The Gendered Dynamics of Power in Disputes Over the Postseparation Care of Children

Abstract

A dichotomized picture of postseparation parents has emerged in family law that juxtaposes violent relationships with those that are “normal.” Domestic violence scholars and advocates have played a role in reproducing this picture in their quest to secure protection for women and children. Although sympathetic, we argue this construction generates a number of problems: in particular, it obscures the gender power dynamics in relationships where women have not experienced violence. Interviews with separated mothers in dispute over contact arrangements reveal that there are significant continuities in the gender power dynamics they experience, despite differences in their exposure to male partner violence.

Keywords

child custody gender mothers power violence

Introduction

Custody disputes have become one of the most vexed areas of the so-called “gender wars.” In an attempt to diffuse this conflict, joint parenting has emerged as a powerful new ethos governing postseparation parenting arrangements across the Anglo-West¹ (Fineman, 1988; Kaganas & Day Sclater, 2004; Neale & Smart, 1997; Smart, 1997, 2004; Smart & Neale, 1999a, 1999b; Wallbank, 1998, 2001, 2007). Joint parenting, in the form of joint legal custody, is founded on an assumption that both parents should continue to play a role in the child’s upbringing postseparation. As joint legal custodians, mothers and fathers possess equal decision-making rights over their children’s lives and are held to be equally responsible for meeting their children’s needs. While the laws establishing joint legal custody in Anglo-Western countries do not always specify a presumption of ongoing father contact, the expectation of ongoing father contact has nonetheless become normative (Boyd, 2003, 2004, 2006; Hunt with Roberts, 2004; Kaganas & Day Sclater, 2004; Neale & Smart, 1997; Smart, 1997; Smart & Neale, 1999a, 1999b; Tolmie, Elizabeth, & Gavey, 2009, 2010; Wallbank, 1998, 2001, 2007). In addition, legislation governing the care of children following separation and/or divorce produces an expectation that parents will cooperate to reach an agreement on parenting arrangements that are in the “best interests of their children.”

As Rhoades (2002, p. 72) argues, a significant corollary of this legislative framework has been the insertion into the cultural imaginary of “joint parenting regimes” that are invariably amicable. However, this conflict-free picture of joint parenting glosses over some very different realities. In particular, as a number of (mostly feminist) scholars have pointed out, contact provisions create an opportunity for fathers who have been violent to continue to harass and/or assault their ex-partners and children (Beeble, Bybee, & Sullivan, 2007; Davis, 2004; Eriksson & Hester, 2001; Hester & Radford, 1996; Kaye, Stubbs, & Tolmie, 2003; Rhoades, 2002; Varcoe & Irwin, 2004; Wallbank, 2007; Wuest, Ford-Gilboe, Merritt-Gray, & Lemire, 2006). In short, a history of violence militates against the possibility of cooperative and amicable relations between separated parents. Moreover, contact in circumstances where a father is or has been violent places at risk the physical, psychological and emotional safety of children and their mothers.²

In bringing this vastly different picture of joint parenting to light, domestic violence academics and advocates have implicitly and explicitly (re)produced family law’s dichotomized picture of postseparation parenting in which relationships characterized by violent asymmetries are juxtaposed to relationships that are normal and supposedly egalitarian (Reece, 2006). Such a dichotomized construction of postseparation parents generates at least two problems. First, as Susan Boyd (2003; see also Reece, 2006) claims, it easily leads to an assumption that all of the care and contact issues that women face are a result of violence and abuse. And second, it implies that relationships where women have not experienced violence are free from gender power dynamics. In this article, we draw on interviews with separated mothers in dispute over care and contact arrangements to argue that there is a remarkable degree of similarity in the interactions they describe with the fathers of their children, despite differences in their exposure to male partner violence.³ Furthermore, we contend that the gender power dynamics that we document are supported and exacerbated by contemporary sociocultural discourses and the operation of the family law system, which, as Harrison (2008) argues, is a significant source of complicity, if not collusion. Our argument therefore contains two critiques. First, it challenges the postfeminist assumption embedded within family law that the vast majority of heterosexual relationships, including those between former partners, have been reconfigured along egalitarian lines. Second, it points to the role of the discourses and practices of family law in enabling and perpetuating gendered inequalities.

This article elaborates on our contention that there are continuities in the way power is exercised in relation to both women who have experienced violence from their former partners as well as women who have not. We begin our work with an overview of the rise to prominence of the discourse of joint or shared parenting, before turning our attention to the criticisms made by domestic violence scholars about joint parenting regimes. At this point we draw on Catherine Ashcraft’s (2000) work on the different ways interactional power is exercised in heterosexual relationships to pave the way for our own analysis of the gender power relations that characterize the lives of the women who participated in our study.

The Disputed Ground of Custody Regimes

Throughout the Anglo-West, including New Zealand where our research is located, disputes over postseparation childcare arrangements are supposed to be settled according to the principle of the “best interests of the child.” Yet recourse to this principle only begets the question, what is actually in the child’s best interests? Over the last 10 to 20 years the answer has shifted toward a much greater emphasis on the beneficial effects of the ongoing involvement of the nonresidential parent (generally fathers), both socially and materially, in their children’s lives (Boyd, 2003, 2004, 2006; Chesler, 1991; Davis, 2004; Eriksson & Hester, 2001; Hester & Radford, 1996; Kaganas & Day Sclater, 2004; Neale & Smart, 1997; Smart, 1997; Smart & Neale, 1999a, 1999b; Standing, 1999; Varcoe & Irwin, 2004; Wuest et al., 2006; Wallbank, 2001, 2007). Indeed, as Kaganas and Day Sclater (2004) note in relation to the situation in England and Wales, “[i]t would appear that the proposition that contact with a non-resident parent is generally in the children’s best interests has passed into the realms of incontestable truth” (pp. 4-5).

Partly as a consequence of this shift in understanding of what is in a child’s best interests, a new ethos of postseparation parenting has emerged that is driven by a “logic of durability” (van Krieken, 2005, p. 35; see also Rhoades, 2002; Smart, 1997; Smart & Neale, 1999a, 1999b; Wallbank, 2007). Hence, postseparation parenting is now conceptualized as a joint parenting project that requires parents to cooperate with each other and to engage in ongoing negotiations in the interests of their children (Rhoades, 2002; Wallbank, 2007). Joint parenting, however, can mean a number of quite different things. It can mean joint legal custody, or joint physical custody, or shared parenting. Shared parenting, in turn, can refer to a wide variety of arrangements in which children live at least some of the time with both parents, including but not limited to equal parenting time (Hunt & Roberts, 2004; see also Boyd, 2004; Wuest et al., 2006). By and large, it is joint legal custody that has been enshrined across the Anglo-West, except in Australia where legislative reforms in 2006 require Australian Family Courts to consider whether equal time with each parent is in the child’s best interests (Tolmie et al., 2010). Joint legal custody assumes that, despite parental separation, both parents should continue to play a role in the child’s upbringing. Moreover, given the equal legal status of both parents, each should enjoy equal decision-making rights over their children’s lives and should be held equally responsible for meeting their children’s needs.

While joint legal custody does not prescribe a specific contact regime for nonresidential parents and their children, it is nevertheless associated with the current procontact culture and the rise to prominence of shared parenting. Indeed, Wallbank (2007) notes that it has become increasingly difficult to distinguish between generous contact provisions and shared care arrangements. Often heralded by fathers’ rights groups as the best solution to custody disputes (Flood, 2010), shared parenting involves children spending a significant, although not necessarily equal, amount of time in each of their parents’ homes. Nonetheless, Stenhouse (2007) argues it is important to retain a distinction between shared care (for example, a 25/75 split) and 50/50 care because the latter is qualitatively different from the former: “children in 50/50 care lead two equivalent and parallel lives in a way which does not occur under the primary-plus-secondary caregiver model” (p. 260). Children in 50/50 care arrangements have been described as shuttle-children who endlessly move themselves and their belongings between homes (McInnes, 2006). Notwithstanding the importance of this distinction, in this article we use joint parenting as an umbrella term that assumes joint legal custody and at least some level of shared physical parenting.

Ostensibly gender neutral, joint parenting, as the new postseparation parenting ideal, has actually led to a gender-differentiated standard of postseparation parenting. The good postseparation father of today is supposed to provide financially for his children and to maintain a close and caring relation with them (Boyd, 2003, 2006; Collier, 2001; Kaganas & Day Sclater, 2004; Smart & Neale, 1999a, 1999b). However, as a number of authors have pointed out, these dual obligations are given different legal weight: while a father’s financial support is legally enforceable, at least theoretically, a father’s relationship with his children remains outside the realm of legal coercion (see Dowd, 2000; Fineman, 1988; Smart & Neale, 1999a; Wallbank, 2001, 2007). Although this might suggest that the ongoing provision of financial support is the key to good postseparation fathering, it is neither absolutely necessary nor sufficient. Increasingly, postseparation fathers who have minimal contact with their children face social and judicial disapproval (Collier, 2001). Furthermore, as fathers increase the amount of time they spend with their children, their child support obligations generally decrease. What this suggests is that the symbols of good postseparation fathering are in a state of flux. As father contact becomes increasingly valorized, the importance attached to financial support is diminishing. Finally, and significantly given our purpose, a proven history of violence⁴ does not usually overturn the designation of fathers seeking contact with their children as “good enough” (Collier, 2006; Eriksson & Hester, 2001; Harrison, 2008; Kaspiew, 2007; Rhoades, 2002; Smart & Neale, 1999b; Wallbank, 1998, 2007).

In contrast, the good postseparation mother is evaluated almost solely in terms of her willingness to support father contact (Eriksson & Hester, 2001; Harrison, 2008; Kaganas & Day Sclater, 2004; Kaspiew, 2007; Rhoades, 2002; Smart, 1991, 1997; Smart & Neale, 1999b; Wallbank, 1998, 2007).⁵ Mothers, in high profile media cases as well as those in more everyday circumstances (Elizabeth, 2010; Tolmie et al., 2009), who resist the notion of joint parenting by failing to prioritize above all other considerations paternal contact provisions, are now viewed with considerable suspicion.⁶ Such mothers are often portrayed as motivated by malicious concerns—for example, revenge for an affair—rather than legitimate concerns about a child’s well-being (Boyd, 2003, 2004, 2006; Chesler, 1991; Coltrane & Hickman, 1992; Fineman, 1988; Kaspiew, 2007; Morris, 2005; Neustein & Lesher, 2005; Rhoades, 2002; Smart, 1989, 1997; Smart & Neale, 1999a, 1999b; Wallbank, 1998, 2001, 2007). Even mothers who are seeking to protect their children from harm find themselves being increasingly defined in negative ways (Chesler, 1991; Davis, 2004; Eriksson & Hester, 2001; Fineman, 1988; Harrison, 2008; Neustein & Lesher, 2005; Rhoades, 2002; Smart, 1997; Smart & Neale, 1999b; Wallbank, 1998, 2001, 2007). Indeed, as Smart (1997, p. 317) intimates, joint parenting discourses are associated with the emergence of a new and vilified identity: the “implacably hostile mother” (see also, Boyd, 2003, 2004, 2006; Eriksson & Hester, 2001; Harrison, 2008; Neale & Smart, 1997; Neustein & Lesher, 2005; Rhoades, 2002; Wallbank, 1998, 2001, 2007). The implacably hostile mother has been “depicted as needing psychiatric help and counselling, and more recently she has been depicted as simply delinquent and in need of punishment” (Smart & Neale, 1999b, p. 128).

Not surprisingly, given the potential that discursive practices of joint parenting pose for circumscribing women’s agency but not men’s agency (Rhoades, 2002), joint parenting has been the subject of a number of criticisms.⁷ Such criticisms have been particularly well elaborated in relation to the plight produced by the current legal context for mothers who have left violent male partners (see, for example, Beeble et al., 2007; Davis, 2004; Eriksson & Hester, 2001; Harrison, 2008; Hester & Radford, 1996; Kaye et al., 2003; Neustein & Lesher, 2005; Rhoades, 2002; Varcoe & Irwin, 2004; Wuest et al., 2006). As these writers reveal, provisions for father contact are increasingly being awarded and enforced in spite of claims about or, indeed, evidence of a father’s violence. In part this is the outcome of a sustained, but largely unfounded, attack by fathers’ rights groups on the credibility of accusations about paternal violence (Davis, 2004; see also Flood, 2010; Kaspiew, 2005; Maloney et al., 2007; Rhoades, 2002). Yet the reluctance of family courts to put limits on fathers’ contact also reflects a tendency within the custody arena to treat the harm brought about by a father’s absence as more significant than the harm brought about by a father’s mistreatment (Elizabeth, Gavey & Tolmie, 2010; Eriksson & Hester, 2001; Harrison, 2008; Hester & Radford, 1996; Neustein & Lesher, 2005; Rhoades, 2002; Smart, 1997; Varcoe & Irwin, 2004). The upshot, according to these critics, is that contact is made available to fathers as a site through which they can continue to “exert power and control” over mothers and children with impunity (Varcoe & Irwin, 2004, p. 78; see also Beeble et al., 2007; Davis, 2004; Eriksson & Hester, 2001; Harrison, 2008; Hester & Radford, 1996; Rhoades, 2002). Prompted by these observations, renewed calls have been made by advocates and academics for professionals working on family court matters to recognize the destructive realities of male violence (Eriksson & Hester, 2001; Hester & Radford, 1996; Harrison, 2008; Rhoades, 2002; Varcoe & Irwin, 2004; Wuest et al., 2006). Properly recognized, they argue, male violence would operate as a condition that limited the contact provisions granted to separated fathers.

While critical attention to the issue of violence has been extremely important, especially for women and children in need of protection from male violence, an exclusive focus on violence has several unfortunate consequences. First, it runs the risk of reaffirming a dichotomous construction of heterosexual relationships, including postseparation parenting relationships. As we pointed out in the introduction, a dichotomized vantage point allows relationships to be divided into those that are supposedly “normal,” egalitarian, and cooperative, and those that are thought to be “pathological,” conflictual, and violent. Second, it does very little to disrupt the rules upon which care and contact decisions are made. As Rhoades (2002) points out, family courts continue to operate with a “lingering assumption that families affected by domestic violence are rare” (p. 82). When defined as a rarity, cases involving domestic violence can be treated as exceptions to a general rule. Of course, when domestic violence cases are treated as exceptions, the rules governing postseparation parenting do not need to be altered; we can continue to imagine that joint parenting regimes, involving considerable shared physical care, are largely amicable and generally in the best interests of children. Third, and most importantly for the argument we are making here, a dichotomous construction obscures the way “nonviolent” fathers are able to use a range tactics of interactional power to produce and sustain gender power relations (Boyd, 2003, p. 194). When the use of nonviolent forms of power is obscured, a number of other things are also obscured: first, women’s experiences of inequality and subordination that have been produced through nonviolent means; second, and relatedly, similarities in the experiences of separated mothers with violent and nonviolent relationship histories; and third, the role of legal, social, and cultural institutions in actively supporting, even exacerbating, men’s use of tactics of interactional power.

Deconstructing the Dichotomous Construction of Separated Parents

A claim to continuities in the experiences of separated mothers, despite differences in their relationship histories, might suggest that the definition of what counts as a violent relationship needs to be broadened. While some scholars and activists have promoted wide definitions of “violence” to this end, in our view this strategy suffers from a number of drawbacks that are worth briefly outlining. First, it can lead researchers to ride roughshod over the way their participants describe themselves and their relationships. Second, the retention of a dichotomous construction of postseparation parents that contrasts violent with ostensibly egalitarian relationships prevents the recognition of the problems associated with the normative dynamics of gendered power that operate in most heterosexual relationships (Ashcraft, 2000; Boyd, 2003). Third, by using a term like violence in a way that collapses distinctions between normative and transgressive operations of power, it is possible that not only are the kinds of difficulties and harms experienced by women in nonviolent relationships rendered less noteworthy, but also, ironically, that recognition of women’s experiences of more violent and egregious exercises of power is itself diluted.

To deconstruct this dichotomy and reveal the multiple ways power is exercised to produce relational inequalities across the disparate circumstances of separated parents we need, as Catherine Ashcraft (2000) argues, a broader range of terms that enables us to speak about forms of domestic inequality and injustice that fall short of brutal forms of male domination. To this end, Ashcraft proposes a matrix of relational inequality that is organized with reference to two continua: a continuum of activity and a continuum of visibility. As Ashcraft (2000) notes, “a continuum of activity and passivity creates a conceptual space to envision ways in which partners control by performing actions as well as by not performing certain actions” (p. 6, emphasis in the original). The continuum of in/visibility, on the other hand, draws our attention to those actions or behaviors that are particularly difficult to label as exercises of power because they seem “natural,” “inevitable,” or simply “the way things are” (Ashcraft, 2000, p. 6). When taken together, the two continua are suggestive of four tactics for exercising relational power and generating relational inequality. These Ashcraft names as follows: domestic domination (visible and active), domestic distortion (invisible but active), domestic dodging (invisible and inactive), and domestic neglect (visible but inactive).⁸ Of particular relevance to our forthcoming analysis, domestic domination includes a raft of actions that have been widely recognized for their coercive properties: possessiveness, name calling, harassing phone calls or text messages, surveillance, threats of violence, and violence itself (Ashcraft, 2000, pp. 6-9).

Unfortunately, Ashcraft does not situate these different tactics of interactional power in relation to the broader social context. Thus, Ashcraft fails to consider the way gender operates socially to produce a gender-differentiated pattern of access to interactional power. Following Cooper (1994, 1995), we suggest that what makes fathers’ exercises of power possible are ongoing gender differences in access to economic power, as well as a patriarchal sociolegal context, both of which advantage men, “enabling men to exercise power in ways not similarly open to women” (Cooper, 1995, p. 10; see also Boyd, 2003; Flood, 2004; Hunnicutt, 2009). To this we would add that exercises of power by fathers and mothers are often interpreted in quite different ways, such that men’s ability to operate as powerful agents is often reinforced rather than circumscribed. As Cooper (1995) elaborates,

Some exercises of power involve dominating women, that is using women specifically as a resource in the furtherance of men’s own objectives. However, male dominance is wider than specific domination of women. It includes a gendered ability to exercise agency and achieve desired outcomes in ways not available to women, although women may not necessarily be subjugated or exploited in the process. While not all men choose to exploit this advantage—to exercise power—an individual’s abstention does not make the advantage disappear. Neither men nor women can simply opt out of gender’s organizing framework, although both can find ways of disrupting or transforming it. (p. 10)

When applied to the context of postseparation parenting, Cooper’s ideas point to the need to recognize the way fathers are socially advantaged with respect to the use of tactics of domestic power by, for example, gendered discourses of parenting that overvalue men’s contributions of care and domestic labor while undervaluing women’s; the ideological construction within family law of fathers as pivotal to a child’s well-being and mothers as frequently obstructive and hostile; as well as men’s generally superior financial resources.

Continuities in the Experiences of Postseparation Mothering

Our claim that there are continuities in women’s experiences of postseparation mothering despite differences in their relationship histories of violence is based on accounts provided to us in a small in-depth study with separated mothers in dispute over care and contact arrangements for their children.⁹ Between late 2006 and early 2008 we carried out in-depth, 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 care and contact arrangements, particularly, although not exclusively, in relation to legal or quasilegal processes.¹⁰ Most of the interviews lasted two hours, with some lasting three or more hours. All of the interviews were recorded and transcribed in full. To protect the identities of our participants we have used pseudonyms and changed other potentially identifying features in their stories.¹¹

The majority of participants joined the study following the publication of a story on our project in suburban newspapers; several others were recruited through snowballing. The women ranged in age from their late-20s to mid-50s. Two were Māori¹² (Hine and Marama), 14 were Pākehā¹³ (Briar, Bronwyn, Claire, Debra, Elaine, Gina, Isabella, Jade, Kate, Louise, Natalie, Petra, Suzie, and Trish), and five were migrants from other western countries (Abby, Moira, Ruth, Sarah, and Vicki). Just about half of the group were either in receipt of the Domestic Purposes Benefit¹⁴ 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 1 to 12 years, and their children ranged in age from 15 months to 14 years.

Although not actively seeking women who had been exposed to male partner violence, this was the experience of just under half of the women in the study (Claire, Debra, Elaine, Gina, Hine, Isabella, Jade, Moira, and Suzie). In determining whether or not women had violent relationship histories, we have privileged women’s own descriptions of their relationships. In general, women’s descriptions of their relationships were based on the presence or absence of bodily assaults. Thus, women who had experienced physical or sexual assaults described their relationships as violent, while those who had not experienced physical assaults by and large did not define their relationships as violent. There were two exceptions to this: Two women (Claire and Elaine) described their relationships as violent because their former partners were psychologically violent and each had been threatened with a gun on at least one occasion, although neither ever experienced a physical or sexual assault. Of those who described their relationships as violent, only three had obtained protection orders¹⁵ (Elaine, Hine, and Suzie); another (Isabella) had received an undertaking¹⁶ from her former partner. The other six women survived the violence without recourse to the police, the justice system, or their doctors. Some of the women with nonviolent relationships nevertheless described former partners who were controlling figures that limited their access to money and/or friends (Louise, Ruth, Sarah, and Trish). Still other participants (Briar, Kate, Marama, and Natalie) referred to the bad tempers of their former partners. However, in only three cases (Moira, Claire, and Hine) did the Family Court system treat the violence and/or control experienced by the women in our study as a significant safety issue that needed to be factored into care and contact arrangements. In Moira’s case, the Court’s recognition was largely the result of the father’s admission of violence. In the cases of Claire and Hine, the Court’s recognition was largely a consequence of the women having obtained Protection Orders. Court recognition of a history of violence was seldom forthcoming in cases where women sought, in the absence of a Protection Order and/or an admission by the fathers concerned, an alteration to the care arrangements for their children on the basis of men’s violence. Indeed, several other women (Debra, Elaine, Isabella, and Jade) struggled against the minimization of their experiences of violence by various Family Court personnel. For example, Debra spoke about a Family Court mediator who rejected the idea that the father of her child had been violent and instead labeled him as rude, even though he had physically assaulted Debra during their relationship and continued to verbally harass her on a regular basis after their separation. Similarly, the problems Isabella encountered with her former husband were seen by a number of professionals within the family law system as symptomatic of relationship dysfunction, rather than as symptomatic of his willingness to resort to violence.¹⁷

Problematic as these failures of recognition are, we contend that they are connected to a wider failure within the family law system to recognize the way power is able to be exercised by fathers more generally (see also Boyd, 2003). As we have already suggested, the distinction between violent and nonviolent relationships is an oversimplification that renders invisible nonviolent means of exercising power to establish relationships of domestic inequality. To deconstruct the dichotomous construction of postseparation parents, we use Ashcraft’s (2000) lexicon to reveal patterns of continuity in mothers’ experiences of tactics of power. We concentrate our discussion on examples of domestic domination because of its prevalence within the accounts provided by our participants, irrespective of their relationship histories.

Dominating power

All of the women’s accounts were peppered with descriptions of their partner’s use of tactics of dominance. In other words, the women were not describing one-off deployments of dominating tactics that they thought were uncharacteristic of their former partners. Rather, they described numerous examples that arose from and reproduced a relation of inequality. These ranged from pressure to terminate pregnancies, to fathers acting as if it was reasonable to see children whenever it suited them irrespective of the mother’s plans and commitments, and insisting that mothers pick up and drop off children at times and points that were convenient for fathers but not mothers.

As might be expected, the tactics of domination used against women with violent ex-partners tended to be far more overtly coercive, and in some instances brutal. For most of these women (Debra, Claire, Elaine, Gina, Hine, Jade, Moira, and Suzie), experiences of violent domination served as the impetus for them to leave their relationships. Yet, as is common with relationships marked by male violence, separation did not bring an end to the exercise of coercive power by their former partners. For example, one woman (Debra) recounted how her partner, in the aftermath of their separation, repeatedly threatened to burn her house down and routinely destroyed photographs of her while he was in her house spending time with their son. Another woman (Isabella) described her former husband repeatedly breaking into her house and leaving threatening notes, while several other women (Claire, Gina, Hine, and Jade) spoke about being stalked by their partners following their separation. For some of the women with violent former partners, times of dropping off and picking up children were particularly vexing as their former partners often used these occasions to be verbally and, in some instances, physically aggressive:

Debra:

. . . I said “goodbye” to [Child] and left. And [Child] hated it, he hated, he hated being left. And [Father] let him run down the driveway crying “goodbye,” “goodbye” and “don’t go mummy.” And then I stopped the car, because it was really an alarming and stressful situation, got out of the car and gave [Child] a hug. And [Father] came up and went, “You didn’t even say goodbye to him,” which I had, of course, said goodbye. And then I remember [Father] taking him from me with him sobbing and being really distraught and saying, “Come on.” I can’t remember what he said, something like “Oh let’s go and leave her to it” or something. I can’t even remember, a horrible thing. And [Father] being really kind of ineffective in taking [Child] through this really traumatic separation. . . . [Since then] almost every change over has had something, some dig, something rude, some nasty comment, something inappropriate, like discussing things that are going on that he shouldn’t be in front of [Child] or haranguing me or yeah, not pleasant. And I asked [in mediation] for no contact in changeovers. I asked for [Child] to be picked up and dropped off at school. But it is unable to be accommodated.

(Violent history, Pākehā, 40s, 1 child 5-10yrs, 60:40 care)

One of the interesting features about this particular anecdote is that it demonstrates the co-occurrence of two tactics of power: Debra’s former partner is not only verbally aggressive toward her (domination), which exacerbates the level of his child’s distress, but he also fails to take care of his child’s emotional needs (neglect). What is also clear from Debra’s account is that these are highly unpleasant exchanges, both for her and the child, which she would like to avoid. Yet, as she hints here, her attempts to alter the arrangement for pick-ups and drop-offs have been thwarted by the therapeutic and legal professionals she has encountered during Family Court counseling and mediation sessions. Importantly, the capacity of Debra’s former partner to exercise dominating power was enabled by several features of the surrounding social context. Most notably the professionals who, in refusing to validate and support her request, facilitated his ongoing verbal attacks; and, in addition, the existence of a misogynistic discursive environment that makes terms of female denigration available and, to some extent, acceptable.

Intimidating encounters with the fathers of their children during times of changeover and other such occasions were not unique to women with violent ex-partners, however. Some of the women with nonviolent ex-partners (Kate, Louise, Natalie, Ruth, Trish, and Vicki) also spoke about the fear they experienced in relation to such interactions, as the following quote makes clear:

Ruth:

I try and minimize my contact with him as much as I can (mm) because it’s very unpleasant, it’s most often than not intimidating . . . [8 lines later] . . . Because it’s still unfortunately a little bit of contact time where we have to drop-off and pick-up so if he picks them up on Saturday more often than not I make sure that a friend is here and if I have to pick them up from him on Friday a friend of mine, a neighbor goes and picks them up for me.

Interviewer:

And this is because?

Ruth:

I just am too scared that he will lash out at me, that he will seek an opportunity, but I think he knows that if he does it will be very much against him.

Interviewer:

Mm, but he has done that in the past?

Ruth:

Oh yes and . . .

Interviewer:

And over the phone?

Ruth:

Oh and over the phone and, for instance, when he said that he needed the clothes I said, “Well, I’ll get them ready and I’ll drop them and I’ll be at the friend’s place. You can pick them up from there.” And I chose to go there because it’s a neutral place. And so then I ring from my friend’s place and say, “You can come and pick them up now.” And he says, “No, you drop them off at my place. I’m not going out of my house anymore today.” So I said, “Okay, I’ll drop them off.” And I’m thinking, “I’ll go and put them on the porch and I’ll run away so that the girls don’t see me as well.” And it just so happened that friends of his that live across the road, they just happened to stop by me to say hello. And I said, “Are you driving to [Father’s] place?” And they said, “No, but if you like we can.” And I said, “Well actually if you don’t mind, would you drop off a bag of clothes at his place?” So five minutes later after they’ve done it I receive a text to say, “Your cowardice has no boundaries,” something like that. And it’s not me being a coward; I think I’m the most guts-full person there is. I’m trying to avoid conflict and trying to avoid uncomfortable feelings, okay.

(Nonviolent history, migrant, 30s, two children 5-10yrs, 50:50 care)

What Ruth also points to in the latter part of this quote is the part played by communication technologies in extending the possibilities for exercising coercive power (see Hand, Chung, & Peters, 2009). Indeed, women with violent and nonviolent ex-partners spoke about the use of emails, telephone calls, and text messaging by former partners to abuse and harass them. For instance,

Kate:

. . . that was probably one of the lowest points, living by myself with a small child and having the pair of them [former husband and his girlfriend] getting on the phone and just you know abusive and, and you couldn’t, you couldn’t do anything, you know. . . [3 lines later] . . . And I’ve spoken to lots of other women in the same situation, you couldn’t go to the Police, you know. You couldn’t actually get protection from this situation. I couldn’t protect myself and I couldn’t protect my child. You know, from what was abuse, emotional, verbal, and it was a really, really awful time.

(Nonviolent history, Pākehā, early 40s, child 8-10yrs, 70:30 care)

Kate’s reflections raise several issues worthy of comment. First, her reference to abusive telephone calls might suggest the need to reconsider the classification of her former partner as “nonviolent.” Certainly, this is an approach that some of our readers might want to take. However, to reclassify her relationship history as one characterized by violence would involve an imposition of meaning, since Kate explicitly disavowed this interpretation, referring instead to her former partner as someone who had a “violent temper,” a person who had “some major psychological issues,” and someone with whom she had had some “very uncomfortable arguments.” Rather than reclassifying Kate’s relationship history, then, we join with Ashcraft (2000) in preferring to view her relationship as one that is characterized by normative dynamics of gendered power, dynamics that attest to the continuities that exist between violent and nonviolent relationships. Furthermore, as Kate’s comments indicate, her former partner’s exercise of gendered power caused her a great deal of distress and left her feeling vulnerable. In other words, the harm inflicted by his oppressive behavior deserves to be taken seriously. This brings us to our second point: The maintenance of the relationship of inequality between Kate and her former partner is attributable, at least in part, to the failure of significant social actors to provide a mechanism of redress. Thus, Kate is simultaneously required to have an ongoing relationship with her former partner and yet kept vulnerable to his abusive telephone calls through the failure of both the criminal justice and family law systems to delegitimize his actions.

Although all of the examples of coercive power discussed thus far adversely affected the lives of mothers in our study, they pale in comparison to the anxiety and dismay produced when violent and nonviolent fathers used tactics of coercive power in relation to the arrangements that were most crucial for their children, namely, care and contact arrangements, as well as child support payments. Many of the women in our study detailed a variety of ways in which their former partners mobilized tactics of domination to challenge and, in some cases, force a change in care and contact arrangements. Before discussing some of the tactics of power deployed by fathers in this arena, it is important to note that the mothers in our study generally voiced support for their children’s relationship with their fathers, even violent fathers. However, mothers’ support for this relationship sat alongside concerns about the implications of various care and contact arrangements for their children’s well-being. Put succinctly, the mothers in this study typically possessed a holistic picture of their child’s well-being that incorporated a relationship with their father, but did not privilege that relationship over other significant needs in their child’s lives (Elizabeth et al., 2010).

Irrespective of their relationship histories, the majority of mothers indicated that threats to reduce the amount of time they spent caring for their children was a key tactic of coercive power used by their former partners. For instance, in the quote below Marama describes her former partner’s threat to leave her with even less time with their son should she legally contest their current care and contact arrangements:

Interviewer:

Did you ever consider like involving a lawyer or going through a formal process?

Marama:

No, because [Father] whenever we started screaming he would say the custody thing.

Interviewer:

He would say what?

Marama:

That he’d, “go on take me to court then.” And to me lawyers cost money.

Interviewer:

He’d basically say, “I’ll get 50/50 anyway so” . . .

Marama:

Yeah.

Interviewer:

“Take me to court” (yeah) and “you’ll end up with” . . .

Marama:

“Take me to court” and then he even said once, “You know, my father, my parents will, you’re going to lose, I’ll always win, Pākehās always win,” that’s what he said.

(Nonviolent history, Māori, 30s, child < 5, 60:40 care)

For Marama (and most of our other participants) gender differences in economic power put her at a disadvantage when it came to access to legal representation. However, in Marama’s case differences in financial resources are not the only differences that produce and sustain inequality. According to Marama, her former partner mobilized racial power to remind her that she is doubly disadvantaged. Within the ethno-racial structure of New Zealand, Marama, as a Māori woman, is marked out as the “other” and is therefore particularly vulnerable to pejorative judgments within institutions, like the Family Court, that are dominated by Pākehā New Zealanders. As Marama indicates, the power her former partner derived from gender and ethno-racial structures was sufficient to subdue her will to challenge their care and contact arrangements.

Fear of the outcome of legal battles was not restricted to women who were marked out as racially different. In the following quote, Louise (a Pākehā woman in her late 30s) also speaks about the fear generated by a judicial system that fails to address bullying behaviors and increasingly accedes to fathers’ demands:

Louise:

I really felt bullied, psychologically bullied by . . . And the crazy thing about it is if you were being bullied in the school your remedy is presumably to go to authority, you go to a teacher or principal. Well, when it happens in the Family Court you’re being told that a judge, [the person] in authority, are people you should be afraid of. You’re going to be avoiding that at all costs, that’s the message that comes through (mm) and where does that leave you as a bullied victim (yeah). . . . Apparently, the unpredictable nature of what the judge will do is meant to frighten you and count against you and then as a non-working woman in the marriage the sheer cost of it is against you.

(Nonviolent history, Pākehā, 30s, child>10, 50:50 care)

Many mothers in our study, faced with threats of loss of time with their children, found to their dismay that fathers’ threats were not idle. Mobilizing their greater economic (and sometimes social) resources, many mothers spoke about fathers who aggressively pursued changes to care and contact arrangements through the Family Court system. As a consequence, many mothers (for instance, Briar, Bronwyn, Debra, Gina, Hine, Isabella, Jade, Kate, Louise, Suzie, Trish, and Vicki), were either about to participate, actually participating, or recovering from their participation in various aspects of the Family Court system, be it counseling, mediation, or a court hearing. In the quote below, Hine (a woman with a violent relationship history) describes the constancy with which the father of her son activated court processes and the difficulty she faced, because there were no court-imposed restrictions on him, in meeting her legal expenses and retaining her capacity to keep fighting to protect their young son:

Hine:

. . . they said I was lucky to get continued supervised visits (right). So for three months [Father] had to have supervised visits. He was going for all of it, he was going for unsupervised, shared parenting, and he had money burning like anyone’s business. And my lawyer just couldn’t keep up (mm) . . . like I don’t have enough in my kitty [budget] to contend with any of that. . . . And I got called into another mediation meeting . . . So yeah he wasn’t happy about that Protection Order, it was like “no, no, no.”

Interviewer:

So what was the mediation for?

Hine:

He always goes for unsupervised (right) . . . Yeah, so I said to my lawyer, “Can he do this?” And he said, “Yeah, anytime he wants. If he wants to vary the order, he has every right to (mm).” “Okay,” I said, “Can’t we say every six months or every year?” It’s like three times a year and it’s just like I end up having to give in and just when I’m kind of getting used to our routine it changes it again (mm). So his thing is I think from him, yeah, wear me down (mm), they’re all trying to wear me down.

(Violent history, 30s, Māori, child < 5, supervised access)

While experiences of harassment by fathers through court processes were more common among mothers with violent relationship histories (see Beeble et al., 2007; Boyd, 2003; Morris, 2005; Varcoe & Irwin, 2004), it was not unique to them by any means, as the excerpt from Kate makes clear:

Kate:

And the thought of “Oh my God, there’s still another eight years ahead of us” . . . You know, it’s just going to be regurgitated every couple of years. And it’s almost like even when it’s 50/50 it’s not going to go away. You know, like . . .

Interviewer:

Do you think that’s what he’s aiming for?

Kate:

Yeah, he’s aiming for the 50/50. But I don’t think that that will be the end of it.

Interviewer:

So what would be the end?

Kate:

I don’t know. It’s just the way it’s gone. I don’t, you know because we go to the court case, and now we’ll be going to the Administrative Review, you know, it’ll be another court case and then something else will happen. And, yeah, the only thing I can see ending it all is 18.

Participation within Family Court processes often made mothers available as targets for their former partners’ tactics of dominance and distortion. According to many of the women in our study, fathers simply used these forums to distort past events and interactions, while intimidating not only mothers, but sometimes various court-related personnel as well. Again, men’s use of the Family Court system to enable and support tactics of distortion and domination was not restricted to those with violent relationship histories. The following example is derived from a mother who did not end up in a relationship with the father of her child and thus had neither a violent nor nonviolent relationship history. Initially, Terry (the father) reacted to news of Bronwyn’s pregnancy by threatening to ruin her sexual reputation and her capacity to find employment if Bronwyn let it be known that he was the father. Terry only developed a connection to their daughter at the repeated behest of Bronwyn when their daughter was a toddler. Several years before the court interaction described below, Bronwyn relates that her daughter had returned from her father’s home frightened by his excessive and violent punishment of her older brother and herself. Weighing up how to deal with the situation, Bronwyn decided against confronting her daughter’s father for fear that it would cause a backlash against her daughter and also decided against going to the Police because that seemed “pretty extreme.” Instead, Bronwyn opted to record the episode in her diary. As you will see, this incident served as the fulcrum around which the father used the process of cross-examination in the Family Court to try to reconstruct the meaning of this particular episode:

Bronwyn:

Yeah he [Father] cross-examined me for like nearly four hours (Interviewer: During the court?) during the court hearing and I don’t think that should have been allowed because that’s really intimidating.

Interviewer:

About what sorts of things?

Bronwyn:

Oh, he talked about everything, harassed me endlessly about “why didn’t I call the Police if [Daughter] had been beaten by a pole,” and “I’m a bad mother because I allow her to be in a situation like that,” and “obviously it wasn’t true because I didn’t call the Police.” And he went through all this endless questioning about all sorts of things like that trying to make me look as though I made it all up.

Interviewer:

And the judge allowed him to do all of that?

Bronwyn:

Yeah, pulled him up when I, because he asked me quite a few times, he repeated his questions and even though I’d answered the question he’d ask it again and again and the judge stopped him from doing that, but um yeah it was pretty harrowing.

(Pākehā, early 30s, child >10, 70:30 care)

This example serves to aptly illustrate the way tactics of distortion and domination can be deployed in concert with each other to undermine mothers by simultaneously eroding the veracity of their word and their stamina to continue fighting for what they think is in their child’s best interests. According to the account provided by Bronwyn, the father’s reconstruction of this episode works at the level of obviousness: if the behavior in question was serious, then surely Bronwyn would have said something at the time, and if she did not say something at the time, then it cannot have been serious. In this reconstruction Bronwyn is damned either way: if it is true, then she is a “bad” mother because she failed to protect her daughter from further harm, and if it is not true, then she is a “bad” mother because she is “hostile” to Terry’s relationship with their daughter.

Bronwyn’s anecdote also points to the way that Terry’s use of tactics of domination and distortion was institutionally and culturally enabled. Of particular importance in this regard are court procedures that entitle the father to cross-examine Bronwyn, but do not place limitations on the duration, content, or manner of that cross-examination. Added to this is the judge’s role; by not using the authority invested in him/her to constrain the father’s behavior, the judge effectively granted the father permission to interrogate Bronwyn. Culturally, the cross-examination described by Bronwyn was made possible by gendered discourses on parenting that not only hold mothers accountable for a broader range of parenting duties (including the protection of children from harm and the facilitation of child–father relationships), but that also condemn mothers more readily than fathers for perceived parenting failures, failures that have been extended recently to include a mother’s “failure” to actively support a father’s relationship with his children (Boyd, 2003, 2004, 2006; Erikkson & Hester, 2001; Harrison, 2008; Neale & Smart, 1997; Rhoades, 2002; Smart, 1997; Smart & Neale, 1999a; Wallbank, 1998, 2001, 2007). As the work of Boyd (2003) and Smart (1995, 1996) show, these gendered discourses have occupied a powerful place within legal history, producing and regulating maternal subjects.

Conclusion

By focusing on the continuities in the experiences of domestic dominance across the lives of separated mothers who had experienced violence in their relationship and those who had not, we have sought to deconstruct the opposition between pathological and egalitarian parental relationships that underpins contemporary family law across the Anglo-West. Although there are clear differences in the experiences of women who participated in this study in terms of their exposure to specific tactics of domestic power, and in terms of the degree to which their relationships were unequal, we have argued that it is a mistake to ignore the gender power dynamics at play in the lives of all separated mothers despite their disparate circumstances. Irrespective of their relationship histories, the women in our study spoke at some length about the difficulties that arose for them and their children as a consequence of their former partner’s use of interactional forms of power. Indeed, as Boyd (2003) states, it is the ongoing presence of gender power dynamics within the relationships of separated parents that causes the “the bulk of custody and access problems for women” (p. 194).

As our work here has shown, the exercise of interactional power by fathers—whether this is domination, distortion, dodging or neglect—is both enabled and supported by our legal, social, and cultural institutions. One of the consequences of this is that women’s experiences of interactional power are rendered invisible and unspeakable. We have therefore been at pains throughout this article to point out that men’s use of interactional forms of power are an outcome of older, well-established gender inequities—such as economic power—in combination with newer gender inequities—for example, the development within contemporary family law of a philosophy of father “contact at [almost] any cost” (Harrison, 2008, p. 398; see also Boyd, 2003; Eriksson & Hester, 2001; Kaganas & Day Sclater, 2004; Rhoades, 2002; Smart, 1997; Smart & Neale, 1999b; Wallbank, 1998, 2001, 2007).

To create equitable and fair treatment for separated parents clearly requires major reform within the family law system and beyond. Of necessity this will require family law professionals to take seriously those forms of gendered power and inequality mapped out herein. A significant way counselors, mediators, lawyers, and judges might fulfill this agenda is through the integration into their everyday practices of the insight that gender power dynamics continue to be built into normal as well as violent heterosexual relationships. In taking this insight on board, family law professionals will want to engage in a full and thorough investigation of the gender power dynamics that are operative between separated parents. As the analysis in this article demonstrates, such an investigation must go beyond a simple question about violence, not only because of the likelihood that women and men will, for vastly different reasons, refrain from openly speaking about violence, but also because physical force is just one of a number of tactics that can be deployed to establish and maintain unequal gender power relations. Our analysis provides family law professionals with a template for exploring past and present uses of a variety of tactics of power, and making sense of the use of these tactics in terms of how they contribute to an overall dynamic of power that subordinates mothers and diminishes their capacity to care for their children.

Undoubtedly, such thorough investigations by family law professionals would pave the way for several other important changes to occur. First, it is highly likely that the problematic behaviors we have discussed—the aggressive bullying behaviors associated with domestic domination, the abandoning behaviors associated with neglect and dodging, and the misogynistic, mother-blaming behaviors associated with domestic distortion—would become increasingly delegitimized. In practical terms, delegitimization would require the creation of mechanisms of redress for abusive forms of communication (including those that transpire through electronic means) and the limitation of vexatious proceedings, among other things. Second, it is probable that family law professionals would become increasingly aware of the way their interventions with separated parents can operate, either explicitly or implicitly, to lend support to fathers’ attempts to exercise power over mothers, and to undermine mothers’ attempts to protect and enhance their children’s well-being. Changes of this nature, underpinned as they are by the recognition that gender power dynamics continue to shape heterosexual relationships, lie at the heart of a fairer family law system, a system that recognizes that justice for gendered actors cannot be achieved through wishful thinking alone.

Footnotes

Authors’ Note

First and foremost, the authors are grateful to the women who chose to share often painful stories about personal aspects of their lives with them. Without their willingness to share their stories, their work as researchers would not have been possible. They are also grateful for the research assistance provided by Pamela Nelson in the preparation of this article. In addition, the authors wish to thank the anonymous Violence Against Women referees for their helpful comments on earlier versions of this article.

Declaration of Conflicting Interests

The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The authors disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This research was funded by a grant from the University of Auckland Research Committee.

Notes

Bios

Vivienne Elizabeth is a senior lecturer in the Sociology Department at the University of Auckland. Her academic background is interdisciplinary. She has worked at the intersections of sociology, women’s studies, and cultural studies. Her research largely focuses on gender, identity, and power relations in familial settings. Vivienne has previously published on heterosexual couples, violence against women, and, more recently, on custody disputes.

Nicola Gavey is an associate professor of psychology at the University of Auckland. Her research is broadly concerned with the intersections of gender, power, and sexuality, with particular interest in rape and sexual coercion. Her 2005 book, Just Sex? The Cultural Scaffolding of Rape, won the 2006 Distinguished Publication Award from the Association of Women in Psychology.

Julia Tolmie is an associate professor and has lectured in the Faculty of Law at Sydney University for 10 years prior to taking a position with the Law Faculty at the University of Auckland in 1999. She has published widely on issues in criminal law and family law; presented conference papers in Holland, Canada, South Africa, the USA, Australia, and England; and has spent brief periods of time as a visiting scholar at the University of Ottawa, Golden Gate University, and University of California, Berkley.

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