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Parent–child supervised visitation within child welfare and custody dispute contexts: An exploratory comparison of two distinct models of practice
Children and Youth Services Review 34 (2012) 163–168
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Children and Youth Services Review journal homepage: www.elsevier.com/locate/childyouth
Parent–child supervised visitation within child welfare and custody dispute contexts: An exploratory comparison of two distinct models of practice☆ Michael Saini a,⁎, Melissa Van Wert a, Jacob Gofman b a b
Factor-Inwentash Faculty of Social Work, University of Toronto, 246 Bloor Street West, Toronto, Ontario, Canada M5S 1V4 Faculty of Law, University of Toronto, 84 Queen's Park Crescent, Toronto, Ontario, Canada M5S 2C5
a r t i c l e
i n f o
Article history: Received 25 June 2011 Received in revised form 18 September 2011 Accepted 20 September 2011 Available online 25 September 2011 Keywords: Supervised visitation Child welfare Custody dispute
a b s t r a c t This paper aims to untangle the assumptions and goals of supervised visitation services in the child welfare and custody dispute contexts, through presenting a legal analysis and review of social science literature. There is confusion in the literature on the specific roles, duties and expectations of supervised visitation services in facilitating parent–child contact within child welfare and custody disputes. A framework is outlined for understanding supervised visitation services in general. The overarching tenets of these services are discussed, and the assumptions of safety, protection and parent-child contact are explored. The legal context of supervised visitation in Canada is outlined, specifically examining the ‘best interest of the child’ principle and comparing the legal backdrop of visitation in child welfare and custody disputes. The social science literature is then reviewed with the goal of discerning supervised visitation across child welfare and custody disputes. The limited research on outcomes for children and families after utilizing supervised visitation services is discussed. This paper concludes with cautions and considerations for policy and practice for supervised visitation in child welfare and family law contexts, as well as recommendations for both fields. © 2011 Elsevier Ltd. All rights reserved.
1. Introduction Supervised visitation services occur when the parent–child relationship is strained in some way, and are established to facilitate contact between parents and their children (Babb, Danziger, Moran, & Mack, 2009). Depending on the context of supervised visitation, parent–child contact may either be supervised by child welfare services following a determination that the child is in need of protection, or alternatively by services offered within family law following a custody dispute regarding the best interest of the child after separation/divorce. Although there may be significant overlap between these two services (Babb et al., 2009), there are unique goals, purposes and outcomes of facilitating parent–child contact within these distinct systems. Unfortunately, there is a dearth in literature comparing supervised visitation across the child welfare and custody dispute contexts. Consequently, parents and service providers remain unclear about the specific roles, duties and expectations for these two distinct services in facilitating parent– child contact. The purpose of the present paper is to untangle the similar and divergent assumptions and goals underlying supervised visitation ☆ This project was funded by the Canadian Institutes of Health Research (CIHR) Health Professional Student Research Award. The authors wish to thank Judy Newman, Program Manager of the Supervised Access Program, Ministry of the Attorney General of Ontario for her critical comments and suggestions on an earlier version of the paper. ⁎ Corresponding author. Tel.: + 1 416 946 5027; fax: + 1 416 978 7072. E-mail addresses: [email protected] (M. Saini), [email protected] (M. Van Wert), [email protected] (J. Gofman). 0190-7409/$ – see front matter © 2011 Elsevier Ltd. All rights reserved. doi:10.1016/j.childyouth.2011.09.011
services in the child welfare and custody dispute contexts, based on a comprehensive legal analysis and review of relevant social science literature. This paper also aims to identify gaps in the current body of knowledge on supervised visitation, and outline cautions and considerations as practice and research move forward in this area. 2. Framework for understanding supervised visitation services 2.1. General tenets of supervised visitation Various services fall under the umbrella term supervised visitation, which creates difficulties when interpreting the literature in this area. Supervised visitation services are usually mandated by the court (Crook, Oehme, O'Rourke, & Slawinski, 2007). Services generally involve the facilitation of contact between parents and children, occurring either on a one-to-one basis (i.e., one parent and child[ren] are supervised together) or a group basis (i.e., several parents and their respective children are supervised at one time), and may involve parents and children having in-person contact or other forms of contact (e.g., telephone, internet, etc.; Crook et al., 2007). Individuals and families utilize supervised visitation for varying lengths of time. Within the context of child welfare, it is generally assumed that the purpose of supervised visitation is to help promote and develop parent–child relationships sufficiently in order for unsupervised visitation to ensue (Bailey, 1999). In contrast, it is generally assumed that the purpose of supervised visitation within the context of custody disputes is to facilitate parent–child contact in a safe and neutral setting.
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Supervised visitation service delivery varies in terms of the qualifications and roles of supervisors. Supervisors range from volunteers with little specialized training in the issues with which families are presenting, to service providers with many years of experience and expertise in this area (Babb et al., 2009; Crook & Oehme, 2007; Thoennes & Pearson, 1999). Supervisors monitoring parent–child interactions within the context of custody disputes record factual and objective observations of the visits so that this information may be used by judges, attorneys, custody evaluators and other mental health professionals in assessing the parent–child interactions. In instances where the assumption is that supervised visitation should provide unbiased reports to the courts, supervisor neutrality and objectivity is of utmost importance (Stern & Oehme, 2007). Alternatively, in instances where the assumption is that supervised visitation should assist in developing the parent–child relationship, then neutrality is of secondary importance (Birnbaum & Chipeur, 2010; Ellenbogen & Wekerle, 2008). In child welfare, supervisors are required to make both factual observations and evaluations of parent–child interactions to help in making a determination of whether the child will be reunited with the parent (Babb et al., 2009; Ellenbogen & Wekerle, 2008). 2.2. Importance of parent–child relationships Parent–child relationships are assumed to be important within supervised visitation services. Visitation assumes that the parent–child relationship is strained in some way (Johnston & Straus, 1998), and further that children benefit from contact with parents especially during times of transition or stress (Birnbaum & Alaggia, 2006). This is relevant for both the child welfare and custody dispute contexts. After contact with the child welfare system, children may be removed from their families of origin and placed in out-of-home care, or alternatively may receive in-home services. Generally, children subject to child welfare intervention have endured some form of trauma (Kolko et al., 2010). After experiencing parental separation or divorce, children may be thrust into a custody dispute and in turn lose contact with non-custodial parents. Children involved in custody dispute issues have likely been exposed to parental conflict, and are also coping with the separation from non-custodial parents (Hetherington & Stanley-Hagan, 1999). Therefore children utilizing supervised visitation services are likely experiencing transition and/or stress regardless of the context in which these visits occur. It is assumed that supervised visits will buffer the impact of transition and stress by promoting safe interaction between parents and their children (Tutty, Weaver-Dunlop, Barlow, & Jesso, 2006). The value of maintaining the parent–child relationship is also recognized at law, and decisions related to mandating supervised visitation are guided by the “best interest of the child” principle. The United Nations Convention of the Rights of the Child, Article 9 (United Nations General Assembly, 1989), outlines that children have rights to maintain personal relationships with their parents, unless this would not be in the best interest of a child. 2.3. Threshold application of the best interest of the child principle across contexts The “best interest of the child” principle is explicitly incorporated into Canadian domestic law through several pieces of legislation that impact both child welfare (e.g. Child and Family Services Act [CFSA, 1990]) and custody disputes (e.g. Divorce Act, 1985, Children's Law Reform Act [CLRA, 1990]); however, the legal principles of best interest differ across child welfare and custody dispute contexts. In the custody context, both the CLRA and the Divorce Act base the merits of the application for custody and access on the best interest of the child. Under section 24 of the CLRA, in determining the child's best interest, the court must consider factors listed under section 24 (2). Similarly under section 16(8) of the Divorce Act, the court will
only take into consideration the best interests of the child as determined by the conditions, needs and other circumstances of the child. The CLRA is the law applied to determine custody and access between two or more individuals. The merits of the application for custody and access under section 21 of the CLRA will be determined on the basis of the best interests of the child pursuant to subsection 24(1). The best interests of the child principle is the first and only test for determination under the CLRA, the content of which is a matter to be determined upon the facts in each case based on the factors enumerated in subsection 24 (2) of the CLRA (Zuker, Hammond, & Flynn, 2009). Similarly, in the child welfare context, the CFSA is primarily concerned with the best interests of the child. However, there is a statutory pathway of specific findings set out in Section 57 of the Act that the court must make before the issue of the best interests of the child is engaged (Zuker et al., 2009). Most importantly, the court must consider whether the child is in need of protection before it can consider what placement and what relationships are in his or her best interests (Zuker et al., 2009). Indeed even if a child is in need of protection, before a child will be removed from the parents, the court must follow the statutory pathway established in section 57 of the CFSA (Zuker et al., 2009). During a court's consideration of matters along each step of the CFSA's statutory pathway, it must look at the evidence presented and the orders that can be made in accordance with the child's best interests. Unlike a custody matter in which the applicable test is the best interests of the child, each step in child protection proceedings is guided by a statutory pathway contained in the CFSA rather than one predominant test (Zuker et al., 2009). The rationale behind such an approach is that there must be some rights for children to remain with their parents and families if it is safe for them (Zuker et al., 2009). For that reason, unlike child custody, child protection is not initially a matter of securing the best interests of a child; engaging the child protection regime must be triggered by a real world event or omission before the court has jurisdiction to intervene (Zuker et al., 2009). It is only once a child protection proceeding is ongoing, that the process engaged begins to address the best interests of the child at various subsequent stages (Zuker et al., 2009). In other words, child protection is not an exercise in the proactive service of a child's best interests but a reactive series of steps where basic needs of a child are not served. Accordingly, child welfare cases are not, at least initially, a contest of best interests of the child as it is in a custody case (Brown, 1975, 21 R.F.L. 315 {Ont. Co. Ct.} at paragraph 24; L. (R.) v. Children's Aid Society of Niagara Region, 2002 O.J. No. 4793 {Ont. C.A.} at paragraph 38). However, once a child is determined to be in need of protection, then, subject to the statutory pathway above, the child's best interest test is the sole governing criteria (Zuker et al., 2009). The reforms to the CFSA ushered in by Bill 210 now allow the Court to make an order for custody in certain circumstances pursuant to section 57.1 of the Act. If none of the orders available under section 57 is in the best interests of the child and a custody order has not previously been made under the Divorce Act prior to intervention under the CFSA, the Court is permitted to make an order of custody (Zuker et al., 2009). Section 57.1(7) makes it clear that less disruptive steps mandated in the statutory pathway under section 57(3) must still be adhered to. Pursuant to section 57.1(2), orders of custody under section 57.1 are deemed to be made under the CLRA. 2.4. Interpretation of the “best interests of the child” principle Though the “best interest” phrase has great political and symbolic appeal, the concept is not easily defined in law (Bala, 2001; Bernstein & Reitmeier, 2004). This leaves considerable discretion in the hands of judges to determine what constitutes the “best interests of the child” in dispositions concerning custody disputes and child welfare cases. In Ontario, the CFSA permits the court to make an order of supervised visitation provided by Children's Aid Societies in situations where it will serve the best interests of the child (section 58). Most
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pieces of child welfare legislation across Canada list factors that the court must consider in making determinations “in the best interests” of a child. In Ontario, the relevant factors can be found in section 37 (3) of the CFSA. These factors include the child's level of development and needs, and the appropriate care necessary to meet them; the child's cultural and religious background or ties; the child's family relationships; the importance of continuity for the child and the effect of disruption of that continuity; and the child's views and wishes. As in other jurisdictions, the subsection ends with the catch-all “any other relevant circumstances,” indicating that the list is not exhaustive (Bernstein & Reitmeier, 2004). Thus, a problem exists in terms of certainty in defining what constitutes the “best interests of the child.” The open-ended nature of the definition has been explained as necessary in order to allow judges to take a contextual approach to what are very often fact-specific situations. As explained by Justice L'Heureux-Dubé in Catholic Children's Aid Society of Metropolitan of Toronto v. M.(C.), ([1994] 2 S.C.R. 165), “The wide focus of the best interests test encompasses an examination of the entirety of the situation and thus includes concerns arising from emotional harm, psychological bonding, and the child's desires…” Thus, the belief is that by examining the situation holistically, the court will be able to arrive at an order that more accurately reflects the best interests of the child. In Ontario, the weighing of the relevant factors in a judge's determination of the best interests of a child may be constrained by the paramount purpose of the CFSA. In 2000, amendments were undertaken to emphasize the paramount purpose of the CFSA, which is to promote the best interest, protection, and well being of children (section 1[1]). While considerations of a child's family ties and cultural heritage remain relevant, the import placed on such considerations must be consistent with the purpose of promoting the best interest, protection, and well being of children (Bernstein & Reitmeier, 2004). There is significant judicial discretion required in interpreting the “best interests of the child” principle in the context of custody disputes, as this concept is not defined in the Divorce Act. Section 16 (10) simply states that the court is required to, “Give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child.” Some argue that contact between non-custodial parents and children has essentially been equated with the best interests of the child, with legal decisions and law reform emphasizing maximum contact between non-custodial parents and children while ignoring the actual needs of children (Birnbaum & Chipeur, 2010). Jurisprudence has also been of little assistance in determining a definition of the best interests of the child in custody disputes. In Gordon v. Goertz ([1996] 2 S.C.R. 27), the Supreme Court of Canada confirmed its earlier finding that all aspects of a child's access are determined according to the best interests of the child. However, the justices were still unable to agree on the meaning of the best interests of the child (McLeod & Mamo, 2002). Because of the fact-specific nature of many custody disputes, this has resulted in different judges emphasizing different factors across Canadian jurisdictions. In Ontario, the interpretation of the best interests of the child in custody cases has been buttressed by the CLRA. Subsection 24(1) states that applications under the Act in respect to custody of or access to a child shall be determined on the basis of the best interests of the child. Subsection 24(2) provides a list of criteria that the court must consider in determining the best interests of the child. These criteria include the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessities of life, and any special needs of the child; the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing; and, the ability of each person applying for custody of or access to the child to act as a parent. Though many of the factors are openended in their nature, the legislation does serve to focus the judge's attention on what the legislation has deemed to be relevant factors.
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2.5. Guidelines for service delivery Service providers looking for guidance in both the child welfare and custody dispute contexts can voluntarily join the Supervised Visitation Network (SVN), as can other professionals including judges, attorneys, professors, and therapists. The SVN is an international voluntary organization that aims to develop and distribute standards for practice and to promote knowledge exchange regarding best practices for conducting supervised visits and exchanges (Supervised Visitation Network, 2010). SVN has developed practice and training standards, a code of ethics, and they offer training opportunities, including an annual conference to showcase current research and innovations in the field. SVN has been a leader in providing guidance for working with children and families within supervised services, but there remains no mechanism to enforce these best practices for effective service. Further, there is no mandatory requirement for providers to join SVN and/or adhere to the SVN code of ethics (Babb et al., 2009) and there remains a variety of approaches for delivering supervised services to children and families. 3. Distinctions in service delivery across contexts 3.1. Child welfare There is no common understanding of the concept, definition, or uses of supervised visitation among service providers working in the child protection system (Wattenberg, Troy, & Beuch, 2011). This creates suboptimal conditions for interpreting the literature in this area. Supervised visitation programs vary considerably in structure and level of intervention, and there is insufficient literature in this area to produce clear recommendations for which variations support effective service delivery (Ellenbogen & Wekerle, 2008). Child protection services may utilize supervised visitation for cases in which children are placed in out-of-home care (e.g., foster or group home) or where children remain in home with supports (Babb et al., 2009). Out-of-home placement of a child usually occurs when child protection services determine that a family cannot provide an environment that is adequately safe for children, due to concerns of abuse or neglect (Ontario Association of Children's Aid Societies, 2010). In cases where children are placed outside of the home, courts may determine that visitation between parents and children can only occur if supervised by a third party; in these cases, supervised visits are scheduled between parents and children and usually supervised by the child protection worker (Perkins & Ansay, 1998; Thoennes & Pearson, 1999). Visits between parents and children may occur in offices of child protection workers, homes of foster parents or families of origin, or supervised visitation centers (Goodman, Tuyl, Filippelli, & Pickett, 2008; McWey & Mullis, 2004). The level of resources required for supervised visitation differs depending on where the visits occur (Goodman et al., 2008). Visitation is commonly a requirement for parents seeking to reacquire the custody of children in care of the child welfare system (McWey & Mullis, 2004), and thus visitation may represent a step toward reunification or a tool to increase parental compliance with case plans (Wattenberg et al., 2011). In most cases, supervised visitation services in child welfare aim to promote child safety and family reunification, with service delivery adapting over time depending on whether ongoing parental contact and reunification are deemed to be in the best interest of the child (Ellenbogen & Wekerle, 2008; Flory, Dunn, Berg-Weger, & Milstead, 2001). These programs often strive to develop positive parenting skills and improve attachments between visiting parents and their children, through encouraging parental affection toward children and providing instructive teaching to improve parenting skills (Edwards, 2003; Ellenbogen & Wekerle, 2008; Lee & Stacks, 2004; McWey & Mullis, 2004). Visitation may function as a therapeutic
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experience, an evaluative method for assessing parental bonding, or a proactive method of enhancing poor parenting skills (Ellenbogen & Wekerle, 2008). 3.1.1. Outcomes: child welfare There are few studies that examine the longitudinal associations between supervised visitation in child welfare and outcomes for children and families, and findings are mixed in the available cross-sectional literature. Some studies suggest that children benefit from frequent and consistent supervised visitation (Ansay & Perkins, 2001; Cantos, Gries, & Slis, 1997; Leathers, 2002; McWey & Mullis, 2004). Results of these studies indicate that attachment security for children placed in out-of-home care is positively influenced by the frequency and consistency of visits with parents (McWey & Mullis, 2004), and that visitation is associated with later reunification (Leathers, 2002). In addition, it appears that therapeutic supervision expedites the permanency planning process, particularly for young children (Goodman & Lwin, 2010). Research has also identified that parents attend visits with children more consistently and frequently when visits occur in an established supervised visitation center, as opposed to visits that are supervised by child welfare case workers within agency offices (Perkins & Ansay, 1998). Other literature points to negative outcomes of visitation, indicating that children in out-of-home care that utilize supervised visitation may demonstrate difficulties with adjustment and behavior in relation to the visits (Leathers, 2003). 3.2. Custody dispute For a portion of families experiencing separation or divorce, the process of determining children's contact with parents can be extremely difficult (Dunn, Flory, & Berg-Weger, 2004). Supervised visitation emerged as a useful tool in divorce and custody cases in the late 1980's, and since that time these services have strived to provide safe and neutral places for maintaining parent–child interactions (Crook & Oehme, 2007). In Ontario for example, the Ministry of the Attorney General (2007) states that supervised visitation for custody disputes aims to provide a safe, neutral, and child focused location for visits between children and non-custodial parents. There are other privately-operated supervised visitation services in Ontario, but unlike the Ministry-operated Supervised Access Program (SAP), these services have no accountability to the provincial government. Referrals for the SAP can be made through lawyers, mediators, community agencies, or oneself, implying that families utilizing the services may or may not be involved with the court system. Both staff and volunteers act as supervisors for visits within SAP, and fees are requested on a sliding scale with maximum amounts set by the Ministry. The SAP centers enforce numerous measures to promote the safety of service users, including staggered drop off and pick up times, constant monitoring of children, and enclosed outdoor areas (Ministry of the Attorney General, 2007). SAP centers only provide locations for visits and exchanges and the factual documentation of the occurrences of such visits; no counseling, mediation, therapy, education, or recommendations to courts are provided. Supervised visitation services under the Ministry of the Attorney General program are prohibited from providing services to children in the care of child protection authorities. The Ministry also states that supervised visitation can go on for as long as is needed by families, prohibiting limits of the length of time that families can use the services (Ministry of the Attorney General, 2007). Parents in conflict may opt to utilize supervised access, but in most cases this service is court mandated (Babb et al., 2009; Pearson & Thoennes, 2000). Supervision may be court ordered for a variety of reasons. Most families utilizing supervised visitation services have serious and complex issues that are not easily resolved (Crook & Oehme, 2007; Sheehan et al., 2007). In most cases, supervision is mandated when unsupervised visitation between a non-custodial parent and child would pose a significant risk to the well-being of the custodial parent and/or the child
(e.g., due to intense parental conflict, intimate partner violence, parental capacity, risk of kidnapping; Brant, 2007). The role of supervised visitation services may be viewed differently from the perspectives of different stakeholders. Judges will often order supervised visitation when the parent–child relationship is underdeveloped and the goal is to re-establish this relationship (Birnbaum & Alaggia, 2006). In other cases, actors in the legal system may consider supervised visitation as a method of maintaining child safety (Sheehan et al., 2007). Non-custodial parents may view supervision as a means to enable consistent contact with children, and children may view supervision as a means to reduce conflict between parents (Sheehan et al., 2007). There is an implicit assumption that supervised visitation is successful in protecting children from harm and also in improving parent–child relationships, however this assumption has not been validated by empirical evidence (Birnbaum & Chipeur, 2010). 3.2.1. Outcomes: custody disputes Children utilizing supervised visitation within the context of custody disputes may display significant difficulties prior to involvement in visitation. Results indicate that children utilizing supervised visitation display more psychological distress than children in the general population, and also display clinically significant internalizing and externalizing issues (Abramovitch, Jenkins, & Peterson-Badali, 1994; Aris, Harrison, & Humphreys, 2002; Pearson & Thoennes, 1997). Other research suggests that children utilizing supervised visitation services display many psychosocial difficulties, including tumultuous shifts in mood, hyper-vigilance, low self-esteem, and withdrawn and distant behavior (Johnston & Straus, 1998). Research has started to identify tentative outcomes associated with supervised visitation, however these results should be interpreted with caution given the methodological weaknesses and the variability in service delivery across programs. These preliminary findings suggest that children involved with supervised visitation experience an increase in visits with non-custodial parents over a six month period, and parents involved experience a decrease in aggression (Flory et al., 2001), and defensiveness (Tutty et al., 2006). However other research indicates that while most parents and children are satisfied with supervised visitation services, service receipt is not associated with decreases in parental hostility or increases in children's understanding of the divorce process (Jenkins, Park, & Peterson-Badali, 1997), nor are services associated with changes in parental attitudes or child functioning (Dunn et al., 2004). Other research reports that many families utilizing supervised visitation require the services for long periods of time (Sheehan et al., 2007). 4. Cautions and considerations It is clear that there is considerable confusion in the legislation and social science literature in terms of priorities, purposes, goals, functions, and outcomes of supervised visitation services. There is little standardization in the service delivery of supervised visitation, both within child welfare and custody dispute contexts and between these contexts (Birnbaum & Chipeur, 2010). In addition, there is a complete dearth in methodologically sound studies addressing outcomes of supervised visitation in the child welfare and custody dispute contexts. Few studies in this area utilize longitudinal designs, with most using small non-representative samples to provide a point in time sketch of the characteristics of children and families in supervised visitation. In light of the complexity of practice and the vulnerability of families in supervised visitation services, paired with the lack of evidence guiding practice, numerous authors have discussed pathways to reforming these services. The call for standardized and mandatory professional development of supervisors is pressing. Given the complex tasks associated with delivering supervised visitation services, supervisors in both child welfare and family law systems should receive thorough training and also should be conscious of potential risks (Parker, Rogers, Collins, & Edleson, 2008).
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Issues related to staff training and standardization necessarily include economic considerations, and services must balance the risks and benefits of staffing visitation centers with low-cost volunteer supervisors or high-cost professional supervisors (Babb et al., 2009). Families requiring supervised visitation often experience a myriad of complex difficulties which require an equally complex response, and volunteers or untrained employees cannot be expected to best respond to these situations (Thoennes & Pearson, 1999). Supervised visitation services are valued by child welfare agencies and family court judges, but these services often fail to accommodate the needs in the community (Goodman et al., 2008). This is in part due to inadequate availability of resources to support the operation of supervised visitation programs as well as inadequate social services in the community to meet the spectrum of issues that families are struggling with (Thoennes & Pearson, 1999). Underfunding in the custody dispute context may result in supervised visitation services being inaccessible to many families who require it, including families with low income, residents of rural areas, or families unable to attend outside of regular business hours (Goodman et al., 2008; Thoennes & Pearson, 1999; Tutty et al., 2006). Underfunding in the child welfare context may place restrictions on the availability of supervision, because child welfare workers are often overburdened with countless responsibilities in addition to supervising visits between parents and children. Budgeting constraints can also influence security and safety measures, as heightened security is often associated with greater costs (Crook & Oehme, 2007). Children utilizing supervised visitation services may represent an incredibly vulnerable portion of the population. Visitation with a parent, even when supervised, may pose risks to the well-being of children and families (Birnbaum & Chipeur, 2010). Supervised visitation services should take steps to minimize the possibility that these children will experience trauma as a result of the visits (Johnston & Straus, 1998). Accomplishing this requires careful thought and consideration of the overt and covert forms of traumatisation that may occur during visits, and attentive staff who are aware of the behavior and body language of parents and children (Tutty et al., 2006). Supervisors should carefully monitor children's progress in order to make referrals to other social services or even discontinue visits where necessary (Johnston & Straus, 1998). In addition, services should maximize children's sense of predictability and control through maintaining consistency in staff and programming, and should also encourage parents to explain to children why supervision must take place (Johnston & Straus, 1998). Supervised visitation services should also strive to create safe and comfortable settings in which parents and children can interact. Visitation environments must allow for monitoring of parent–child interactions, while also protecting family privacy (Ellenbogen & Wekerle, 2008). It is important to consider the feelings of visiting parents, as many may feel stigmatized or criminalized because supervision is necessary (Tutty et al., 2006). The age of the visiting child must be accounted for in addition to the aforementioned considerations, as several authors have noted that supervised visitation services are mainly designed for younger children and do not meet the needs of older children and youth (Jenkins et al., 1997; Sheehan et al., 2007). Providers of supervised visitation should carefully consider the expected duration of services, and should consider the point at which supervised visitation must be concluded. There are two situations that could follow termination of supervised visitation, namely, unsupervised visitation or no visitation at all. Depending on the context, the process of terminating supervised visitation may be very different. In the case of child welfare, agencies are responsible for updating the courts on the status of children in care. This implies that child welfare services are responsible for negotiating the termination of supervised visitation and the care arrangements that follow this. In cases of custody disputes, parents have the responsibility in negotiating the termination of supervised visitation and the care arrangements that follow this, either with each other or with the courts (Bailey, 1999). Sheehan et al.
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(2007) note that in the custody dispute context, certain factors decrease the likelihood of families ever moving to self-managed visitation, including parent mental illness or substance misuse, children displaying fear of non-custodial parents, and history of intimate partner violence; these are often the very reasons that families require supervised visitation, and these services may not be able to assist families in modifying any of these factors. This is problematic given research indicating that judges and administrators across child welfare and custody dispute contexts feel that supervised visitation is only a short-term aid and that it cannot be viewed as a long-term solution for families (Thoennes & Pearson, 1999). Certain authors have made recommendations applicable to supervised visitation in only the custody dispute context, noting that certain characteristics of supervised visitation programs are inherently problematic. For instance, the focus of supervised visitation is usually on promoting the relationship between non-custodial parent and child with no consideration of the relationship between the non-custodial parent and the custodial parent (Sheehan et al., 2007). When considering that inter-parental conflict is often the reason that supervised visitation must occur, it appears that supervised visitation ignores the root problem that brings many families to need the services (Sheehan et al., 2007). 5. Recommendations for supervised visitation within the context of child welfare Cooperative collaboration and effective communication among children and youth, families of origin, foster families, other caregivers, staff and community partners is also necessary in order to promote quality supervised visitation (Children's Aid Society of Toronto, 2007; Goodman et al., 2008). Child welfare workers require formal training to assess parent– child relationships, parent competency, parenting skills and parent capacity to meet the emotional and instrumental needs of their children. Training is also required to provide child welfare workers the needed skills to intervene and educate parents, and ultimately promote the establishment of positive parent–child interactions. Since one of the primary goals of child welfare supervised visits is to promote the reunification of parent and child, supervisors should actively engage families during visits and provide support and encouragement, in order to best foster the growth of positive familial interactions. Although monitoring the safety of these interactions is critical, supervisors should do so by actively assisting parents to engage with their children and to be attuned to the needs of their children within the supervised session. Simply taking observation notes of these parent–child interactions can further prolong the reunification process as parents are not given the required knowledge and skills to better respond to the needs of their children. Outside of the supervised visits, workers should link parents to appropriate resources and supports to ensure that the parents gain the required competency to manage child care in an unsupervised setting. 6. Recommendations for supervised visitation with the context of custody disputes The paramount focus of supervised visits within the context of custody disputes is to shelter children from interparental conflict and maintain consistent contact with non-custodial parents. Therefore, supervisors need formal training in dealing with high conflict separation, domestic violence and working with difficult clients. Neutrality and safety are paramount for these visits to effectively facilitate and maintain parent–child contact within the context of custody disputes and it is imperative that supervisors do not get caught in the tribal warfare (Johnston, Roseby, & Keuhnle, 2009) of the litigation battle between of conflicting parents. Providing a neutral setting for these visits provides parents and children the required structure to maintain contact, despite the upheaval to their lives caused by the circumstances surrounding the breakdown of the parent relationship. Impartial observation notes provide the courts with the necessary documentation to help disentangle
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the parent–child relationship from other case specific factors, which helps in determining the best interest of the child. In cases where parent–child relationships are strained, referrals should be made to outside mental health agencies to therapeutically work with the family members, while still allowing the supervisors to maintain their roles as neutral providers of access. 7. Concluding remarks Families need clear direction about the reasons for attending supervised visits and the potential outcomes of participating in these services. Supervisors in both child welfare and custody dispute contexts require standardized training, and the development of such training should be a priority in research and practice. Given the distinct goals, purposes and outcomes for supervised visits in both child welfare and custody disputes, parents and children must be clearly informed of these differences and explained the reasons for receiving services by either child welfare or supervised visitation programs. Families should be made aware, for example, whether the services will actively support in the unsupervised reunification of parent–child or whether the services offered will assist in providing a safe and neutral setting to facilitate parent–child contact despite the presence of parental conflict. The fundamental differences of supervised visits by child welfare workers and supervisors within the context of custody disputes support the parallel approaches to service delivery where each provides a unique contribution to maintaining parent– child relationships. References Abramovitch, R., Jenkins, J., & Peterson-Badali, M. (1994). Evaluation of the supervised pilot access project. Toronto, ON: Ministry of the Attorney General. Ansay, S. J., & Perkins, D. F. (2001). Integrating family visitation and risk evaluation: A practical bonding model for decision makers. Family Relations, 50, 220–229. Aris, R., Harrison, C., & Humphreys, C. (2002). Safety and child contact: An analysis of the role of child contact centres in the context of domestic violence and child welfare concerns. London: Lord Chancellor's Department. Babb, B. A., Danziger, G. H., Moran, J. D., & Mack, W. (2009). Supervised visitation and monitored exchange: Review of the literature and annotated bibliography. Baltimore: The Maryland Judiciary Research Consortium. Bailey, M. (1999). Supervised access: A long-term solution? Family and Conciliation Courts Review, 37(4), 478–486. Bala, N. (2001). The best interests of the child in the post-modern era: A central but paradoxical concept. In H. Niman, & G. Sadvari (Eds.), Family law: The best interests of the child — Special lectures 2000 (pp. 1–77). Toronto, ON: Law Society of Upper Canada. Bernstein, M., & Reitmeier, K. J. (2004). The child protection hearing. In N. Bala, M. K. Zapf, R. J. Williams, R. Vogel, & J. P. Hornick (Eds.), Canadian child welfare law: Children, families and the state (pp. 59–110). Toronto, ON: Thompson Educational Publishing. Birnbaum, R., & Alaggia, R. (2006). Supervised visitation: A call for a second generation of research. Family Court Review, 44(1), 119–134. Birnbaum, R., & Chipeur, S. (2010). Supervised visitation in custody and access disputes: Finding legal solutions for complex family problems. Canadian Family Law Quarterly, 29, 79–96. Brant, E. B. (2007). Concerns at the margins of supervised access to children. Journal of Law & Family Studies, 9(2), 201–456. Brown, Re. (1975). 21 R.F.L. 315 (Ont. Co. Ct.). Cantos, A. L., Gries, L. T., & Slis, V. (1997). Behavioral correlates of parental visiting during family foster care. Child Welfare, 76(2), 309–330. Catholic Children's Aid Society of Metropolitan of Toronto v. M.(C..) (1994) 2 S.C.R. 165. Child and Family Services Act, R.S.O. 1990, c. C.11. Children's Aid Society of Toronto (2007). Access committee: Final report. Toronto, ON: Children's Aid Society of Toronto. Children's Law Reform Act, R.S.O. 1990, c. C.12, s.34. Crook, W. P., & Oehme, K. (2007). Characteristics of supervised visitation programs serving child maltreatment and other cases. Brief Treatment and Crisis Intervention, 7(4), 291–305. Crook, W. P., Oehme, K., O'Rourke, K., & Slawinski, T. (2007). Florida's supervised visitation programs: A report from the clearinghouse on supervised visitation. Florida State University, Institute for Family Violence Studies, College of Social Work Retrieved May 10, 2010 from. http://familyvio.csw.fsu.edu/1996/BigDig1_2007.pdf
Divorce Act, R.S.C. 1985, c. 3 (2nd Supp), ss. 16(10), 17(9). Dunn, J. H., Flory, B. E., & Berg-Weger, M. (2004). An exploratory study of supervised access and custody exchange services: The children's experience. Family Court Review, 42(1), 60–73. Edwards, L. P. (2003). Judicial oversight of parental visitation in family reunification cases. Juvenile and Family Court Journal, 54, 1–24. Ellenbogen, S., & Wekerle, C. (2008). Visitation practices in child welfare organizations. Journal of the Ontario Association of Children's Aid Societies, 52(1), 18–24. Flory, B. E., Dunn, J., Berg-Weger, M., & Milstead, M. (2001). An exploratory study of supervised access and custody exchange services. Family Court Review, 39, 469–486. Goodman, D., & Lwin, K. (2010). Children's Aid Society of Toronto: Therapeutic Access Program (TAP). Toronto, ON: Child Welfare Institute, Children's Aid Society of Toronto. Goodman, D., Tuyl, C., Filippelli, J., & Pickett, T. (2008). Field led research — The partnerships, the method, the challenges, the outcomes: CAS-Toronto's Survey on Access. Toronto, ON: Children's Mental Health Ontario & Ontario Association for Children's Aid Societies 2008 Joint Conference. Gordon v. Goertz. (1996). 2 S.C.R. 27. Hetherington, E. M., & Stanley-Hagan, M. (1999). The adjustment of children with divorced parents: A risk and resiliency perspective. Journal of Child Psychology and Psychiatry, 40 (1), 129–140. Jenkins, J., Park, N., & Peterson-Badali, M. (1997). An evaluation of supervised access II: Perspectives of parents and children. Family and Conciliation Courts Review, 35(1), 51–65. Johnston, J. R., Roseby, V., & Keuhnle, K. (2009). In the name of the child: A developmental approach to understanding and helping children of conflicted and violence divorce (2nd ed.). New York: Springer. Johnston, J. R., & Straus, R. B. (1998). Traumatized children in supervised visitation: What do they need? Family and Conciliation Court Review, 37(2), 135–158. Kolko, D. J., Hurlburt, M. S., Zhang, J., Barth, R. P., Leslie, L. K., & Burns, B. J. (2010). Posttraumatic stress symptoms in a national sample of in-home and out-of-home care. Child Maltreatment, 15(1), 48–63. L. (R.) v. Children's Aid Society of Niagara Region. (2002). O.J. No. 4793 (Ont. C.A.). Leathers, S. (2002). Parental visiting and family reunification: Could inclusive practice make a difference? Child Welfare, 81(4), 595–616. Leathers, S. (2003). Parental visiting, conflicting allegiances, and emotional and behavioral problems among foster children. Family Relations, 52(1), 53–63. Lee, R. E., & Stacks, A. M. (2004). In whose arms? Using relational therapy in supervised family visitation with very young children in foster care. Journal of Family Psychotherapy, 15(4), 1–14. McLeod, J. G., & Mamo, A. A. (2002). Annual review of family law: 2001. Toronto, ON: Thomson Canada Limited. McWey, L. M., & Mullis, A. K. (2004). Improving the lives of children in foster care: The impact of supervised visitation. Family Relations, 53, 292–300. Ministry of the Attorney General of Ontario (2007). Supervised access. Retrieved May 9, 2010 from. http://www.attorneygeneral.jus.gov.on.ca/english/family/supaccess. asp Ontario Association of Children's Aid Societies (2010). Child welfare: Frequently asked questions. Toronto, ON: Ontario Association of Children's Aid Societies Retrieved February 12, 2010 from. www.oacas.org/childwelfare/faqs.htm Parker, T., Rogers, K., Collins, M., & Edleson, J. L. (2008). Danger zone: Battered mothers and their families in supervised visitation. Violence Against Women, 14, 1313–1327. Pearson, J., & Thoennes, N. (1997). Resolving issues of access: Noncustodial parents and visitation rights. Public Welfare, 55(4), 5–13. Pearson, J., & Thoennes, N. (2000). Supervised visitation: The families and their experiences. Family and Conciliation Courts Review, 38(1), 123–142. Perkins, D. F., & Ansay, S. J. (1998). The effectiveness of a visitation program in fostering visits with noncustodial parents. Family Relations, 47(3), 253–258. Sheehan, G., Carson, R., Fehlberg, B., Hunter, R., Tomison, A., Ip, R., et al. (2007). Divergent expectations and experience: An empirical study of the use children's contact services in Australia. International Journal of Law, Policy and the Family, 21, 275–309. Stern, N., & Oehme, K. (2007). Increasing safety for battered women and their children: Creating a privilege for supervised visitation intake records. University of Richmond Law Review, 41(2), 499–534. Supervised Visitation Network (2010). About SVN. Retrieved May 12, 2010 from. http://www.svnetwork.net/about.asp Thoennes, N., & Pearson, J. (1999). Supervised visitation: A profile of providers. Family and Conciliation Courts Review, 37(4), 460–477. Tutty, L., Weaver-Dunlop, J., Barlow, A., & Jesso, D. (2006, May). Evaluation of the Community Safe Visitation Program: Updated 2006. The Calgary Foundation. United Nations General Assembly (1989). Convention on the Rights of the Child, Treaty Series, 1577. New York: United Nations. Wattenberg, E., Troy, K., & Beuch, A. (2011). Protective supervision: An inquiry into the relationship between child welfare and the court system. Children and Youth Services Review, 33, 346–350. Zuker, M. A., Hammond, R. C., & Flynn, R. C. (2009). Children's law handbook (2nd ed.). Toronto, ON: Thomson Carswell Limited.
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Children and Youth Services Review journal homepage: www.elsevier.com/locate/childyouth
Parent–child supervised visitation within child welfare and custody dispute contexts: An exploratory comparison of two distinct models of practice☆ Michael Saini a,⁎, Melissa Van Wert a, Jacob Gofman b a b
Factor-Inwentash Faculty of Social Work, University of Toronto, 246 Bloor Street West, Toronto, Ontario, Canada M5S 1V4 Faculty of Law, University of Toronto, 84 Queen's Park Crescent, Toronto, Ontario, Canada M5S 2C5
a r t i c l e
i n f o
Article history: Received 25 June 2011 Received in revised form 18 September 2011 Accepted 20 September 2011 Available online 25 September 2011 Keywords: Supervised visitation Child welfare Custody dispute
a b s t r a c t This paper aims to untangle the assumptions and goals of supervised visitation services in the child welfare and custody dispute contexts, through presenting a legal analysis and review of social science literature. There is confusion in the literature on the specific roles, duties and expectations of supervised visitation services in facilitating parent–child contact within child welfare and custody disputes. A framework is outlined for understanding supervised visitation services in general. The overarching tenets of these services are discussed, and the assumptions of safety, protection and parent-child contact are explored. The legal context of supervised visitation in Canada is outlined, specifically examining the ‘best interest of the child’ principle and comparing the legal backdrop of visitation in child welfare and custody disputes. The social science literature is then reviewed with the goal of discerning supervised visitation across child welfare and custody disputes. The limited research on outcomes for children and families after utilizing supervised visitation services is discussed. This paper concludes with cautions and considerations for policy and practice for supervised visitation in child welfare and family law contexts, as well as recommendations for both fields. © 2011 Elsevier Ltd. All rights reserved.
1. Introduction Supervised visitation services occur when the parent–child relationship is strained in some way, and are established to facilitate contact between parents and their children (Babb, Danziger, Moran, & Mack, 2009). Depending on the context of supervised visitation, parent–child contact may either be supervised by child welfare services following a determination that the child is in need of protection, or alternatively by services offered within family law following a custody dispute regarding the best interest of the child after separation/divorce. Although there may be significant overlap between these two services (Babb et al., 2009), there are unique goals, purposes and outcomes of facilitating parent–child contact within these distinct systems. Unfortunately, there is a dearth in literature comparing supervised visitation across the child welfare and custody dispute contexts. Consequently, parents and service providers remain unclear about the specific roles, duties and expectations for these two distinct services in facilitating parent– child contact. The purpose of the present paper is to untangle the similar and divergent assumptions and goals underlying supervised visitation ☆ This project was funded by the Canadian Institutes of Health Research (CIHR) Health Professional Student Research Award. The authors wish to thank Judy Newman, Program Manager of the Supervised Access Program, Ministry of the Attorney General of Ontario for her critical comments and suggestions on an earlier version of the paper. ⁎ Corresponding author. Tel.: + 1 416 946 5027; fax: + 1 416 978 7072. E-mail addresses: [email protected] (M. Saini), [email protected] (M. Van Wert), [email protected] (J. Gofman). 0190-7409/$ – see front matter © 2011 Elsevier Ltd. All rights reserved. doi:10.1016/j.childyouth.2011.09.011
services in the child welfare and custody dispute contexts, based on a comprehensive legal analysis and review of relevant social science literature. This paper also aims to identify gaps in the current body of knowledge on supervised visitation, and outline cautions and considerations as practice and research move forward in this area. 2. Framework for understanding supervised visitation services 2.1. General tenets of supervised visitation Various services fall under the umbrella term supervised visitation, which creates difficulties when interpreting the literature in this area. Supervised visitation services are usually mandated by the court (Crook, Oehme, O'Rourke, & Slawinski, 2007). Services generally involve the facilitation of contact between parents and children, occurring either on a one-to-one basis (i.e., one parent and child[ren] are supervised together) or a group basis (i.e., several parents and their respective children are supervised at one time), and may involve parents and children having in-person contact or other forms of contact (e.g., telephone, internet, etc.; Crook et al., 2007). Individuals and families utilize supervised visitation for varying lengths of time. Within the context of child welfare, it is generally assumed that the purpose of supervised visitation is to help promote and develop parent–child relationships sufficiently in order for unsupervised visitation to ensue (Bailey, 1999). In contrast, it is generally assumed that the purpose of supervised visitation within the context of custody disputes is to facilitate parent–child contact in a safe and neutral setting.
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Supervised visitation service delivery varies in terms of the qualifications and roles of supervisors. Supervisors range from volunteers with little specialized training in the issues with which families are presenting, to service providers with many years of experience and expertise in this area (Babb et al., 2009; Crook & Oehme, 2007; Thoennes & Pearson, 1999). Supervisors monitoring parent–child interactions within the context of custody disputes record factual and objective observations of the visits so that this information may be used by judges, attorneys, custody evaluators and other mental health professionals in assessing the parent–child interactions. In instances where the assumption is that supervised visitation should provide unbiased reports to the courts, supervisor neutrality and objectivity is of utmost importance (Stern & Oehme, 2007). Alternatively, in instances where the assumption is that supervised visitation should assist in developing the parent–child relationship, then neutrality is of secondary importance (Birnbaum & Chipeur, 2010; Ellenbogen & Wekerle, 2008). In child welfare, supervisors are required to make both factual observations and evaluations of parent–child interactions to help in making a determination of whether the child will be reunited with the parent (Babb et al., 2009; Ellenbogen & Wekerle, 2008). 2.2. Importance of parent–child relationships Parent–child relationships are assumed to be important within supervised visitation services. Visitation assumes that the parent–child relationship is strained in some way (Johnston & Straus, 1998), and further that children benefit from contact with parents especially during times of transition or stress (Birnbaum & Alaggia, 2006). This is relevant for both the child welfare and custody dispute contexts. After contact with the child welfare system, children may be removed from their families of origin and placed in out-of-home care, or alternatively may receive in-home services. Generally, children subject to child welfare intervention have endured some form of trauma (Kolko et al., 2010). After experiencing parental separation or divorce, children may be thrust into a custody dispute and in turn lose contact with non-custodial parents. Children involved in custody dispute issues have likely been exposed to parental conflict, and are also coping with the separation from non-custodial parents (Hetherington & Stanley-Hagan, 1999). Therefore children utilizing supervised visitation services are likely experiencing transition and/or stress regardless of the context in which these visits occur. It is assumed that supervised visits will buffer the impact of transition and stress by promoting safe interaction between parents and their children (Tutty, Weaver-Dunlop, Barlow, & Jesso, 2006). The value of maintaining the parent–child relationship is also recognized at law, and decisions related to mandating supervised visitation are guided by the “best interest of the child” principle. The United Nations Convention of the Rights of the Child, Article 9 (United Nations General Assembly, 1989), outlines that children have rights to maintain personal relationships with their parents, unless this would not be in the best interest of a child. 2.3. Threshold application of the best interest of the child principle across contexts The “best interest of the child” principle is explicitly incorporated into Canadian domestic law through several pieces of legislation that impact both child welfare (e.g. Child and Family Services Act [CFSA, 1990]) and custody disputes (e.g. Divorce Act, 1985, Children's Law Reform Act [CLRA, 1990]); however, the legal principles of best interest differ across child welfare and custody dispute contexts. In the custody context, both the CLRA and the Divorce Act base the merits of the application for custody and access on the best interest of the child. Under section 24 of the CLRA, in determining the child's best interest, the court must consider factors listed under section 24 (2). Similarly under section 16(8) of the Divorce Act, the court will
only take into consideration the best interests of the child as determined by the conditions, needs and other circumstances of the child. The CLRA is the law applied to determine custody and access between two or more individuals. The merits of the application for custody and access under section 21 of the CLRA will be determined on the basis of the best interests of the child pursuant to subsection 24(1). The best interests of the child principle is the first and only test for determination under the CLRA, the content of which is a matter to be determined upon the facts in each case based on the factors enumerated in subsection 24 (2) of the CLRA (Zuker, Hammond, & Flynn, 2009). Similarly, in the child welfare context, the CFSA is primarily concerned with the best interests of the child. However, there is a statutory pathway of specific findings set out in Section 57 of the Act that the court must make before the issue of the best interests of the child is engaged (Zuker et al., 2009). Most importantly, the court must consider whether the child is in need of protection before it can consider what placement and what relationships are in his or her best interests (Zuker et al., 2009). Indeed even if a child is in need of protection, before a child will be removed from the parents, the court must follow the statutory pathway established in section 57 of the CFSA (Zuker et al., 2009). During a court's consideration of matters along each step of the CFSA's statutory pathway, it must look at the evidence presented and the orders that can be made in accordance with the child's best interests. Unlike a custody matter in which the applicable test is the best interests of the child, each step in child protection proceedings is guided by a statutory pathway contained in the CFSA rather than one predominant test (Zuker et al., 2009). The rationale behind such an approach is that there must be some rights for children to remain with their parents and families if it is safe for them (Zuker et al., 2009). For that reason, unlike child custody, child protection is not initially a matter of securing the best interests of a child; engaging the child protection regime must be triggered by a real world event or omission before the court has jurisdiction to intervene (Zuker et al., 2009). It is only once a child protection proceeding is ongoing, that the process engaged begins to address the best interests of the child at various subsequent stages (Zuker et al., 2009). In other words, child protection is not an exercise in the proactive service of a child's best interests but a reactive series of steps where basic needs of a child are not served. Accordingly, child welfare cases are not, at least initially, a contest of best interests of the child as it is in a custody case (Brown, 1975, 21 R.F.L. 315 {Ont. Co. Ct.} at paragraph 24; L. (R.) v. Children's Aid Society of Niagara Region, 2002 O.J. No. 4793 {Ont. C.A.} at paragraph 38). However, once a child is determined to be in need of protection, then, subject to the statutory pathway above, the child's best interest test is the sole governing criteria (Zuker et al., 2009). The reforms to the CFSA ushered in by Bill 210 now allow the Court to make an order for custody in certain circumstances pursuant to section 57.1 of the Act. If none of the orders available under section 57 is in the best interests of the child and a custody order has not previously been made under the Divorce Act prior to intervention under the CFSA, the Court is permitted to make an order of custody (Zuker et al., 2009). Section 57.1(7) makes it clear that less disruptive steps mandated in the statutory pathway under section 57(3) must still be adhered to. Pursuant to section 57.1(2), orders of custody under section 57.1 are deemed to be made under the CLRA. 2.4. Interpretation of the “best interests of the child” principle Though the “best interest” phrase has great political and symbolic appeal, the concept is not easily defined in law (Bala, 2001; Bernstein & Reitmeier, 2004). This leaves considerable discretion in the hands of judges to determine what constitutes the “best interests of the child” in dispositions concerning custody disputes and child welfare cases. In Ontario, the CFSA permits the court to make an order of supervised visitation provided by Children's Aid Societies in situations where it will serve the best interests of the child (section 58). Most
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pieces of child welfare legislation across Canada list factors that the court must consider in making determinations “in the best interests” of a child. In Ontario, the relevant factors can be found in section 37 (3) of the CFSA. These factors include the child's level of development and needs, and the appropriate care necessary to meet them; the child's cultural and religious background or ties; the child's family relationships; the importance of continuity for the child and the effect of disruption of that continuity; and the child's views and wishes. As in other jurisdictions, the subsection ends with the catch-all “any other relevant circumstances,” indicating that the list is not exhaustive (Bernstein & Reitmeier, 2004). Thus, a problem exists in terms of certainty in defining what constitutes the “best interests of the child.” The open-ended nature of the definition has been explained as necessary in order to allow judges to take a contextual approach to what are very often fact-specific situations. As explained by Justice L'Heureux-Dubé in Catholic Children's Aid Society of Metropolitan of Toronto v. M.(C.), ([1994] 2 S.C.R. 165), “The wide focus of the best interests test encompasses an examination of the entirety of the situation and thus includes concerns arising from emotional harm, psychological bonding, and the child's desires…” Thus, the belief is that by examining the situation holistically, the court will be able to arrive at an order that more accurately reflects the best interests of the child. In Ontario, the weighing of the relevant factors in a judge's determination of the best interests of a child may be constrained by the paramount purpose of the CFSA. In 2000, amendments were undertaken to emphasize the paramount purpose of the CFSA, which is to promote the best interest, protection, and well being of children (section 1[1]). While considerations of a child's family ties and cultural heritage remain relevant, the import placed on such considerations must be consistent with the purpose of promoting the best interest, protection, and well being of children (Bernstein & Reitmeier, 2004). There is significant judicial discretion required in interpreting the “best interests of the child” principle in the context of custody disputes, as this concept is not defined in the Divorce Act. Section 16 (10) simply states that the court is required to, “Give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child.” Some argue that contact between non-custodial parents and children has essentially been equated with the best interests of the child, with legal decisions and law reform emphasizing maximum contact between non-custodial parents and children while ignoring the actual needs of children (Birnbaum & Chipeur, 2010). Jurisprudence has also been of little assistance in determining a definition of the best interests of the child in custody disputes. In Gordon v. Goertz ([1996] 2 S.C.R. 27), the Supreme Court of Canada confirmed its earlier finding that all aspects of a child's access are determined according to the best interests of the child. However, the justices were still unable to agree on the meaning of the best interests of the child (McLeod & Mamo, 2002). Because of the fact-specific nature of many custody disputes, this has resulted in different judges emphasizing different factors across Canadian jurisdictions. In Ontario, the interpretation of the best interests of the child in custody cases has been buttressed by the CLRA. Subsection 24(1) states that applications under the Act in respect to custody of or access to a child shall be determined on the basis of the best interests of the child. Subsection 24(2) provides a list of criteria that the court must consider in determining the best interests of the child. These criteria include the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessities of life, and any special needs of the child; the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing; and, the ability of each person applying for custody of or access to the child to act as a parent. Though many of the factors are openended in their nature, the legislation does serve to focus the judge's attention on what the legislation has deemed to be relevant factors.
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2.5. Guidelines for service delivery Service providers looking for guidance in both the child welfare and custody dispute contexts can voluntarily join the Supervised Visitation Network (SVN), as can other professionals including judges, attorneys, professors, and therapists. The SVN is an international voluntary organization that aims to develop and distribute standards for practice and to promote knowledge exchange regarding best practices for conducting supervised visits and exchanges (Supervised Visitation Network, 2010). SVN has developed practice and training standards, a code of ethics, and they offer training opportunities, including an annual conference to showcase current research and innovations in the field. SVN has been a leader in providing guidance for working with children and families within supervised services, but there remains no mechanism to enforce these best practices for effective service. Further, there is no mandatory requirement for providers to join SVN and/or adhere to the SVN code of ethics (Babb et al., 2009) and there remains a variety of approaches for delivering supervised services to children and families. 3. Distinctions in service delivery across contexts 3.1. Child welfare There is no common understanding of the concept, definition, or uses of supervised visitation among service providers working in the child protection system (Wattenberg, Troy, & Beuch, 2011). This creates suboptimal conditions for interpreting the literature in this area. Supervised visitation programs vary considerably in structure and level of intervention, and there is insufficient literature in this area to produce clear recommendations for which variations support effective service delivery (Ellenbogen & Wekerle, 2008). Child protection services may utilize supervised visitation for cases in which children are placed in out-of-home care (e.g., foster or group home) or where children remain in home with supports (Babb et al., 2009). Out-of-home placement of a child usually occurs when child protection services determine that a family cannot provide an environment that is adequately safe for children, due to concerns of abuse or neglect (Ontario Association of Children's Aid Societies, 2010). In cases where children are placed outside of the home, courts may determine that visitation between parents and children can only occur if supervised by a third party; in these cases, supervised visits are scheduled between parents and children and usually supervised by the child protection worker (Perkins & Ansay, 1998; Thoennes & Pearson, 1999). Visits between parents and children may occur in offices of child protection workers, homes of foster parents or families of origin, or supervised visitation centers (Goodman, Tuyl, Filippelli, & Pickett, 2008; McWey & Mullis, 2004). The level of resources required for supervised visitation differs depending on where the visits occur (Goodman et al., 2008). Visitation is commonly a requirement for parents seeking to reacquire the custody of children in care of the child welfare system (McWey & Mullis, 2004), and thus visitation may represent a step toward reunification or a tool to increase parental compliance with case plans (Wattenberg et al., 2011). In most cases, supervised visitation services in child welfare aim to promote child safety and family reunification, with service delivery adapting over time depending on whether ongoing parental contact and reunification are deemed to be in the best interest of the child (Ellenbogen & Wekerle, 2008; Flory, Dunn, Berg-Weger, & Milstead, 2001). These programs often strive to develop positive parenting skills and improve attachments between visiting parents and their children, through encouraging parental affection toward children and providing instructive teaching to improve parenting skills (Edwards, 2003; Ellenbogen & Wekerle, 2008; Lee & Stacks, 2004; McWey & Mullis, 2004). Visitation may function as a therapeutic
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experience, an evaluative method for assessing parental bonding, or a proactive method of enhancing poor parenting skills (Ellenbogen & Wekerle, 2008). 3.1.1. Outcomes: child welfare There are few studies that examine the longitudinal associations between supervised visitation in child welfare and outcomes for children and families, and findings are mixed in the available cross-sectional literature. Some studies suggest that children benefit from frequent and consistent supervised visitation (Ansay & Perkins, 2001; Cantos, Gries, & Slis, 1997; Leathers, 2002; McWey & Mullis, 2004). Results of these studies indicate that attachment security for children placed in out-of-home care is positively influenced by the frequency and consistency of visits with parents (McWey & Mullis, 2004), and that visitation is associated with later reunification (Leathers, 2002). In addition, it appears that therapeutic supervision expedites the permanency planning process, particularly for young children (Goodman & Lwin, 2010). Research has also identified that parents attend visits with children more consistently and frequently when visits occur in an established supervised visitation center, as opposed to visits that are supervised by child welfare case workers within agency offices (Perkins & Ansay, 1998). Other literature points to negative outcomes of visitation, indicating that children in out-of-home care that utilize supervised visitation may demonstrate difficulties with adjustment and behavior in relation to the visits (Leathers, 2003). 3.2. Custody dispute For a portion of families experiencing separation or divorce, the process of determining children's contact with parents can be extremely difficult (Dunn, Flory, & Berg-Weger, 2004). Supervised visitation emerged as a useful tool in divorce and custody cases in the late 1980's, and since that time these services have strived to provide safe and neutral places for maintaining parent–child interactions (Crook & Oehme, 2007). In Ontario for example, the Ministry of the Attorney General (2007) states that supervised visitation for custody disputes aims to provide a safe, neutral, and child focused location for visits between children and non-custodial parents. There are other privately-operated supervised visitation services in Ontario, but unlike the Ministry-operated Supervised Access Program (SAP), these services have no accountability to the provincial government. Referrals for the SAP can be made through lawyers, mediators, community agencies, or oneself, implying that families utilizing the services may or may not be involved with the court system. Both staff and volunteers act as supervisors for visits within SAP, and fees are requested on a sliding scale with maximum amounts set by the Ministry. The SAP centers enforce numerous measures to promote the safety of service users, including staggered drop off and pick up times, constant monitoring of children, and enclosed outdoor areas (Ministry of the Attorney General, 2007). SAP centers only provide locations for visits and exchanges and the factual documentation of the occurrences of such visits; no counseling, mediation, therapy, education, or recommendations to courts are provided. Supervised visitation services under the Ministry of the Attorney General program are prohibited from providing services to children in the care of child protection authorities. The Ministry also states that supervised visitation can go on for as long as is needed by families, prohibiting limits of the length of time that families can use the services (Ministry of the Attorney General, 2007). Parents in conflict may opt to utilize supervised access, but in most cases this service is court mandated (Babb et al., 2009; Pearson & Thoennes, 2000). Supervision may be court ordered for a variety of reasons. Most families utilizing supervised visitation services have serious and complex issues that are not easily resolved (Crook & Oehme, 2007; Sheehan et al., 2007). In most cases, supervision is mandated when unsupervised visitation between a non-custodial parent and child would pose a significant risk to the well-being of the custodial parent and/or the child
(e.g., due to intense parental conflict, intimate partner violence, parental capacity, risk of kidnapping; Brant, 2007). The role of supervised visitation services may be viewed differently from the perspectives of different stakeholders. Judges will often order supervised visitation when the parent–child relationship is underdeveloped and the goal is to re-establish this relationship (Birnbaum & Alaggia, 2006). In other cases, actors in the legal system may consider supervised visitation as a method of maintaining child safety (Sheehan et al., 2007). Non-custodial parents may view supervision as a means to enable consistent contact with children, and children may view supervision as a means to reduce conflict between parents (Sheehan et al., 2007). There is an implicit assumption that supervised visitation is successful in protecting children from harm and also in improving parent–child relationships, however this assumption has not been validated by empirical evidence (Birnbaum & Chipeur, 2010). 3.2.1. Outcomes: custody disputes Children utilizing supervised visitation within the context of custody disputes may display significant difficulties prior to involvement in visitation. Results indicate that children utilizing supervised visitation display more psychological distress than children in the general population, and also display clinically significant internalizing and externalizing issues (Abramovitch, Jenkins, & Peterson-Badali, 1994; Aris, Harrison, & Humphreys, 2002; Pearson & Thoennes, 1997). Other research suggests that children utilizing supervised visitation services display many psychosocial difficulties, including tumultuous shifts in mood, hyper-vigilance, low self-esteem, and withdrawn and distant behavior (Johnston & Straus, 1998). Research has started to identify tentative outcomes associated with supervised visitation, however these results should be interpreted with caution given the methodological weaknesses and the variability in service delivery across programs. These preliminary findings suggest that children involved with supervised visitation experience an increase in visits with non-custodial parents over a six month period, and parents involved experience a decrease in aggression (Flory et al., 2001), and defensiveness (Tutty et al., 2006). However other research indicates that while most parents and children are satisfied with supervised visitation services, service receipt is not associated with decreases in parental hostility or increases in children's understanding of the divorce process (Jenkins, Park, & Peterson-Badali, 1997), nor are services associated with changes in parental attitudes or child functioning (Dunn et al., 2004). Other research reports that many families utilizing supervised visitation require the services for long periods of time (Sheehan et al., 2007). 4. Cautions and considerations It is clear that there is considerable confusion in the legislation and social science literature in terms of priorities, purposes, goals, functions, and outcomes of supervised visitation services. There is little standardization in the service delivery of supervised visitation, both within child welfare and custody dispute contexts and between these contexts (Birnbaum & Chipeur, 2010). In addition, there is a complete dearth in methodologically sound studies addressing outcomes of supervised visitation in the child welfare and custody dispute contexts. Few studies in this area utilize longitudinal designs, with most using small non-representative samples to provide a point in time sketch of the characteristics of children and families in supervised visitation. In light of the complexity of practice and the vulnerability of families in supervised visitation services, paired with the lack of evidence guiding practice, numerous authors have discussed pathways to reforming these services. The call for standardized and mandatory professional development of supervisors is pressing. Given the complex tasks associated with delivering supervised visitation services, supervisors in both child welfare and family law systems should receive thorough training and also should be conscious of potential risks (Parker, Rogers, Collins, & Edleson, 2008).
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Issues related to staff training and standardization necessarily include economic considerations, and services must balance the risks and benefits of staffing visitation centers with low-cost volunteer supervisors or high-cost professional supervisors (Babb et al., 2009). Families requiring supervised visitation often experience a myriad of complex difficulties which require an equally complex response, and volunteers or untrained employees cannot be expected to best respond to these situations (Thoennes & Pearson, 1999). Supervised visitation services are valued by child welfare agencies and family court judges, but these services often fail to accommodate the needs in the community (Goodman et al., 2008). This is in part due to inadequate availability of resources to support the operation of supervised visitation programs as well as inadequate social services in the community to meet the spectrum of issues that families are struggling with (Thoennes & Pearson, 1999). Underfunding in the custody dispute context may result in supervised visitation services being inaccessible to many families who require it, including families with low income, residents of rural areas, or families unable to attend outside of regular business hours (Goodman et al., 2008; Thoennes & Pearson, 1999; Tutty et al., 2006). Underfunding in the child welfare context may place restrictions on the availability of supervision, because child welfare workers are often overburdened with countless responsibilities in addition to supervising visits between parents and children. Budgeting constraints can also influence security and safety measures, as heightened security is often associated with greater costs (Crook & Oehme, 2007). Children utilizing supervised visitation services may represent an incredibly vulnerable portion of the population. Visitation with a parent, even when supervised, may pose risks to the well-being of children and families (Birnbaum & Chipeur, 2010). Supervised visitation services should take steps to minimize the possibility that these children will experience trauma as a result of the visits (Johnston & Straus, 1998). Accomplishing this requires careful thought and consideration of the overt and covert forms of traumatisation that may occur during visits, and attentive staff who are aware of the behavior and body language of parents and children (Tutty et al., 2006). Supervisors should carefully monitor children's progress in order to make referrals to other social services or even discontinue visits where necessary (Johnston & Straus, 1998). In addition, services should maximize children's sense of predictability and control through maintaining consistency in staff and programming, and should also encourage parents to explain to children why supervision must take place (Johnston & Straus, 1998). Supervised visitation services should also strive to create safe and comfortable settings in which parents and children can interact. Visitation environments must allow for monitoring of parent–child interactions, while also protecting family privacy (Ellenbogen & Wekerle, 2008). It is important to consider the feelings of visiting parents, as many may feel stigmatized or criminalized because supervision is necessary (Tutty et al., 2006). The age of the visiting child must be accounted for in addition to the aforementioned considerations, as several authors have noted that supervised visitation services are mainly designed for younger children and do not meet the needs of older children and youth (Jenkins et al., 1997; Sheehan et al., 2007). Providers of supervised visitation should carefully consider the expected duration of services, and should consider the point at which supervised visitation must be concluded. There are two situations that could follow termination of supervised visitation, namely, unsupervised visitation or no visitation at all. Depending on the context, the process of terminating supervised visitation may be very different. In the case of child welfare, agencies are responsible for updating the courts on the status of children in care. This implies that child welfare services are responsible for negotiating the termination of supervised visitation and the care arrangements that follow this. In cases of custody disputes, parents have the responsibility in negotiating the termination of supervised visitation and the care arrangements that follow this, either with each other or with the courts (Bailey, 1999). Sheehan et al.
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(2007) note that in the custody dispute context, certain factors decrease the likelihood of families ever moving to self-managed visitation, including parent mental illness or substance misuse, children displaying fear of non-custodial parents, and history of intimate partner violence; these are often the very reasons that families require supervised visitation, and these services may not be able to assist families in modifying any of these factors. This is problematic given research indicating that judges and administrators across child welfare and custody dispute contexts feel that supervised visitation is only a short-term aid and that it cannot be viewed as a long-term solution for families (Thoennes & Pearson, 1999). Certain authors have made recommendations applicable to supervised visitation in only the custody dispute context, noting that certain characteristics of supervised visitation programs are inherently problematic. For instance, the focus of supervised visitation is usually on promoting the relationship between non-custodial parent and child with no consideration of the relationship between the non-custodial parent and the custodial parent (Sheehan et al., 2007). When considering that inter-parental conflict is often the reason that supervised visitation must occur, it appears that supervised visitation ignores the root problem that brings many families to need the services (Sheehan et al., 2007). 5. Recommendations for supervised visitation within the context of child welfare Cooperative collaboration and effective communication among children and youth, families of origin, foster families, other caregivers, staff and community partners is also necessary in order to promote quality supervised visitation (Children's Aid Society of Toronto, 2007; Goodman et al., 2008). Child welfare workers require formal training to assess parent– child relationships, parent competency, parenting skills and parent capacity to meet the emotional and instrumental needs of their children. Training is also required to provide child welfare workers the needed skills to intervene and educate parents, and ultimately promote the establishment of positive parent–child interactions. Since one of the primary goals of child welfare supervised visits is to promote the reunification of parent and child, supervisors should actively engage families during visits and provide support and encouragement, in order to best foster the growth of positive familial interactions. Although monitoring the safety of these interactions is critical, supervisors should do so by actively assisting parents to engage with their children and to be attuned to the needs of their children within the supervised session. Simply taking observation notes of these parent–child interactions can further prolong the reunification process as parents are not given the required knowledge and skills to better respond to the needs of their children. Outside of the supervised visits, workers should link parents to appropriate resources and supports to ensure that the parents gain the required competency to manage child care in an unsupervised setting. 6. Recommendations for supervised visitation with the context of custody disputes The paramount focus of supervised visits within the context of custody disputes is to shelter children from interparental conflict and maintain consistent contact with non-custodial parents. Therefore, supervisors need formal training in dealing with high conflict separation, domestic violence and working with difficult clients. Neutrality and safety are paramount for these visits to effectively facilitate and maintain parent–child contact within the context of custody disputes and it is imperative that supervisors do not get caught in the tribal warfare (Johnston, Roseby, & Keuhnle, 2009) of the litigation battle between of conflicting parents. Providing a neutral setting for these visits provides parents and children the required structure to maintain contact, despite the upheaval to their lives caused by the circumstances surrounding the breakdown of the parent relationship. Impartial observation notes provide the courts with the necessary documentation to help disentangle
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the parent–child relationship from other case specific factors, which helps in determining the best interest of the child. In cases where parent–child relationships are strained, referrals should be made to outside mental health agencies to therapeutically work with the family members, while still allowing the supervisors to maintain their roles as neutral providers of access. 7. Concluding remarks Families need clear direction about the reasons for attending supervised visits and the potential outcomes of participating in these services. Supervisors in both child welfare and custody dispute contexts require standardized training, and the development of such training should be a priority in research and practice. Given the distinct goals, purposes and outcomes for supervised visits in both child welfare and custody disputes, parents and children must be clearly informed of these differences and explained the reasons for receiving services by either child welfare or supervised visitation programs. Families should be made aware, for example, whether the services will actively support in the unsupervised reunification of parent–child or whether the services offered will assist in providing a safe and neutral setting to facilitate parent–child contact despite the presence of parental conflict. The fundamental differences of supervised visits by child welfare workers and supervisors within the context of custody disputes support the parallel approaches to service delivery where each provides a unique contribution to maintaining parent– child relationships. References Abramovitch, R., Jenkins, J., & Peterson-Badali, M. (1994). Evaluation of the supervised pilot access project. Toronto, ON: Ministry of the Attorney General. Ansay, S. J., & Perkins, D. F. (2001). Integrating family visitation and risk evaluation: A practical bonding model for decision makers. Family Relations, 50, 220–229. Aris, R., Harrison, C., & Humphreys, C. (2002). Safety and child contact: An analysis of the role of child contact centres in the context of domestic violence and child welfare concerns. London: Lord Chancellor's Department. Babb, B. A., Danziger, G. H., Moran, J. D., & Mack, W. (2009). Supervised visitation and monitored exchange: Review of the literature and annotated bibliography. Baltimore: The Maryland Judiciary Research Consortium. Bailey, M. (1999). Supervised access: A long-term solution? Family and Conciliation Courts Review, 37(4), 478–486. Bala, N. (2001). The best interests of the child in the post-modern era: A central but paradoxical concept. In H. Niman, & G. Sadvari (Eds.), Family law: The best interests of the child — Special lectures 2000 (pp. 1–77). Toronto, ON: Law Society of Upper Canada. Bernstein, M., & Reitmeier, K. J. (2004). The child protection hearing. In N. Bala, M. K. Zapf, R. J. Williams, R. Vogel, & J. P. Hornick (Eds.), Canadian child welfare law: Children, families and the state (pp. 59–110). Toronto, ON: Thompson Educational Publishing. Birnbaum, R., & Alaggia, R. (2006). Supervised visitation: A call for a second generation of research. Family Court Review, 44(1), 119–134. Birnbaum, R., & Chipeur, S. (2010). Supervised visitation in custody and access disputes: Finding legal solutions for complex family problems. Canadian Family Law Quarterly, 29, 79–96. Brant, E. B. (2007). Concerns at the margins of supervised access to children. Journal of Law & Family Studies, 9(2), 201–456. Brown, Re. (1975). 21 R.F.L. 315 (Ont. Co. Ct.). Cantos, A. L., Gries, L. T., & Slis, V. (1997). Behavioral correlates of parental visiting during family foster care. Child Welfare, 76(2), 309–330. Catholic Children's Aid Society of Metropolitan of Toronto v. M.(C..) (1994) 2 S.C.R. 165. Child and Family Services Act, R.S.O. 1990, c. C.11. Children's Aid Society of Toronto (2007). Access committee: Final report. Toronto, ON: Children's Aid Society of Toronto. Children's Law Reform Act, R.S.O. 1990, c. C.12, s.34. Crook, W. P., & Oehme, K. (2007). Characteristics of supervised visitation programs serving child maltreatment and other cases. Brief Treatment and Crisis Intervention, 7(4), 291–305. Crook, W. P., Oehme, K., O'Rourke, K., & Slawinski, T. (2007). Florida's supervised visitation programs: A report from the clearinghouse on supervised visitation. Florida State University, Institute for Family Violence Studies, College of Social Work Retrieved May 10, 2010 from. http://familyvio.csw.fsu.edu/1996/BigDig1_2007.pdf
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