Child Custody and Domestic Violence – Family Law and Divorce Law

When it comes to child custody and family violence who do you believe? The woman who can make and exaggerate things to get custody of the child or the man who wants to spend time with his child but may be dangerous? This is the question that has humbled me too many times as a family lawyer and taught me so much about people in family law.

Women are generally over protective of their children. Their anxiety of losing time with their children can make them do irrational things such as trying to take away time from the child’s father. I used to think most women say they were abused during a relationship without taking responsibility for what happened, and would put their own feelings and interests ahead their children to oust the father from the children’s lives. I used to think they were ‘mommy grizzly bear’ and thought the father not being around as much is not a big deal.  Then I saw cases where the man repeatedly abused the woman, was violent towards her and the child, and never apologized for how he acted. Never tried to get better. Just blamed everyone for everything that ever went wrong.

The lesson I learned was to never assume. Never judge. Just get to know who I was dealing with and take whatever they said with a grain of salt. The lesson I learned was to be more compassionate. More understanding. More flexible and more patient.

Custody and domestic violence are serious issues in BC family law. For a very long time, our courts were mostly on the side of the woman and basically believed everything she said. Nowadays, just like me, the courts pay much more attention to what each of the parents say, analyze their personalities, and try to provide shared parenting as long as it is doable and in the best interests of the children.

Child custody and domestic violence are directly related in BC family law. Once domestic violence within the family is found, the court have many different options to protect the child from being subject to violence. Let’s look at the interplay between child custody and domestic violence and what happens when violence is found in a relationship.

What is Family Violence in BC?

Family violence under the BC Family Law is measured based on the following factors:

•  the nature and seriousness of the family violence;
• how recently the family violence occurred;
•  the frequency of the family violence;
• whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member;
•  whether the family violence was directed toward the child;
• whether the child was exposed to family violence that was not directed toward the child;
• the harm to the child’s physical, psychological and emotional safety, security and well-being as a result of the family violence;
• any steps the person responsible for the family violence has taken to prevent further family violence from occurring;
• any other relevant matter.

Our BC Family Law Act specially addresses the interplay of child custody and family violence when it comes to the determining the best interests of the child. If the court finds family violence in any custody case, it can consider it to determine which parent is the safest parent to care for the child. That may mean one parent may get much more parenting time with the child than the other parent.

It is very important whether the violence was directed to child or the child witnessed it. If the violence was directed towards the other parents, that is not as important as the violence being directed towards the child or in the presence of the child.

Many times and at the time of separation, the mother may allege that the father assaulted her or committed violence against her. If any alleged violence was not in the presence of the child, the father still has a good chance of obtaining shared parenting. But if the violence occurred in front of the child or towards the child, the court can take various measures to protect the child from being subject to further violence. Read below to see what the courts can do.

Custody and Family Violence Hearings – Strategies for Mothers and Fathers

If you are going to court over the custody of your child, you need to be aware of the following strategies whether you are the mother or the father of child, in order to have the judge order a custody arrangement in the best interests of your child.

Please note that family violence can  be directed against both the mother or the father. But in most cases, it is directed towards women. So in the blurb below, I will be more simple and define it against who is is most often catered to.

Mothers – Custody and  Family Violence

If the father committed domestic violence against you or your child:

• lay out all instances of family violence in detail with dates, time, and exactly what happened;
• indicate whether the domestic violence occurred in front of you or in the presence of the child;
• Attach any and all picture, witness testimonies, police records, ministry records substantiating family violence;
• make the case about the best interests of your child, not your best interests;
• put the best interests of your child ahead of anything else;
• Tell the judge what you think is the safest and best arrangement for the care of your child.
• Facilitate the child’s time with her/his father as much as you can.
• Don’t try to limit the father’s time with the child because you want to be around your child as much as possible. Your child needs both parents as long as he/she is safe in their presence.

Fathers – Custody and  Family Violence

If you are the father and the violence allegations against you are not true or are exaggerated:

• Tell the judge your history – that you have had no allegations of violence against you by anyone before and that you have no criminal convictions;
• Get other people to attest to your parenting skills, your care for your children and the fact that you would never harm them;
• Focus your evidence on everything you do for your children, how you have enriched their lives and why you want to remain a part of their lives;
• If you did commit family violence, be honest about it. Show the judge the steps you have taken to fix it and never repeat it again. They will appreciate it. No one is perfect and no one will expect you to be perfect. Honesty is your best strategy. And the better you do, the more the judge will reward you;
• Explain the judge the dynamics of your relationships – many women like to keep their connection with you even post separation so they may allege violence to continue hearing from you and getting attention from you. Tell the judge how the other parent is and was during the relationship, and how you only want to focus on your children from this point on.
• Some women will allege family violence and will go further and alienate the children from you. If this occurs, immediately talk to a family lawyer to stop the process or you may find yourself in a situation where you children will never want to talk to you because they are being trained by their mother to hate you no matter what. Then you’ll spend hundreds of thousands of dollars in legal fees to fix the situation. Nip it in the butt before it gets too big.
• Take pictures and video tapes of the good times with your children – show the judge how much they love and adore you and what you offer and can teach them growing up. But don’t get your kids to say things on video to help your case.
• Give the judge a reasonable and workable parenting schedule that the judge can order. To find out more on father’s right for custody in BC and strategies to win shared parenting, click here.
• Take parenting classes even if you feel like you do not need them – they will only help you and give you more information and knowledge on how to be a better parent.

Custody and Family Violence – What the Courts Can Order

The courts can order many arrangements to make sure children are not subject to family violence. These include:

• Pick ups and drop offs of the children are such that the parents do not get to see each other – so for example the court may order the exchanges to be at the children’s school or daycare. This way the parents do not see each other and there is little conflict;
• The courts can order supervised visitation in extreme cases where they find that one parent may harm the child. Supervised visitation is usually temporary until the parent can prove to the court that they are no longer a danger to the child. Supervised visitation can be expensive and unnecessary. It is best to talk to a family lawyer to get the best strategy in avoiding getting supervised access to your child;
• The courts can also order one parent to attend anger management courses, psychotherapy, taking parenting courses, hiring a parenting coach etc. It is best to take these courses before you go in front of the judge to show your commitment  to parenting your children and being a part of their lives.

BC Child Custody Case and family violence are some of the most complex, taxing and painful issues in BC Family law. Never approach them without at least getting a consultation on your rights and strategy or you will lose. Contact our award winning family law firm to set up an initial consultation or call us at 604-974-9529.