Children ‘biggest losers’ in Family Court, Says Judge
A contentious access battle playing out in family court made news last week when a B.C. Supreme Court judge made the highly unusual decision of barring a mother from seeing her daughter for one year.
The ruling, which the father’s lawyer called “historic,” was made after the mother, known only as Ms. A, alleged that the father had subjected the teenager to severe emotional abuse which she said endangered the child’s safety.
Citing Ms. A’s extreme parental alienation toward the father, Justice Donna Martinson said she was satisfied that Ms. A’s allegations were unfounded and that the mother “continued to undermine the relationship between M and her father and has acted in ways that are detrimental to M’s psychological healing.”
Classed as a syndrome, parental alienation occurs when divorcing parents use their children as pawns and attempt to turn them against the other parent.
“When we get into parental alienation, really what is happening is that the child becomes a weapon,” says Justice Harvey Brownstone, a family court judge in Toronto.
Warring parents tearing their children apart is something Brownstone sees all too regularly. Brownstone believes family court is “a terrible place” for parents to use to resolve their custody and access issues.
“The whole justice system, including the family court system, is adversarial and is based on a win-lose mentality. But in family court there’s no winning, there’s only different degrees of losing, and the biggest losers are the children.”
This adversarial approach is “designed to make war not peace” says Brownstone, and more often than not parents come out of the family court system “more angry with each other and more unhappy than they were when they started the court case.”
Brownstone authored a recently published book, the first of its kind for a sitting family court judge, aimed at educating separating couples about the pitfalls of fighting their battles in court.
In Tug of War: A Judge's Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court, Brownstone wants parents to understand that taking their fight to family court is not a decision that should be taken lightly—they should be prepared.
“Family courts are clogged with people who watch Judge Judy. They see on Judge Judy how fast it is, how easy it looks, and they come running to court and then they find out that they’re in the middle of a real mess. It’s very stressful, it’s costly, it’s time consuming, and there are rules and procedures, and rules of evidence you don’t see on Judge Judy.”
Brownstone says “immature” and “self absorbed” couples show up in his court to fight over issues as trivial as the length of the child’s hair, who gets to take the child trick-or-treating, or which summer camp the child should attend. This endless wrangling takes an immeasurable toll on the children.
“There are very, very many couples who are so wrapped up in their own pain and their own need for vengeance that they completely lose sight of what they’re doing to their children,” he says.
The enmity can go so deep that Brownstone has had parents tell him they’d rather see their children dead or in foster care than with the other parent.
Edward Kruk, a University of British Columbia sociology professor and Canada’s foremost expert on custody issues, says family court’s emphasis on sole custody rather than equal shared parenting fosters animosity between parents.
He says much controversy and disagreement exists in professional literature regarding the concept of Parental Alienation Syndrome. He questions the wisdom of removing Ms. A from her daughter’s life in the absence of proof of abuse or serious neglect.
“For one parent having been the primary caregiver to be suddenly removed, and the child’s whole routine disrupted, just seems like a very harsh, very blunt instrument to say the least in dealing with a problem that is almost universal in child custody disputes because of the way the full custody system is set up.”
Kruk says it’s common for both parents to engage in parental alienation, pushed into it by the knowledge that only one of them can get custody.
“The court basically pits parents against each other … so they get into the pattern of denigrating each other while trying to prove to the court—and also dragging their children into it—that they are the superior parent; but more importantly that the other parent is untrustworthy, deficient, and incapable. The system is set up to promote that kind of behavior.”
Kruk maintains equal shared parenting is the key to preventing parental alienation and “preserving the integrity of the child’s relationship with both parents.” He says the time has come to “get rid entirely of this dominant, full custody regime that we have where one parent is removed from the child’s life via a sole custody order.”
It’s within this “winner take all custody regime” in which parents are threatened with the loss of their children that violence tends to occur, he says. “It’s a recipe for disaster.”
Studies show that equal parenting is better and actually desired by children themselves. Proponents of equal parenting say it also reduces false allegations of assault and sexual abuse, a common occurrence that monopolizes the court system.
Kruk says equal parenting can work for couples who remain in conflict through “parallel parenting,” in which arrangements are made where the parents don’t have direct contact with each other but can still co-parent independently.
Brownstone believes that by constantly returning to family court to fight over petty issues, couples are using the system as a platform to perpetuate a relationship that they’re not ready to let go.
Counseling and “parenting coaching”—provided free by the courts where needed—would go a long way in resolving this and helping feuding parents learn to get along, he says.
“I think the courts need to provide mediation for free for people who can’t access it. And I think that the legal profession, the family law lawyers, have to be very sensitive to the damage that the court can do and steer their clients to the kind of information I’m giving them in the book,” he says.