“. . . He’s Just Swapped His Fists for the System” The Governance of Gender through Custody Law

Introduction

How do family courts, as part of the state’s apparatus of ruling, govern gender through custody “law as legislation” and as “law in practice” (Smart 1986, 117)? The question emerges against a backdrop of an experiment in “social engineering” (Smart 1997; Smart and Neale 1999a) that has been taking place in relation to the care of children following parental separation. In Anglo-Western countries like New Zealand, Australia, Canada, the United Kingdom, and the United States, state interventions to “assist” parents who cannot agree on postseparation care arrangements are informed by the welfare principle, better known by the seemingly simple phrase “the best interests of the child.”

As others have pointed out, the welfare principle is notoriously indeterminate; what is in the child’s best interests is open to interpretation and contestation (Boyd 2003, 2004, 2006; Collier 2006; Coltrane and Hickman 1992; Fineman 1988; Kaganas and Day Sclater 2004; Rhoades 2002, 2006; Smart 1997; Smart and Neale 1999a). Partly as a result of attempts by a global fathers’ rights movement to reassert entitlements to children, the welfare principle is currently defined in terms of an ongoing relationship with both parents. This understanding of a child’s best interests is associated with a shift to joint legal custody, which accords the rights and in theory the responsibilities of parenthood to both parents irrespective of the nature of their relationship, and the rise of joint physical custody—a situation that includes a wide variety of care arrangements for children, all of which generally involve children spending time in the physical care of both parents. In Australia and an increasing number of U.S. states, emphasis is placed on equal shared parenting, which entails children spending approximately 50:50 time in the physical care of each parent.

In this article, we treat the intervention of custody law, framed by both custody legislation and the actions of various family law professionals, including judges, lawyers, mediators, psychologists, counselors and social workers, in the lives of separated parents as an instance of the governance of gender (Brush 2003). According to Lisa Brush, the state, through its institutions, laws and policies, governs gender “by producing, positioning, regarding and rewarding women and men” (2003, 53). As Brush goes on to argue, while the late modern state is formally gender neutral, many of its laws and policies continue to produce gendered effects, in part because these laws and policies disregard the existence of ongoing gender differences and gendered inequities, for example, in the realm of paid and unpaid work. Thus, despite the rhetoric of gender neutrality and equality, the late modern state’s governance of gender often reproduces patriarchal gender regimes that are characterized by men’s dominance of women, the privileging of men’s interests, and the appropriation and exploitation of women’s labor (Connell 1987). However, there is widespread agreement among feminist theorists of the state that the reproduction of patriarchal gender regimes is not inevitable; rather the role of the state should be a matter of empirical investigation (Brown 1992; Brush 2003; Connell 2009). As Brush states:

The governance of gender is not monolithic; it does not always regard and reward, produce and position women and men in the same way (Brush 2003, 63; see also Brown 1992).

Indeed, Rekha Mirchandani (2006) on the basis of her research on a domestic violence court in Salt Lake City, Utah, claims that state institutions can be transformed into feminist regimes that challenge “male dominance in the home” by undermining men’s prerogatives in relation to their partners and children.

We begin this article with a brief sketch of the three logics that currently govern postseparation parenting across the Anglo-West. We then turn our attention to an analysis of the way these logics operated in the lives of the 21 women we interviewed during our study of mothers’ experiences of custody disputes. As we show, the three logics enabled the former partners of these women to engage in a range of tactics of domination, all of which had negative repercussions in their lives and the lives of their children.

The Context

Custody law across the Anglo-West is underpinned by a number of formally and widely recognized, shared principles and a number of shared logics that operate as taken-for-granted but seldom articulated guidelines to decisions and actions. A key principle, as we have already mentioned, is the best interests of the child. We argue that the way this principle is currently defined informs and is informed by three logics that guide family law’s reorganization of the relationships between postseparation parents. The first is the logic of durability (see also, van Krieken 2005, 35). The second and third logics we have called the logic of gender neutrality and the logic of present and future temporality. Below we briefly outline each of these logics in turn, but before we do so, it is important to note that these logics are applied in a context where parenting, pre- and postseparation, continues to be gendered (Tolmie, Elizabeth, and Gavey 2010a); even when women are engaged in paid work, women generally remain the primary caretakers of their children, and often their primary attachment figures too.

In Wishful Thinking and Harmful Tinkering (1997; see also Smart and Neale 1999a), Carol Smart documents the sudden displacement of the clean-break principle and the rapid rise to prominence of the logic of durability in England and Wales during the early 1990s. The essence of the logic of durability can be summed up by the phrase “once a parent always a parent.” The logic encodes an expectation of “continued fathering” in a context of ongoing cooperation and negotiation between the biological parents of the child (Boyd 2003; Rhoades 2002; Smart 1997; Smart and Neale 1999a, 1999b; Wallbank 2007). Thus it renders suspect the responses to parental separation envisaged by the clean-break principle: the re-creation of nuclear families through repartnering and social fathering. Further, the logic of durability stipulates an ongoing relationship between parents that separation and/or divorce was once meant to end (Smart 1997). Or, as Smart (1997, 316; Smart and Neale 1999a) aptly noted, it is the joint parenting contract that has become “indelible,” rather than the marriage contract. Foregrounded as a measure to protect children’s rights to have an ongoing relationship with both parents, the logic of durability also represents the state’s interest in the costs of child rearing remaining in the private sphere through encouraging fathers to provide financial support for their biological children.

The second logic that we have identified is the logic of gender neutrality. Contemporary custody law-as-legislation deliberately conceives of the best interests principle in gender-neutral terms (Boyd 2003; Fineman 1988, 2000-2001; Smart and Neale 1997, 1999a). Hence, mothers and fathers are constructed as equal and potentially interchangeable parents, who are jointly responsible for the upbringing of their children. Thus, the law positions mothers and fathers on equal terms with respect to claims to the caretaking role of their children. Yet, as we have argued elsewhere (Tolmie, Elizabeth, and Gavey 2010a), the assumption that parenting has become a gender-neutral practice is at odds with the ongoing gendered division of labor within most intact families. Although contemporary fathers have increased the amount of housework and child care they do (Henwood and Procter 2003; Milkie et al. 2002), women still remain primarily responsible for both tasks, even when they are in full-time paid work (e.g., Hochschild’s 1989 notion of the second shift; see also Craig 2007).

The final logic we wish to discuss is the logic of present and future temporality, by which we mean an orientation to time that focuses on the present while looking to the future and away from the past (see Smart and May 2001; Trinder and Kellett 2007). This logic treats men’s caring about as an indicator of their capacity to care for even when fathers lack a history of undertaking this work and therefore may lack the required practical and emotional skills. The distinction between “caring about” and “caring for” is elaborated by Carol Smart (1991), who defines “caring for” as the everyday activity of meeting children’s needs, while “caring about” refers to the more abstract notion of feelings of care that arise in relation to someone who matters to us. Family law’s failure to recognize and maintain this distinction works in concert with the logic of gender neutrality to overturn, or, in some instances, reverse the traditional gender contract that organizes the division of labor in most heterosexual households up until the point of separation (see Smart and Neale 1999b). Consequences of this logic include the devaluation of the care work that women usually undertake and the knowledge that they have acquired through this work, and an overvaluation of the father’s assumed capacity to do the work of caring for children (Tolmie, Elizabeth, and Gavey 2010a). Another consequence is that it operates, as Fineman (2000-2001, 1040) observes, as a

perverse affirmative action scheme in which men are excused from nurturing and caretaking norms and are permitted to devote their major energy and attention to their careers and extra-familial activities, without risking adverse consequences when they decide they want to assert claims to control their children post divorce.

As we show in subsequent sections of this article, these logics are key to the governance of gender through custody law-in-practice; they operate to differentially produce, position, and regulate women and men as postseparation parents. The outcome for women in dispute over care and contact arrangements for their children is that men as fathers are able to engage in nonreciprocal exercises of power that have negative effects on the everyday lives of mothers and children.

The Study

The project was formulated as an in-depth investigation into the experiences of women in dispute over care and contact arrangements for their children. It arose in the context of suggestions that women’s voices have become increasingly muted in the family law arena in recent times as fathers’ experiences and claims have taken centerstage (Fineman 2000-2001; Perry 2006; Smart 2006). Between late 2006 and early 2008, we carried out semistructured interviews with 21 women living in the upper North Island of New Zealand. The interviews invited women to narrate their experiences of difficulties with negotiating care and contact arrangements for their children, particularly, although not exclusively, in relation to legal or quasi-legal processes. Most of the interviews lasted two hours, with some lasting three or more hours. All of the interviews were recorded and transcribed in full. This was followed by a thematic analysis of all of the interviews. In the excerpts that follow, we have used pseudonyms and altered minor details that might enable the identification of our participants. ¹

The participants were recruited to the study through two means: several joined the study as a result of snow-balling, but the majority of participants joined the study following the publication of a story on our project in several free suburban newspapers. This story outlined our interest in speaking with mothers who had been involved in disputes over care and contact arrangements, and noted our hope that the findings from the study would contribute to improvements in legal policies and practices. The women ranged in ages from their late 20s to mid-50s. Two were indigenous Māori, 14 were Pākehā (or white settler population of primarily Anglo-Celtic descent), and five were white migrants from other Western countries. Just over half of the group were either in receipt of the Domestic Purposes Benefit ² or on a low income, another seven were earning moderate incomes, while a few were in high-income employment. The women had been separated from the fathers of their children for one to 12 years, and their children ranged in ages from 15 months to 14 years. The women’s stories thus date from the mid-1990s through to the late 2000s, a period of time during which the legal regime in New Zealand remained largely the same, despite the passing of new custody legislation, The Care of Children Act, in 2004. For further discussions of findings from this study, see Elizabeth, Gavey, and Tolmie (2010, forthcoming) and Tolmie, Elizabeth, and Gavey (2009, 2010a, 2010b).

The Governance of Gender Through Custody Law

So far we have claimed that custody law is not simply a mechanism of dispute resolution between parents; it is also a vehicle for the governance of gender according to the three logics discussed above. In this section, we discuss the differential production, positioning, and regulation of postseparation mothers and fathers through these logics. We show that these logics operate, in a context where resident and nonresident parents remain gendered categories, to produce a nonreciprocal capacity for men/fathers to intervene and regulate the lives of women/mothers through the threatened or actual instigation of family law processes. A situation that enables so-inclined fathers, in the words of one of our participants, to swap their fists for the system.

As noted in the preceding section, the logic of durability requires parents to remain in relationship with their children, and thus in relationship with each other, despite the demise of their intimate coresidential relationship. Ostensibly gender neutral, the logic of durability operates, as we demonstrate below, in highly gendered ways to preserve and protect the right of the nonresident parent (typically fathers) to choose whether or not to have a relationship with their children, and hence, to choose whether or not to have any ongoing involvement with the children’s resident parent (typically mothers). Fathers’ choices in these matters are maintained through current custody law, which bars mothers, as resident parents, from calling on the prerogative powers of the courts to compel fathers to exercise their contact provisions. Some might read this observation as a call for resident parents to be empowered with the capacity to seek the enforcement of father contact through family courts. However, this call is not one that our participants would by-and-large support, nor would we, as will become clear. Our participants’ complaints emerged in circumstances where their lives and the lives of their children were being shaped in significant ways by fathers’ preferences, for example, to have their children on standby for contact if and when the fathers so desired. The injustice that resulted from the privileging of fathers’ preferences, for the participants concerned, would have been best remedied by restoring their rights to act autonomously.

The inability to have recourse to the prerogative powers of the family court to enforce contact provisions was raised by a number of women in our study on the basis of their experiences with fathers who repeatedly failed to establish and/or maintain reasonable contact arrangements with their children. In the following excerpts, both mothers expressed frustration with a family court system that did not compel regular and sustained father-contact regimes with their preschool children. Significantly, the fathers in both cases had reportedly instigated or threatened to instigate legal action to restrict the mothers’ geographical movement, ostensibly to protect their capacity to see their children on a regular basis, despite the fact that both mothers had been explicit about their commitment to ongoing father involvement:

And,

Put more strongly, custody law enables the will to relationship of nonresident parents to be tested and enforced through the family court system, without a reciprocal capacity for resident parents to petition courts to enforce the involvement of the nonresident parent (we are not advocating for the latter proposition, not the least because of its highly problematic ramifications for children). Given the ongoing gendered character of resident and nonresident parents, current family law positions fathers (as nonresident parents) in a manner that enables them to intervene and regulate the lives of mothers (as resident parents) by invoking, or threatening to invoke, family law processes. This is aptly illustrated by Lisa’s comments, who like many other women in our study, was dealing with a father who frequently reneged on his contact obligations:

Such observations do not rule out the possibility of women calling on the prerogative powers of the state invested in family law. Several women in our study petitioned the Family Court, but they did so largely as a tactic of resistance to men’s dominating power. Faced with fathers who were unsafe or who were pushing for increased contact in situations where this undermined their child’s best interests, mothers in our study turned to the courts in an attempt to limit the capacity of the fathers concerned to reshape the conditions under which they mothered and their children were parented. In general, the mothers concerned reported that their appeals to the court were only partially successful; under pressure, the mothers agreed to “compromise solutions” that usually involved their children spending more time with fathers than they thought best, or in conditions they thought were unsafe.

The differential capacity men have to interfere in women’s lives is a key feature of relationships of male domination, as defined by Iris Marion Young (1997; see also Einspahr 2010; Thompson 2001). As Young (1997, 28) states:

Male domination exists within an institution or in a whole society when one or more of the following conditions obtain: a) men have the power to control aspects of women’s lives and actions and the means to enforce their will, and women do not have complementary control over men’s lives; b) men occupy institutionalised positions of social decision-making from which women are excluded, and women do not have their own spheres with comparable privilege or control over men’s lives; c) men benefit from the labor and other activity of women to a greater degree than women benefit from that of men.

In the context of custody disputes, the relationship of domination and subordination between fathers and mothers is obscured, as Joseph Goldstein (1991, 24) makes clear, by two highly influential discourses: the discourse of the alienating resident mother, which positions women as the source of problems over contact and regulates them accordingly, and the discourse of children’s rights, which regards the right to know birth parents as a key children’s right, thus positioning fathers as well as mothers as essential to children’s well-being:

Courts and commentators, blinded by the specter of spiteful custodial parents denying visits or opposing joint custody at the child’s expense, have rejected our position [that custodial parents should “retain the right to determine when and if it is desirable to arrange visits”] with the misleading assertion that visitation or access is a right of the child, not of the parents. In fact, by subjecting an award of custody to an order imposing visits, the court does not protect the child’s “basic right” to see his noncustodial parent. It merely shifts the power to deprive the child of his “right” from the custodial parent to the noncustodial parent. Visitation orders make the noncustodial parent—rather than the parent who is responsible for the child’s day to day care—the final authority for deciding if and when to visit. Even if the court orders visits because it believes they will serve the child’s best interest, the noncustodial parent remains free not to visit, to “reverse” the court [order] without risk of being in contempt. (Goldstein 1991, 24)

Not only is the power of fathers to abandon contact and to escape legal censure obscured, but so is the state’s role in the reproduction of gendered power—the capacity for men to use the law legitimately, as opposed to the illegitimate use of their fists, as a tactic of dominating power to harass, threaten, and coerce women (see Elizabeth, Gavey, and Tolmie, forthcoming). Experiences of state-enabled tactics of domination were common among the women in our study. They reported numerous examples of being threatened with legal action, or of being drawn into the family court system repeatedly; they risked being defined as alienating mothers if they did not agree to make concessions over contact arrangements they thought were in their children’s best interests, agree to reduced child support payments, and/or abandon attempts to be geographically mobile.

The following example of state-enabled coercive threats emerged against the backdrop of a short-term relationship that was formed while Becky was sojourning in New Zealand from Canada and the discovery of an unplanned pregnancy just as Becky was making a decision to break off the relationship and return home. News of the pregnancy prompted the father-to-be, Shane, to reassure Becky that he would be an involved and reliable father, something Becky believed would be in her unborn child’s best interests. However, such reassurances would prove to be fallacious; within days of the birth of their child and when Becky was still unable to walk because of complications from the birth, Shane repeated his pattern of disappearing for days on end to immerse himself in computer game marathons. Bereft of a good support network and still trying to recover from the birth, Becky decided she needed to return to Canada to be with her family:

Once they were within the court system, a number of the women in our study reported that legal actors—judges, lawyers, counselors, and so on—turned a blind eye to men’s use of tactics of domination, and in many instances these same legal actors put pressure on these women to agree to arrangements that undermined important protections for themselves and/or for their children. For example:

To the extent that such actions are not anomalies, but rather arise out of the logic of temporality that demands from mothers a willingness to forget, if not forgive, in the name of the child, and legitimates a collective amnesia among legal actors, such actions constitute another example of the state’s role in the reproduction of gendered power relations.

Men’s capacity to turn to the law and to invoke the prerogative power of the state engendered a strong sense of fear among most of the women in our study. These feelings of fear are explicable in terms of specific histories of being subjected to male partner violence—something that was true for nine of our participants—as well as being explicable in terms of a more generalized vulnerability that arises out of the synergies between the logics of durability, gender neutrality, and temporality. Combined, these logics create the conditions for fathers to engage in repetitive legal challenges over care and contact arrangements should they have the financial means to do so. But these logics also establish very real possibilities, in a context of increasing emphasis on shared care, that fathers will gain more time with their children at the expense of children losing time with their mothers, something that most mothers in our study did not think was in their children’s best interests (Elizabeth, Gavey, and Tolmie 2010). Such increases in father time reflect family law’s willingness to reward fathers for expressions of caring about their children, even when fathers have had little or no history of caring for their children, and when fathers may have even systematically abandoned the work of caring for their children to mothers. According to Stark (2009), such actions are often indicative of a pattern of coercive control. It thus behooves family court professionals to carefully consider, first, what might be the motivations and interests underlying the sudden expression of interest in children by men who pursue this through aggressive court action, and second, what might be the effects of this on the everyday lives of the mothers and children concerned.

The following excerpt contains a mother’s reflections on family law’s willingness to reward fathers for belated expressions of caring about, in spite of a lack of a history of caring for. In this particular instance, the parents had been married for eight years but separated when their child was 12 months old as a result of his affair. Margie (mother) continued to be the primary caregiver, while the time Ryan (father) spent caring for his daughter gradually increased at Margie’s instigation to every weekend when Aster was about four, an arrangement that enabled Margie to have a part-time job. Abruptly, and without warning, Ryan announced he was no longer willing to take care of Aster every Sunday, forcing Margie to cut her paid work hours by half. Shortly thereafter, they moved to an arrangement whereby Ryan saw Aster every second weekend. When Aster turned seven Ryan began pushing for shared care:

This excerpt can also be read as an example of what Anne Morris (2005) calls “maternal alienation.” Devised to challenge the power of the notion of Parental Alienation Syndrome to hold mothers to blame for a child’s reluctance to see their nonresidential parent (Bruch 2001), the concept of maternal alienation identifies an aspect of abusive male power “whereby the perpetrator deliberately creates wedges in the relationship between children and their mother” (Morris 2005, 223). As Morris goes on to point out, the level of investment most women have in their children’s wellbeing and in their identities as mothers “makes mothering an easy target for men who wish to injure and punish” their partners or former partners (Morris 2005, 225). In the realm of custody law what maintains women in the position of “easy target” is a best interests principle that has given rise to the logic of durability and the logic of gender neutrality, logics that compel resident mothers to participate in joint parenting projects alongside fathers who choose to be in relationship with their children and constructs opposition to joint parenting by mothers for almost any reason in terms of hostility, obstruction, and alienation.

Although mothers in our study did not draw on the notion of maternal alienation, they spoke about a range of paternal practices that might be seen as such. These paternal practices included: repeated attempts to disrupt breastfeeding routines; the requirement that children call new partners “mum”; constant applications to the family court for increased contact time or shared care arrangements in situations where the mothers were well-established as the primary attachment figures for their children and fathers had little involvement in child care prior to separation; and the vilification of mothers in front of children, often at the point when care was being transferred between the parents.

What is of particular relevance to our argument is the role of family law in enabling and condoning such attacks on mothers and children, while simultaneously constraining the capacity of mothers to resist such attacks. Michelle, for instance, spoke about counseling and mediation sessions in which she consistently sought to establish changeovers for her child, first at kindergarten and then at school, in order to avoid her former partner’s vitriolic taunts. However, Mark (father) was reportedly opposed to such an arrangement. Michelle talked of being put under direct pressure to continue drop-offs at Mark’s home from a number of legal actors (counselors, lawyers, and judges) some of whom described her experiences of violent coercion as being at the “lower end of the scale.” She also talked about experiencing indirect pressure in the form of a desire to avoid being seen as “an unreasonable and irrational woman,” notions that are clearly linked to the construct of the alienating and hostile mother.

Similarly, Nancy told a story of the minimization by family court professionals of her past and present experiences of her former husband’s tactics of coercive power. Here she tells of an exchange in the family court where written evidence of her former husband’s ongoing derogation of her was summarily dismissed as of no significance:

The failure of legal actors to censure and regulate this kind of behavior grants the offending party carte blanche—they are free to continue to engage in dominating and coercive tactics in the knowledge that they are unlikely to be sanctioned by the state.

These examples, as well as many of the other examples we have discussed in this article, clearly constitute instances of state-endorsed entrapment within relationships of what Evan Stark (2007, 2009) calls coercive control. Typically, coercive control “complements frequent, but often minor, assaults with tactics to intimidate, isolate, humiliate, exploit, regulate and micromanage women’s enactment of everyday life” (Stark 2007, 171-72). It involves “harms to autonomy, personhood and decision-making” (Stark 2009, 296) and usually centers on women’s performance of stereotypical feminine roles like cooking, cleaning and care of children (Stark 2007, 2009). In many cases of coercive control perpetrators subject their children to similar control tactics and/or use them to sabotage a mother’s parenting or to spy on her following separation (Stark 2009, 295). The state’s role as a facilitator of entrapment is perhaps most graphically reflected in family law’s willingness to deny mothers’ rights to freedom of movement by ruling against relocation applications, ³ thereby ensuring that women remain spatially proximate to men, and thus readily available as targets for men’s use of tactics of coercive control.

The issue of mothers’ freedom of movement was of particular relevance to the five women in our study who were adult migrants to New Zealand and whose network of support resided elsewhere. Becky was one of these women. As noted earlier, Becky became pregnant during a casual relationship with Shane and that Shane instigated legal proceedings to place a nonremoval order on their son when Becky needed to travel home to recover from the birth. In spite of Shane’s assurances that he would be a responsible and reliable father, Becky found herself parenting on the Domestic Purposes Benefit and unable to seek paid employment because Shane could not be depended upon for child care purposes and she lacked an alternative source of reliable and affordable child care. At the time of the interview, Becky was contemplating a relocation application, but had been warned by her lawyer that she had a less than 50 percent chance of success. In other words, it was highly likely that she would remain isolated from key sources of support—her family and friends. As Becky makes plain below, restriction on her son’s movements are detrimental to his capacity to develop relationships with his maternal family. Furthermore, to constrain her son’s movements is effectively to constrain hers, because like most mothers in Western societies she would not have considered the possibility of migrating without him. To have done so would have not only meant leaving her two-year-old son in the care of a father who consistently took unnecessary risks with their son’s welfare by, for instance, smoking marijuana, failing to use a car-seat, and leaving poisons within their son’s easy reach; but even more fundamentally, it would have meant her contravention of normative prescriptions for maternal care in Western societies that stipulate maternal proximity and availability—a normative prescription that does not extend to fathers. Should a mother breach this prescription in anything other than exceptional circumstances she would almost certainly be seen in highly negative terms.

A lack of freedom of movement was not confined to the migrant women in our study. Many others spoke about being threatened with or actually having court orders imposed on them that prevented them from moving to other parts of Auckland, other parts of New Zealand, or other parts of the world, even on holiday. Helen sums up this restriction on their autonomy nicely:

See now I can’t move out of Auckland. I have to get his permission to do anything. I have to get his permission on everything in my life.

Discussion and Conclusion

We have argued that custody law, as a part of the state’s apparatus for governing gender (Brush 2003), plays a pivotal role in the differential production, positioning, and regulation of women and men. Specifically, we have claimed that the current understanding of the welfare principle in family law informs and is informed by three logics—the logic of durability, the logic of gender neutrality, and the logic of present and future temporality. These logics govern the relationships between postseparated mothers and fathers in such a way as to produce a nonreciprocal capacity for fathers, who form the majority of nonresident parents, to use family law to threaten, harass, and sometimes to coerce mothers, who form the majority of resident parents; fathers do so largely with impunity because their recourse to the law is seen to be a legitimate course of action. The nonreciprocal capacity to interfere in mothers’ lives creates the potential—a potential that was often realized, according to the mothers in our study—for fathers to constrain mothers’ autonomy and harm their personhood. In the following quote, Margie aptly sums up the way the state through custody law facilitates ongoing male domination:

Margie’s comments amount to a call for the radical rewriting of the logics that govern postseparation parenting, in order to end the state’s facilitation of relations of male domination between separated parents. An alternative set of logics, or principles as they called them, were mapped out by Carol Smart and Bren Neale (1999a, 192-97) more than 10 years ago. In constructing these principles, Smart and Neale turned away from law’s traditional reliance on the ethic of justice that makes use of abstract notions like fairness, equality and rights, and toward the ethic of care that “seeks to sustain dialogue [between mothers, fathers and children] without diminishing the sense of worth and dignity of the individuals involved” (1999a, 197). Thus, Smart and Neale advocated the adoption of four principles to guide decisions over arrangements for children in the aftermath of parental separation: the principle of actuality which suggests that decisions about care and contact should be grounded in the “reality of the lives of the people involved” (1999a, 192)—including past patterns of caretaking, children’s needs and wishes, and whether a climate of fear and coercion exists—rather than on the basis of “abstract notions of child welfare’” (1999a, 193); the principle of care, which stipulates the importance of children receiving adequate care, as well as the importance of treating parents, as key members of a child’s social milieu, with care; the principle of recognition of selfhood, which entails regarding mothers, as well as fathers, as persons who need to be able to shape their lives autonomously; and the principle of loss, which involves recognizing the pain of loss that parents often experience when they spend less time with their children than they wish and providing them with ongoing emotional and practical support.

Although a sustained discussion of the implications of the adoption of these principles is beyond the scope of this article, it is clear that their adoption would have a significant effect on the kinds of issues and problems brought before family courts, the manner of custody law’s engagement with separated parents, and the outcomes of these engagements. As Smart and Neale envisage it, the adoption of these principles would result in a move away from recourse to the prerogative powers of the law to decree, coerce, and punish, toward dialogue facilitated by counselors, mediators and/or lawyers with mothers, fathers, and children—separately or together as appropriate—that validates, empathizes, challenges, persuades, and problem-solves, sometimes simultaneously. Such dialogue would occur over time in response to the changing needs and circumstances of children and parents.

In terms of outcomes, it seems highly likely that paying attention to the history of care, as well as the autonomy needs—for example, for well-paid work, support networks of family and friends, and new partnerships—of both parents, would result in higher levels of continuity in caretaking patterns postseparation when this is desired by caretakers, greater recognition of the need to protect parents and children from fear and coercion, and enhanced levels of geographical mobility for resident parents, in a context of ongoing emotional and practical support for both parents to enable them to deal with the complex and ever-shifting demands of parenting across space and time. Although these outcomes may not challenge the gendered division of caring labor between separated mothers and fathers, we argue that government and workplace policies and practices need to support the emergence of more equal patterns of care work in intact families, rather than attempting to impose such patterns at the point of separation (Tolmie, Elizabeth, and Gavey 2010a). The imposition of equal patterns of care at the point of separation, in a context of a history of primary maternal care, has the potential to further destabilize children and to expose them to inept parenting, and may merely disguise women’s ongoing greater contribution to the physical and emotional well-being of their children (Lacroix 2006; Tolmie, Elizabeth, and Gavey 2010a).

What would a shift by family law to “an ethics of care” informed by the four principles discussed above mean for the women in our study? Given the need to respond to “the complexities of real life family relationships” (Smart and Neale 1999a, 190), we have chosen to answer this question through a focus on the case of Becky by way of an illustrative example. Because Becky is the primary parent and Shane has proved to be a highly unreliable father who has shown himself willing to call on the prerogative powers of the law to coerce Becky, it seems clear that Becky should be permitted to move back to Canada with her son Cooper, aged 2 years. This would not only recognize Becky and Cooper’s rights to develop close family connections with their Canadian kin but would also meet Becky’s right to experience greater autonomy over her life by enabling her to return to work. However, Becky’s plans to relocate should be matched by the careful negotiation of plans to sustain Shane and Cooper’s relationship through regular non–face-to-face contact as well as face-to-face contact through holidays where possible. Undoubtedly fraught with difficulties for both parties, the negotiations over relocation and contact between Becky and Shane would inevitably need to address Shane’s intimidatory actions that have caused Becky to fear him, as well as compassionately responding to Shane’s sense of loss and his needs to be reassured that he would not be cut out of Cooper’s life.

By beginning and ending with reference to Carol Smart’s work, it might seem that we have simply wanted to remind readers of the ongoing significance of her insights. However, our objective has been twofold: first, we have sought to extend Smart’s work through a more precise explication of the current meanings of the welfare principle—the logics—and, second, to demonstrate how these logics operate within a system of family law oriented toward an ethics of justice to enable gendered exercises of power. While it would be naïve of us to imagine that a shift to an ethics of care and the adoption of the principles of actuality, care, selfhood, and loss would create a postseparation parenting utopia, it is our contention that their use would bring about a significant change in the state’s governance of gender, transforming it from a facilitator of relations of coercive power to a facilitator of relations of care, autonomy, and equality.