LAW, STATE AND THE FAMILY: THE POLITICS OF CHILD CUSTODY JULIA ANNE BROPHY ...

407 Pages·2008·17.47 MB·English

PART IV

CHAPTER 9 LAW, STATE AND THE FAMILY: THE POLITICS OF CHILD

CUSTODY it1 THE 1980s 230

The law in relation to custody of children 232

The State, the child and divorce 235

Joint custody - California style 241

Patriarchal relations and child custody 251

Feminist policies 254

Notes 259
APPENDICES

I Doing Research 260

II Interview Schedule 294

lIE Mothers and Children 310

LIST OF CASES 313

BIBLIOGRAPHY 317
OVERVIEW
This thesis is the result of research into the issue
of child custody in Britain. It looks at campaigns to
achieve legislation, legislation itself, court practices
and legal procedure and finall womens' experiences of law
and legal procedure in Britain in the 1980s.
The first part of the thesis is conceited with the
absolute powers of fathers in the nineteenth century
patriarchal family, and legal intervention. My concern was to
to examine traditional explanations of the development of
law in relation to the guardianship and custody of children.
I argue that developments in this area of law cannot adequately
be described simply in terms of the demise of 'father right'
and the emergence of 'mother right'. Rather, I document the
emergence of a third party - the State - in the management of
the patriarchal family. I demonstrate how legal intervention
was always tempered by a desire to preserve the family. Thus
a concern for the custody and maintenance of children was
mediated through a desire that 'any new law and legal practices
should not appear to undermine the institution of the family1
by making separation and divorce a viable alternative for
mothers, except in the most extreme of circumstances.
I discuss the emergence of the infant as a legal
subject and the shift in the ideology of the family which that
focus brought about, particularly in relation to the recon-
struction of the role of mothers. However, in examining the
focus upon children,(and subsequently on mothers) over the turn
of the century, I argue that, whilst 'motherhood' was indeed
elevated in certain social practices, this did not necessarily
lead to a simple re-evaluation of power within the patriarchal
family (Donzelot 1980). Whilst nineteenth century campaigns
demonstrated gross failures in the system of privilege and
rights which the law attached to men, state intervention to
pro t e c t/
women and children focused upon sustaining the family
rather than undermining it. Thus the new rights which
mothers did acquire under the Guardianship Acts in relation
to children, were only operable on the breakdown of marriage.
It was at the point of breakdown that welfarist discourses
provided the dual mechanism through which childhood and hence
motherhood become constituted in family law.
In the second part of this thesis I focus on law and
legal procedure in the post war years in relation to
different categories of children - the orphan, the deserted
and the illegitimate child. Here I examine the influence
of ideologies of both welfare and motherhood particularly
in relation to new procedures to deal with children and
divorce. I analyse the tensions between two approaches to
the role of the state in dealing with this issue. One
approach, located in the Denning Report (1947) argued for
increased power for the courts to investigate and report
on the circumstances of all children whose parents divorce.
The other approach, located in the Report of the Royal
Commission (1956), argued that the aim of the state in the
post war reconstruction must be to support and encourage
the reformation of the pre war family form. The role of
family law therefore must be in stemming the tide of
divorce and adopting legal procedures which would induce,
not replace, parental responsibility.
In addition during this period I argue that the courts'
assessment of women's claims to children was mediated
through a consideration of their behaviour as wives. In
contrast to contemporary explanations of court practices
in this area in the post war years (for example, Maidment
1984a; Graveson & Crane 1957) I argue that the courts
continued to sanction the sexual misbehaviour of women
through the loss of custody of children. Thus children
continued to be awarded on the basis of guilt established
in divorce proceedings.
Through an examination of court practices and research on
child custody in the 1960s and 1970s, I take issue with
dominant explanations of developments in this field.
Those explanations have focused on 'maternal preference'
and notions of the privileged position of wives and mothers
within family law. In this section I document the tensions
in courts' approaches to who gets custody of children on
divorce and the factcr which influence fathers' chances
of being awarded custody of children. I am concerned to
demonstrate that new trends in legal practice and procedure
are not necessarily the result of a response to radical
transformation of responsibility for childcare within the
family. Indeed I argue that the debatwhich emerged in
the 1970s on this area of law, (through the fathers' rights
movement, new developments in child psychology, and criticisms
of the adversarial procedure) do not focus upon responsibility
for children within marriage. Moreover, in the 1970s as in
the 1950s, the 'law' played a very small part in deciding
the custody of the majority of children of divorcing parents.
In Part III, I move between the political and the
'personal'. Parts I and II have been concerned to demon-
strate the focus and priorities of law and legal practice
as mechanisms in the reproduction of motherhood. Part III
documents a further example of those processes but in addition,
it moves down into the 'personal' to examine women's experiences
of those practices and procedures. In this Part therefore
I examine the operation of the 'law in relation to the
issue of lesbian custody. I look at the significance
of children's residential status quo at the time of divorce
or separation and I examine the influence of notions of
'good' mothering and conceptions of female sexuality on
court practices.
My argument is that it is only within a framework
which locates the role of law in the reproduction of
power relations between parents that we can begin to
understand the legal treatment of lesbian mothers. Such
treatment is most accurately placed within an analysis of
the legal construction of motherhood. The legal experiences
of lesbian mothers documented in the third part of this
research reflect in an intensified and revealing form many
assumptions regarding the role of women as mothers in
society and demonstrate one institution (law) through
which those assumptions are reproduced and sustained.
Finally, I discuss developments in the area of child
custody and divorce in the 1980s in Britain, and the
implications for mothers. There are many modes of regulation
and control over the conditions of reproduction in society,
and I am concerned to demonstrate that although there has
indeed been a shift away from formal 'law' in this area
(and towards welfarist principles), this movement is not
negessesarily indicative of control 'moving back to the
people' and least of all women. Indeed, I demonstrate
that the trend towards various forms of conciliation in
this field of family law can be highly problematic for
mothers. I therefore conclude with a discussion on the
politics which inform the contemporary debate on 'joint
custody' in Britain, through an examination of such orders
in one State in America. I argue that it is a crass
assumption to assume that because parents in Britain are
now formally (ie legally) equal guardians of their children
within marriage, that such a formal situation equates with
'co-parenting' in Britain generally. Indeed existing
research demonstrates that the notion of 'co-parenting'
does not describe dominant patterns of childcare in Britain.
Therefore, a presumption within legal practices and procedures
on divorce to enforce/encourage 'co-parenting' may in reality
be a presumption to continue a situation in which there are
unequal inputs into childcare, and unequal distributions
of power with regard to major decisions concerning children.
In such circumstances therefore, I have attempted to demonstrate
how certain contemporary legal practices and procedures can
continue, albeit in more subtle but nevertheless effective
ways, to sustain and reproduce both aspects of men's power
over women and the control of reproduction in its broadest
sense. It is because this process is mediated through a
welfarist discourse, that the intervention of feminists in
this field of social policy is both difficult and frequently
misunderstood.
Julia A Brophy
FEMINISM, SOCIOLOGY AND TIlE STUDY OF LA'
"if we conceive of feminism as more than a frivolous
label, if we conceive ci it as an ethics, a
methodology, a more complex way of thinking about, thus
more responsibly acting upon, the conditions of human
life, we neea' a self-knowledge which can only develop
through a steady, passionate attention to all female
experience. I cannot imagine a feminist evolution
leading to radical change in the private/political
realm of gender that is not rooted in the conviction
that all women's lives are important; that the lives of
men cannot be understood by burying the lives of women;
and that to make visible the full meaning of womens
experience, to reinterpret knowledge in terms of that
experience, is now the most important task of
thinking.'
[Adrienne Rich (1979) Lies, Secrets and
811 eric e]
The growth of feminist research as a field of
study in the last decade has influenced the disciplines
of sociology and, to a lesser extent, law. This
development raises rew questions for both disciplines
and challenges conventional approaches in both fields.
New questions are raised for research, •but in addition5
feminist analyses has required a re-examination and
interpretation of both social and legal 'facts' whether
historical or contemporary (O'Donnovan 1985; Oakley
1981; Smith 1973) This thesis is part of that
development and part of that challenge to conventional
thinking within the interdisciplinary study D+ the
sociology of law.
This approach however poses several problems
- ii -
because, despite respectable contributions to the
development of an interdiciplinary approach (eg: Hunt
(1976) The Sociological Movement in Law), the sociology
of law is hardly a well established area, indeed it
remains a relative newcomer to the academic curriculum.
Even so, this thesis is part of a critique of basic
conceptual isat ions of gender (or rather, the lack of
that consideration), within the sociology of law,
although it is in other ways, founded upon a critique
of legal positivism, which is a major part of the
sociology of law. Therefore, this thesis runs the
risk of criticism, but more importantly
misunderstanding from a range of orthodox positions.
The legal positivist school may perceive it to be
insufficiently 'legal'; equally, positivist or
orthodox empiricists within sociology may find it
insufficiently sociological. It is therefore necessary
in this introduction to clearly outline my theoretical
position and my methodological approach. In this way
it is hoped that the following chapters will be judged
on their own terms and for the contributions they make
to a critique of the tenets of orthodox schools o-f
thought in both these fields of study.
Qrftn. r.iQa
This research, like that of other feminists (eg
Earratt 1980) starts from the premise that women's
- iii -
oppression in society is a reality, arid that such
oppression is complex and takes many forms, both
institutional arid individual. I am concerned with the
institution of 1 aw and two features, reproduction and
sexuality, which coritr i bute towards structuring women,' s
position in society. In attempting to understand and
analyse the position of women in society, writers have
focused on four key structures in womens lives:
production, reproduction, sexuality arid the
socialisation of children (Mitchell 1971:101) These
separate structures form a very complex unity, arid
throughout history womens position in society has been
a result of different combinations in the four
elements. However, as Nava points out (1983:93) there
is rio necessary or automatic correspondence between
these structures, each has an autonomy, each can effect
women d iffererit ly.
Ih! EmiI
Marriage and the family have long been
identified as the only legitimate sight for
reproduction, the expression of -female sexuality arid
the rearing of children. However, 'the farni ly' is a
problematic term for feminists, it is imbred with many
emotional and psychological characteristics and is a
slippery phenomenon to examine. Nevertheless, as
Barrett and McIntosh (1982:7) identify, it can be
-iv--
understood as a social and economic institution, which
is organised on the basis of a specific sexual division
of labour. In this sexual division of labour it is
assumed there is a primary breadwinner who is male and
whose main area of activity and self expression is in
the world of work, and a primary childbearer and
domestic worker who is female and whose main area of
activity and self expression lies within the family.
Although in part these are assumptions, research has
demonstrated that they are also a feature o-f the way in
which the family is organised in contemporary society,
whereby women (regardless of employment outside the
home) are primarily respDnsible for childcare arid
domestic work in the home (Oakely 1974; Edgel 1980;
Lewis O'Brien 1987).
Moreover, that sexual division of labour in the
home has far reaching consequences particularly for
women. To a large extent it also dictates the
different kinds of work which men and women do in the
labour market (see below - Motherhood). Arid job
segregation between male and female workers in the
labour market leads to considerable differentials in
terms of wage levels, training and promotional
prospects and job security. For example, with regard
to different wage levels between men and women, despite
the equal pay and sex discrimination legislation of the
-v--
1970s, there is evidence that the wage gap is in fact
widening. Women's earning as a per-ceritage of riier's
have fallen from the 1977 figure of 75.5% to 73.8%
(Equal Opportunities Commission 1979) In addition,
those assumptions regarding the different sites 0-f
primary commitment as between men and women which
inform and underlie sexual divisions in the home and in
the labour market, also underscore arid dir-ect
principles determining state benefits and taxation -
(Bennett 1983; Land 1978; Wilson 1977) Arid, as Bennett
argues (1983:190) contrary to popular views that the
welfare state has lead to a reduction in the
traditional family, such services have in -fact
strengthened that division precisely because public law
has, since its inception by Beveridge, in the 1940's,
been equally based on the myth of the male breadwinner
and the dependent wife and children.
The concept of the family is riot there-for-c a
neutral term, it entails relationships of dominance and
dependency between men arid women and indeed between
adults and children. Neither is 'the family' a
trarishistorical or- traniscultural institution. Yet it
is frequently presented in this way - as a powerful
symbolic feature of a nation's security and stability
which tranisgresses time, class and culture. For
individuals, it is often posed as the only haven in an