Child access and domestic abuse allegations: a delicate balance

By Staff

In the final instalment of a three-part series on domestic violence, Toronto family lawyer Jennifer Daudlin discusses the importance of putting children first in separation and divorce.

Even in situations of domestic abuse, parties must recognize it is almost always in a child’s best interest that a relationship with both parents is maintained, Toronto family lawyer Jennifer Daudlin tells

"There is a presumption that the time spent between parent and child should be maximized, absent some proof that might negatively impact the child — for example, where there is evidence that an abusive spouse might also be an abusive parent," says Daudlin, founder and principal of Daudlin Law.

In the midst of a separation from an abusive spouse, the topic of whether a child should spend time with that parent can be extremely controversial, she says.

“Most parents coming away from an abusive relationship will probably say, ‘Absolutely not!’” Daudlin says. “They believe if their partner was abusive to them, they will necessarily be abusive to the children. But that’s not always the case.”

While separation and divorce are always difficult, she says, "it’s important for parents to constantly re-evaluate how, and sometimes whether, they are prioritizing the needs of children when considering plans for access, parenting time, residency, custody and decision-making.

"Emotions run high in separations and divorce," Daudlin says. "When every letter feels like another tactic, attack and/or a betrayal of trust, it’s natural to feel angry, hurt and to want to strike back.

"As the conflict intensifies, emotions heat up, even absent any domestic violence or abuse. In those circumstances, it can be difficult for a parent to keep the needs of the child front and center," she says.

“Parents often become consumed by the conflict with the other person, and in the process, they can lose awareness of how the conflict — or how they are reacting to it — negatively impacts their child,” she says.

"When one or both parents refuse to self-reflect or re-evaluate, not only can it lead to lengthy and costly litigation, it can also increase the risk of long-term, emotional damage to the child," Daudlin says.

"These cases often result in multiple court attendances to resolve a single issue, and frequent returns to court to change orders," she says. "This causes additional strain to the child's mental, emotional and physical health because, no matter how hard their parents might try to shelter them, children are almost always impacted by their parents’ conflict."

Compound this with the threat of domestic violence or abuse and a case becomes all the more complex, Daudlin says. But, she says, it is critical to maintain focus on the “best interests of the child.

“The people who are able to focus and protect the interests of their children, are the ones who can take a step back and self-reflect — and try to see the forest and the trees,” Daudlin says.

In situations of domestic violence, she suggests the parents ask themselves whether their child shares their experience of the other parent.

"While one parent may have experienced their former spouse as abusive, it doesn't mean the child has. What's important to consider is whether that parent meets the needs of that child, loves them and spends time with them," Daudlin says.

“Their ex may be a risk to them, but is the same true for the kids?” she asks. “The children do not necessarily have the same lived reality of the ‘abusive’ parent as the victim of the abuse.”

Another factor to consider is that the harsh or abusive nature of a couple’s relationship can be situational, she says.

“The parties may be toxic together, but individually they are capable and loving parents,” Daudlin says. “To start from the premise that because an allegation of abuse exists, there should be no access jeopardizes the immediate and long-term emotional well-being of the child.

“It’s a delicate and difficult balance of constantly re-examining if the risk to the child outweighs their right to have a meaningful relationship with the parent. We are constantly trying to craft terms of parenting and access that address each parent’s concern about the child in the other’s care while permitting and promoting a meaningful and unfettered parent-child relationship to protect their best interests, and to limit the need for prolonged or repeated litigation,” she says.

Click here to read part one where Daudlin explores the legal issues around domestic violence, including the impact of the #MeToo movement on justice.

Click here to read part two where Daudlin looks at the intersection of criminal and family law and how there is sometimes a disconnect when it comes to the best interests of children.

To Read More Jennifer S. Daudlin Posts Click Here