How can a woman make the court understand the impact on her children of the abuse she has been subjected to?

How can a woman make the court understand the impact on her children of the abuse she has been subjected to?

We have explored a number of issues related to this question in other postings (See: The role of VAW in custody and access cases and What’s the best interests of the child test?), but we have not examined specifically the impact on children of being exposed to their mother being abused.

This article will review the role of violence within the family in determining the best interests of the child, explore the many ways violence against their mother has an impact on children and consider some of the ways women can provide evidence of this impact to the court in their custody and access case.

Role of violence in the best interests of the child test

As you already know, the Children’s Law Reform Act (CLRA) states that custody and access decisions are to be made using the best interests of the child test. The test is set out in section 24(2) of the CLRA, and includes such factors as:

  • The love, affection and emotional ties between the child and each of the parents
  • Stability both before and after separation of the parents
  • The views and preferences of the child, where they can be ascertained
  • The abilities of each parent to raise the child well
  • Plans made by the parents for the future

Section 24(4) specifically speaks to the issue of violence within the family and requires the court to “consider whether the person has at any time committed violence or abuse against: his or her spouse, a parent of the child to whom the application relates, a member of the person’s household, or any child.” Exempted from this consideration are any actions taken in self-defence or to protect another person.

As you can see, the legislation does not specifically require that there be proof that the violence or abuse had an impact on the children.

However, judges like to see the line drawn. A woman’s case will be stronger when she has evidence of the impact on the children of the abuse she to which she has been subjected than if she simply tells the court about this abuse.

Impact of woman abuse on children

The impact of being exposed to woman abuse on children varies depending on the child’s age and development stage but also on the individual child and the circumstances of their exposure.

Children do not have to be present when the abuse is happening to be affected by it. They are exposed in a number of ways, including:

  • Seeing it
  • Hearing it
  • Seeing the aftermath (their mother’s physical injuries, a sense of tension in the home)
  • Being told about it
  • If the police or child protection authorities become involved

Children may be drawn into the abuse by the abuser, who may:

  • Blame his abusive behaviour on something the child has done
  • Encourage the child to abuse the mother, physically, verbally or emotionally
  • Threaten violence against the child as part of his abuse of the mother

Children can also be affected after their parents separate when:

  • They are exposed to their father’s abuse of his subsequent partner
  • They are put in a position of financial deprivation because their father refuses to pay appropriate child support
  • They are abducted by the father
  • The abuser unnecessarily prolongs the family court case, leaving the children living in a state of uncertainty
  • The abuser talks to the children disparagingly about their mother or attempts to get the children to spy on their mother

A woman who is being subjected to abuse on a regular basis is not able to parent her children to her full capacity, and this, too, has an impact on the children. Some mothers become overly strict disciplinarians with their children in an attempt to stop the abuser from being physically violent with them.

Children may experience a wide range of reactions to the abuse in their home:

  • Fear: Although children often fear the abuser, many attach to him because it feels safer to identify with the person who holds the power.
  • Distress and anxiety: Children worry about when there will be another abusive incident, but they also worry about what will happen to their family, whether they will be abandoned, what will happen to their father if the police are called, and so on.
  • Self-blame and guilt: Whether or not the abuser specifically tries to blame the children for his behaviour, many children will blame themselves. They will think that if they had not misbehaved or if they had been more helpful or done better at school or in a hockey game, their father would not have abused their mother
  • Shame and embarrassment: Many children do not want anyone to know what is going on in their home.
  • Anger: Children often feel angry with both parents: with their father for his abuse of their mother, but also with their mother for not making it stop.
  • Grief: Like adults, children have idealized notions of happy family life and, when their family does not fit this image, they experience a sense of grief and loss.
  • Torn loyalties: Children continue to love both their parents, even as they worry about the abuse their father is perpetrating on their mother.

The impact is cumulative, so the longer a child is exposed to woman abuse, the greater and broader the impact.

Children who are exposed are at increased risk of having emotional and behavioural problems. The academic performance and school-based behaviours of school-aged children may be negatively affected. They may model the behaviours of the abuser or of their mother. They may engage in self-harming behaviours or be violent or aggressive to others. As they get older, they may replicate their parents’ behaviours in their own relationships.

Providing evidence of impact of woman abuse in family court proceedings

Providing evidence of the impact on children to woman abuse in their family is not always easy. Often, mothers themselves have downplayed the extent to which their children have been aware of the abuse. Like many women, lots of children do not want to talk to others about the abuse, so keep the family secret. Not all children are able to access to professional support, sometimes because the abuser does not permit it.

Even in these difficult situations, you can assist a woman to gather evidence about the impact of woman abuse on her children:

  • Has she noticed behavioural changes in the children? She should be as specific as possible in detailing what she has noticed and when. For example, if the children have become calmer and are doing better at school since she left her partner, she should include that information in her affidavit.
  • Are the children anxious before and after they spend time with their father? The woman should describe this as accurately and objectively as she can.
  • Have teachers, daycare workers, coaches, camp leaders, parents of friends or others commented to her about any problematic behaviours by her children? If so, would they provide an affidavit describing those behaviours?
  • Do school report cards show a drop in the child’s performance or, perhaps, a rise post-separation?
  • Has the family doctor noted any physical ailments or concerns that could be connected to the child’s exposure to the abuse?
  • Is the child seeing a counsellor or therapist who might be able to provide a report?
  • Is the mother interested in seeking the involvement of the Office of the Children’s Lawyer to assist in getting relevant information in front of the court

Not all of this evidence will be available in every situation, and some women will not have the resources to pursue many or even any of these suggestions, but whenever possible, encourage the women you work with to consider all of these ideas. The more of this evidence she can put before the court, the better success she will have in getting an appropriate custody and access outcome in her case.