The recently-concluded Fifth International Conference on Shared Parenting brought together scholars and family practitioners from two fields of practice, shared parenting and family violence, under the conference theme, the Intersection of Shared Parenting and Family Violence. The conference conclusions were divided into recommendations for theoretical development and further research on the one hand, and law reform, policy and professional practice on the other. Primary among these was the need for a more inclusive conceptualization of family violence, beyond the gender paradigm and encompassing different forms of violence, including parental alienation; and the need to recognize family violence, particularly violence against women, as a criminal offense, with corresponding reforms in the family and criminal courts systems.
Theory and Research
Two recommendations were made in regard to theory and research in in the arena of the intersection of shared parenting and family violence, as follows:
1. Our first recommendation poses the question that was the subject of discussion and debate in several sessions during the conference: Should the issue of family violence be framed as gender specific and viewed as “violence against women”, or rather as a more gender-neutral conceptualization such as “partner abuse’? In regard to separating and divorcing families where family violence is an issue of concern, we concluded that the exclusive focus on fathers as perpetrators and mothers as exclusively the victims of violence is unwarranted when one examines the family violence research literature.
The gender paradigm in family violence came under scrutiny and was found wanting in several respects, including data that suggests that fully half of all partner violence is reciprocal, and that female to male violence is not, as assumed, primarily defensive. The fact that female-to-male violence has been overlooked is increasingly becoming a concern to family violence researchers.
2. At the same time, mothers and children are affected by family violence in a different way than fathers. There is no denying the fact that violence against women and gender-based family violence is a serious issue, especially during parental separation and divorce. The impact of family violence is more pronounced for mothers: Of those victims of family violence who report being injured, two-thirds are women. Lockdowns during the Coronavirus pandemic have left many women trapped with their abusers and exposed to greater danger. All types of violence against women, including family violence, have intensified.
The issue of the effects of children witnessing spousal abuse is also a serious matter: children witnessing parental abuse is now the most prevalent form of substantiated child abuse. 34% of cases of substantiated maltreatment of children in Canada are situations where children witness the abuse of a parent by the other parent or parent figure. Child outcome studies conclude that witnessing parental abuse and family violence is one of the most serious forms of CA, with devastating outcomes for children’s security and well-being.
Law Reform, Policy and Practice
The conference offered five recommendations in regard family law reform, policy and practice in the arena of the intersection of shared parenting and family violence, as follows:
1. First, it was affirmed that shared parenting is a viable post-divorce parenting arrangement that is optimal to child development and well-being, including for children of high conflict parents. It was recognized that shared parenting serves as a bulwark against first-time family violence. We thus supported a rebuttable presumption of shared parenting in contested cases of child custody, and advocate for shared parenting as the foundation of family law reform.
2. Second, we achieved a consensus that shared parenting is an optimal arrangement for the majority of children and families, including high conflict families, but not to situations of substantiated family violence and child abuse. We thus supported a rebuttable legal presumption against shared parenting in family violence cases.
This is in accordance with the National Council of Juvenile and Family Court Judges and the position of the National Association of Women and the Law: In every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that domestic or family violence has occurred raises a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of family violence.
3. We concluded that family violence be regarded as a criminal law matter, and that barriers to criminal prosecution of perpetrators of family violence and to protection of victims of family violence be acknowledged, recognized and removed. We acknowledged that gender-based family violence is of particular concern in this regard, as women are disproportionately the victims of severe violence and require the full protection of the criminal justice system. The law at present does not protect women as it should.
In addition, we called upon child protection authorities to recognize children witnessing the abuse of a parent as a serious child protection matter, and a serious form of child abuse, which requires immediate investigation to determine whether a child is in need of protection from a parent or parents, and immediate action to ensure children’s safety and well-being.
4. The conference focused on parental alienation as a common form of family violence in contested child custody cases, and concluded that it should be recognized as such by practitioners, policy makers, legal practitioners, and judicial and legislative bodies. We recognized that shared parenting serves as a bulwark against first-time family violence, and that includes parental alienation. A major conclusion of the conference was that parental alienation is an egregious form of both family violence and child abuse.
5. In regard to the development of policies, guidelines and procedures respecting parenting and co-parenting after separation in the context of family violence, we drew attention to needed reforms in professional practice in four key areas:
1.) Family Violence and the Education and Training of Mental Health and Legal Practitioners, and Child and Family Legislators and Policymakers
Establishing standards for the education and skills training of mental health and legal practitioners in the field of shared parenting, and the education of child and family legislators and policymakers, are urgently needed, in the following areas:
• abuse in intimate relationships and its consequences for shared parenting;
• the unique needs of culturally diverse populations, including Indigenous populations;
• procedures, instruments and skills to screen for abuse and assess safety risks;
• specialized skills and interventions to ensure safety and provide specialized processes in cases of family violence;
• alternatives to shared parenting when violence is a factor.
2.) Screening for Family Violence
Separating parents must be able to negotiate safely, voluntarily and competently in order to reach a fair agreement. Because abuse can significantly diminish a person’s ability to negotiate safely and effectively, shared parenting professionals should never proceed without first screening for abuse.
The presumption against shared parenting in cases of family violence suggests that few families in which violence is or has been present are suitable for a shared parenting arrangement. Clients should be interviewed separately and in a safe environment to assess:
• the risks and/ or threats of homicide and suicide;
• the safety needs of their children;
• each client’s ability to negotiate voluntarily and competently;
• the extent of power imbalances and their impact on shared parenting arrangements;
• the need for safe and appropriate alternatives to shared parenting.
As aids to assessment, screening instruments ought to be carefully designed and should not replace high levels of investigative interviewing and assessment for those cases in which family violence is an issue of concern.
3.) Safety and Cases of Historical Family Violence Where Specialized Interventions May Enable Shared Parenting
Minimizing risk and maximizing safety ought to direct the development of protocols, interdisciplinary collaboration and research on the effectiveness of shared parenting where past family violence is no longer an issue of concern and supporting services for abused persons and their children. Provisions for safety should be in place prior to considering shared parenting as an option in these situations. These provisions should include policies to warn and protect endangered parties and requirements to report threats of harm Screening for abuse and maintaining safety provisions are ongoing obligations throughout the entire process. Specialized intervention in cases of historical family violence require safety considerations for victims as well as the development and use of specific skills and interventions to:
• ensure safety before, during and following shared parenting negotiation;
• compensate for power imbalances;
• terminate shared parenting negotiation safely and effectively.
4.) Alternatives to Shared Parenting in Cases of Family Violence
Guiding the conferences deliberations on this theme are the following principles: every community should offer an array of marital dissolution models that include legal negotiation, adjudication, mediation, negotiation, and facilitated settlement conferences. Jurisdictions should provide education about the benefits and risks of available alternatives and dedicate the resources necessary to assure safe and timely access by victims of violence to marital dissolution alternatives. Funding for the participation of community-based advocates in marital dissolution systems should also be made available. Victims of violence should not be compelled into shared parenting arrangements unless legal representation is authorized and economically accessible. The need to protect and nurture children living in the context of family violence should be addressed specifically in custody cases.