W(h)ither Motherhood, W(h)ither Feminism: Child Custody Law Reform / La maternité évacuée, le fé

Summary of presentation from NAWL’s 14th Biennial Conference

This presentation addressed the ‘disappearance’ of mothers in custody law reform debates over the past decade in Canada, and also looked at the ‘disappearance’ of related issues such as women’s caregiving responsibility and woman abuse.

Law reform initiatives in the field of custody and access law are proceeding in a climate of ‘backlash’ towards feminism and, arguably, towards mothers in family law. Backlash signifies resistance to social change by those who say that feminists control the law reform agenda, that legal change has gone too far in empowering women, that special rights are being given to women, and that the ‘family’ and fathers are under threat. Many participants in the law reform debates assume (incorrectly) that mothers are now favoured inappropriately in child custody law. They argue that law reform must therefore be directed at encouraging fathers to be involved with children after separation or divorce and at facilitating the concept of shared parenting (which is the new terminology for joint custody). This trend raises complex issues for women, as they are increasingly tied to men from whom they have separated through legal devices such as access, joint custody, and shared parenting.

Mothers continue to struggle in this field of law to have their caregiving work and relationships recognized, especially as shared parenting enters the legal system as a normative objective with a renewed emphasis on the importance of fathers to children’s well-being. A traditional patriarchal definition of “family” that marginalizes many women along the lines of sexual orientation, class, and race/culture is being re-asserted in the legal system. Some jurisdictions, such as Australia, England, and Washington State, have introduced laws that no longer refer to ‘custody’ and ‘access,’ but rather, emphasize fragmented components of custody and access through such mechanisms as residence and contact orders, and parenting plans. These new legislative models tend to emphasize shared parental responsibilities as the normative ideal. Although studies have identified serious problems with these law reforms, and their impact on abused women and children in particular, the Special Joint Senate and House of Commons Committee appointed in 1997 to review custody and access law uncritically adopted a similar approach.

It remains an open question what the results of extensive lobbying by women’s groups, pointing out the gendered implications of these law reform initiatives, will be. Arguably, the voices of feminists, women’s groups, and battered women’s advocates have been overlooked in the cacophony of interventions in the law reform field. To assert that the specific position of women, and the disproportionate responsibility that women have for childcare, is relevant in child custody and access law is increasingly seen as anachronistic, and as contrary to a focus on the best interests of children.

This presentation suggested that it would be a travesty if gendered power relations were not taken into account in this law reform process. It also suggested that the trends in child custody law reform are related to broader trends towards privatization of economic responsibility, including retrenchment of the welfare state. In general, the family law system in Canada and other countries such as Australia has ’tilted’ more and more against women, particularly due to legal aid cutbacks and the trend in custody laws to reinforce the ‘post-divorce family unit.’

Susan B. Boyd holds the Chair in Feminist Legal Studies, and is Director of the Centre for Feminist Legal Studies at the University of British Columbia’s Faculty of Law where she teaches courses in Feminist Legal Studies, Sexuality and Law, and Family Law.