Volume 13, Number 2, 1996
All articles in this issue were presented at the International Society of Family Law/Laval University Conference on Parent and Child in North American Family Law, June 13-15, 1996, Québec City, Québec.
Articles
- Child Support and the Anomalous Cases of the High-Income and Low-Income Parent: The Need to Reconsider What Constitutes "Support" in the American and Canadian Child Support Guideline Models - Laura W. Morgan
In the United States, child support law went through no less than a revolution in 1987, when the advisory panel of the Office of Child Support Enforcement made its recommendations for the development of child support guidelines to be used nationally. In response, Congress enacted the Family Support Act of 1988, requiring each state to develop presumptive child support guidelines. Between 1988 and 1994 each state, by statute, administrative regulation, or court rule or decision, developed presumptive guidelines for statewide use, utilizing one of three basic models.
- Spousal Abuse and Children of Divorce: A Differentiated Approach - Nicholas Bala
Issues of spousal abuse may arise in some form in as many as half of all divorces and present complex, challenging issues for lawyers, judges and other professionals involved in the justice system. There is a growing awareness of the nature and extent of spousal abuse, not only for the direct victims - most often women -but also of the potential harm for children who live in families where there is spousal abuse. Some situations involve a high potential for violence and a failure to take an appropriate protective response may place children and adults at grave risk. But in other situations, professionals may embark on an inappropriately aggressive response to a situation of abuse that can needlessly heighten tension and exacerbate relationships.
At least for some purposes it is necessary to have a broad definition of "spousal abuse," one that encompasses a range of abusive conduct: physical, sexual, emotional and financial, and may need to be refined to be useful. It may, for example, be inaccurate to characterize allabused spouses as "battered," though some clearly are. Conversely, some spouses may be the victims of just a single incident of physical assault, but may suffer the same fear, intimidation and control as those who have experienced much more severe physical abuse.
Spousal abuse poses many sensitive, complex and contentious issues for society as a whole, as well as for those involved in specific cases. They are often emotionally charged cases and it can be difficult for professionals to maintain an appropriate perspective. Some of the challenges arise out of potentially tragic, life threatening consequences of some of the cases. Another dimension of both challenge and opportunity arise from the political - at least in terms of gender politics - aspects of spousal abuse issues. Individuals and organisations are developing experience and expertise, as well as being able to provide analysis and support, but sometimes this comes from an exclusively gendered perspective. In this paper it will be argued that a gendered analysis of spousal abuse - one that emphasizes that women are victims and that gender inequality lies at the root of wife abuse - is extremely important, and will often provide the best guide to the appropriate handling of a case, but in other situations of a traditional gendered analysis may not be appropriate.
Another dimension of complexity of these cases arises because allegations of abuse have an obvious fault orientation that runs counter to a broad trend towards disregarding marital conduct in family law. This poses some conceptual problems, but even more so practical problems. It is very rare for spouses to be able to agree about whether abuse has occurred; part of the problem may be definitional, but part of it may be psychological. This is an issue about which there are strong tendencies to deny, but there are also potential problems of exaggeration. Indeed in some cases there may be both denial and exaggeration, soemtimes by the same individual in regard to the same incidents, as perceptions and recollections change over time.
There is a need for all professionals who work with families affected by separation and divorce to have knowledge, understanding and sensitivity about issue of spousal abuse. There must be an awareness of the different forms, nature and effects of spousal abuse, and an ability to help develop appropriate, differentiated responses, in particular in regard to children. As observed by Janet Johnston, a mental health professional with extensive experience with divorcing families: "All violence is unacceptable... however... not all violence is the same... domestic violence families need to be considered on an individual basis when helping them to develop post-divorce plans."
- The Right of a Non-Custodial Parent to an Order for Return of a Child Under the Hague Convention - Martha Bailey
Under the Hague Convention on the Civil Aspects of International Child Abduction, an order for the return of a child to the coutnry of her or his habitual residence will be made only to enforce custody rights, not rights of access. The Convention protects rights of access, but not by an order of return. In some circumstances, however, an "access parent" may be entitlted to an order for return of the child under the Convention.
Case Comment
- Best Friends or Spouses? Privatization and the Recognition of Lesbian Relationships in M. v. H. - Susan B. Boyd
Review of Periodical Literature
- Roberta L. Valente, "Addressing Domestic Violence: The Role of the Family Law Practitioner" (1995) 29 Family Law Quarterly 187. - Steve Seibel
Book Review
- J. Wilson, Wilson on Children and the Law (Toronto: Butterworths, 1994). - Gene C. Colman