5.0 Emerging best practices: Parenting arrangements in family violence cases
In this section, we identify a range of possible parenting arrangements and the considerations that should be taken into account when determining which parenting arrangement is most appropriate for cases where there are family violence issues. We begin by reviewing the 2021 amendments to the Divorce Act that are most relevant to family violence and some of the case law interpreting these new provisions. These reforms provide an important context and helpful directions for responding to these challenging cases. We then discuss some of the most critical factors in determining the most appropriate arrangement: the type of violence; timing of disclosure and stage of separation; and access to resources.
5.1 Family violence and the 2021 Divorce Act reforms
5.1.1 The significance of the reforms
Jurisprudence under the 1985 Divorce Act generally recognized family violence issues and restricted or suspended contact with parents with a proven history of serious IPV or child abuse, but the absence of specific reference to family violence in the legislation led some judges and family justice professionals as well as parents to fail to recognize the importance of family violence for parenting decisions. The reforms to the Divorce Act include a number of specific provisions emphasizing the salience of family violence for parenting decisions, adding to the statutory recognition of the significance of family violence (Bala, 2020; Justice Canada, 2019). The significance of these reforms was clearly recognized in the 2022 Supreme Court of Canada decision in Barendregt v. Grebliunas, where the amendments were characterized as a response “to issues identified in the case law over the past few decades,” including widespread recognition “that findings of family violence are a critical consideration in the best interests analysis” (paras. 146 & 150).
The reforms provide a broad definition of “family violence” in s.2 of the Divorce Act stating that it:
means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person – and in the case of a child, the direct or indirect exposure to such conduct…
The definition goes on to provide examples, including physical or sexual abuse; threats, harassment, or psychological abuse; and threats to kill animals or damage property. Notably the definition is broader than criminal offences involving family violence and includes a “pattern of coercive and controlling behaviour.”
Under s.7.8 of the Divorce Act, a court making a parenting order must consider any available information about other child protection, criminal or civil protection proceedings or orders involving the parties. Section 16(3)(j)(i) of the Divorce Act requires the courts to consider the impact of family violence on (among other things) the ability of a parent to meet the needs of a child and the appropriateness of making an order that would require parents to cooperate on issues affecting the child. This is reinforced by s. 16(2) which provides that the “primary consideration” in parenting cases is the “child’s physical, emotional and psychological safety, security and well-being.”
While the 2021 reforms clearly require courts to consider family violence, s.16(4) provides that courts consider its nature and recency, the impact on the child and how to promote safety moving forward. If family violence has continued or escalated since separation, the courts are very unlikely to order co-parenting, although there may be a provision for supervised parenting time by a parent with history of abuse. Evidence of post-separation stalking, financial abuse, or abusive communication will be very relevant. It is also important for courts to recognize that the psychological effects of family violence on the victim may continue after separation. A victim of family violence may be unable to effectively co-parent due to a prior history of having been dominated or traumatized by the perpetrator, or due to a fear of future violence.
In Barendregt v. Grebliunas (2022) the Supreme Court of Canada upheld the decision of the trial judge to allow a mother to relocate with her children some 10 hours’ drive from the father, in significant measure because she had been a victim of his abuse and violence. Justice Karakatsanis held that “because family violence may be a reason for the relocation and given the grave implications that any form of family violence poses for the positive development of children, this is an important factor in mobility cases” (at para. 147). The Court accepted that being a perpetrator of domestic violence is relevant to “parenting ability” and recognized that harm to children “can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it” (at para. 143). While Barendregt was a relocation case, the approach of the Court is clearly relevant to all parenting cases, with Karakatsanis J. observing that the amendments to the Divorce Act recognize that “findings of family violence are a critical consideration in the best interests analysis.” She also observed that:
[d]omestic violence allegations are notoriously difficult to prove [as] family violence often takes place behind closed doors and may lack corroborating evidence…Thus, proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact or support. (at para. 144)
Barendregt clearly recognizes the importance of a “finding” of family violence, though it is necessary to keep the factual context of the decision in mind. The Court observed that this was not just a case of post-separation “friction,” but one “featuring abusive conduct during the marriage, at separation, and at trial” (at para 141). Despite the father’s denials, the trial judge found that he was abusive, and concluded that one of his assaults on the mother resulted in her calling the police, seeking medical attention, obtaining protection from her parents and immediately moving with the children to live with her parents, some 10 hours’ drive from the family’s home. Further, the trial judge emphasized that the abusive conduct continued after separation and into the trial itself, including “most notably” the father including “a nude ‘selfie’ of the mother” in an affidavit, which the trial judge found served “no purpose but to humiliate her” (at para. 179). Consistent with s.16(4) of the amended Divorce Act, the trial and Supreme Court decisions in Barendregt require that judges take a broad approach to the consideration of family violence in parenting cases.
An example of the approach to family violence required by s.16(4) was provided in McBennett v Danis (2021 ONSC 3610), where Justice Chappel found that it was in the best interests of the child for both parents to have an equal role with respect to parental decision-making and equal parenting time, despite her finding that the father had been emotionally abusive to the mother during their relationship. Justice Chappel found that there were no issues at the time of trial that could impact the father’s quality of care to his daughter. Importantly, she recognized the “monumental” changes in the father’s behaviour since separation, including his acknowledgement of his prior inadequacies, and undertaking of a mental health evaluation and enrolment in programs to improve his parenting and communication with the mother.
5.1.2 Coercive controlling behaviour as family violence
The courts are recognizing that coercive controlling behaviour may exacerbate physical abuse, or, consistent with the legislative amendments, may be a concern even in the absence of physical violence. The family violence provisions in Ontario’s Children’s Law Reform Act, mirror those in the Divorce Act so it is interesting to explore some of these decisions as well.
In M.H.S. v. M.R. (2021 ONCJ 665), the mother of two young children was seeking temporary parenting care and decision-making, with only supervised visits for the father. The mother was born in Iran and immigrated to Canada with her family when she was nine years old. The parties had an arranged marriage, and the mother then sponsored the father’s immigration to Canada. The father arrived in Canada in 2015, and the parties began to live together, with the couple’s first and second pregnancies occurring shortly thereafter. The parties separated, and the children resided with the mother after the separation, with the father having limited involvement and only daytime visits. Two years after their separation, the mother had a mental health breakdown and was hospitalized for two months, during which time the children were cared for by the maternal grandmother. When the mother was released, the children again resided with her. The grandmother continued to provide parenting assistance, and the father still only had daytime visits. Almost two months after the mother’s release from the hospital, the father did not return the children to the mother after a visit and refused to allow the mother to see them in person. He then began an application without notice to the mother for temporary custody, claiming that her mental health situation required urgent court action. The mother sought custody, with only limited contact with the father. Both motions came before Justice Sherr about two months after the father’s unilateral action, with affidavits of each parent alleging abuse by the other. Justice Sherr began with the mother’s onus of proof for trying to limit the father’s time to supervised daytime visits:
The party who seeks to reduce normal parenting time will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction.
The person seeking supervised parenting time for the other parent bears the burden of establishing that supervision is necessary. (at para. 52-53)
The court accepted that the mother had been the children’s primary caregiver except for the two-month period of her hospitalization. While recognizing that this was a temporary hearing, and the court was not making a final factual determination, the judge found that the mother was a “credible witness” in testifying in court about the father’s abuse of her, and about his threats to abduct the children to Germany or Afghanistan, where he had relatives. The court characterized his conduct in taking the children into his care, which included not enrolling the older child in school and withholding all in-person contact with the mother, as “appalling.” Justice Sherr concluded:
It is apparent to the court that there is a significant power imbalance between the mother and the father. The father is university educated…. The mother has cognitive and mental health challenges. She is very vulnerable. The father appears to have taken advantage of this power imbalance. It is easy for him to threaten and intimidate the mother. …it is easy for him to control the mother by telling her how he has powerful friends who will assist him with any abduction.
She believes him. He is powerful to her…
The court finds that the father has subjected the mother and the children to family violence. This violence has been physical, emotional, psychological and financial. It has been persistent. The father has acted in a controlling and coercive manner towards the mother. (at para. 79 & 103)
The court found that the mother had established “an objective and subjective basis” to fear for the safety of herself and the children, and awarded her temporary care and decision-making, with only limited, professionally supervised parenting time to the father, as well as a restraining order on his contact with the mother, and later ordered him to pay $10,000 towards the mother’s legal fees (2022 OCJ 28).
The decision in M.H.S. v M.R. illustrates the importance of an intersectional analysis, taking account of the multiple vulnerabilities of the mother that the father exploited in a coercive controlling way.
5.1.3 Alienating behaviour as family violence
The amended Divorce Act s. 16(3)(c) provides that a factor in making best interest decisions is each parent’s “willingness to support the development and maintenance of the child’s relationship with the other” parent. As noted by the Supreme Court of Canada in Barendregt v. Grebliunas (2022), s.16(3)(c) was formerly part of s. 16(10) of the 1985 Act and is sometimes referred to as the “friendly parent provision.” Some courts have held that undermining a child’s relationship with the other parent may be a form of “family violence,” as it may be psychologically harmful to both the child and other parent.
Some recent decisions in Ontario are of interest since the Children’s Law Reform Act has been amended with similar language to the Divorce Act. In C. v A.J. (2021 ONSC 8191), an Ontario family court found that the father’s course of alienating behaviour constituted “coercive control” and “family violence.” The mother claimed that the father had been physically and emotionally abusive towards her while they lived together, which eventually resulted in her moving to a shelter without the children. After separation, the father did not permit her to see the children for six months, and she was only able to see them after bringing a motion for temporary relief. The father reported to the child protection agency that the mother had been physically abusive of the boys. The agency investigated but concluded that the father had coached the two sons into making unfounded allegations against their mother. A clinical investigator from the Ontario Office of the Children’s Lawyer concluded that the father “exerted an enormous amount of pressure on the mother and the children to do his bidding… and incited the children to be belligerent” and aggressive with their mother (at para. 22). The Ontario Office of the Children’s Lawyer investigator was very concerned about the emotional environment for the boys while in the care of their father. At the parenting motion, Justice Audet ordered that the mother have primary care and sole decision-making, with the father having only supervised contact and, on consent, both the parents and boys were to undertake counselling.
While the courts are concerned about alienating behaviour, they also recognize that there are cases in which abusive parents, especially men, make unfounded claims of alienation against the other parent. In Armstrong v Coupland (2021 ONSC 8186), the mother wanted the father of their four-year-old child to have only supervised contact because of his abusive behaviour. At a hearing for a temporary parenting order, the mother’s counsel introduced emails which the father had sent the mother and her counsel, in which he claimed that they were “alienating” the girl from him. Justice Chappel concluded that the father’s communications were often:
…inappropriately aggressive, demanding and threatening. While many of the comments have been directed towards [mother’s counsel], they have been sent to the [mother] as well and have been clearly designed to destroy a solicitor client relationship that the mother considers to be critical to ensure the safety and wellbeing of herself and her children. In this sense, the communications amount to a pattern of threatening, coercive and controlling behaviour towards the [mother]. (at para. 39)
The court ordered that the father was only to have limited, supervised parenting time, and a restraining order was imposed on the father. Justice Chappel observed:
The definition of family violence specifically recognizes that conduct that may not constitute a criminal offence can constitute family violence for Family Law purposes…The specific inclusion of this factor as a mandatory consideration in determining the best interests of children recognizes the profound effects that all forms of family violence can have on children. These consequences can be both direct, if a child is exposed to the family violence, or indirect, if the victimized parent’s physical, emotional and psychological well-being are compromised, since these consequences in turn often negatively impact that parent’s ability to meet the child’s physical and emotional needs. (at para. 21)
It is clear that the courts recognize that alienation can be part of a pattern of family violence and coercive control in undermining the victim’s relationship with the children. This paper is focused on abusers turning children against the other parent or a victim parent being falsely accused of “alienation” with the misuse of the concept (Lapierre et al, 2020; Sheehy & Boyd, 2020). We appreciate that claims of alienation need to be approached in a thoughtful fashion, and that there are unfounded claims of alienation as well as founded claims.
5.2 Parenting arrangements
There has been little research evaluating the application of specific types of parenting arrangements to different patterns of family violence. Too often, research has compared child adjustment outcomes for different parenting arrangements (e.g., shared decision-making versus a predominant or principal parent making all decisions) without including family violence as a moderator. In this section, we outline a range of parenting arrangements aligned to the research on family violence.
The cases at the extreme ends of the family violence spectrum are most easily addressed. At one end of the continuum, there is no doubt that a perpetrator of chronic family violence who has demonstrated a pattern of abusive coercive controlling behaviour over time, with little remorse or investment in treatment should have either no parenting or limited supervised parenting by highly trained professional staff. At the other end of the continuum, an isolated, relatively minor assault which is out of character, accompanied by genuine remorse, and that did not induce ongoing fear or trauma, may not preclude a co-parenting arrangement.
In between these extremes is a canyon of gray in which matching parenting arrangements to families is challenging and dependent on analyzing a host of factors. Some of these factors relate to historical relationships and characteristics of individuals, some relate to available resources in a particular community, and others relate to the stage of proceedings and available information, as well as to the children who are involved.
The dynamic nature of individuals and families compounds the complexity of this matching process. A family in crisis at the point of separation may present in a different fashion a year later, especially if there has been appropriate counselling and support. For other families, the state of crisis becomes chronic and litigation seems never-ending with professionals becoming enmeshed in the dispute. This reality means that complex cases require ongoing assessment and monitoring by the court with the assistance of court-related services.
5.2.1 Co-parenting
Definition and description
Co-parenting refers to an arrangement in which separated parents cooperate relatively closely in raising their children. This arrangement often approximates the pre-separation pattern of care for the children, with both parents actively involved in the lives of their children, sharing information, and co-operatively problem-solving the challenges of parenting as they arise. Within the broad definition of co-parenting, there may be a range of divisions of time spent in each parent’s home, and an assumption of flexibility in scheduling, taking account of the distance between homes, children’s needs and stage of development, and parents’ schedules (AFCC Ontario, 2021). Co-parenting may involve equal parenting time, for example a “week about” arrangement, but it is often not equal time, and there are likely to be changes in parenting time schedule negotiated by the parents as the children grow older and circumstances change.
In many cases of parental separation, co-parenting is best for children as it helps maintain a meaningful ongoing relationship with both parents; children’s stability and normal development are promoted. In dealing with specific cases, however, it is important for professionals and parents to be realistic in assessing whether co-parenting is appropriate and likely to promote the well-being of the children.
Indicators and contra-indicators
Co-parenting requires two parents who can maintain a civil and child-focused relationship post-separation. There should be mutual trust and respect that allows for constructive communication between parents. Parents may vary along these dimensions from time to time during periods of crisis or major transition (e.g., jealousy over new partners, challenges over parenting adolescents), but overall, the parents need to be able to make this arrangement work.
Co-parenting is contra-indicated by continuing family violence, including concerns about continuing effects of coercive controlling behaviour on victims. Other factors also contra-indicate co-parenting, including a history of poor communication, coercive interactions, inability to jointly problem-solve, or a lack of child-centred focus by one or both parents. In addition, there may be mental health problems or substance abuse suffered by one or both parents that can preclude use of co-parenting.
Special considerations
There are circumstances under which parents may overcome difficulties with time and/or counselling and are motivated to make a co-parenting arrangement work. On the other hand, there may be a parent who will frustrate the possibility of co-parenting, despite the best efforts of the other parent and third parties such as mediators.
There is considerable debate about whether co-parenting should be imposed on an unwilling parent. These cases require special skills on the part of assessors, lawyers and judges to properly assess the reason for the resistance to co-parenting. For example, a parent who has felt bullied or victimized and experienced considerable anticipatory anxiety in dealings with the other parent may have a legitimate aversion to co-parenting.
Case Suitable for Co-parenting Despite History of Family Violence
The Singhs were born and married in Canada. They separated four years ago. At the time of the separation, there was an incident of violence when Mr. Singh grabbed Mrs. Singh by the shoulders, shook her and threw her to the ground upon discovering she was leaving him for another man. He was charged with assault and because there was no prior history of violence and no injuries, he was fast-tracked into a batterers’ intervention program as part of a conditional discharge plea bargain. There have been no incidents of threats or harassment post-separation. Both parents have remarried and have developed a cooperative relationship with each other by necessity of the demands of their three children (ages 7, 11 and 14), who require help with school assignments and transportation to sports events on the same days at different locations. Although the children reside primarily with their mother, each parent is involved in day-to-day decisions, as well as more important issues regarding health care and education. There is flexibility based on the children’s needs and conflicting parental commitments in changing father’s normal parenting time schedule of alternate weekend and one evening mid-week schedule.
5.2.2 Parallel parenting
Definition and description
In contrast to the cooperative nature of a co-parenting arrangement, parallel parenting describes an arrangement where each parent is significantly involved in the children’s lives, but the arrangement is structured to minimize contact between the parents to protect the children from exposure to ongoing parental conflict, typically by having each parent make day-to-day decisions independently of each other when the children are in their care, and by allocating responsibility for major decisions, like education, to one parent. There is limited flexibility in a parallel parenting arrangement, and the parents typically abide by a structured and detailed parenting time schedule.
Parallel parenting developed in recognition of high conflict separations, where both parents appear competent and have been involved in the children’s lives. Rather than encourage co-parenting, the goal of this plan is to disengage the parents from each other and any long-standing hostilities, and reduce scope for conflicts (Fidler & McHale, 2020). Natural transitions can be used to limit parental contact, such as having one parent drop the children at school and the other parent pick them up to begin their parenting time. There must be a careful structuring of communication between the parents, for example, by requiring all communication to be by email or through an app which, if need be, can be monitored by a third party. Children should not be expected to carry messages back and forth in high-conflict cases. Parallel parenting is generally only appropriate for children if, despite their conflicts, the parents have fundamentally similar ideas and expectations about parenting and child-rearing.
There is controversy about parallel parenting because some professionals view it as a judicial “compromise plan” that is a form of imposed co-parenting. Some commentators have pointed out that it is naïve to believe that parents can raise their children in an effective manner without meaningful communication and suggest that parallel parenting is fraught with more problems than it solves (Epstein & Madsen, 2004). If there is a lack of genuine communication and cooperation between parents, the plan may require active negotiations and arbitration by a third party, such as parenting coordinator, if the parents have the resources to afford these additional supports.
Parallel parenting will typically involve a child spending more time in the care of one parent, who will be the primary residential parent, though there can be roughly equal time in the care of each parent. Parallel parenting may be most appropriate at the temporary (or interim) stage, with the hope that over time, parental hostility may decline, and that parallel parenting may develop towards some form of co-parenting (Fidler, 2012). In cases where there is continuing high conflict and a trial is many months or even years after separation, conflict is less likely to diminish after trial. Therapy for the parents to deal with their feelings of anger and hostility may help parallel parenting to evolve towards co-parenting, but this is not always a realistic possibility.
Indicators and contra-indicators
Parallel parenting assumes that each parent has a positive contribution to make in their involvement with the children, but direct parent-parent contact needs to be limited due to ongoing acrimony and the possibility of hostility in the presence of the children. This acrimony may be based on mutual mistrust, personality conflict, or inability of one or both parents to move past the separation and focus on the future. Any clinical or legal finding that one parent poses a physical, sexual or emotional threat to the children, or that there are continuing concerns of violence or coercive control towards the other parent, would contra-indicate a parallel parenting arrangement.
Special considerations
Whether a parallel parenting arrangement might be appropriate in the aftermath of violence towards children or an adult partner generally requires a careful assessment by a professional with a background in family violence cases. Factors critical to this determination include whether the perpetrator of the violence has taken responsibility and successfully completed an intervention; whether the children have received services and are experiencing ongoing symptoms of trauma or distress; and the developmental stage of the children. A clinical finding of ongoing risk to children or the other parent clearly contra-indicates a parallel parenting arrangement.
Case Suitable for Parallel Parenting
The Smiths had an acrimonious marriage and separation. Their twin girls (age 7) are attached to each parent but are frightened by the thought of the two parents being in each other’s presence at school events or at recreational events. The children report a history of spousal violence in the marriage where the two parents would yell and throw things at each other. Since the separation, the children have alternated weeks at each parent’s home with the exchange (changeover) taking place at the end of the school day Fridays (and at their cousins’ home during holidays) to minimize the parents being in each other’s presence. Each parent has decision-making ability while the children are in their care. There are no disagreements about major issues such as religion, education and health care. In addition, a parenting coordinator-social worker has been named to mediate or arbitrate any disputes. The parents are not to be in contact with the children while they are in the care of the other parent, except by special agreement with the co-coordinator or in an emergency. Communication between the parents is by email which is monitored by the parenting coordinator (perhaps by an app like Our Family Wizard).
5.2.3 Primary residence parenting
Definition and description
Primary residence parenting is somewhat analogous to what occurred before the 2021 Divorce Act reforms when one parent had custody of the children and the other parent had a limited access schedule. Primary residence parenting arrangements place the child primarily in the care of one parent while the other parent has a more limited role, recognizing that there are limitations to the ability of the other parent to make positive contributions to the child, possibly due to ongoing concerns about that parent’s use of coercive control, inability to prioritize the child’s needs over their acrimony towards the primary residential parent, or due to serious concerns about the parenting capacity, mental health or substance use of the other parent. In this type of parenting arrangement, the parent with the child’s primary residence is granted sole decision-making on all or most parenting issues, but may still consult with the other parent on their views. The child maintains contact with the other parent, but parenting time may be limited to weekends or even just daytime visits. The concerns are not at the level of needing supervised exchanges or supervised parenting which are discussed below.
Indicators and contra-indicators
This plan assumes that there are no safety concerns that would require supervision for exchanges or supervision of the parenting time. It also assumes that the parenting time is not being used to undermine the primary residence parent.
Special considerations
This plan may work best when the family violence or coercive control by one parent has been acknowledged and there is an intervention plan in place to address the past conduct and the impact it may have had on the victimized parent and the children, and safety concerns are adequately addressed. Over time, this plan could evolve into a co-parenting plan.
Case Suitable for Primary Residence Parenting
The Kowalskis’ separation was acrimonious. During an argument about their separation, Mr. Kowalski threatened his wife and shoved her against the front door when she tried to exit the home. Their sons were exposed to this violence and the aftermath. Mr. Kowalski was charged with assault. He accepted responsibility and indicated his remorse. The case was resolved with a conditional discharge based on his willingness to attend a partner assault program and a parenting program to consider the impact of his behaviour on his two sons (ages 7 and 9 years). He had been involved with his sons through soccer and was an assistant coach on the older boy’s team. Ms. Kowalski was given the role of primary residential parent and all decision-making. Mr. Kowalski had every Saturday from 10 am to 7 pm and Wednesdays from after school until 8 p.m. to coincide with the soccer schedule. Ms. Kowalski was involved in counselling dealing with the family violence and trauma she suffered. She is not fearful of her ex-husband. The Kowalskis’ were optimistic that they might move to a more flexible schedule if Mr. Kowalski was able to maintain safe and respectful behaviour towards Mrs. Kowalski.
5.2.4 Supervised exchange
Definition and description
Supervised exchange involves transferring children from the care of one parent to the other under the supervision of a third party. The supervision can be informal, for example, by a family member, neighbour or volunteer, or using a public venue for the exchange, such as the parking lot of a fast-food restaurant or, if necessary, at a police station. The supervision can also be formalized through a supervised exchange service or use of a designated professional, such as a childcare worker or a social worker. The underlying premise is that by either staggering arrival and departure times or having third-party witnesses, the parents will not come into contact. These are cases with sufficient concerns about one parent that there is a need for supervision of the transitions. However, there is an expectation that the child will still benefit from a continuing relationship with both parents, and there is not a sufficient risk to the safety or emotional well-being of the children while in the care of the non-primary care parent that parenting time needs to be supervised.
Indicators and contra-indicators
Supervised exchange provides a buffer in cases where the ongoing conflict cannot be contained by the parents at transitions, thereby exposing the children to the risk of high levels of conflict. It is also useful when there is a historical pattern of family violence, and the victim may experience distress or have trauma triggers encountering the other parent. However, supervised exchanges do not mitigate the risk of violence if there are ongoing concerns about the safety of children and their primary caregiver.
Special considerations
Supervised exchanges are sometimes inappropriately used to create a sense of safety when a more restrictive measure (such as supervised parenting) is warranted. As well, informal third-party supervised exchanges or exchanges in a public place may be well-intended but inadequate; supervision may require a knowledgeable professional to monitor safety and inappropriate behaviours. If there is continuing high conflict, even exchanges in a place like a police station parking lot can be hostile and very stressful for children. Further, some abusers may be involved in more subtle behaviours that are emotionally abusive, undermine the other parent, or signal threats to the other parent. These more insidious transgressions are difficult for lay people or family members aligned with the perpetrator to identify.
Case Suitable for Interim Supervision of Exchange
The Zhangs have been separated for six months. Ms. Zhang describes her husband as a bully who was verbally abusive during the marriage and threatening in his demeanor. He physically assaulted her on one occasion when she told him that she was having an affair with a colleague at her work, and wanted a divorce. The police were called; the father was arrested, pled guilty and is on probation. Ms. Zhang has interim parenting decision-making responsibility and moved to her parents’ home, a 45-minutes’s drive from the former family home, where the father continues to reside. Mr. Zhang was verbally abusive of his wife at the initial visits after the separation, and the court allowed him to see his son every Saturday afternoon to Sunday afternoon, through an exchange at a supervised parenting centre. Mr. Zhang desires equal parenting time but also understands that, given his abuse, he needs to maintain non-abusive behaviour for a period of time to rebuild his families’ trust in him. Ms. Zhang reports that she is no longer frightened of her husband but doesn’t want to be in his presence to avoid any conflicts over outstanding financial issues, which are in family litigation. A court review is scheduled in three months.
5.2.5 Supervised parenting time
Definition and description
Supervised parenting time is an arrangement designed to promote a child’s safe contact with a parent who is a risk due to a range of behaviours from physical abuse to possible abduction of the child. It may also be appropriate where a child has fears of a parent, for example, because of having witnessed the parent perpetrate abuse or because of having been abused by that parent, but still wants to maintain a relationship. Although supervised parenting time is a long-accepted practice in the child protection field (Saini et al., 2012), it has emerged more recently in the parental separation context with parents who pose a risk to the children or the other parent (Hunter et al., 2018). Like supervised exchanges, supervised parenting time may vary in formality from extended family or volunteers to a specialized centre with professional staff with expertise in these issues. Related to this plan is the use of therapeutic supervised parenting time,Footnote6 which involves a mental health professional who may be involved in trying to improve a troubled parent-child relationship through counseling and support during this parenting time.
Supervised parenting time should normally be a short-term solution to concerns about child safety, though in some cases it may continue for years where these concerns have not dissipated but the child continues to enjoy seeing the parent (Bala et al., 2016).
While much less expensive and less intrusive for the parent and child, supervision should only be provided by a friend or relative if the court is satisfied that this person is willing and able to fully protect the child and resist the wishes of the supervised parent.
Indicators and contra-indicators
Supervised parenting time should only be undertaken if it is believed that a child will benefit from a parent maintaining an ongoing role in the child’s life but there remain concerns about the risk that the abusive parent poses to the other parent and the child. There are ongoing risks of physical or emotional abuse to the adult victim and the safety of the child is in jeopardy. Supervision is usually only considered for what is expected to be a transitional period while the parent addresses behavioural or emotional issues and proves that the supervision is no longer required due to changes in their behaviour and addressing problem areas. Serious concerns demand more specialized services and well-trained staff as opposed to volunteers. There are more extreme cases where the safety offered by the supervisor is not appropriate for the degree of risk and no contact may be appropriate.
Special considerations: supervised parenting programs
There is great variability among supervised parenting services, training of staff and mandates for programs. If there has been a history of sexual or emotional abuse of a child, the supervisor should have appropriate training to recognize subtle forms of abuse. There have been efforts to establish standards for staffing and practices (e.g., Supervised Visitation Network, 2022; Pulido et al., 2011), but in many locales their implementation would require greater funding than is currently available. Some parents may require extensive assistance during their parenting time to say and do things that match their children’s needs and stage of development. Professional supervision is relatively expensive, though in some locations in Canada, especially in Ontario, there are subsidies available for supervision of visits for low-income parents.Footnote7
In some cases, there may be a strained relationship between an abusive parent and child due to historical events or the lengthy disruption of any meaningful parent-child relationship and the child may require more than a safe place for parenting time. In these cases, significant interventions by a trained professional may be required to promote healing and enhance parenting before visits with the child should be allowed.
Supervised parenting cannot be a substitute for a comprehensive assessment by a qualified mental health professional. Courts may draw inappropriate conclusions about the meaning of “successful” visits out of context of the larger picture an assessment provides. Too often, supervision is dropped (i.e., visits are no longer supervised) after a period in which nothing overly negative has occurred but there have been no interventions. If there has been significant violence or a child has continuing fears, there should be an onus on a perpetrator of the violence to show that they have made significant changes and are taking responsibility for past transgressions, not merely that they can contain inappropriate behaviour under supervision (Bancroft et al., 2012; Scott & Crooks, 2007).
It has long been recognized that it is important for there to be clear expectations and written agreements between the supervisor and the court, counsel and parents for supervision, especially in cases such as where there has been a history of child abuse (Oehme & O’Rourke, 2011). These agreements have many benefits. Supervised parties have clear boundaries about acceptable and unacceptable behaviours; supervisors know what behaviours they are monitoring; courts have records and information upon which to base subsequent decisions; and there is clear agreement among parties of the situation (versus an informal arrangement where the supervisor and supervised party may see the supervised party as the victim or client). A recent longitudinal study of parents and children in (Canadian) supervised parenting time programs demonstrates the need for careful assessment and individualized parenting plans as not all children benefit or feel safe from supervised parenting arrangements (Saint-Jacques et al., 2020).
The Supervised Visitation Network (2022) has very useful standards and guidelines, as well as sample contracts, available on their website. Practices vary across Canada in terms of government funding and availability of services.
Case Suitable for Supervised Parenting Time
Ms. MacLeod is an alcoholic who has endangered her children in the past through drinking and driving. She has also assaulted her husband several times while she was drinking, including an incident which resulted in a conviction 18 months ago for stabbing him in the shoulder with a kitchen knife. After the stabbing, the father separated from her. The children have lived with him pursuant to a court order. Her contact was limited to one supervised visit a month. Her two daughters (ages 5 and 8) are attached to her but were frightened by her behaviour when she was drinking, and a few visits were cancelled because she arrived at the supervised visitation facility inebriated. The children want to see her, and their father wants to promote an ongoing relationship if it can be done in a safe fashion. She has completed a residential program related to addictions and is involved in counselling about her violent behaviour. She has joined Alcoholics Anonymous and has been sober for six months. The court awards her three hours of supervised visits, twice a week at a government-funded supervised parenting centre.
The Psychiatrist Who Warned Us That Donald Trump Would Unleash Violence Was Absolutely Right
The vindication of Bandy Lee.
Joshua KendallSeptember+October 2022 Issue
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On the afternoon of February 1, 2016, as Iowa voters prepared for that evening’s caucuses, Bandy Lee sat by the bedside of her mother, who was terminally ill with cancer. An assistant professor of clinical psychiatry at Yale, Lee had been too preoccupied with her mother’s condition to pay attention to the nascent presidential race, so she was taken aback when she saw footage of a Donald Trump rally airing on the hospital room’s small TV. What shocked her was the way Trump interacted with the crowd. “He said something about how his supporters should knock the crap out of hecklers,” she recalls, “and that if they did, he would pay their legal bills.”
His belligerent behavior meant more to Lee than it might to a casual viewer. As part of her clinical work in prison settings, she had evaluated and treated hundreds of violent offenders, including leaders of prison gangs. A native New Yorker, she had assumed that Trump “was just a shady businessman,” Lee told me, but “I suddenly realized that he had a lot in common” with those patients. “Trump was engaging in the predatory manipulation of his vulnerable followers.” In some cases, gang leaders might “ask their members to engage in violence and then issue bogus promises of protection. Like Trump, these leaders also often project extreme self-confidence, and that appeals to their followers, who tend to feel a deep emotional need for protection, connection, and identity.”
Fast forward to November 9, 2016, the day after the election. Lee’s friends and colleagues were bombarding her with calls and emails. Would Trump’s victory herald an increase in hate crimes? “You are a violence expert,” one implored. “Can you do something?”Violent themes were becoming a staple of Republican campaign rhetoric well before the FBI’s Mar-a-Lago search unleashed a fresh torrent of inciteful messaging.
She decided to jump into the fray, organizing an academic conference that took place in New Haven the following April. Titled “Does Professional Responsibility Include a Duty to Warn?” the meeting featured a handful of prominent psychiatrists, including Robert Jay Lifton, author of The Nazi Doctors (1986), who addressed Trump’s mental state and the risks they believed it posed to the health and safety of Americans. Their consensus was, as Lifton put it, that psychiatric professionals had a compelling ethical duty to “bring our experience and knowledge to bear on what threatens us and what might renew us.” The event was initially sponsored by Yale’s schools of public health, medicine, and nursing, but Lee ended up running it independently to avoid the perception of “politicization.”
On the day of the conference, when only two dozen people filed into the 450-seat auditorium, the speakers—who also included clinical psychiatry professor Judith Herman from Harvard Medical School, and New York University psychiatrist James Gilligan, who also specializes in violent behavior—were “disappointed,” Lee says. “We assumed that our effort was a failure until we saw the press coverage, which included write-ups in news outlets in [many] different countries.” She proceeded to solicit papers on Trump’s potential for violence from a couple dozen other mental health experts and published the entire collection that fall. The Dangerous Case of Donald Trump was a surprise bestseller, hailed by the Washington Post as “the most daring book” of 2017.
Shortly after the book came out, leaders of the American Psychiatric Association began publicly attacking Lee, arguing she was acting irresponsibly. Her alleged offense was violating the 1973 Goldwater Rule, an APA guideline stating that “it is unethical for a psychiatrist to offer a professional opinion” of anyone without conducting a personal examination and getting proper approval.
The rule was the APA’s response to a 1966 lawsuit by Barry Goldwater, the late Arizona senator and presidential candidate. Goldwater had successfully sued Fact magazine, which, shortly before the 1964 general election, ran a piece in which dozens of leading psychiatrists offered crude armchair assessments of the state of Goldwater’s psyche. “His impulsive, impetuous behavior…reflects an emotionally immature, unstable personality,” wrote one doctor, who went on to cite Goldwater’s “inability to dissociate himself from vituperative, sick extremists.” (While the archconservative’s fiery campaign speeches were startling to many Americans at the time, they now seem relatively tame compared with Trump’s.)
This was the heyday of classical Freudianism, and most of the Fact magazine commentary was rooted in theoretical mumbo jumbo rather than empirical facts. One psychiatrist declared that the “core of [Goldwater’s] paranoid personality is…his anality and latent homosexuality.” The legacy of these off-the-cuff evaluations is a primary reason that today’s APA leaders were so eager to quash Lee’s Trump commentary.
“Anything a psychiatrist says without examining a patient is likely to be inaccurate, so it can harm the public figure,” says Paul Appelbaum, a Columbia University professor who has served as the APA’s president. Appelbaum is also concerned that diagnosing people from a distance casts the profession in a negative light: “These seemingly cavalier and politically motivated public statements can prevent people from getting the psychiatric care that they need.”
And yet Lee’s Cassandra-like warnings turned out to be remarkably prescient. On the morning of the insurrection, as former White House aide Cassidy Hutchinson revealed in sworn testimony to the January 6 committee, Trump had no compunction about unleashing armed loyalists on the Capitol, and was furious when told he could not accompany them. Two days later, as Bob Woodward and Robert Costa reported in their book, Peril, House Speaker Nancy Pelosi seemed to channel Lee when she told General Mark Milley, the chairman of the Joint Chiefs of Staff, “This unhinged president could not be more dangerous. And we must do everything we can to protect the American people from his unbalanced assault on our country.”
We also know from January 6 testimony that key Republicans—including House Minority Leader Kevin McCarthy and Cabinet secretaries such as Steven Mnuchin and Betsy DeVos—discussed the possibility of invoking the 25th Amendment, which provides for removal of a president who is no longer fit to discharge his duties due to a mental or physical disability.No former president since John Tyler—who later became a Confederate lawmaker—has warmed to the prospect of civil war quite as much as Trump.
Trump, whose false (and contagious) claim that the 2020 election was stolen remains the centerpiece of his putative 2024 campaign, could still end up being the Republican frontrunner, despite his mounting legal troubles. In this context, Lee’s assessment begs a second look. The threat of violence, after all, was a staple of Republican campaign rhetoric even before the FBI’s search of Mar-a-Lago unleashed a fresh torrent of inciteful anti-government messaging from Republican lawmakers and right-wing extremists alike. Back in June, to offer just one example, Missouri Senate candidate and former governor Eric Greitens released an ad depicting a fully armed “MAGA crew” going RINO hunting. (Greitens, who had resigned his governership amid a sex scandal and other allegations, lost his August primary to Republican Eric Schmitt.)
As a pioneering scholar of violence, Lee has plenty to say about what can be done to address the growing disregard for law and democratic institutions that Trump helped normalize. Indeed, in January, well before this most recent surge of hyper-partisan vitriol, the Washington Post and the University of Maryland published a poll in which 34 percent of participants—and about 40 percent of participating Republicans and independents—said political violence is sometimes justifiable.
The warning signs have long been there for all to see. Ever since June 2015, when Trump descended the escalator in Trump Tower to announce his candidacy, he has repeatedly embraced violence in support of his political goals. Roughly two months after the Iowa caucuses, when his campaign manager Corey Lewandowski was arrested for manhandling a female reporter, Trump responded with gaslighting: “It was almost like he was trying to keep her off me, like he was trying to help her.”
Instead of denouncing the white supremacists who organized the 2017 Charlottesville rally that turned violent, Trump said there were “very fine people on both sides.” And during his first debate with Joe Biden, Trump refused to condemn the Proud Boys, a violent extremist group that would play a pivotal role in the Capitol assault, instead telling them to “stand back and stand by.”
No former president since John Tyler—who later became a Confederate lawmaker—has warmed to the prospect of civil war quite as much as Trump, who in late May “re-truthed” a post on his social media platform positing it as a solution for our “failing” nation. His followers may be on the same page. In a poll published a week or so later, more than half of the Republican respondents said America “seems headed toward a civil war in the near future.” The Mar-a-Lago search generated further talk of civil war on social media channels, along with calls to target judges and federal agents that at least one participant acted upon.
Lee’s professional interests date back to her childhood in a run-down neighborhood just south of the New York Botanical Garden. “The windows of my junior high school were strewn with bullet holes,” she recalls. “In the 1980s, Albanian, Chinese, and African American teenage gangs patrolled the Bronx. I grew up never imagining that I wouldn’t be looking over my shoulder to check that I was safe.”
After graduating from Yale Medical School in 1994, Lee devoted her career to studying, predicting, and preventing violence. Early in her residency at Harvard’s Massachusetts General Hospital, she jumped at the chance to provide therapy to inmates at Boston’s Suffolk County Jail. “I identify with perpetrators of violent crimes,” she explains. “There is a paper-thin difference between becoming one of them and doing what I do. I’ve lived in their surroundings and I know their mindset.”
In addition to studying the perpetrators, she has focused on the broader topic of how societies view and process violence. America’s leaders have historically perceived it primarily through the lens of crime and punishment, “but I see it as a serious public health problem, which we need to address by means of scientific principles.”
In 1997, she began working with James Gilligan, then one of her Harvard mentors, on the Resolve to Stop the Violence Project. Supported by a $2.6 million grant from the Soros Foundation, the pair established an experimental program for violent offenders in a San Francisco jail.
