Abstract
This article explores the tensions between autonomy and expectations of mother-caregivers, in the context of normative trends in post-separation parenting law. Going back to first principles of feminism, the article asks what scope for autonomy there is for modern mothers in the face of socio-legal norms that prioritise shared parenting. The very relationship between mother-caregivers and children illustrates the important connection between relationships and autonomy: the caregiving that mothers provide enables children to become autonomous persons yet, at the same time, this caregiving relationship constrains maternal autonomy. In the current context that encourages shared parenting, the potential for maternal autonomy may be even more compromised—a deep irony in a supposedly post-feminist era. A responsible mother is now expected to nurture a child’s relationship with the father, unless he is proven to be harmful. The ability of women to be at all autonomous from the fathers of their children in the face of this normative expectation is dubious, even when the adults live separately. Moreover, the dominance of the heterosexual and patriarchal family—always a challenge for women’s autonomy—is reproduced in this imposition of equal parenting in the name of children’s rights. This article uses a contextual approach to relational autonomy to point to an approach that might challenge the normative climate of shared parenting.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
Karpodinis v Kantas, 2006 BCCA 272, 27 RFL (6th) 254, leave to appeal to SCC refused [2006] SCCA No 318 (16 November 2006).
Family Law Act, RSA 2003, c F-4.5, s 13(3).
Caufield v Wong, 2007 ABQB 732, 47 RFL (6th) 144 at [37].
Feminists are also concerned with freeing men to live in ways that depart from culturally accepted norms of masculinity, but this concern is more recent (see Collier 2006).
For an eloquent reflection on the pressures and constraints experienced even by a privileged, white, middle-class feminist law professor with a husband who shared parenting responsibility, see Nedelsky (1999).
Reece (2006) cites other feminist scholars as having adopted an autonomy-based approach (notes 75 and 76 at p. 547) but their treatment of autonomy is largely implicit.
Unmarried fathers are also increasingly gaining legal status (Collier and Sheldon 2008).
Human Fertilization and Embryology Authority (Disclosure of Donor Information) Regulations 2004, SI 2004/1511.
Divorce Act, RSC 1985 (2nd Supp), c 3 s 16(10); Trociuk v British Columbia (Attorney General) [2003] 1 SCR 835, 2003 SCC 34.
Moge v Moge [1992] 3 SCR 813, 99 DLR (4th) 456.
Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817, 174 DLR (4th) 193.
Supra n 3 at [6]. Although we seem generally content to allow parents to adopt their own parenting styles, short of actual harm to a child, once a dispute arises, it seems that they can be taken to task for their choices.
Supra n 2.
Bill C-422, An Act to amend the Divorce Act (equal parenting) and to make consequential amendments to other Acts, First Reading, 16 June 2009, second session, Fortieth parliament, 57–58 Elizabeth II 2009. The Minister’s statement, made at a Canadian Bar Association Annual Meeting in Dublin, was reported by O’Neil (2009). However, the minister also emphasised that his government had not yet taken a formal position on the bill.
References
Amato, Paul R., and Joan G. Gilbreth. 1999. Non-resident fathers and children’s well-being: A meta analysis. Journal of Marriage and the Family 61: 557–573.
Baldassi, Cindy, Susan B. Boyd, and Fiona Kelly. 2010. Losing the child in child-centred legal processes. In Lost kids: Vulnerable children and youth in twentieth-century Canada and the United States, ed. Mona Gleason, Leslie Paris, Tamara Myers, and Veronica Strong-Boag, 192–212. Vancouver: UBC Press.
Ball, Carlos. 2005. This is not your father’s autonomy: Lesbian and gay rights from a feminist and relational perspective. Harvard Journal of Law and Gender 28: 345–379.
Barrett, Michèle, and Mary McIntosh. 1991. The anti-social family. New York: Verso.
Batagol, Becky. 2008. Fomenters of strife, gladiatorial champions or something else entirely? Lawyers and family dispute resolution. Queensland University of Technology Law and Justice Journal 8: 24–45.
Biblarz, Timothy J., and Judith Stacey. 2010. How does the gender of parents matter? Journal of Marriage and Family 72: 3–22.
Boyd, Susan B. 1997. Challenging the public/private divide: Feminism, law, and public policy. Toronto: University of Toronto Press.
Boyd, Susan B. 2003. Child custody, law and women’s work. Ontario: Oxford University Press.
Boyd, Susan B. 2004. Backlash against feminism: Canadian custody and access reform debates of the late twentieth century. Canadian Journal of Women and the Law 16: 255–290.
Boyd, Susan B., and Claire F.L. Young. 2007. Feminism, fathers’ rights, and family catastrophes: Parliamentary discourse on post-separation parenting. In Reaction and resistance: Feminism, law and social change, ed. Dorothy Chunn, Susan B. Boyd, and Hester Lessard, 198–228. Vancouver: University of British Columbia Press.
Cardia-Vonèche, Laura, and Benoit Bastard. 2007. Why some children see their father and others do not: Questions arising from a pilot study. In Parenting after partnering: Containing conflict after separation, ed. Mavis Maclean, 29–39. Oxford: Hart Publishing.
Cohen, Jonathan, and Nikki Gershbain. 2001. For the sake of the fathers? Child custody reform and the perils of maximum contact. Canadian Family Law Quarterly 19: 121–183.
Collier, Richard. 2006. Feminist legal studies and the subject(s) of men: Questions of text, terrain and context in the politics of family law and gender. In Feminist perspectives on family law, ed. Alison Diduck and Katherine O’Donovan, 235–258. New York: Routledge.
Collier, Richard, and Sally Sheldon (eds.). 2006. Fathers’ rights activism and law reform in comparative perspective. Oxford: Hart Publishing.
Collier, Richard, and Sally Sheldon. 2008. Fragmenting fatherhood: A socio-legal study. Oxford: Hart Publishing.
Cooper, Davina. 2004. Challenging diversity: Rethinking equality and the value of difference. Cambridge: Cambridge University Press.
Crowley, Jocelyn Elise. 2008. Defiant dads: Fathers’ rights activists in America. Ithaca, NY: Cornell University Press.
Denbow, Jennifer. 2005. Abortion: When choice and autonomy conflict. Berkeley Journal of Gender, Law and Justice 20: 216–228.
Donchin, Anne. 2009. Toward a gender-sensitive assisted reproduction policy. Bioethics 23: 28–38.
Epstein, Philip, and Lene Madsen. 2004. Joint custody with a vengeance: The emergence of parallel parenting orders. Canadian Family Law Quarterly 22: 1–36.
Fehlberg, Belinda, and Rosemary Hunter. 2007. Children’s contact services in Australia: The referral process. In Parenting after partnering: Containing conflict after separation, ed. Mavis Maclean, 169–191. Oxford: Hart Publishing.
Fehlberg, Belinda, Christine Millward, and Monica Campo. 2009. Shared post-separation parenting in 2009: An empirical snapshot. Australian Journal of Family Law 23: 247–275.
Fineman, Martha. 2004. The autonomy myth: A theory of dependency. New York: New Press.
Friedman, Marilyn. 2003. Autonomy, gender, politics. Oxford: Oxford University Press.
Goering, Sara. 2009. Postnatal reproductive autonomy: Promoting relational autonomy and self-trust in new parents. Bioethics 23: 9–19.
Harvey, David. 2007. A brief history of neoliberalism. Oxford: Oxford University Press.
Herring, Jonathan. 2009. Relational autonomy and rape. In Regulating autonomy: Sex, reproduction and family, ed. Shelley Day Sclater, Fatemeh Ebtehaj, Emily Jackson, and Martin Richards, 53–71. Oxford: Hart Publishing.
Hertz, Rosanna. 2006. Single by chance, mother by choice: How women are choosing motherhood without marriage and creating the new American family. New York: Oxford University Press.
Humphreys, Cathy, and Christine Harrison. 2003. Squaring the circle–contact and domestic violence. Family Law 33: 419–423.
Jackson, Emily, and Shelley Day Sclater. 2009. Introduction: Autonomy and private life. In Regulating autonomy: Sex, reproduction and family, ed. Shelley Day Sclater, Fatemeh Ebtehaj, Emily Jackson, and Martin Richards, 1–16. Oxford: Hart Publishing.
Kelly, Fiona. 2004. Nuclear norms or fluid families? Incorporating lesbian and gay parents and their children into Canadian family law. Canadian Journal of Family Law 16: 71–94.
Kline, Marlee. 1992. Child welfare law, ‘best interests of the child’ ideology and First Nations. Osgoode Hall Law Journal 30: 375–425.
Leckey, Robert. 2008. Contextual subjects: Family, state, and relational theory. Toronto: University of Toronto Press.
MacIntyre, Alasdair. 1984. After virtue: A study in moral theory. Notre Dame, IN: University of Notre Dame Press.
Mackenzie, Catriona, and Natalie Stoljar (eds.). 2000. Relational autonomy: Feminist perspectives on autonomy, agency, and the social self. New York: Oxford University Press.
Maclean, Mavis, and John Eekelaar. 2009. Legal representation and parental autonomy. In Regulating autonomy: Sex, reproduction and family, ed. Shelley Day Sclater, Fatemeh Ebtehaj, Emily Jackson, and Martin Richards, 93–107. Oxford: Hart Publishing.
Marshall, Katherine. 2006. Converging gender roles. In Perspectives on labour and income, vol. 7, no. 7, ed. Statistics Canada, 5–17. Ottawa: Ministry of Industry.
McCarthy, Martha. 2009. Why custody labels matter. The Lawyer’s Weekly, 25 September.
McIntosh, Jennifer E. 2009. Legislating for shared parenting: Exploring some underlying assumptions. Family Court Review 47: 389–400.
McIntosh, Jennifer E., and Richard Chisholm. 2008. Cautionary notes on the shared care of children in conflicted parental separations. Journal of Family Studies 14: 37–52.
Meyers, Diana Tietjens. 2004. Gendered work and individual autonomy. In Being yourself: Essays on identity, action, and social life, ed. Diana Tietjens Meyers, 257–273. Lanham, MD: Rowman Littlefield Publishers.
Nedelsky, Jennifer. 1989. Reconceiving autonomy: Sources, thoughts and possibilities. Yale Journal of Law and Feminism 1: 7–36.
Nedelsky, Jennifer. 1999. Dilemmas of passion, privilege, and isolation: Reflections on mothering in a white, middle-class, nuclear family. In Mother troubles: Rethinking contemporary maternal dilemmas, ed. Julia E. Hanigsberg, and Sara Ruddick, 304–334. Boston: Beacon Press.
O’Donovan, Katherine, and Jill Marshall. 2006. After birth: Decisions about becoming a mother. In Feminist perspectives on family law, ed. Alison Diduck and Katherine O’Donovan, 101–122. New York: Routledge.
O’Neil, Peter. 2009. ‘Kids’ interests no. 1 priority in divorce, Justice Minister says. The Gazette (Montreal), 17 August.
Overington, Caroline. 2009. Shared parenting laws on the way out. The Australian, 19 October.
Reece, Helen. 2003. Divorcing responsibly. Oxford: Hart Publishing.
Reece, Helen. 2006. UK women’s groups’ child contact campaign: ‘So long as it is safe’. Child and Family Law Quarterly 18: 538–561.
Reece, Helen. 2008. Review article: The autonomy myth: A theory of dependency. Child and Family Law Quarterly 20: 109–124.
Rhoades, Helen. 2002a. The rise and rise of shared parenting laws: A critical reflection. Canadian Journal of Family Law 19: 75–115.
Rhoades, Helen. 2002b. The ‘no contact mother’: Reconstructions of motherhood in the era of the ‘new father’. International Journal of Law, Policy and the Family 16: 71–94.
Rhoades, Helen. 2008. The dangers of shared care legislation: Why Australia needs (yet more) family law reform. Federal Law Review 36: 279–299.
Rogerson, Carol. 2001. The child support obligations of step-parents. Canadian Journal of Family Law 18: 9–158.
Sandel, Micheal J. 1998. Liberalism and the limits of justice, 2nd ed. Cambridge: Cambridge University Press.
Schneewind, Jerome B. 1998. The invention of autonomy: A history of modern moral philosophy. Cambridge: Cambridge University Press.
Shaffer, Martha. 2007. Joint custody, parental conflict and children’s adjustment to divorce: What the social science literature does and does not tell us. Canadian Family Law Quarterly 26: 285–313.
Sheehan, Grania, John Dewar, and Rachel Carson. 2007. Moving on: The challenge for children’s contact services in Australia. In Parenting after partnering: Containing conflict after separation, ed. Mavis Maclean, 147–167. Oxford: Hart Publishing.
Smart, Carol. 1999. The ‘new’ parenthood: Fathers and mothers after divorce. In The new family? ed. Elizabeth Bortolaia Silva, and Carol Smart, 100–114. London: Sage Publications.
Smart, Carol, and Bren Neale. 1997. Arguments against virtue: Must contact be enforced? Family Law 27: 332–336.
Smart, Carol, and Bren Neale. 1999. Family fragments. Cambridge: Polity Press.
Smart, Carol, Bren Neale, and Amanda Wade. 2001. The changing experiences of childhood: Families and divorce. Maiden, MA: Blackwell Publishers.
Smyth, Bruce. 2009. A 5-year retrospective of post-separation shared care research in Australia. Journal of Family Studies 15: 36–59.
Statistics Canada (ed.). 2006. Women in Canada: A gender based statistical report, 5th ed. Ottawa: Target Group Project.
Thompson, Rollie. 2007. Ten years after Gordon: No law, nowhere. Reports of Family Law 35: 307–330.
Thornton, Margaret (ed.). 1995. Public and private: Feminist legal debates. Melbourne: Oxford University Press.
Wiegers, Wanda, and Michaela Keet. 2008. Collaborative family law and gender inequalities: Balancing risks and opportunities. Osgoode Hall Law Journal 46: 733–772.
Acknowledgments
The author acknowledges funding support from the Social Sciences and Humanities Research Council of Canada and the UBC Law Class of ’68 Award, research assistance by Eiad el Fateh and Bree Makohn, and the constructive feedback of two anonymous referees as well as audiences at the 5th World Congress on Family Law and Children’s Rights in Halifax, Nova Scotia, 23–26 August 2009 and the Centre for Feminist Legal Studies Lecture Series, University of British Columbia, 19 January 2010.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Boyd, S.B. Autonomy for Mothers? Relational Theory and Parenting Apart. Fem Leg Stud 18, 137–158 (2010). https://doi.org/10.1007/s10691-010-9152-3
Published:
Issue Date:
DOI: https://doi.org/10.1007/s10691-010-9152-3