Child Access in Canada: Legal Approaches and Program Supports
Although unwarranted access denial almost certainly occurs more often than the small number of court applications would indicate, few studies have documented its incidence among separated or divorced parents with children. Surveys of access parents suggest that access denial is fairly widespread (see Appendix 1 for a summary of major studies). In one U.S. study of non-custodial fathers (Arditti, 1992), one third of whom reported seeing their children more than once a week and 13 percent of whom reported seeing them less than once a month if at all, half the fathers reported that the mother "interfered with" visits.
Almost 70 percent of Canadian and British non-custodial fathers in another study believed their ex-wives discouraged paternal contact (Kruk, 1993). They believed their ex-wives did this by denying access (mentioned 25 times), not having the children ready or available, changing arrangements at the last minute, engaging in confrontation or conflict with the father at the time of the access visit, criticizing the father to the children, and/or by periodically refusing access or residential access. Half of these fathers no longer saw their children, and 90 percent of them said their ex-wives' discouragement or denial of access was one of three reasons why they had ceased having contact with their children.
Other Canadian studies of both custodial and non-custodial parents indicate a lower incidence of access denial or interference. Interviews conducted as part of a Canadian divorce study found that only 13 percent of men and 18 percent of women reported access problems of any kind during the 1980s (McCall, 1995). In an Alberta study, 70 percent of custodial parents and 64 percent of non-custodial parents reported that access was rarely denied (McCall, 1995). Another U.S. study which also interviewed both custodial and non-custodial parents found that custodial mothers "interfered with fathers' visits" at a rate of 20 to 40 percent (Kelly, 1993). One longitudinal, qualitative study of separating California couples found that access was denied in about 20 percent of cases (Wallerstein & Kelly, 1980).
There are limits to what these studies tell us about the incidence of unwarranted access denial. Parents' views on what counts as "access denial" vary. One submission to Australia's 1992 Parliamentary Joint Select Committee on family law reform, for example, argued that custodial parents deny access by alleging physical or sexual abuse by the access parent, by moving residence too far away for the non-custodial parent to visit, and by debating the interpretation of access orders when the non-custodial parent comes to visit (Family Law Council, 1998a). On the other hand, fathers in the Canadian-English study (Kruk, 1993) appeared to distinguish between the denial of access and the periodical refusal of it.
Sometimes access parents say that they are being denied access when their spouse denies them what they think is a "reasonable amount" of access (most Canadian access orders are for unspecified "reasonable access"). Spouses may have honest disagreement over what is reasonable access, although in the absence of any mechanism to adjudicate the argument, such as a court, the custodial parent acquires the de facto authority to determine what access is reasonable. How many access parents want more access than they have at present? The Alberta study found that 37 percent of access parents wanted more time with their children, while 55 percent of custodial parents wanted their ex-partners to exercise more of the access they had (McCall, 1995). Applications for access rose dramatically in Australia in the 1990s when new family laws introduced co-parenting and eliminated the old custody and access model. It was speculated that many of the new applicants were fathers who felt they could acquire access, or more access, under the new laws (Family Law Council, 1998b).
It is even more difficult to ascertain the incidence of unwarranted access denial from reporting surveys of access denial. In the state of Michigan, for example, custodial parents who believe the access parent will abuse the child, or is often too drunk to take care of the child, must deny access or face charges themselves. To avoid conviction on access denial charges, they must then "show cause" for the access denial in court, if or when the access parent files charges. Similar problems arise in Canada (Bala et al., 1998). In these instances, the access father has been denied access-wrongfully, he will believe, if he maintains he was sober and/or a non-abuser-even though the court would likely excuse it. As will be discussed in Section 1.4, significant numbers of access enforcement cases that reach court have this kind of complexity. Determining the incidence of unwarranted access denial outside the courtroom, therefore, seems very difficult, since the facts of individual cases may need to be known.
The Social Science Research Literature on Access Denial
Social researchers usually study access denial as part of a cluster of post-divorce problems that plague a minority of separated or divorced couples, rather than as an isolated legal problem. One U.S. study estimated that 30 percent of divorcing American couples experience conflict for three to five years after the divorce (Ayoub et al., 1999). Two other longitudinal U.S. studies confirm this picture. One study found that 40 percent of parents at divorce reported moderate or high levels of disagreement regarding visiting or co-parenting during the previous six months. Two years later, only 20 percent reported frequent arguments and only one quarter reported minimal or no cooperation, while 60 percent reported moderate to high cooperation (Kelly, 1993). The second study found that 30 percent of divorcing and separating couples had substantial or intense legal conflict in resolving custody or visiting issues. In the second year of divorce, one third of the couples were still in conflict, half of those arguing in front of the children (Kelly, 1993). Australian studies show the same general picture: 30 percent of divorcing couples experiencing high conflict over child access, with only 10 percent of the couples still in conflict about this three years later (Funder, 1996).
Social scientific studies show that disputes over access are usually one of the "hotspots" in high conflict relationships, although most of these relationships have other kinds of disputes as well. Access may be the main problem or only one of the issues that keep the general hostility going between such couples after they separate. It may just be the most apparent issue in conflict that stems from another problem with the post-separation arrangement, such as child support or the dispersion of property.
Clearly, access denial need not occur only in cases when couples have intense conflict. However, there has been relatively little study of low conflict separations in which access continues. Access denial seems more likely to occur in cases when there is high conflict among the parents, and when they lack the will and mutual trust to sort out the difficulties that arise with the instability of the first year of separation (Hirst & Smiley, 1984).
Some studies explore custodial parents' reasons for denying access, and shed some light on how often unwarranted access denial occurs. Many of the custodial mothers in some studies did not see any value in the father's continued contact with the children. In fact, mothers often actively sabotaged the visits (Wallerstein & Kelly, 1980). Mothers have also been shown to promote an emotional campaign against the non-resident parent and his ability to parent their children (Strategic Partners, 1998). Clearly, some cases of access denial are unwarranted and evidence shows that many of these are not reflected in court statistics.
Custodial parents in many studies also offered reasons for denying access that make the denial warranted in many cases. In one 1994 Canadian study, custodial parents said they denied access because they feared that the child would be kidnapped; inadequately cared for; physically or sexually abused; and questioned, bribed and alienated. They also feared the access parent's immorality; the access parent's alcohol or drug abuse; that the child would refuse to visit the access parent or would be upset by it; and that child support might not be paid (Strategic Partners, 1998). Some of these reasons, if well founded, would be grounds for denying contact in most jurisdictions, and a few might be grounds merely if the custodial parent sincerely believed them.
In its report on access enforcement and penalties in Australian courts, the Family Law Council firmly upheld the need for enforcement against parents who defied or ignored access arrangements without good reason. It was also highly critical of a minority of access parents whose anger and controlling and manipulative attitudes, in the Council's opinion, would make solutions to disagreements with their ex-spouses difficult or impossible to find (Family Law Council, 1998a).
One Australian study of custodial parents using supervised access (ordered most frequently in cases involving violence or abuse of the spouse and/or child, and other kinds of conflict) found that, before agreeing to supervised access, nearly all these mothers had tried as hard as they could to deny access, in most cases because they felt they or their children were at risk (Strategic Partners, 1998).
Of course, whether or not an access denial is unwarranted depends on the law as well. Many of the reasons given above would be sufficient to justify access denial in jurisdictions where the best interests of the child govern the awarding of access and the adjudication of access denial disputes. However, in other jurisdictions, such as Michigan where direct harm to the child is the only grounds for denying access, most of these reasons would not count in determining whether access denial was "excusable" (although judges might use their discretion in considering them).
Court Applications for Access Denial
It is very difficult to estimate what proportion of access denials (unwarranted or otherwise) are brought to court, or what proportion of those brought before the court are upheld as unwarranted. What is clear is that only a small number of access parents bring access denial applications to court in Canada and elsewhere. It seems difficult to ascertain just how few do so-family courts in some provinces do not keep statistics that make isolating this kind of information easy.
Australian figures, however, show there were an estimated 2,000 contested contact cases in 1997-98 in that country, out of about 3,808 contested matters (including custody and property settlement) that came before the courts (Family Law Council, 1998a). That year there were about 24,000 applications for contact cases, out of about 100,000 matters brought before the court (Family Law Council, 1998a), and 51,000 divorces involving almost 52,000 children (Strategic Partners, 1998). Some 30,000 domestic violence restraining orders were issued (Strategic Partners, 1998).
Proportionately fewer applications are likely to be brought in jurisdictions where unwarranted access denial is enforced only through civil contempt provisions that are expensive and onerous to pursue. In submissions to the Australian Parliament's Joint Sub-Committee examining family law, about 12 percent of access fathers said cost of litigation was a major factor preventing them from bringing their case to court (Family Law Council, 1998b).
In summary, access denial appears to be a significant problem for a minority of parents after separation. How much of this denial is unwarranted depends on the context in which the denial takes place-and there may be considerable difference of opinion on this, depending on the facts of the case-and on the legislative framework and principles governing access arrangements and enforcement. To some extent, unwarranted access denial is a construction of the legal framework that governs the enforcement of access.
Although the incidence of unwarranted access denial is difficult to establish, there are considerable data on the incidence of the failure to exercise access. Some major studies are summarized in Appendix 1. Roughly the same patterns of access exercise emerge in these studies, despite the variations in study structure and venue. About one third of non-custodial fathers lose touch with their children completely within five years of separation, while another third stay in frequent and regular touch.
The studies vary too much for a more detailed analysis of the differences in exercise of access across countries. Studies show, for example, that access parents report making more visits than the custodial parents report occurring (Nord & Zill, 1996), so incidence varies with types of respondents. However, the broad similarity of results across various jurisdictions does suggest that formal differences in their legal systems, such as the presumption of access entrenched in many U.S. states, do not significantly determine how frequently non-custodial fathers exercise access.
There is some evidence that the amount of contact of non-custodial fathers with their children may have increased in recent years (Kelly, 1993; Nord & Zill, 1996)-more staying in touch, and more often. Experts attribute much of this to changing social trends in the involvement of fathers with their children. There does not seem to be a major increase in most fathers' involvement in care-taking responsibilities for their children where co-parenting laws have been introduced (Rhoades et al., 1999), although a larger minority of shared residence fathers in those jurisdictions do appear to have the child living with them for significant periods. More access fathers also have their children stay with them for longer periods (Rhoades et al., 1999).
Patterns of Failure to Exercise Access
There appear to be consistent patterns across different jurisdictions in how access (non-custodial) parents lose or maintain contact. The following are some examples.
Non-custodial mothers exercise access more than non-custodial fathers (Department of Justice Canada, 1999); both more mothers see their children, and more see them more often. No studies were found exploring why mothers maintain contact more.
In Canada, twice as many common-law non-custodial parents as married non-custodial parents lose contact with their children at separation, but roughly the same proportion contact them at least once a week or biweekly. There are major differences across provinces: in the Maritimes, more common-law access fathers visit at least once a week than do married access fathers, whereas in British Columbia only half as many common-law access fathers visit at least once a week as do married fathers (Department of Justice Canada, 1999). In the U.S., unmarried fathers are far less likely to maintain contact with their children than married fathers (Amato & Rezac, 1994).
Non-custodial parents exercise access less and less over time after being separated (Family Law Council, 1992a; Amato & Rezac, 1994). The National Longitudinal Study of Children and Youth (NLSCY) found, for instance, that 47 percent of Canadian fathers see their children at least weekly or biweekly at the time of separation, but after five years only 31 percent of fathers saw their children that often. Some 24 percent of fathers were not in contact after five years, compared to 15 percent at the time of separation (Department of Justice Canada, 1999).
The NLSCY data show that non-custodial mothers (see Appendix 1) also decrease contact over time, indicating some general factors at work against the desire or ability of all access parents to maintain contact over time. These factors also appear to operate no matter how deeply the access parent is involved with his or her children, since both the numbers of parents maintaining close contact and number maintaining any contact decline.
Non-custodial fathers are more likely to stay in touch with older children, i.e. not toddlers and infants (Nord & Zill, 1996), and more with sons than with daughters regardless of their ages (Family Law Council, 1992a). Married fathers are also much more involved with sons than with daughters (Nord & Zill, 1996).
However, there is little association between whether an individual father was involved with his children before separation, and whether he maintains frequent contact with them afterwards. Some fathers who are close to their children during marriage break all contact quickly, while others become more involved after separation (Family Law Council, 1992a; Nord & Zill, 1996; Kruk, 1993; Arditti, 1992).
Parenting arrangements established within the first few weeks of separation are a good predictor of long-term parenting arrangements (Family Law Council, 1992a; Kelly, 1993). This suggests that it is crucial to access parents' ongoing involvement with their children that the best possible access arrangements be put in place at the time of separation and divorce.
Access parents are more likely to remain in touch when the access arrangements are flexible and regular (though they may also be highly specific), and more likely to lose contact over time when the arrangements are rigid (Hirst & Smiley, 1984).
The better the relationship between the spouses, the more likely the access parent is to stay involved with the children (King, 1994).
Although contact tends to diminish over time generally, access parents who pay child support are much more likely to stay in touch with their children and visit them more frequently than those who do not. The nature of the relationship between paying child support and maintaining contact is not fully clear however. Separated and divorced Canadian access parents with private child support agreements are 10 times more likely to see their children regularly than parents with no private support agreements (Department of Justice Canada, 1999).
Breach of Access
One form of failure to exercise access is breach of access. Access parents breach access when they violate the terms of an access order by failing to turn up on time, failing to turn up at all and not notifying the custodial parent, returning the child late, etc. The most extreme breach is abduction, when an access parent absconds with the child, usually to another jurisdiction. All the jurisdictions surveyed have legal provisions on abduction, and this issue is not discussed in this report.
Breach of access typically occurs when the parent has maintained some contact with the child, even if irregular. Regular and consistent breaches of well-specified access agreements (say one weekend in two with the access parent, starting Friday night at 6 p.m.) would presumably also count as failure to exercise access in the sense discussed in the section above on unwarranted access denial. Some provinces enforce some kinds of breaches of access when the access parent fails to return the child on time. Under Australia's new family law, access denial, civil contempt breach of access, and failure to exercise access are treated equally as violations of parental responsibility, although relatively few applications have yet been made under the failure to exercise provisions. On the other hand, many U.S. states, such as Michigan, do not include breaches of access and failure to exercise access as violations of parental responsibility (Model Friend of the Court Handbook, 1998).
In Canada, there is little evidence to indicate how often custodial parents make applications against breach of access or failure to exercise access. In Australia, however, custodial parents rarely bring breach of access/failure to exercise access applications (Family Law Council, 1998a). One study of court duty lists found that all but one of the access applications was from access fathers. Yet in submissions to the Australian Family Law Council's review of access penalties and enforcement, and to the Australian Law Reform Commission's study of difficult access cases, several organizations claimed that breaches of access-not turning up, not returning the child, etc.-were a chronic problem. Submissions also claimed that many men obtain contact orders, but then have no contact with their children even after having pursued lengthy disputes in court (Australian Law Reform Commission, 1995).
There appear to be a wide variety of reasons why individual access parents' contact diminishes over time. Access denial may account for some parents' loss of contact, but high conflict between the ex-spouses, the access parents' difficulty adjusting to their new and usually diminished parental role, socio-economic factors, the children's wishes, and simply life events that take access parents and custodial family units in different directions are also clearly important.
In summary, failure to exercise access appears to be much more prevalent than access denial or unwarranted access denial. The patterns of failure to exercise access outlined earlier point to a range of reasons for its occurrence. The problems of unwarranted access denial and failure to exercise access need to be addressed equally if the primary policy objective is to promote the continued involvement of parents in their children's lives, except when that would not be in the child's best interest.
The assumption underlying efforts to reduce unwarranted access denial and increase parents' exercise of access is that the child's best interests lie in maintaining ongoing relationships with both parents after separation or divorce. For signatories to the Hague Convention on the Rights of the Child, like Canada, it is important to encourage access parents' ongoing involvement with their children to the extent that it satisfies the child's best interests. But even in the U.S., which has not signed the convention and does not officially recognize the "best interests" principle, the legal presumption in favour of access enacted in many states is justified on the grounds that access almost always serves the child's best interests.
What does the research say? Existing studies provide no consensus, though they continue to proliferate rapidly. Still, some themes emerge from the most influential research of the last several years. Most children report wanting contact, or more contact, with their non-custodial parent than many currently have (Family Law Council, 1992a; Lamb et al., 1997). They also say consistently that loss of regular contact with one of their parents is the worst thing about their parents' divorce (Kelly, 1993). Children's longings also seem to vary according to gender, with boys missing their access fathers most and girls missing their access mothers most.
Although researchers used to think that ongoing contact was virtually always in children's interests, most now seem to believe the associations are more complex (Lamb et al., 1997; Kelly & Lamb, in press). Earlier studies found that children who kept contact with their access parent had better psychological scores, fewer behavioural problems and better peer-relationships (Nord & Zill, 1996). Other studies found that predictable and frequent contact produces low but significant correlations with positive child adjustment (Kelly, 1993). Children also appeared most likely to be well adjusted when the mother approved of and had a positive attitude toward their relationship with their access father (Kelly, 1993).
Some studies now show, however, that ongoing access with both parents either does not significantly affect a child's post-divorce adjustment or improves their adjustment in some circumstances but not others. In regard to the first point, one recent analysis of the U.S. National Longitudinal Study of Youth (NLSY) data found that fathers' visits had no discernible effect on children's well-being, although their child support payments did significantly raise children's school achievement and later economic well-being (King, 1994). Other researchers found a similar lack of connection between contact and adjustment (Nord & Zill, 1996; Kelly, 1993). Among the reasons offered by other researchers for the lack of connection were: contact too minimal to make a difference; positive effects of more contact may be offset by higher conflict; and fathers are not so important as theory would predict (Kelly, 1993). Some researchers also hypothesize that contact may undermine its own benefits, insofar as it emphasizes repeated separations of father and child, and so increases the father's stress.
The U.S. NLSY study defined "well-being" in terms of negative behaviours such as lying to parents, skipping school, hurting someone badly enough to need a doctor, being suspended from school, or being in a special remedial education class. Other researchers have suggested that the degree of connection between the non-custodial father's contact and the child's adjustment varies with which measures are used and which families are studied. This was the conclusion from one researcher's survey of 33 studies examining the effects of frequent access parent visitation. The survey reported that 18 studies found that frequent contact improved child outcomes (one study finding it only for non-custodial mothers), nine studies found no relation, and six studies found that contact undermined children's adjustment (Amato & Rezac, 1994). Most researchers remain convinced that ongoing regular contact with an access parent in cases when parents have a cooperative and communicative relationship, and when the child had a meaningful relationship with the access parent, is good for children (Lamb et al., 1997). They believe most post-divorce families fit these criteria.
Assuming that ongoing positive access is important in most instances, just how important is it to a child's best interests? The custodial parent's well-being has been shown to be one of the strongest predictors of a child's post-divorce adjustment(Kelly, 1993), stronger than ongoing contact with the access parent. Several studies have compared the impact of ongoing contact with that of other factors. They suggest that a child's economic situation is most closely tied to his of her later educational achievement and economic success (Wallerstein & Lewis, 1998).
One possible reason for the mixed results on the impact on children of ongoing access is that researchers typically use frequency and regularity as the only measure of ongoing involvement. Some studies also appear to show that the access parent's importance to the child can be somewhat independent of how often he or she sees the child. Evidence suggests that the perceived emotional bond that the child feels for the parent can be more indicative of well-being than actual contact (Nord & Zill, 1996). However, affection need not entail respect (Wallerstein & Lewis, 1998).
No studies were found that systematically isolate the impact on children of access, compared to situations when the access parent also accepts caring responsibility, or access and decision-making responsibility. However, one group of experts concluded that the quality of the access parent/child relationship was more important to the relationship than the amount of time spent in contact (Lamb et al., 1997). They agreed that access parents who remain involved in important day-to-day aspects of children's lives, such as getting the child to school, putting them to bed, taking them to the dentist, are psychologically more important to their children's lives, and are more likely to stay involved (Lamb et al., 1997).
Access and High Conflict
There is considerable agreement among researchers that ongoing contact is not always in the child's best interests, and may actually damage a child in situations when parents are very hostile to one another, since access in these cases may exacerbate the conflict or create more opportunities for its expression. This is not to imply that both parents necessarily contribute equally to the conflict; one study of extremely high conflict cases in California courts, for example, indicates that one parent is often mentally ill or has a drug or alcohol problem (Ayoub et al., 1999; ALRC, 1995).
Many studies show that children with high conflict parents "act out" more than children in low conflict divorced families (Kelly, 1993; Ayoub et al., 1999; Rhoades et al., 1999), and also internalize problems more (Kelly, 1993). One meta-analysis of 92 studies and 13,000 children found that conflict in both intact and divorced families is associated with poorer functioning on the part of the children (Ayoub et al., 1999).
These studies mirror research done on intact families, which also found children in these families harmed by ongoing high conflict (Ayoub et al., 1999). Some evidence indicates that some poor outcomes for children of high conflict parents after divorce can be attributed to the conflict that persisted before the divorce (see discussion in Ayoub et al., 1999). On the other hand, some other studies find no connection between inter-parental hostility and children's post-divorce adjustment (Kelly, 1993). The overall picture seems to be that the connection between high conflict among separated and divorced couples and their children's well-being is nuanced: children in some high conflict situations fare poorly (poorer well-being and adjustment), but not children in others.
One detailed analysis of the U.S. National Survey of Families and Households found that ongoing contact did not diminish outcomes for boys (aged 5-18) in separated or divorced families when the conflict among parents was low, but was damaging to boys when the conflict was high. No negative effects were found for girls, but the internalizing reaction most common among girls was not tested. Parents' conflict levels were determined by self-reporting questionnaires, which were then sorted into three groups. The conflict included, but was not limited to, contact issues (Amato & Rezac, 1994).
Other studies have found that conflict is most likely to lead to depression or behavioural problems among children when they feel "caught in the middle" of their parents' conflict, for example, when they are asked to carry messages, asked intrusive questions about the other parent, or feel they have to hide information or feelings (Kelly, 1993). Adolescents are more likely to feel this way in high conflict families, but not all high conflict parents make their children feel trapped (although a majority do). Adolescents were less likely to feel trapped if they felt closer to both parents.
Other studies have shown related results: that the impact of the parental conflict on children depends on the strategies that parents use to resolve their conflicts (Kelly, 1993; Nord & Zill, 1996) and on the extent to which parents expressed their conflicts with and through their children (Nord & Zill, 1996; Kelly, 1993).
In summary, ongoing contact seems positive for most children and better for them than no contact, but there are instances when contact is definitely harmful and the child would be better off without it. There may be more cases in which ongoing contact is not directly harmful and yet does not serve the children's best interests, that is, they would still be better off without it. However, since the U.S. research is conducted in a legal context that favours contact unless the child is in direct danger, it is difficult to extract this information from a quick survey of the studies.
The survey has also been too broad to assess the extent to which irregular contact is always better than no contact. Finally, no studies were found that explicitly examined the effects on children of how much care-taking or decision-making responsibility access fathers exercise.
High conflict parents are more likely to go to court over their disputes, and there is some evidence that intense litigation itself may harm children by polarizing the parents, entrenching their hostility, and forcing the child into the middle of their conflict. One study, for example, found that contact tended to positively affect child self-esteem in the absence of legal conflict, but not when there was legal conflict (Amato & Rezac, 1994).
In conclusion, then, the literature seems to confirm that access matters significantly to children when the parents cooperate or manage their conflict, and when the child has a meaningful relationship with both parents. When some children are subject to certain kinds of conflict and parental behaviour, however, ongoing contact may directly harm them. One of the problems with many U.S. studies, in particular, is that the child's best interests are often equated with the absence of harm (reflecting the legal presumptions operating in most states). As a result, there is little examination of intermediate cases in which access does not directly harm the child, but may still not be in their best interests-that is, all things considered, the child would benefit most if there were no access.
Most separating or divorcing couples appear to resolve their access arrangements without high conflict or extensive use of the courts. In fact, only half of Canadian separated couples have a court order for custody five years after separation (Department of Justice Canada, 1999). As indicated earlier, social research indicates that only a third of separating couples experience high conflict, and for all but 5 to 10 percent of these couples, the conflict dissipates over time.
Certainly, this does not mean that low conflict couples do not have access problems, including denial and breaches of contact, or unsatisfactory access arrangements (Weir, 1985). One of these unsatisfactory arrangements appears to be no contact, at least for some of these couples. As outlined earlier, upwards of 15 percent of Canadian parents lose touch with their children when they separate, and more lose touch as time goes on. Failure to exercise access clearly seems to be one strategy that some couples "adopt" to deal with their conflict.
Still, there appears to be a small group of these high conflict parents whose hostility does not diminish-in fact, seems to deepen-and who make continuing use of the courts to litigate access and other disputes, including applications against unwarranted access denial. In the mid-1990s the Australian Law Reform Commission (ALRC) undertook a study of some of the particularly difficult and complex cases in the Australian court system. The study's objective was to identify who these people were, why they were there, and how much of the Australian court's resources they consumed (ALRC, 1995). The study's goal was to find ways to resolve these cases more effectively and to reduce court costs.
This in-depth study of the registry of the Sydney suburb of Parramatta found 48 active complex cases, most of them involving one to three years of litigation, but few going back more than five years. The cases were defined as complex if they involved repeated applications, if they used considerable court and Legal Aid resources, or if one or more of the parties had difficulty making and maintaining contact arrangements that were in the best interest of the child (ALRC, 1995).
The study found four key predictors of a case becoming complex: continuing conflict; children under the age of two at the time of separation; children allegedly refusing access; and a restraining application as part of the initial application. There was extreme conflict in about 80 percent of the cases. Most of the conflict concerned access, rather than custody, and most of the access parents in these cases already had access. The complex cases, therefore, predominantly involve parents who have access, try to use it, and have enormous conflict over it.
These contact cases were in the court system on average three times longer than other cases, had twice the number of applications and cross-applications by non-custodial fathers and custodial mothers, twice the number of meetings with registrars and deputy registrars, and four times as many days in hearings before the judge (ALRC, 1995). One quarter of them had five or more appearances before a judge. The more that complex cases involved hand-over problems, high conflict, personality disorders, or mothers applying for Legal Aid, the more court resources they consumed. The complex cases also used more of the court's counselling resources, especially if they involved interim hearings or rigid adherence to contact terms.
Several other factors also distinguished the complex cases, including allegations of children refusing to go on contact visits; claims that children's behaviour problems were being caused by contact; difficulties with hand-over and rigid adherence to the contact conditions; parents both being in a new relationship or fathers not being in a new relationship; and instances when the case had been transferred from Magistrates Court (a lower quasi-judicial court). Two other marginally significant factors that suggested the need for further research were mutual allegations of child sexual abuse or alcohol abuse, and court counsellor's recommendations against further counselling.
Although many practitioner submissions to the ALRC consultations suggested that most parents who pursue complex cases have personality disorders, only 35 percent of the Parramatta registry's parents involved in complex cases had such disorders, compared to 25 percent of non-complex case parents.
Violence and Abuse
The complex cases also tended to involve more allegations of violence (32 cases), although so did many of the registry's other cases. Fathers alleged mother's violence in four of the 32 violence allegations, mothers alleged fathers' violence in 17, and there were 11 cases of mutual allegations. Applications for restraining orders were also significantly higher in complex cases. Most Australian judges surveyed in the late 1990s (to assess the impact of the country's 1995 law reforms) thought a background of violence was extremely common. The vast majority of interim hearings observed in the Duty Lists concerned the issue of contact, and in most cases the dispute involved allegations of domestic violence or some other risk (Rhoades et al., 1999).
Given that only one percent or so of non-custodial parents are denied access after divorce in Canada (McCall, 1995), and physical cruelty was grounds for four to five percent of divorces in 1995 (Department of Justice Canada, 1997), there is good reason to think that some abusing or violent Canadian parents get access to their children after divorce and that the violence continues in some post-separation parenting relationships, as it does elsewhere.
Many Canadian provinces and territories accept violence and abuse against the child as grounds for denying or restricting a parent's access, on the basis of the established link between parental violence and bad outcomes for children. Nevertheless, some violent parents still get access to their children in most jurisdictions. Under Australia's new family laws, which have similar provisions, virtually all parents who apply to the court for residence or contact (similar to custody or access) receive interim access at separation, most often on a shared "week-around" residence basis, even though 23 percent of these parents are ultimately denied access at the final court hearing (Rhoades et al., 1999).
Spousal violence and violence against children often go together. Research shows that at least one quarter (some studies show three quarters) of men who physically abuse their partners also abuse their children (see Bala et al., 1998) during marriage. Spousal violence during marriage can end at separation, or it can begin or escalate (Bala et al., 1998). About half of all women murdered in the United States are killed by their intimate partners either when they are attempting to leave the relationship, or have recently separated (Strategic Partners, 1998). Separation can be a high-risk time for battered spouses.
However, many jurisdictions do not accept spousal abuse, in itself, as grounds for denying, or even restricting, access. Research does not show that uncoupling spousal and child violence is in children's best interests. Children who witness inter-parental abuse risk serious maladjustment (Bala et al., 1998) and are often terrified by it. In some cases, witnessing even a single serious incident can produce post-traumatic stress disorder in children (Bala et al., 1998).
In fact, a growing number of Canadian judges now apparently deny access to abusive spouses (Bala et al., 1998) or restrict it. In Australia as well as some Canadian jurisdictions, it is an explicit consideration in determining children's best interests. Increasingly, courts are attempting to balance the perceived interests of the children in maintaining contact with the risk of violence to a child or spouse by ordering supervised access. Cases now going to supervised access include an Australian father who had been jailed for stabbing the mother six times in the face and neck during a previous contact visit (Rhoades et al., 1999).
There remains considerable debate about whether a child's best interests are served by continued contact with a parent prone to violence or abuse (Strategic Partners, 1998). There are relatively few studies of the effects of domestic violence on children after their parents have separated, especially longitudinal studies.
The upshot of existing legal practice, however, is that violence and/or abuse are a serious problem in only a small fraction of post-separation parenting relationships. Most of the resident parents using supervised access in an Australian pilot project said they had felt unsafe in unsupervised access, and evaluators found some instances of alleged and actual sexual abuse of the children by access parents.
Many of the men awarded supervised access tend to diminish or deny the risk of violence and abuse (Strategic Partners, 1998). But while any one parent may fabricate charges, no evidence supports the claim that most charges are fabricated. Investigators studying 50 cases of alleged child sexual abuse before Australia's Family Court found 21 cases in which there was confirmed abuse, eight cases in which it was inconclusive, five cases in which there appeared to be no abuse, and 17 cases for which no investigations were conducted (ALRC, 1995). Another U.S. study of cases involving allegations concluded that 13 percent of complainants had exaggerated the issue of violence as a ploy in custody disputes (Johnston & Campbell, 1993).
There appears to be considerable overlap among post-parenting relationships that involve violence and abuse, complex cases that return repeatedly to litigation to resolve access disputes, and high conflict couples who experience ongoing chronic access disputes that include access denial, breach of access and other conflict over the terms of the access agreement.
Access denial and failure to exercise access are significant problems in post-parenting arrangements in Canada and elsewhere. These problems together become particularly important for policy makers whose guiding policy objective is to promote the continued involvement of parents in their children's lives, except when it would not be in the child's best interests. In the context of this objective, failure to exercise access is at least as significant as unwarranted access denial, and, given its prevalence, may even be the more pressing concern (although it is clearly harder to assess the true prevalence of unwarranted access denial).
However, it is equally clear that the problems of unwarranted access denial and failure to exercise access are embedded in a more complex set of problems between post-separation parents, of which access disputes may only be a part and access denial only one dimension of that part. The complex set of problems must be addressed as a whole according to a policy guided by the child's best interests, since the single most important message from the research is that children's best interests are served when parents are able to forge cooperative, positive post-separation parenting arrangements. When parents do not achieve such arrangements, children's best interests are not well served.
The Australian research shows that, in that country at least, access disputes that come before the courts are most often complex cases involving ongoing high conflict between the parents and, very frequently, violence and/or abuse. These very difficult cases may be the courts' main fare, because the existing access enforcement system deters all but the most litigious parents from taking their complaints to court, and leaves reasonable parents with legitimate grievances no ready mechanism for resolving their disputes. Nonetheless, there is no evidence that the legal system creates these difficult or complex cases-that is, transforms manageable conflicts into difficult and intractable disputes-though it certainly does not help. As the Australian Family Law Council puts it, the cases that consume the courts represent
"a dynamic and continuing series of disputes which may often need ongoing involvement or supervision at an individual level"(Family Law Council,
Revising access enforcement provisions in isolation, therefore, will not address these difficult cases in a way that is likely to serve the child's best interests, since it will not address the underlying conflicts that drive these cases into the courts. Nor is there any evidence that increasing other parents' access to court-based solutions to their legitimate access grievances is more likely to serve the child's best interests than an approach that fosters cooperation among parents. Any reforms to the existing access enforcement provisions that are intended to put the child's best interests first should therefore be consonant with a broader strategy designed to optimize the incidence of cooperative, positive post-separation relationships among parents.
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