Myths and Stereotypes in Family Law: Exploring the Realities and Impacts of Custody and Access/Shared Parenting

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Myths and Stereotypes in Family Law:
Exploring the Realities and Impacts of Custody and Access/Shared Parenting
Prepared by
The FREDA Centre
for Research on Violence
Against Women and Children
February 2014
Update to the Original Report:
Myths and Realities of Custody and Access
Compiled by
Margaret Denike, Vancouver Association of Women and the Law
Agnes Huang, Vancouver Status of Women
The FREDA Centre
June 1998

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Introduction
This document, presenting myths, stereotypes, and realities of family law and custody/access
processes, was compiled as an update to the 1998 document Myths and Realities of Custody and
Access (Denike, Huang, & The FREDA Centre, 1998). In this updated version, we revisit the myths
that were identified in the original text and apply current approaches to family law, relevant
legislation, and recent scholarly literature to provide a contemporary assessment of those myths
and the current realities. We have also included and addressed new myths and stereotypes that
have emerged since 1998.
We have prepared this report in order to debunk myths, present evidence of the realities, and
inform decision-making processes in family law in cases involving domestic violence. It is
important for professionals, parents, scholars, and advocates who are navigating family law
systems and processes to be aware of these myths and realities.
The myths in this document are relevant to cases involving men and fathers who are abusive
toward their partners and/or children, and address assumptions about – and intersections
between – domestic violence and family law. We acknowledge that most men and fathers are
not abusive. However, these myths and realities are relevant to many families who are navigating
family law and custody and access processes.

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Myths, Stereotypes, and Realities
Myth: Men and women are equal participants in the care of children.
REALITY: The societal expectations for fathers’ roles within – and contributions to – families have
shifted from absent breadwinners to emotionally engaged caregivers (Collier & Sheldon, 2006, p.
11). While the expectations of fatherhood have evolved, a change to fathers’ actual contributions
to the family (e.g., care giving) is disputed among scholars (p. 11). Women are still, however, the
primary caregivers in both lone - and dual - parent families “regardless of their employment
status and that of their partners” (Rosen, Dragiewics, & Gibbs, 2009, p. 517).
According to the 2011 census, mothers headed 79% of lone-parent households across Canada
(Statistics Canada, 2013). While the number of lone-parent households headed by fathers has
more than doubled since 1996 (i.e., 7.3% to 21%), there is still great disparity which indicates a
gendered division of labour.
The division of labour in childrearing is demonstrated through the issue of care. For example,
Boyd (2013) suggests that mothers are expected to “care for” their children (e.g., childrearing),
while fathers are expected to “care about” their children (e.g., love) (pp. 62-65). This indicates
the continued existence of gender roles, and subsequent division of labour, in familial structures
both pre – and post – separation, with the mother as the expected primary caregiver.
Myth: Men want to participate more in raising their children after separation or divorce.
REALITY: Some authors suggest that the process of family law is biased towards mothers, and
that fathers are penalized “for the division of household labor they assumed while the family was
still together” (Crowley, 2009a, p. 232). In contrast to this claim, research suggests that fathers
maintain a strong patriarchal-centric approach to parenting post-separation, requesting rights
and decision-making power without subsequent caretaking responsibilities (i.e., the formal
equality model) (Boyd, 2004; Boyd, 2006; Collier & Sheldon, 2006; Crowley, 2006; Dragiewicz,
2008; Flood, 2010; Rosen, Dragiewicz, & Gibbs, 2009). Boyd (2013), however, identified a tension
between the requests of fathers’ rights groups (i.e., formal and legal equality) and that of non-
advocate fathers who desired actual caretaking responsibilities (see Ives et al., 2008, in Boyd,
2013).
Myth: Men who fight for custody are thinking about the best interest of their child(ren).
REALITY: Similarly, according to Boyd (2004), fathers’ rights groups have suggested the use of
shared parenting and joint custody legislation is a deterrent for divorce (p. 53), because the
threat of continued contact post-separation could discourage women from pursuing
divorce/separation in high conflict and abusive families/relationships. This reveals that shared

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parenting could facilitate continued patriarchal control as opposed to focusing on the best
interest of the child(ren).
Advocates and scholars alike rarely contest the value of contact between children and non-
abusive fathers. However, supporting contact between abusive husbands/fathers and children
under the presumption that “kids need both parents” neglects that contact with a “well-
functioning parent” and “avoidance of conflict” are actually in the best interest of the child(ren)
(Boyd, 2004, pp. 54-55).
Myth: Including the presumption of “shared parenting,” “joint custody,” or “enhanced access”
in divorce law will result in good and responsible parenting.
REALITY: The presumption of shared parenting does not facilitate good and responsible
parenting in situations where it did not already exist. Shared parenting reinforces paternal rights
without subsequent responsibilities, by “favouring paternal authority and maternal
responsibility” (Boyd, 2006, p. 39). Furthermore, through the use of shared parenting the desires
and equality of parents is prioritized above the children’s needs, which may jeopardize a child’s
well-being if paternal contact is valued above freedom from conflict (Smart, 2004, p. 485).
Myth: The presence of any father in a child’s life is better than no father at all.
REALITY: According to Crowley (2009b), in cases of domestic violence, “judges who hold the
popular view that any paternal contact – even by violent individuals – is ‘good enough’ contact,
will continue to be awarded custody rights to these men” (p. 730). Furthermore, fathers’ rights
groups suggest that shared parenting, and continued paternal contact post-separation, is in the
best interest of the child(ren) (Boyd, 2004, p. 54). However, this assumption disregards the notion
that contact with an abusive parent has negative consequences on children, and that the focus
should be on contact with “well-functioning,” non-abusive parents and “avoidance of parental
conflict” (pp. 54-55). Non-conflictual environments, and those that are free from abuse, are in
the best interest of children’s development.
Being the direct recipient of abuse can have negative long-term impacts on the “behavioural,
developmental, emotional and physical health of the child” (Justice Canada, 2013, p. 24).
However, shifting the focus from directly experiencing abuse to witnessing abuse between
parents, Justice Canada (2013) asserts that “children who are exposed to violence by one parent
against another often suffer from emotional, social, cognitive, and behavioural maladjustment
problems including emotional/anxiety disorders, and may also exhibit aggressive behaviours and
engage in delinquent acts” (pp. 24-25). Furthermore, there are links between children who
witness abuse and intergenerational relationship and family violence (Justice Canada, 2013).
Therefore, while it is important to engage most fathers in families post-separation, the

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assumption “any father” is “better than no father at all” disregards the impact that witnessing
and/or experiencing abuse has on children.
Myth: More and more men are being denied access to their children by women and the family
law process.
REALITY: There are an increasing number of joint custody and shared parenting arrangements in
Canada (Amyot, 2010, p. 26), and there is reason to believe that these numbers will continue to
increase now that British Columbia’s Family Law Act prioritizes shared parenting arrangements
and the maintenance of relationships between parents and children post-separation (Ministry of
Justice, 2013). Furthermore, there is little support for the notion that the legal system is biased
towards women, because fathers are awarded “primary or joint physical custody a majority of
the time when they actively seek it” (Watson & Ancis, 2013, p. 167).
Contrary to the assumption that mothers are denying fathers’ access to children post-separation,
Collier and Sheldon (2006) assert that mothers are not opposed to fathers’ contact with their
children. In fact, “empirical studies suggest that the majority of mothers would welcome fathers
to spend time with their children” (p. 9).
Myth: Frequent and continuing access by the non-custodial parent is in the best interest of the
child(ren).
REALITY: As noted above, there is a difference between healthy contact between a “well-
functioning” parent and their child(ren) and putting children at risk through the facilitation of
continued contact with a controlling and/or abusive parent. Furthermore, for abused women
frequent and continued contact with their abuser extends violence into their lives post-
separation (Dragiewicz, 2010), which puts women at continued risk and harms children if they
are witnesses to the abuse. Witnessing and/or experiencing abuse, emotional or physical, is not
in the best interest of the child(ren) under any circumstance. Therefore, in custody
determinations it is key to facilitate healthy relationships with non-violent custodial parents,
instead of prioritizing paternal control over safety from abuse.
Changes to family law processes may be required in order to address the tension between
paternal contact and safety from abuse (i.e., direct and indirect). Justice Canada (2013) suggests
that “for the most part, family law lawyers in Canada are not required to screen their clients for
family violence” (p. 49) and do not utilize a screening tool to assess if there is a history of violence.
However, the recent enactment of British Columbia’s Family Law Act (FLA) denotes important
progress, because this act requires lawyers, mediators, and other key family law personnel to
screen each case for a history of family violence (Justice Canada, 2013).

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Myth: Contact with both parents is more important than freedom from violence.
REALITY: There are two possible ways for children to experience family violence: 1) as witnesses
of violence; 2) as the recipients of violence (Johnson & Dawson, 2011). Children may be physically
and/or emotionally abused and, if not targeted directly, they often suffer emotional trauma and
other negative outcomes by witnessing abuse (Berman, Hardesty, & Humphries, 2004).
Furthermore, children’s exposure to violence (i.e., witnessing) leads to trauma, as well as
“internalizing and externalizing problems in children” (Evans, Davies, & DiLillo, 2008, p. 12).
Witnessing, as well as being a recipient of, violence is a widely accepted as a catalyst of the
intergenerational partner and familial violence (Schwarts et al., 2006).
Myth: The family court system is being bogged down by custody and access disputes.
REALITY: The family court system is not bogged down by custody proceedings, because the “vast
majority of family law cases” are handled outside of court through “negotiation, mediation, or
judicial dispute resolution processes” (Neilson, 2012, p. 103). Even cases with claims of abuse
and histories of violence, which often require supervised access arrangements and protection
orders, are often settled outside the purview of a family court judge through the processes of
settlement and mediation.
Myth: Mediation and alternative dispute resolution are solutions to protracted custody and
access battles in court and lead to ideal custody and access arrangements.
REALITY: As noted above, the majority of custody arrangements are settled outside of formal
family court proceedings through alternative dispute resolution processes (e.g., negotiation,
mediation). However, abusive parents frequently obtain access, often unsupervised, and custody
of their children in spite of histories of violence (Neilson, 2012). These undesirable custody
arrangements that continue the emotional and physical harm to women and children are “often
the product of settlement rather than a judicially imposed decision” (p. 128). Furthermore,
Neilson’s (2012) systemic analysis of negotiation and mediation processes indicated that claims
of violence and abuse are frequently abandoned during alternative dispute resolution processes
prior to formal family court hearings. This finding reveals that these processes not only facilitate
unsafe custody and access arrangements, but also silence women and children’s experiences of
violence prior to formal judicial involvement.
In March 2013, British Columbia’s Family Law Act (FLA) was put into force, which implemented a
key change to the mediation process province-wide. The FLA “requires all family dispute
resolution professionals, including lawyers, mediators, parenting coordinators and arbitrators to
screen for family violence to assess whether dispute resolution processes are appropriate and
safe for the family” (Justice Canada, 2013, p. 49). Furthermore, these professionals (e.g., lawyers,
mediators, parenting coordinators and arbitrators) are required to undergo a minimum of 14

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hours of training to learn how to identify, assess, and manage cases of family violence (Justice
Canada, 2013). These changes, while fairly recent, indicate that the use of mediation and
alternative dispute resolution processes in British Columbia may become more sensitive to the
issue of family violence.
Myth: Women are equally as responsible as men for the violence in intimate relationships.
REALITY: Some studies and advocacy groups suggest that women are equally as responsible as
their male counterparts for acts of violence in intimate relationships (Watson & Ancis, 2013).
These assertions are grounded in studies that utilized the Conflict Tactic Scale (CTS), which does
not provide an accurate account of men and women’s experiences of violence in relationships.
Furthermore, these allegations are used to discredit women, and their experiences of abuse, in
family law proceedings (Dragiewicz, 2008; Watson & Ancis, 2013).
The presumption that women are equally as responsible for violence in relationships ignores the
reality that female-perpetrated partner violence can be a form of violent resistance, as well as
the documented increases in the severity, impact, and harm associated with male-perpetrated
acts of violence.
Myth: The abuse stops once the relationship ends.
REALITY: Shared parenting and joint custody arrangements, or women’s loss of custody all
together, hinders women’s ability to separate from their abusers (Dragiewicz, 2010). According
to Dragiewicz (2010), these custody arrangements coerce women “into frequent, ongoing
contact with their abusers until their children at least 18 years old” (p. 201). This subjects women
to continued violence and control at the hands of their ex-partners under the pretense of
parenting arrangements.
Women’s experiences of abuse post-separation are aggravated by family law processes, because
their experiences of violence are “often marginalized” in family court proceedings (Dragiewicz,
2010). Furthermore, Watson and Ancis (2013) suggest that court personnel, like lawyers and
judges, may “disbelieve or minimize” a history of abuse of family law proceedings (p. 168). This
can facilitate continued violence against mothers undergoing these processes, as well as lead to
fathers’ contact being prioritized over women and children’s safety from abuse.

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Myth: There is an epidemic of false allegations of child abuse against fathers by malicious and
vindictive mothers.
REALITY: In the mid-1980s, Richard Gardner “invented” Paternal Alienation Syndrome (PAS)
(Adams, 2006, p. 1). During this time, PAS was used in court proceedings to discredit women’s
claims of violence by suggesting that custodial parents, predominantly women, levy false
allegations of violence against non-custodial partners, predominantly men, in an effort to
alienate them from their children. While PAS has long since been disproven, Adams (2006)
suggests that in some circumstances PAS, and similar syndromes and/or allegations used to
discredit women’s legitimate claims of violence, are still believed by court personnel and present
in family law proceedings.
Fathers’ rights groups often discredit or “object to the consideration of histories of violence” in
family court proceedings (Dragiewicz, 2008, p. 137), and frame histories of violence and women’s
experiences of abuse untruthful. This leads to accusations of women being malicious or vindictive
through the use of false allegations of abuse in order to win favour in the court. Furthermore,
these groups claim that women use false allegations of abuse and “misuse” protection orders to
punish their ex-partners (Flood, 2010; Rosen, Dragiewicz, & Gibbs, 2009). However, the claims
that mothers falsify histories of abuse to marginalise fathers in family court proceedings are
unsubstantiated (Dragiewicz, 2008), and these allegations are actually used to discredit women’s
experiences of violence (Flood, 2010).
Myth: Abusive husbands are good fathers.
REALITY: The notion that abusive husbands are good fathers perpetuates the assumption that
contact with any father is better than the absence of a father in the lives of children. Judges who
share this assumption will award custody to abusive husbands/partners under the presumption
that it is “good enough” (Crowley, 2009, p. 730).
Supporters of abusive husbands being good fathers suggest that broken homes, lone-parent
households run by mothers, and fatherlessness leads to delinquency (Dragiewicz, 2010), as well
as “growing up in poverty and remaining poor as an adult, developmental and behaviour
problems, emotional difficulties, learning difficulties, and early child-bearing” (Boyd, 2004, p. 57).
These arguments, however, can be traced back to anti-feminist fathers’ rights activism, because
this rhetoric focuses on the downfalls associated with the breakdown of the patriarchal family
unit. Furthermore, claims like these are largely contested and minimize how continued contact
with fathers in these situations means “continued fear” (Dragiewicz, 2010, p. 730), as well as the
impact witnessing violence has on children.

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Myth: A history of abuse prevents fathers from obtaining custody of their children.
REALITY: There has been a shift in family law that prioritizes parental contact over safety from
abuse (Flood, 2012, p. 240). Furthermore, Watson and Ancis (2013) suggest that “violent fathers
are just as likely as nonviolent fathers and mothers to be granted sole custody” (pp. 167-168).
This indicates that violence is not a determinant factor in many custody and access/shared
parenting arrangements.
While contact is prioritized over safety in many family court proceedings, British Columbia’s new
Family Law Act (FLA) requires that “the best interest of the child is the only consideration”
(Martinson, 2013, p. 5). The FLA is an exception to the standard of prioritizing paternal contact
over safety, because this act requires the court to give consideration “to family violence and its
impact on a child’s physical, psychological and emotional safety, security and well-being”
(Martinson, 2013, p. 5). Mandating the consideration to a history of family violence in custody
proceeding not only demonstrates an intolerance for violence, but also acknowledges that there
are situations where contact with the non-custodial parent may not in the best interest of the
child(ren) (e.g., families with histories of emotional and physical abuse).
Myth: Feminists and mothers are fighting against equality for fathers.
REALITY: The treatment of fathers often centres on the issue of equality (Boyd, 2004; Boyd, 2006;
Collier & Sheldon, 2006; Crowley, 2006; Dragiewicz, 2008; Flood, 2010; Rosen, Dragiewicz, &
Gibbs, 2009). Collier and Sheldon (2006) suggest that the demands of the fathers’ rights
movement “seem seductively simple, often involving little more than a request for formal
equality with mothers or, put quite simply, ‘justice for fathers’” (p. 1). The problem with their
request for equality, however, lies in the distinction between formal and substantive equality,
because formal equality reinforces “a notion of formal rights without responsibilities, favouring
paternal authority and maternal responsibility” (Boyd, 2004, p. 39). Insofar as formal equality for
fathers relies on paternal authority and material responsibility, it reasserts a patriarchal family
structure during and after separation. This highlights the tension between equality in legal status
versus equality in everyday parenting (Bertoia & Drakich, 1993). Therefore, the issue that arises
from fathers’ requests for equality relates to the form of equality as opposed to the request itself.

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