Thursday, April 14, 2011


Entry Citation:

Boyd, Susan B. “Child Custody and the Law.” Encyclopedia of Motherhood. 2010. SAGE Publications.

Despite the fact that women give birth to children and usually are expected to provide primary nurture and care, mothers have had an ambivalent relationship with child custody law. In some historical periods, custody laws have been inversely related to the biological and social ties between mothers and children. Child custody law regulates disputes about who has a) the legal authority to make decisions affecting a child’s interests (usually termed legal custody, or sometimes guardianship, in North America); and b) the responsibility of taking care of the child (physical custody). Access and visitation are terms used to describe the contact between a noncustodial parent and a child. Parents may share legal custody (joint custody) and/or physical custody (shared parenting). Most parents arrive at consensual custody arrangements regarding their children. The main purpose of custody laws is to guide the resolution of disputes by judges or other decision makers, as well as provide a framework for the negotiation of disputes. Custody disputes arise most often between parents who are separating or divorcing, but others, such as adoptive parents, grandparents, aunts or uncles, sperm donors, or surrogate mothers, may also claim custody or access.

Until well into the 20th century, fathers held the primary rights to custody or guardianship of children. In most Western countries, decisions on child custody are now made according to the principle of the “best interests of the child,” the primacy of which is affirmed in the 1989 United Nations Convention on the Rights of the Child. This laudable but indeterminate principle has been interpreted differently depending on time, place, and circumstances, as well as factors such as race, class, and sexuality. The modern sole custody/access paradigm under which mothers generally held custodial responsibility for children following divorce and separation has now given way to a normative model that favors joint custody and shared parenting. Concerns have been raised about the safety of women and children in shared care arrangements where there has been a history of abuse prior to separation and for the well-being of children who are exposed to persistent parental conflict. Others have commented on the continuing lack of fit between legal trends and the material realities of post-separation parenting. The lack of joint custody reforms with broader cultural and workplace changes has meant that fathers lack the opportunity to care for children in practice, and mothers are typically left with greater responsibility for childcare. A mismatch between legal norms and social patterns has arisen.

Early History

Nineteenth-century English laws on guardianship and custody influenced many English-speaking countries such as the United States and Canada. Fathers initially held almost exclusive rights to the custody and guardianship of children born within marriage, including infants at their mothers’ breasts. The first English statute to erode this paternal authority, Lord Talfourd’s Act of 1839, resulted from a well-known crusade by Caroline Norton to gain access to, and the ability to communicate with, her three sons (one still a baby), who were in the custody of their father. Norton had left her husband after he subjected her to physical violence. Lord Talfourd’s Act gave courts the ability to award a mother access to a child in the father’s custody, or even award physical custody, until the child reached the age of 7. At that point, custody could revert back to the father, unless he decided otherwise. The father retained guardianship of the child throughout, and maternal rights remained exceptional.

Proper Behavior of Mothers

During the course of the 19th century and into the 20th century, paternal rights were further eroded as the welfare of children was prioritized in law. However, a mother’s enhanced ability to claim custody was usually conditional on her adherence to proper behavior as a wife and mother.

For example, mothers who were adulterous, or even those who were viewed as having left the marital home and/or their duties as wives for no good reason, quickly lost their parenting rights to an overriding paternal power. Given the strict moral expectations of mothers and the societal and legal resistance to seriously consider abusive behavior by husbands, mothers were vulnerable to fathers who chose to pursue custody claims. Some mothers returned to marriages to avoid the risk of losing their children.

Maternal Presumption

The early- to mid-20th century saw the development of a “maternal presumption” in child custody law. This presumption took the form of the “tender years doctrine,” which indicated that mothers should be favored for custody of a child during the period of nurture, namely until a child reached 7 years of age. After that point, fathers became entitled to claim custody. The tender years doctrine was not premised so much on female caregiving as on essentialist ideas that special ties exist between children and mothers, and that women’s “natural” role lies in the domestic sphere. Scholars disagree about the extent to which the maternal presumption actually privileged mothers in situations where fathers seriously challenged them for custody. In several Canadian provinces, for instance, all other issues had to be equal between the parents in order for the presumption to apply. In many cases, they were not equal; for instance, if a mother was adulterous or had otherwise transgressed normative expectations. In some provinces, primary paternal rights prevailed well into the 1950s and 1960s.

The Modern Ideology of Equality

By the 1970s, child custody law shifted toward a no-fault orientation, a more gender-neutral treatment of mothers and fathers, and a clear emphasis on the best interests of children as the predominant factor under consideration. Less weight was placed on adultery and on distinctions between the roles that mothers and fathers were meant to play in relation to children. Opportunities arose for lesbian mothers to claim custody of their children without denying their sexuality, although they typically had to be discreet in order to succeed. The “fathers’ revolution” began, and movies such as the 1979 film Kramer v. Kramer, about fathers claiming custody of children, captured the public’s imagination. The women’s movement called for fathers to increase their childcare responsibilities, especially as mothers increasingly participated in the paid labor force; fathers who did so were applauded. Blaming of mothers who entered the paid labor force, used daycare services, or left marriages also influenced the trend away from any preference for maternal custody.

Shared parenting can be stressful on children as they transfer from one home to another, especially if there is parental conflict. Manipulative ex-spouses can use child custody disputes to exert control, which can cause mental and physical damage.

In order to ensure that fathers maintained contact with children, novel court orders such as joint legal custody emerged. However, most children still resided primarily with their mothers after separation or divorce, reflecting the fact that women still bore the brunt of childcare labor. This fact also influenced privately negotiated agreements and court awards, which gave primary care of children to mothers in most cases. Joint legal custody typically meant that an access father would not share childcare, but would share in decisions about schooling, health care, or religious instruction. If the parents did not agree about such an issue, then joint custody effectively gave the father a veto over the mother’s decision. Given the ongoing sexual division of labor in most heterosexual households, joint custody could be seen as granting mothers responsibilities for care whereas fathers gained rights to dictate decisions.

During the 1980s, the emerging fathers’ rights movement gained in strength and exerted influence over law reform. Fathers’ rights advocates typically argued that the legal system was biased in favor of mothers and against fathers, citing custody statistics on maternal custody awards. They suggested that mothers, and even judges, often denied fathers’ contact with children, and argued that increased paternal rights would operate in children’s best interests. They lobbied for joint custody presumptions, the use of mediation, and restrictions on the mobility of custodial parents. Psychological studies also began to suggest that children need two (opposite sex) parents, and to emphasize the importance of a paternal influence. Some jurisdictions adopted joint custody presumptions, meaning that mothers who were concerned about joint custody would have the burden of proving why a joint custody arrangement would not work or would not be safe for themselves or their children. Other jurisdictions opted for “maximum contact” legal provisions that enhanced contact with both parents and rewarded “friendly parents”—those who facilitated such contact between the child and the other parent. Unless a mother had clear evidence of serious abuse by a father or other safety concerns, she might be advised not to raise such concerns for fear of being labeled an unfriendly parent and losing custody. The legal push toward formal equality for mothers and fathers sat uncomfortably alongside the ongoing sexual division of labor in heterosexual families, where even employed mothers continued to assume greater responsibility for childcare. The ideology of motherhood still held women to stricter standards of responsibility in relation to children, but once parents separated, it was assumed that the tasks of motherhood could be taken over by others, such as fathers, new wives, or grandmothers. The new norms were also juxtaposed against the increasing awareness of woman abuse both during marriages and/or after the separation process.

Shared Parenting

Throughout the 1990s and into the 21st century, the emphasis on the relationship between children’s well-being and contact with their fathers continued to increase, despite research showing that the key determinants of children’s well-being are a well-functioning, custodial parent and avoidance of parental conflict. Although continuing contact with each parent is also associated with positive outcomes, its benefit is diminished if the contact generates conflict between the parents. Shared parenting has been reported to work well when parents have a history of sharing parenting responsibilities, or when they are clearly capable of cooperating. Shared parenting arrangements can also relieve mothers from the constraints of full-time responsibility for childcare.

However, these arrangements can be damaging to both mothers and children when parents are in conflicted or abusive relationships. Custody disputes can be used by an abusive or manipulative spouse to continue an unhealthy relationship or to perpetuate control over a mother. Some fathers claim custody or shared time in order to reduce their child-support commitments, as increased time spent with a child may diminish the amount of paid support. Moreover, cases involving conflict between parents are most likely to end up in court, raising questions about the wisdom of court-ordered joint custody or shared parenting, as opposed to arrangements agreed upon by parents.

Debates about the merits of laws promoting joint custody and shared parenting have been lively. Many feel that the work of motherhood has never been properly valued in child custody law, and that the current trends exacerbate the extent to which mothers’ caregiving labor is simultaneously reinforced and taken for granted in society. Modern trends also require sometimes unwanted ties between mothers and fathers, regardless of the parents’ living arrangements or quality of their relationship. Even fathers who have never cohabited with a mother have sometimes been accorded generous custody or access rights, often based little more than their genetic tie with a child. For many judges, lawyers, and mediators, joint custody and shared parenting represent a useful compromise in difficult custody cases.

However, the empirical evidence suggests that workable, postseparation shared-care arrangements require high levels of cooperation and good communication between parents, indicating that a shared parenting regime is not appropriate for highly conflicted families that resolve their disputes through the legal system. Studies also indicate that there has been, over time, a considerable drift away from joint custody arrangements that have been ordered by a court, with children tending to return to live primarily with mothers. This drift indicates the difficulty of making genuine, shared-parenting arrangements work effectively for parents and children. The aspirational nature of shared-parenting reforms contrasts with the lack of government initiatives to support paternal caregiving on a broader scale.

New Shared-Parenting Initiatives

Despite these concerns about the rise of shared parenting and alternative law reform proposals, such as presuming that the custodial parent should be the one who has provided past primary care (generally favoring maternal custody), new shared parenting initiatives appeared. In an effort to reduce conflict between parents and encourage cooperative post-separation arrangements, some countries have eradicated the property-laden terms of custody and access in favor of terms such as residence, contact, and parental responsibility, which would determine where a child should live, the degree of contact with each parent, and who has responsibility for decisions. In 1995, for instance, Australia introduced these changes and vested children with the right to be cared for by both parents and to have regular contact with each, subject, of course, to the child’s best interests.

Although judges were supposed to watch for the safety needs of children and other family members, the philosophy that children should have contact with both parents generally predominated. In 2006, after lobbying by fathers’ rights groups and a three-year reform process, Australia went even further and introduced shared parenting amendments, including a presumption for “equal shared parental responsibility.” This presumption that consultative decision making by parents is in a child’s best interests does not apply if there is evidence of abuse, and can also be rebutted if evidence shows it is not in the child’s best interests. Otherwise, a court must consider making an order for the child to spend equal time with both parents, and if not equal time, then “substantial and significant” time.

These amendments appear responsible for an increase in substantially shared care arrangements, but research indicates that a significant number of such arrangements are characterized by intense parental conflict. Worryingly, shared care of children appears to be a key variable affecting poor emotional outcomes for children, suggesting that it is not always in a child’s best interests.

The shared-parenting trends, resting on the premise of maternal and paternal equality, may overemphasize formal genetic ties rather than caregiving ties with children, or the most appropriate arrangements from a child-centered perspective. These trends certainly pose challenges for heterosexual mothers who have a conflict-ridden or abusive relationship with their child’s father.

But it is even less clear how paternal equality, premised on a man’s genetic tie with a child, can be reconciled with the “lesbian baby boom,” as children are increasingly born into lesbian-headed families through the use of assisted insemination. Although some jurisdictions now permit both lesbian co-mothers to be named as legal parents, the legal status of sperm donors often remains unclear. As a result, lesbian mothers remain vulnerable to custody claims by sperm donors who wish to claim paternal status. Custody claims have also arisen between lesbian co-mothers; the few existing judicial decisions tend to favor the birth mother and her genetic ties. Cases such as these challenge the legal system to prioritize either biogenetic ties or the caregiving relationship that mothers develop with children. Disputes between birth mothers and adoptive parents, or surrogate mothers and intentional parents, also raise difficult questions about the weight of genetic ties versus intentional-parenting ties.

Ongoing Issues for Mothers

Mothers who “win” sole custody or primary care of children can nevertheless encounter problems related to both their children’s nurture and their financial well-being. Although child support laws typically require the other parent to contribute to the children’s expenses, enforcement can be difficult if payments are late, incomplete, or missing. Moreover, child support guidelines are not applied as strictly once a shared parenting arrangement is in place. Some fathers press for more time with a child, assuming they will have to pay less support. Some mothers relinquish claims to financial support or property in order to guarantee sole custody.

As well, modern custody laws expect that a custodial mother will facilitate contact between the children and their other parent (usually a father). If a mother is not willing to do so, citing concerns about a child’s safety or well-being, she may be tagged as a “no-contact mother” and even lose custody. Ironically, as public consciousness about woman abuse and sexual abuse of children rose during the 1980s and 1990s, it became increasingly difficult for mothers to raise such concerns in the custody context. Requests to limit a father’s contact with a child conflicts with the legal system’s new objective to enhance contact with both parents.

Additionally, should a mother wish or need to relocate, for instance to rejoin her family or obtain better employment, she may encounter difficulties if the other parent objects. The direction that child custody law has taken in the name of children’s best interests has caused maternal autonomy—or ability to make choices and decisions—has been constrained.

—Susan B. Boyd

Entry Citation:

Boyd, Susan B. “Child Custody and the Law.” Encyclopedia of Motherhood. 2010. SAGE Publications.

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