In the end, she was accused of parental alienation and coaching the child to lie about the allegations. Without a trial, she lost custody and a supervisor had to be hired for supervised access visits at this mother’s home. The supervisor remained overnight, sleeping in the child’s room so there could be no further alleged coaching of the child, by the mother. Orders were made that threatened the mother with a change to the already limited and restricted access if she made any further claims of abuse. It took weeks before this mother could call to speak about the depth of trauma she was experiencing; whenever she picked up the telephone she began to cry. A few years have passed and recently she stated, “I was somehow able to be so strong for so long. Now I am just so tired, and I am actually medically sick from stress. I may never be healthy again.”

Court-licenced abuse is taking a heavy toll on protective mothers. After turning to legal professionals for help, many are left with a heartache that negatively impacts the entire family. These loving and responsible mothers experience agony daily; the night is fraught with grief. Domestic abuse used to be hidden and perpetuated behind the closed doors of the family unit. Today, in 2020, it continues to be hidden, perpetuated and enabled behind the closed doors of the family court.
Esther Gieringer is a founding member of HER Grey Bruce, the Owen Sound chapter of WomenatthecentrE