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Discerning the Difference: High Conflict and/or Domestic Violence

August 2, 2016

In Canada, some 52% of child custody cases settle without any court involvement. This is not to say that the other 48% settle without intervention. Other intervention can include the input of family, friends, clergy, mediators and collaborative lawyers. Of those cases that go to court, as many as 97% settle before trial. Some cases settle much before trial such as at a settlement conference and others may settle in the run up to trial and even during the course of a trial.

Of those cases that continue to proceed through the court process, there tends to be more allegations and instances of nefarious or harmful parental behaviour. There also tends to be more unproven yet investigated allegations of domestic violence perpetrated from one partner to the other and from parent to child. In the midst of allegations and investigated yet unproven allegations, a parent may assert that the allegations are made only to serve the interests of other parent in an effort to influence the outcome of custody decisions and the residential schedule.

These cases are among the most challenging to manage. Lack of tangible evidence of nefarious or harmful behaviour does not necessarily mean the allegations aren’t true. In situations such as these, the trier of facts, be it a judge, arbitrator or mediator/arbitrator or assessor must make decisions or determinations that firstly keep children safe and secondly, balance parental rights.

While unremitting parental conflict is well known to impact child social-emotional development, violence adds another element of risk. The risks of domestic violence include indirect victimization such as from witnessing the violence and/or aftermath to being a direct target of violence with risk of physical injury and even death.

Discerning between high conflict and domestic violence, particularly in the absence of tangible evidence, relies more upon the wisdom and experience of the persons responsible for making or influencing decisions.

Even with the best of skill and judgment however, there will be false positives and false negatives. Mistakes will be made and even when mistakes are not made, the parent whose view is not supported is quite likely to continue to assert their positions and argue a mistake has been made thus keeping the dispute alive. This is what can happen in the absence of little to no tangible or significant evidence to rely upon.

This is where professionals, judges, assessors, arbitrators and the like may rely upon demeanour evidence, which simply to say, is a determination mainly on the basis of how a person comes across during the term of service. These are the cases where one parent will label the other a charmer and will worry that the other will carry themselves better and influence a decision by the ability to be a wolf in sheep’s clothing.

Arguably, one’s demeanour is not the best way to determine the outcome of children between separated parents whose dispute includes allegations of nefarious or harmful behaviour. However, where parents cannot decide these matters between themselves, this may be the best that even a professional can do.

The outcome to the differentiation of high conflict and domestic violence is no trifling matter. Discerning between the two has significant implications for parent-child relationship and decision making for the parent, although both are harmful for the child.

Where the matter is high conflict, both parents may come to enjoy time with their children and share in decisions affecting them, albeit with strategies in place to mitigate conflict and minimize parental conflict. This is where the phrase tall fences make good neighbours comes into play. In the context of high conflict separated parents, the parenting plan must be specific and minimize parental interaction and minimize the need to deviate from the plan.

Where the matter includes domestic violence the target of violence must be kept safe and the child, if not a direct target, must be kept safe from exposure to violence. In these cases, it is not uncommon that the perpetrator of the violence would have more restricted to supervised access and limits on decision making authority.

As best as possible, parents are cautioned against making false allegations. Like the story of the boy who cried wolf, false allegations can come back to haunt you. Making continued false allegations undermines one’s credibility and this in turn can negatively affect custody and residential decisions.

Parents perpetrating any form of violence against their partner are similarly cautioned. The Province of Ontario as many other jurisdictions include in their legislation that judges must consider issues of domestic violence when making custody/residential decisions. This behaviour too can come back to haunt a parent.

Lost in the shuffle between discerning high conflict and domestic violence is the children. Neither condition is conducive to a child’s well being. Both situations create what is known as adverse childhood experiences (ACE) The greater the intensity or number of ACE’s, the greater the probability of behavioural, mental health, academic and social problems for the child, carrying those risks for poor outcomes right into adulthood. If you truly have your child’s interests in mind, resist those behaviours that perpetuate or escalate conflict and resist engaging in violent behaviour.

We the professionals can only do so much. Although we are relied upon to discern these differences, it still remains a challenge regardless of training and expertise. We continue to do the best we can.

If you are involved is a court battle over the care, decision making and residence of your child, consider counseling for yourself to reflect on your own behaviour as much as that of your partner. Address any issue originating  with yourself. Learn the strategies for increasing the likelihood of resolving or mitigating conflict. Learn coping strategies to address the anxiety and/or depression that frequently accompanies these situations.

By taking care of yourself amidst the challenges and issue within your dispute, you may have more wherewithal to better support your child too.

In addition to taking care of yourself, you may also want to consider opting out of court. Court in an of itself is well known to escalate and perpetuate conflict. Services such as collaborative law, mediation and lawyer-assisted mediation can in some instances help de-escalate conflict and provide a safer venue  to raise sensitive issues absent the threat of those issues being used in a a court battle. To find out if any of those services may be helpful, ask people who practice those services. Just to add, you can engage in a parallel process meaning you can use services other than court even while still going through the court process. This can open up opportunities without closing other doors. Creative and flexible approaches may help towards resolving matters. This requires flexible and often seasoned service providers.

I am Gary Direnfeld and I am a social worker. Check out all my services and then call me if you need help with child behavior or relationship issue.

Gary Direnfeld, MSW, RSW

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Gary Direnfeld is a social worker. Courts in Ontario, Canada, consider him an expert in social work, marital and family therapy, child development, parent-child relations and custody and access matters. Gary is the host of the TV reality show, Newlywed, Nearly Dead, parenting columnist for the Hamilton Spectator and author of Marriage Rescue: Overcoming the ten deadly sins in failing relationships. Gary maintains a private practice in Dundas and Georgina Ontario, providing a range of services for people in distress. He speaks at conferences and workshops throughout North America.

If your relationship is faltering, then set it as your priority.

Read: Marriage Rescue: Overcoming ten deadly sins in failing relationships

One Comment
  1. Thanks Much Kenneth Barnes Social Worker Citize Security &Justice Programme

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