Chapter 1
Child Custody Law, Gender, and Difference: Shifting Relations

Introduction

The last two decades of the twentieth century are sometimes portrayed as the era when the rights claims of fathers, and the rights and interests of children, began to be recognized in the legal system. Fathers’ assertions of their rights to be equal parents of their children after separation or divorce were received positively by many mediators, lawyers, judges, government officials, some mothers, representatives of the media, and members of the public. Many assumed—erroneously—that fathers had not possessed such rights before this time. Moreover, it was assumed that children would almost invariably be well served by recognition of these paternal rights. To many, this development represented an inevitable and overdue reversal of apparently paramount maternal rights to children and the equally inevitable response of the legal system to increasing participation by men in childcare. Others think of these decades as a time when children’s rights came to the forefront of child custody and access law, where parents might be able to sever their own adult relationship but must take sometimes extraordinary measures to ensure that children are not traumatized by that severance. For example, in August 2000, a British Columbia judge made an interim order that the children stay in the family home, while their separated parents were each essentially granted visiting rights with sole occupancy of the home for different periods each month. The judge awarded interim custody to the mother, but joint guardianship to both parents, requiring them to try to reach agreement on major decisions. This requirement was imposed despite the fact that the father had tried to dictate or control the mother, who had been the parent primarily available for the children’s needs. The editorialists of the Vancouver Sun observed that the order ‘leaves the burden of a peripatetic life on the parents who decided to split, rather than the children who had no say in the matter’. This order embodies the new wave of approaches to disputes over children after separation or divorce.

This book unravels and challenges the dominant images and rationales for change to child custody laws, by tracing historical shifts in legal and social discourses on custody and access in the Canadian context. A framework is developed for analyzing such shifts that reveals a hierarchy of discourses surrounding parenting in different historical periods. The objective is to understand the complex dynamics of the relationship between custody and access law, familial ideologies, and gender relations. I adopt a feminist approach to the topic and I am particularly concerned with the question of how women’s responsibility for caregiving has been dealt with by law, especially when women are in the process of separating from the men with whom they have parented a child. Custody and access disputes have also arisen in the context of separations of two lesbians who have co-parented a child. These disputes are discussed in Chapter 7, as is the relevance of caregiving patterns to disputes between women.

The transformation of child custody laws in Canada and most Western countries over the past two centuries has been striking. The broad outline of legal history of child custody laws reveals a more or less complete reversal, and a half-turn again by the 1980s (Boyd 1989c). At the beginning of the nineteenth century, laws in countries such as England and the United States affirmed an almost absolute paternal right to custody of children born within wedlock, reflecting the elevated legal status of the husband/father within the institution of marriage. By the beginning of the twentieth century, this absolute paternal right had begun to wane and to give way to an emphasis on the welfare of children. By the mid-twentieth century, mothers were said to have a presumption in their favour when seeking custody of children ‘of tender years’. By the 1980s, child custody law was pronounced to be a neutral domain, where the ‘best interests’ of children came first, and where mothers and fathers, and potentially other parties connected to the children, had an equal right to legal custody. By the 1990s, reforms of child custody laws in many jurisdictions purported to embody these changes and to deepen them by emphasizing shared parenting. These juridical reversals in child custody law, which will be explored in greater depth in the first few chapters of this book, provide an ideal terrain from which to study the relationship between law and social relations (especially gender relations), and between law and social change. They also provide an opportunity to question the extent to which we can ascertain the ‘truth’ about a particular issue such as the status of mothers or fathers or children by looking only at the letter of the law.

This book focuses on the role that law plays, as one among other dominant discourses, in regulating parenting and identities. It also explores how family law is itself constituted by and within other discourses of liberalism, welfarism, gender, and work. In studying any issue, particularly over different historical periods, various discourses may be relevant, and accounts of a particular issue may vary accordingly. Each account may represent a (partial) truth (Staves 1985), but may be ‘heard’ differently depending on its relationship to dominant ideological frameworks and institutional structures. I try to clarify the kind of ‘truth’ about parenting that is presented by law at various moments, and the relationship between this ‘legal truth’ and the ongoing but shifting power relations in familial and extrafamilial social relations. I also examine the ways in which some women resist dominant discourses about mothering, and whether law can represent an avenue for their resistance. The differences that fracture the category ‘woman’ along lines such as class, sexuality, race, and disability are also explored where possible.

In order to try to avoid excessive privileging of legal discourse on the subject of parenting, my starting point is the way in which women’s caregiving work has been perceived and (de)valued in Canadian society. Although legal discourse in the realm of child custody has played a role in shaping perceptions of women’s work, it has intersected with other discourses on work. Extralegal sources such as histories of women’s work in the family and labour force and studies of the ways in which domestic labour has been divided in heterosexual families thus offer important information in addition to statutes and cases, parliamentary debates, and legislative committee discussions. I will argue that women’s work is often rendered invisible or undervalued in child custody law, despite the well-documented primary responsibility for childcare that mothers assume regardless of their employment status (Eichler 1997: 59–63, 75–6; Marshall 1993b; Silver 2000). Even in the days when mothering was romanticized, respect for motherhood was not based so much on the work of mothering but rather on a problematic image of the selfless, pure, sexless, married (white) mother. In these modern days of equality discourse, and the equalizing of maternal and paternal voices, women’s ability to make arguments based on their childcare labour is impeded even further. As Fineman would put it, motherhood has become ‘neutered’ (Fineman 1992, 1995; see also Smart 1991: 499). Although studies show that mothers continue in practice to be primarily responsible for children before and after separation or divorce (Marcil-Gratton and Le Bourdais 1999; Statistics Canada 2000: 111), the legal system has not been effective in recognizing that fact. In some cases, law contributes to the erasure of that fact.

Authors working in the field of children’s rights have pointed out that children have been remarkably invisible in much literature about child custody law, and have often been treated as the property of their parents (Mason 1994, 1999). Feminist accounts are vulnerable to this criticism because of their tendency to focus on adult power relations. While accepting this basic point, I am strongly of the view that, due to women’s disproportionate responsibility for caregiving work in most societies, it is impossible to study the status of children throughout history without giving careful attention to the history of the status of women (Mandell 1988). An American author who has studied the history of child custody law in the United States has argued that the interdependency of the status of women and the custody rules is ‘the single most important factor in explaining the wide swings in custody law’ (Mason 1994: xii). Moreover, it may be impossible to elevate the status of children without empowering their caregivers and recognizing the work related to the rearing of children, and its still gendered nature. This approach does not imply that women have a property claim to children: it is not based on essential differences between women and men, but rather on social patterns of caring (Sevenhuijsen 1991; Tronto 1993). That said, in a consumerist capitalist society, it may be impossible to escape entirely the discourse of property claims in law, even when dealing with children.

Moreover, the swing of the pendulum towards children’s rights should not mean that all other considerations be left to one side in social analysis. As Abella (1982: 215–6) once commented: ‘Until recently, little was said about the right of children. Now little is said in the area of custody except about these rights.’ I hope to provide some insights about children’s status in Canadian society. However, my primary objective in this book is to analyze their status within child custody law by focusing on the processes surrounding the (de)valuation of women’s childcare labour, and related processes through which fathers tend to become alienated from their children and yet make rights claims in relation to them. These processes shift through time, and by tracing the history of child custody law over the past century in particular, both the continuities and discontinuities in the social construction of parenting can be identified.

One way of highlighting the role that race, disability, poverty, and other social relations of oppression play in custody law is to identify the dominant ideologies of family and parenthood, and especially motherhood, that the law of child custody has tended to reinforce. The ideology of motherhood that has dominated has been one that most closely relates to mothering in the context of a white, middle-class, nuclear family model that has been held responsible for the reproductive costs of childrearing in most western societies (Armstrong and Armstrong 1994; Fudge 1989). The set of ‘common-sense’ expectations that historically made up this ideology can be summarized as follows: mothers must be full-time caregivers for their children; this care must occur within the context of a heterosexual nuclear family seen to be ‘natural’ and timeless; mothers must put the interests of children before their own; and they must be sexually pure and otherwise provide a good role model (Boyd 1996; Kline 1993). As we will see, women who fail in some way to meet these expectations, such as lesbian or employed mothers, or mothers on social assistance, or those with disabilities, typically do not fare well under a law of child custody that normatively privileges this model. Their ability to ‘name the world’ as they see it, and thereby in some measure to control it, is limited if they must engage with the legal system, and especially, the dominant discourses of legal liberalism and ideologies of parenting within this discourse.

In exploring dominant ideologies about motherhood and fatherhood, I hope to provide a basis on which to examine the relationship between them and discourses about, for example, the mothering by Black women or lesbians, both groups having been much maligned for undermining ‘the family’ or the male role in ‘the family’ (e.g., Boyd 1992; Collins 1989). When alternative discourses emerge that challenge the heterosexual middle-class model, for example, discourses on co-parenting by lesbians, they often run up against the ideological rigidity of a pre-existing discourse when they seek rights in a public forum such as a court of law (Arnup and Boyd 1995; Gavigan 1995). Yet the ideology of motherhood by no means privileges in any absolute manner those women who appear to conform more closely to it by being white, heterosexual, or able-bodied. Rather, the ideology of motherhood structures and therefore limits the lives of all women, not only those viewed as departing from its norm. Moreover, it is all too easy for any woman who appears at any given time to conform to the normative model to suddenly slip in some respect. As well, the precise definition of the ideal of motherhood has changed over time. Its shifting nature in relation to child custody law will be one point that emerges in this book, revealing the elastic capacity of the legal system to incorporate changes without necessarily contributing to fundamental social change.

The next two parts of this introductory chapter provide an overview of feminist approaches to child custody law, drawing on Canadian literature wherever possible. The objective is, first, to interrogate the difference that gender makes in child custody law, and then to explore how differences among women have complicated the approach and the strategies that have dominated feminist legal research in this field. These parts will also serve as an overview of trends and debates within child custody law, and reference will be made to relevant chapters in the book that provide more detail and analysis.

Feminist Analysis of Child Custody Law: The Difference that Gender Makes

During the nineteenth and early twentieth centuries, it was quite clear that mothers experienced gender-based discrimination in child custody law. As Chapters 2 and 3 will show, mothers originally had far fewer rights than fathers in relation to children born within marriage. Even when mothers began to gain legal rights, these often rested on sexist conditions related to expectations of ‘proper’ maternal behaviour (Backhouse 1981; Bailey 1995). The precise nature of gender bias in modern child custody law has, however, been more difficult to locate. Since the 1970s, child custody law has been rendered increasingly gender neutral and has been based on the ‘best interests of the child’ principle. As well, since that time, as Chapters 5 and 6 will demonstrate, fathers have been viewed as more and more important to children’s well-being. Nevertheless, there is a perception that women are favoured in child custody law. It was not until fairly recently (the 1980s) that modernfeminists began to interrogate the gendered power dynamics underlying custody disputes, and to reveal the ways in which women’s unequal status still influence this field of law (e.g., Boyd 1987; Canadian Journal of Women and the Law 1989; Crean 1988; Fineman 1988; Holmes 1987; nawl 1985; Smart and Sevenhuijsen 1989). Most of these authors argued that a proper analysis of custody disputes required a complex analysis of not only the results of custody awards, but also the process and discourses through which custody awards were made. The authors were working against a tide of public opinion that women had become the favoured darlings of family law, partly fuelled by statistics on child custody awards on divorce.

Statistics from the 1970s to the 1990s indicate that mothers have received custody of children more often than fathers. However, it is not at all clear that discrimination against fathers is responsible for this pattern (see Chapter 5). As many feminist scholars have observed (e.g., Drakich 1988: 491), these figures reflect the fact that mothers tend to perform childrearing in our society, a fact that is recognized by many fathers and judges who feel that children may well be better served by a custody arrangement that reflects this caregiving pattern. Many custody arrangements are in fact made outside court. When divorce and non-divorce situations are considered, parents report that they had a court order or were in the process of obtaining one in only 48 per cent of cases (Marcil-Gratton and Le Bourdais 1999: 13). Court orders were more likely when parents had actually obtained a divorce than when they were separated, and orders were also more likely when a higher degree of tension existed regarding living arrangements and visiting rights (ibid.: 15–17). It is also important to note that the court-order figures include far more custody arrangements that are negotiated by parents themselves outside court, with or without the help of a lawyer or mediator, and then rubber-stamped by a judge than they do court-imposed awards. Fewer than 4 per cent of divorces involving dependent children in Canada are finalized by contested hearings (Department of Justice 1990: 47).

Until the 1990s, mothers received custody of between 70 and 80 per cent of children in divorce cases. Paternal sole custody awards have not tended to increase, but joint custody awards have definitely been on the rise since the Divorce Act explicitly permitted them in 1986. Maternal sole custody awards are now decreasing, mostly in favour of joint custody awards. However, mothers still end up with sole custody of children more often than fathers do after divorce. In 1998, in Canada, mothers were awarded sole custody of children in 60 per cent, and fathers in 10 per cent, of all custody decisions made in divorce court (including those that are rubber-stamped). Joint custody was awarded in 30 per cent of these decisions (Statistics Canada 1998). These figures give us only a partial picture of custody awards in Canada: they include only cases decided by the divorce courts, or where consent orders are affirmed by courts, and not those cases in which custody arrangements were decided completely outside of court or by courts dealing with non-divorce situations. Recent research on non-divorce court awards has revealed that mothers receive custody of children more often when a common law relationship breaks down (Marcil-Gratton and Le Bourdais 1999: 19). With these figures included, almost 80 per cent of children under the age of 12 were placed in the custody of mothers, where a court order existed. Finally, legal custody awards do not always indicate the actual residence of a child. For instance, even when joint custody is awarded, children are likely to reside primarily with their mother ( Maccoby and Mnookin, 1992: 113; Marcil-Gratton and Le Bourdais 1999: 20–1; Richardson 1988b: 320).

Despite the fact that the statistics reflect few custody awards that are actually imposed by judges, they have provided ample fuel for fathers’ rights advocates and others to argue that men are discriminated against in this area of law, not women (Millar and Goldenberg 1998). The argument is that the tender years doctrine (see Chapter 3), under which children of ‘tender years’ were presumed to be best cared for by their mothers (if fit), has prejudiced fathers’ claims for custody. Even though it is no longer a legal doctrine, fathers’ rights advocates argue that the ‘maternal preference’ inherent in the tender years doctrine, combined with the practice of making sole rather than joint custody orders, dominates judicial decision-making and lawyers’ advice to fathers. Men are therefore supposedly discouraged from claiming custody of children at separation or divorce, or being involved with children afterwards. Legal preferences for shared parenting are often suggested as a way to resolve many of these difficulties, with many arguing for a joint custody preference in law, facilitated by a therapeutic approach and mediation (Kruk 1993; Pulkingham 1994). This general approach dominated the now notorious 1998 review of custody and access law by the Special Joint Committee of the Senate and the House of Commons (Special Joint Committee 1998) that was much criticized by feminists (e.g., Boyd 2000a; Diamond 1999).

Some feminists have also endorsed trends towards joint custody or shared parenting, in the expectation that men would thereby be encouraged to participate more fully in their children’s lives (see Munro 1992: 861–3), or sometimes in an effort to continue shared parenting that existed prior to family breakdown (Abella 1982: 217). Other feminists have argued that a joint custody approach would be better suited to a recognition that women as mothers are differently located according to such factors as race and class, and that some women parent within extended family/kin networks (Bartlett and Stack 1986). The early liberal feminist articles on child custody law reform appeared especially to endorse the -gender neutral best interests of the child standard and joint custody. They also supported the elimination of legal approaches such as the tender years doctrine that reinforced views that women were more suited than men to nurturing because of their essential natures and their biological role in procreation. Generally, as we will see in chapters 4 and 5, there was a strong impetus in the 1970s and early 1980s to render family law gender neutral by eliminating provisions that represented women as dependent on men and as playing the homemaker role (Steel and Gilson 1990). Although some Canadian feminist interventions of the time carefully noted the problematic impact that gender neutral provisions on spousal support could have for women who had not achieved economic independence (e.g., Abella 1982), few noted the ways in which gender neutral custody laws might render women’s caregiving labour less visible (but see Polikoff 1983 and Uviller 1978 for early American examples).

Other feminist researchers (including myself), and community activists who support women going through custody and access disputes (e.g., Taylor, Barnsley, and Goldsmith 1996), argued from the 1980s on that these approaches are inattentive to the complex ways in which gendered power relations between women and men play out in custody and access disputes. They pointed out that Canadian statistics were notoriously incomplete and that little effort had been made to distinguish contested from uncontested custody cases, so that an impression prevailed that courts are extremely biased against paternal claims for custody. A more nuanced analysis reveals how distorted this impression is, but the fact remains that there is a need for good quantitative and qualitative work on child custody in Canada. Studies that have tried to investigate whether a maternal bias actually exists have found that when fathers actively contest custody, they obtain it roughly one-half the time (McBean 1987; Neilson 2001). However, this area of law is far more complex than a numbers game. When the more hotly contested cases are examined, either by analyzing case law as I have done, or by drawing on the stories of, or interviews with, mothers who have gone through difficult custody disputes (Abdemalik 1999; Taylor, Barnsley, and Goldsmith 1996), significant patterns emerge. Many of the studies done so far are small or are based on individual stories or reported cases that do not constitute a representative sample of all custody cases. Much more research needs to be done to provide studies with larger samples but with qualitative analysis that provides important nuance. Nevertheless, the existing studies have produced findings that are reasonably consistent and thus worthy of attention.

When fathers contest custody, there are many ways that women can lose their children despite a history of caring for them. The case law discloses a bias in favour of childcare in a two-parent, opposite-sex family. Women who are perceived as deviating from the idealized norm of middle-class, white, heterosexual motherhood may experience particular difficulty. Ideologically, a normative vision of motherhood that has negative consequences for many—perhaps most—women is therefore reproduced in custody law, sometimes regardless of concrete results in individual cases. This phenomenon has been well documented by researchers looking at judicial treatment of lesbian mothers, adulterous mothers who have broken up the family unit, mothers who are employed outside the home, and mothers who are viewed as promiscuous (Arnup 1989; Boyd 1989b; Brophy 1985; Shapiro 1996; Smart 1984). Less well-documented phenomena that have been observed by community workers and reported anecdotally include the negative evaluation of mothers who have served prison terms, Aboriginal mothers, poor mothers, and even ‘uppity’ or feminist mothers (CACSW 1994: 4; Chesler 1986: 107; Taylor, Barnsley, and Goldsmith 1996). As well, mothers who raise allegations of child sexual abuse are often not taken seriously, and risk the loss of custody should they raise such allegations without clear proof (which is typically difficult to offer in such cases) (Bourque 1995; Boyd 1996; Cairns 2000; Penfold 1997; Zarb 1994: 95). Neither are women’s complaints of abuse directed at them by their male partners always appropriately received by judges or others in the legal system, or taken properly into account when assessing a father’s suitability for custody (Abdemalik 1999; Neilson 2000; Rosnes 1997). Moreover, when access or contact between the child and the abusing partner is at issue, abuse appears to have relatively little impact in terms of restricting contact or regulating it through supervision (Neilson 2000). The preference for involvement of two parents in a child’s life can lead to assumptions that a ‘broken’ family is worse for a child than living in a home that is fractured by abusive behaviour. Even if women do obtain custody, they may experience continued ‘harassment’ by their ex-partners through a variety of court actions in relation to access or child support (Gordon 1989; Goundry 1998; Tsang 2001: 27–8). Or, their lives or their conduct may be evaluated negatively by judges and others working in the system. This, in turn, produces a disciplining effect on women, especially if conditions are placed on their custody, for example, restrictions on relocation (see Chapter 6).

At a ‘process’ level, the relative lack of financial resources of mothers (because of women’s greater poverty and lack of equal earning power) means that they are less able or willing to engage in prolonged disputes. This gives fathers (who tend to have relatively more money) the upper hand in using legal processes to obtain custody or to engage in ‘court-related harassment’ of their ex-spouses (Abdemalik 1999; Chesler 1986; Goundry 1998). Women experience difficulty obtaining legal aid services for family law disputes, in particular because the Canadian legal aid system tends to devote more funding to criminal law matters than to family law (Hughes 1997; Mossman 1994). The financial and time constraints on legal aid workers means that lawyers have less time to spend on complex custody matters and that, for instance, screening for abuse may be even less likely to occur than in other circumstances (Bain, Chrest, and Morrow 2000: 27, 33). In the face of this problem of access to justice, some mothers ‘give up’ custody or consent to an arrangement with more ‘shared’ custody than they really wanted, because of exhaustion, fear, and poverty (Neilson 2001).

Other women agree to relinquish financial claims against ex-spouses ‘in return’ for a peaceful custody resolution, in what is sometimes termed custody ‘blackmail’ (Arendell 1995: 130–1; Taylor, Barnsley, and Goldsmith 1996: 60–1).Custody proceedings are also sometimes initiated by fathers faced with orders to pay child support. Now that child support guidelines are in place in Canada, there has been some speculation that more potential payors (fathers) will contest custody of children than has been the case in the past. Certainly a major argument by fathers’ rights advocates generally (Bertoia and Drakich 1993) and before the Special Joint Committee on Custody and Access in 1998 was that if child support obligations were to be enforced, then access should also be enforced. Mothers who have engaged ‘successfully’ in a contested custody case often lose material resources that would provide for themselves or their children. Many women who struggle forward with a custody claim rather than relinquishing custody end up relying on social assistance or in a cycle of poverty, which in turn creates problems for the children, who experience ‘the devastating effect of . . . perceiving their mothers as powerless and worthless, so they start to see themselves as worthless’. Poor mothers may also be seen as ‘economically unstable’ (Taylor, Barnsley, and Goldsmith 1996: 3–4) and thus less fit to assume the responsibilities of custody.

The impact of abusive behaviour unquestionably complicates the dynamics of custody disputes, with particularly troubling consequences for abused women and their children (Neilson 2000, 2001). It has been well documented that abusive patterns of behaviour by men against their female partners often do not cease at separation, and indeed, women are at high risk of abuse from former partners after separation (Kurz 1996; Saunders 1994: 53; Sinclair 2000; Statistics Canada 1993; Wilson, Daly, and Wright 1993). Between 40 and 50 per cent of women who separate or divorce report that there was abuse or violence in the relationships that they are leaving (Neilson 2000; Statistics Canada 1993). Children do not escape the consequences of this abuse (Bala 1998: 11; Jaffe, Wolfe, and Wilson 1990; Pagelow 1990). They face behavioural, emotional, and cognitive adjustment problems when they witness abuse and they can also be negatively affected because of the stress that is generated for the mother who is experiencing the abuse directly (Jaffe, Wolfe, and Wilson 1990). After separation of the parents, abusive men may shift their focus to control of the child as a way to continue the violence against the mother, and abusive fathers may be more likely to engage in custody battles and resist paying support than other fathers (Zorza 1995: 147). As well, children may be exposed to abuse because much of it may be perpetrated before and after visits with their father (Hester and Radford 1996). Custody and access disputes can be used by men as a means to control their ex-partners (Goundry 1998), and the ineffectiveness of restraining orders and the lack of supervised access services are especially problematic (Taylor, Barnsley, and Goldsmith 1996; Tsang 2001: 28–9). It seems likely that the relatively small number of contested custody and access cases include a disproportionate number of cases that involve abuse.

Until recently, abduction appears to have been used disproportionately by men to seize possession of children (Cole and Bradford 1992) and some have suggested a connection to abuse. Disputes regarding access were involved in 60 per cent of the cases. It has been suggested that abduction by a non-custodial father was the stereotypical case envisaged when the Hague Convention on International Child Abduction was drafted (Duncan 2000: 112). Sapone has gone further and argued that international child abduction should be viewed as a different form of domestic violence, and a desire for control over the other parent, stating that 25 per cent of batterers abduct their children. She says that children who are abducted are often placed in the role of the other spouse and may receive the emotional and sometimes physical abuse meant for the non-abducting parent (2000: 131).

However, the gendered dynamics of abduction patterns and the connection with abuse may be shifting, as joint custody awards have risen in number. In 1998, joint awards represented 30 per cent of all Canadian custody awards that were either ordered or rubber-stamped by judges in divorce hearings (Statistics Canada 1998: 24–5). This was a marked increase since 1986, when Statistics Canada began to record joint custody awards. Such awards were made in 1.2 per cent of cases in 1986 and 14.1 per cent in 1990 (Eichler 1997: 40). The deputy secretary general of the Hague Conference on Private International Law has suggested that it may be increasingly common for the abductor to be a primary caregiver mother who is subject to a joint custody order with the father. A mother might, for instance, remove a child in contravention of the terms of the joint custody order for the purpose of returning to a country with which she has strong connections (Duncan 2000: 112). The father might then use the return application as a means of enforcing his custody rights. In some cases, a mother may be trying to escape domestic violence (Kaye 1999; Weiner 2000), in which case it may be inappropriate to use the Hague Convention to return the child.

As noted above, joint custody awards and similar orders are on the rise. Feminists have observed that since judges find child custody decision-making difficult, they may opt for a compromise arrangement that seems positive or constructive. They may make an order for shared parenting, joint custody, or joint guardianship, without considering the problematic implications for mothers who have left male partners out of a desire to be free of controlling behaviour, mothers who have been abused by their ex-partners, or mothers who need to move to another geographical location. Given that women tend to be the primary caregivers of children after separation or divorce, even when a joint custody order is in place (Maccoby and Mnookin 1992: 113; Richardson 1988b: 320), such an order may inappropriately limit the decision-making power of the primary caregiver (see Delorey 1989; Holmes 1987). Even where joint custody per se is not ordered, as we will see in Chapter 6, there has been a tendency to enhance the access rights of fathers, again without sufficient regard for the impact upon custodial mothers who have primary responsibility for children (Bourque 1995; Smart and Neale 1997). Women who have custody of their children are increasingly subjected to various disciplining measures through the law of access, which rewards mothers who work selflessly to make access work well for fathers and children (Bourque 1995; Boyd 1996). The new ‘parenting plan’ or ‘parental responsibility’ regimes in jurisdictions such as Washington State, discussed in Chapter 8, hold a similar potential for making shared parenting plans the norm, without sufficient regard for the gendered impact of this type of regime (Boyd 1995). These developments have occurred in part because of an excessive emphasis on the importance to children of ensuring continuing contact with the non-residential parent, usually the father. Yet it has become increasingly clear that other factors are of equal, or possibly greater, importance to a child’s well-being after parental separation. These factors include a close, sensitive relationship with a well-functioning custodial parent and avoidance of parental conflict (Wallerstein and Tanke 1996: 311; see also Bailey and Giroux 1998: 43–58).

Differences Among Women: Complicating Feminist Analysis

Many of the above issues arise for mothers regardless of differences of race, class, sexuality, and ability, but such differences may affect the way in which the issue takes shape in a particular woman’s life. Taylor, Barnsley, and Goldsmith (1996: 3) say that in their work they ‘have learned that custody and access injustices affect all women regardless of race, class, and socioeconomic status’. However, feminist work on child custody law has often been conducted within a framework that has not attended carefully enough to differences among women, especially those on the basis of race and disability (see Kline 1989; Mosoff 1997). Sexuality has been taken into account to some degree, because of continued feminist critical analysis of the way that (hetereosexual) adultery and lesbianism are dealt with (e.g., Arnup 1989; Boyd 1992; Brophy 1992; Gavigan 2000). As well, some work has documented that lower-income women are more susceptible to threats of a custody battle than are members of the middle class (mawl 1994: 7–8). But the question has arisen whether the dominant feminist analysis of child custody law and the strategies that have developed on the basis of that analysis are flawed because of their focus on the experience of white, able-bodied, and middle-class women. Their cases proceed more often to court and can therefore receive more public attention through mechanisms such as published case reports.

Reported cases do not tend to reflect a broad spectrum of ‘reality’, especially for members of social and cultural groups who might reasonably mistrust the legal system (e.g., many Aboriginal people), or for lower-income groups who cannot afford litigation costs and are more likely to settle disputes out of court, or perhaps outside the legal system altogether. Aboriginal women, for instance, may fear that if they disclose that they have been in a violent relationship, their children will be apprehended by the state (Bain, Chrest, and Morrow 2000: 34). Moreover, only a minority of cases decided in courts are reported in Canadian series such as Reports of Family Law or Dominion Law Reports. Reported cases, therefore, by no means provide a representative sample of all custody cases decided. They do, however, provide an important entry point into the study of the role of ideology in child custody laws, as these cases reflect the prevailing attitudes of the judiciary and constitute the precedents most often referred to by lawyers in their day-to-day practice. Looking at lower court cases, rather than only appellate and superior court decisions, may also to some extent broaden the scope of analysis. Now that electronic search methods permit access to unreported as well as reported cases, it is possible to examine greater numbers of lower-court decisions than when I began my research in the mid-1980s. Nevertheless, partly as a result of the focus on reported cases, much work in this field has adopted an approach that is insufficiently attentive to cultural and racial differences among women, as well as questions of (dis)ability, class, and sexual orientation.

This is not to say that feminist analysis has failed to make a contribution to understanding the dynamics of child custody determinations. At a general level, feminists and other critics have shown that the legal principle that is supposed to guide decision-makers in the field of custody and access—the ‘best interests of the child’ standard—is problematic in its purported neutrality, its pretence of putting children front and centre, and its ‘indeterminacy’ (Mnookin 1975; Neely 1984; Smart and Sevenhuijsen 1989). Although some statutes list factors for judges to consider in determining the best interests of a child, such as the health and emotional well-being of the child, judges are given little guidance as to how competing factors should be balanced. Because of the generality of the best interests test, and the lack of judicial presumptions such as the old tender years doctrine to guide decision-makers, judges and others are relatively unfettered in their ability to insert their own value judgements into the determination of what will be ‘best’ for any particular child.

As noted above, what is viewed as ‘best’ all too often involves a normative and idealized image of parenting in the white, middle-class, nuclear, heterosexual family, rather than a concrete determination about a child’s welfare. Any woman who diverges from the normative model of motherhood—whether by her race, her sexuality, her class, her culture, her single-parent status, or her disability—could be viewed negatively to some degree, regardless of her actual caregiving history in relation to a child. Racist views of Black women in the context of motherhood—for example, the notion that Black mothers ‘pass down to their offspring the traits that marked them as inferior to any white person’ and ‘transfer a deviant lifestyle to their children that dooms each succeeding generation to a life of poverty, delinquency, and despair’ (Roberts 1997: 8)—are shaped by and must be seen in relation to the dominant image of white motherhood (Roberts 1993, 1997). These views in turn can influence law and policy. Sociolegal policies have tended to encourage the reproduction of children by white women and to limit that of Black women, for instance through welfare policies (see Roberts 1997). In other words, a woman’s race and class, among other factors, affect the way she is assessed and the way in which her relationship to motherhood is viewed in the first place in relation to the dominant normative model. Feminist authors working on law and ideology have therefore argued that the dominant ideology of motherhood is informed by race (whiteness), but has relevance to women of colour and Aboriginal women, as well, in its role as a measuring stick or norm (Boyd 1991, 1996; Kline 1993).

Widening the lens through which child custody law is deconstructed, to examine the different social locations of women, thus raises different questions. But these questions are nevertheless related to the centrality of the (white, hetereosexual, middle-class) ideology of motherhood against which women are measured. That said, different images and issues emerge, when, for example, women from minority cultures are considered. For instance, Taylor, Barnsley, and Goldsmith found that all Aboriginal women in the Vancouver custody and access support group who were married to white men lost custody, and they attribute this loss to racism (1996: 3). At a Workshop on Custody and Access Law Reform, organized by the (now abolished) Canadian Advisory Council on the Status of Women in September 1993, to discuss the federal Department of Justice Public Discussion Paper on Custody and Access (1993), Black women pointed out that Black mothers are often quite strict in their approach to childrearing, requiring that their children be at home after a particular hour, or that they dress in a particular way. This approach to childrearing represents a response to the vulnerability that mothers see in their children as Black children who may be subjected to racist attacks on the streets. For example, Black teenage boys especially may be ‘treated with suspicion and harassed in public places, they are shot at by police, and they are mistaken for pimps’. In assessments of such mothers (whether by expert assessors or witnesses or the judiciary), their approach to mothering may be viewed as excessively authoritarian in contrast to the more liberal parenting approaches of many white, middle-class parents not concerned about the impact of racism on their children. As well, if the father is more flexible in his parenting style, children themselves may make more positive comments about the father than the mother that are taken into account in custody determinations. This reveals the problematic nature of enhancing ‘children’s rights’ in custody law, if those rights are understood without an analysis that is sensitive to the dynamics of gender, race, and class. This insight provides an important contrast to another trend that I have observed in reported cases of the 1980s, namely, that the authoritarian approaches of fathers were valued in contrast to the ‘softer’ approach of mothers (Boyd 1989b). The experience of Black mothers indicates that authoritarian behaviour is more likely to be applauded in fathers but not in mothers. This differential gender-based evaluation may operate against Black mothers, in addition to and in relation to racist views. As well, gendered assumptions in relation to motherhood may differ depending on whether the mother in question is Black or white.

Attention to race, culture, and ethnicity reveals other problems confronting women of colour. Many visible minority and immigrant women face serious barriers to even gaining access to legal services, should they be threatened with loss of their children (Tsang 2001: 34–7). In addition to the difficulties mentioned earlier that women experience generally in gaining access to legal aid, further barriers can result from language problems and lack of access to independent interpretors as well as lack of information (Taylor, Barnsley, and Goldsmith 1996: 3). Some visible minority or immigrant women may also resist using the legal system because of a sense of being alienated from or intimidated by the system (MAWL 1994: 7–9). Many women are very isolated within the family as a result of the central role that their husbands play in their lives, especially if the husband has sponsored the wife for immigration purposes. This isolation results in a need for extensive resources and confidence-building for them to contemplate challenging the authority of their husbands (Tsang 2001). Fear of the resulting isolation from their community may also impede their ability to assert their own interests. The Manitoba Association of Women and the Law reports that women of East Indian background seem more susceptible to custody blackmail than North American born women (1994: 7–9). Child abduction is also a common problem and fathers may use the threat of taking the children to another country in order to pressure the mother to stay in a relationship even if it is abusive (Tsang 2001: 17). The extremely important role of children in some cultures means that many women raised to be a wife and mother may decide not to leave a relationship because of the guilt or shame involved in such an act, even if she suffers abuse (Tsang 2001).

In addition, cultural practices in some communities, or the way that practices within minority cultures are interpreted by judges and other legal actors, may present particular problems for mothers in claiming custody. For example, in extended family structures, the paternal grandmother may care for children. It is often easier for the husband’s extended family to immigrate to Canada because of his status as a breadwinner and often the practice is for the married couple to reside with the husband’s family. As well, in many cultures the mother-in-law holds a great deal of authority in the family. Being able to show that a paternal grandmother has played a key role in caring for the child will enhance the father’s claim for custody, which he may well make in order not to have to pay child support. Studies of reported cases show that where fathers can offer a ‘surrogate’ mother in the form of a new wife or paternal grandmother who will be at home during the day, his chances of obtaining custody are enhanced (Boyd 1989b). This factor may be aggravated for many visible minority or immigrant women. Finally, immigrant and visible minority women may experience particular challenges in revealing patterns of abuse that are relevant to child custody determinations (Tsang 2001). Beyond the general reluctance of women to disclose abuse and the fact that some women do not recognize or describe their situations as abusive (Astor 1995), language and cultural barriers may impede lawyers, particularly within the time constraints of legal aid services, from determining that abuse exists and is relevant to the case (Bain, Chrest, and Morrow 2000: 27, 34). As well, there has been some history of state authorities such as judges discounting the significance of abuse or sexual assault by reference to race or culture (Razack 1998: ch. 3; Tsang 2001: 35). For example, it may be argued that different religions/cultures adopt ‘different standards’ for the treatment of women. Such authorities may think that they are more sensitive to cultural difference by dealing with abuse in this way and, for example, by giving Aboriginal male offenders lower sentences than might otherwise be ordered. In fact, they may be overlooking the experience or perspective of women in relation to the abuse.

The difference that disability makes has begun to receive attention in relation to child custody law, as feminists have turned their focus to the specific situation of women with disabilities. Little case law exists on custody and mothers with disabilities. Such cases are often ‘settled’ long before the litigation stage because of lack of access of women with disabilities to legal services and courts, lack of financial resources, and perceptions reinforced by partners and parents, as well as court workers and social workers, that they are inferior parents. Some key issues nonetheless have emerged, and there is somewhat more material on the implications of mental disability for custody processes than physical disability. A mother who has suffered depression, anxiety, or any other significant mental health problems is considered less able to parent because of this difficulty. As Mosoff (1997) has shown, the ideal patient of the mental health system is expected to behave in a manner that runs quite contrary to the ideology of motherhood: she should be introspective and self-absorbed in an effort to get better; certainly she should not be selfless, putting the interests of others such as children before her own, which is one of the demands of the ideology of motherhood. And yet, if she is confronted with a legal dispute in relation to her children she may be prejudiced precisely for placing her own mental health interests first. Moreover, assertive behaviour in women with disabilities with regard to their rights may be viewed as demanding and non-cooperative, contributing to the downfall of already fractured family relations, whereas a man exhibiting similar behaviour may be seen as being concerned and involved with his children. Mosoff also found that when mothers generally are worried about their children’s contact with the father, or refuse to facilitate access because of concerns about how the father treated them, judges tend to process the findings through psychiatric discourse. For instance, the behaviour can be explained through an existing diagnosis such as paranoia (1997: 239–40). In contrast, a father whose mental health is at issue, and who engages in problematic behaviour such as interfering with a mother’s access, can expect little more than a slap on the wrist from the courts (ibid.: 240).

In relation to physical disability, different standards for women and men with disabilities may exist. Mothers are generally expected to care for children themselves,and, indeed, mothers of children with development disabilities take on most of the day-to-day responsibility for those children (Marcenko and Meyers 1991). Judges (and others) therefore have trouble imagining how a woman with a physical disability can perform caregiving. If a mother arranges for various physical caregiving duties to be done by others but provides supervision herself, she may still not be seen as giving the same care as an able-bodied mother or father could without assistance. Fathers, on the other hand, are generally expected to use alternative sources of childcare, such as paid care or grandparents, because of the assumption that they will be in the full-time labour force. If a father with disabilities stays at home, it may be seen as very positive, even out of the ordinary, because the father will have regular contact with the child even if he has to pay for childcare and housekeeping. These observations accord with those of mothers and fathers generally in custody disputes, with normative assumptions of ‘normal’ parenting coming into play. Finally, there is some evidence that women with disabilities are more susceptible to ‘custody blackmail’ than able-bodied women (mawl 1994: xiv, 7-4–7-5).

The extent to which lesbian mothers pose a threat to dominant values has been manifest for some time (Arnup 1989, 1995; Pollack and Vaughn 1987), not least by the fear that many lesbians have of revealing their sexuality to their children’s teachers, or of coming out in the process of a custody dispute with a father. By so clearly living outside the context of heterosexual and patriarchal familial forms through the rejection of ‘the patriarch’ in their household structure, lesbian mothers challenge by their very existence the ability of child custody law to reconstruct the (heterosexual) family form after family breakdown. Fitting disputes between lesbians who have co-mothered into this analysis is, however, more challenging, even though it is clear that the lack of legal status and lack of visibility generally of non-biological lesbian mothers relates to the location of the ideology of motherhood in patriarchal nuclear family forms (Gavigan 1995). The conceptual framework that feminists have developed for dealing with disputes between fathers and mothers is rooted in an analysis of patriarchal familial structures in capitalist societies that have valued men’s roles and voices as fathers over those of mothers. It is unclear to what extent this framework ‘works’ for disputes between lesbians who have both been involved in mothering a child (but see Arnup and Boyd 1995). In such disputes, typically one lesbian is the biological parent while the other is the ‘social’ parent, but disputes have also arisen between gay men who have donated sperm and lesbian mothers (Polikoff 1996). Much work remains to be done in this field to generate an understanding of how legal norms developed for the resolution of disputes between parents who have been in opposite-sex relationships play out in relation to parties with non-normative sexualities (Robson 2000).

Overall, many women going through custody disputes will identify some issues as problematic regardless of differences among them such as race or class or sexuality. These common issues include women’s relative lack of access to money to sustain legal costs; the lack of attention paid by the legal system to sexual abuse of children and to woman abuse; poverty; and lack of attention to women’s caregiving and domestic labour. Men who wish to use the legal process to defeat their ex-partner in one way or another can raise questions about a woman’s ability to match the normative vision of white, middle-class, heterosexual, able-bodied, mainstream motherhood. Connected to this is, I think, the continuing invisibility of the caregiving labour that women continue to do in most families. For such women, any effort to prioritize primary caregiving in the determination of custody disputes will arguably be a bonus.

As we will see in Chapter 7, a key proposal that has emerged from feminist criticism of child custody law is the primary caregiver presumption (Boyd 1990; Fineman 1991; Smart and Sevenhuijsen 1989). Under this legal doctrine, the parent who was the primary caregiver of children while a relationship was intact (usually the mother in a heterosexual relationship) would be presumed to be the parent who should receive custody, unless shown to be unfit. The advantages of the presumption are: (1) its recognition of the often undervalued female work of nurturing and organization of childcare; (2) the disincentive to drag out litigation or negotiation because of the increased certainty of result under the presumption; and (3) the lessened ability of judges to condemn mothers because of ‘lifestyle’ issues such as working outside the home, or being a lesbian, due to the focus on who has been caregiver in the past rather than conduct or lifestyle. The presumption can also recognize the primary caregiving work of those men who do it, as it is a gender neutral presumption. It can take into account the importance for children of ensuring continuity in their lives, by looking to past parenting patterns.

However, significant disadvantages of this presumption have been pointed out, not only by opponents to it (often those who favour a joint custody preference) (e.g., Ziff 1990), but also by those who are generally sympathetic to it, such as myself (Boyd, Rhoades, and Burns 1999). The presumption is located within the context of a capitalist and patriarchal family law system that favours reinforcement of privatized costs of reproduction in families, borne mainly by women. In some ways it reinforces the ideology of motherhood and women’s dependency (e.g., Pulkingham 1994). Questions are also raised about whether the primary caregiver presumption as a strategy can ‘answer’ the needs of women who are situated differently from one another, and whether the ‘unfit’ caveat will be used mainly against women who are defined as most ‘different’ from the norm (Mosoff 1997). Additionally, as we saw above, being awarded custody is not the end of the story: women who receive custody under a primary caregiver presumption may experience difficulties as a result of the expanding nature of access and the corresponding onus on the custodial parent. Women are still expected to assume primary responsibility for children during marriage or marriagelike relationships, which in turn limits their ability to participate in the paid labour force and to enjoy accompanying economic benefits. Then, after separation, they often are expected to continue that primary responsibility for children, yet, as a result of the expanding nature of access, they are denied the decision-making powers that are equal to that extra responsibility. The primary caregiver presumption does little to address this problem.

Conclusion and Outline of the Book

The primary caregiver presumption and other controversial questions of strategy and reform will be explored in more detail later in the book. But first, it is crucial to gain an appreciation of the complex history of child custody law by examining the shifts in statutory and judge-made law in relation to the history of women’s status and their work in the family. To that end, Chapters 2 and 3 identify the agonizingly slow transition from a virtually automatic paternal right to custody of legitimate children, which prevailed at the beginning of the nineteenth century, to a fragile formal equality between fathers and mothers in relation to custody claims that emerged during the twentieth century. The surprising element in these chapters is the stubborn perseverance of a prima facie paternal legal right to custody until midway through the twentieth century, and the relative ineffectiveness of the tender years doctrine in facilitating maternal custody claims in contested cases. In reality, most cases were likely settled extrajudicially on the basis of past caregiving practices. However, analysis of judicial discourse in reported cases of the time discloses very limited discussion of past parenting practices and considerable discussion of whether a mother’s behaviour conformed to social and moral expectations of the good wife and mother. Chapter 4 on the 1970s, the decade immediately after Canada enacted its first federal Divorce Act, illustrates the increasing confusion of discourses as the women’s movement, the rise of the ‘new man’, and shifting gender dynamics within the family and the labour force challenged gender-based assumptions about parenting. Chapter 5 argues that the ways in which the judiciary tried to deal with these changes during the Charter era of the 1980s, often through misplaced assumptions of equality between mothers and fathers, were highly problematic and obscured the deeply structured gendered patterns of parenting that continued to exist in Canadian society. Chapter 6 highlights the ways in which the meanings of custody and access have been altered during the 1990s because of the emphasis on maximum contact between fathers and children, as the rights of non-residential parents, and the responsibilities of custodial parents, were expanded. The issue of relocation of custodial parents is used to illustrate the erosion of the autonomy of custodial parents. Other examples such as the increase of grandparents’ rights, now legislatively recognized in some jurisdictions, could be given. In this new world of meanings, strategies such as a primary caregiver presumption may have little cachet. Nevertheless, Chapter 7 reviews the arguments for and against a primary caregiver presumption that is intended in part to give legal recognition to persistently gendered patterns of caregiving. Chapter 8 completes this picture of shifting definitions of custody and access, and raises questions for the future by looking at the recent processes of child custody law reform in Canada, in particular the ways in which the insights of feminists and women’s groups have been eclipsed, and the voices of fathers’ rights proponents have influenced the debate. Chapter 9 suggests, by way of conclusion, that the story of child custody law must be placed within the larger context of continuing, and exacerbated, privatization of the costs of social reproduction within the realm of family. In this context, questions of gender and caregiving remain key, but paradoxically, our ability to emphasize the gendered nature of caregiving is diminished.

This book, then, is intended to provide a historical context within which to place current debates regarding how the legal system should deal with children after separation or divorce of their parents. It is hoped that it will also provide a way of understanding the fraught nature of the current law reform debates and a cautionary note concerning the ability of law alone to achieve progressive social change.