Abstract
Recent scholarship has critiqued the tendency for separated mothers in custody disputes to be defined as hostile and alienating. Through the presentation of three case studies, drawn from an interview-based study with 21 women, we show how such pejorative constructions only arise when the conflicting gendered moral accountabilities of contemporary motherhood are overlooked. We found that mothers tend to believe that contact with non-resident fathers is generally in a child’s best interests. However, as a result of balancing complex moral obligations for the care of their children, they may raise questions about particular kinds of arrangements for contact with particular fathers. We argue, therefore, that family law practice will lead to better outcomes for children when professionals listen to the history of, and reasons for, mothers’ positions. To enable family law professionals to undertake this task, we offer an alternative interpretive framework for making sense of women’s stories. Should family law professionals make use of this framework, it is likely that they will understand that the positions mothers adopt are often the outcome of the difficult moral dilemmas they encounter in caring for their children, and that the reductive rubric of the ‘hostile mother’ needs to be treated with scepticism.
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Notes
The normalising discourses of motherhood circulating in law draw on ‘psy’ knowledges but are not reducible to these knowledges. Rather, legal and ‘psy’ discourses are some of the heterogeneous elements that comprise a governmental apparatus of motherhood that “aims to shape, guide or affect the behaviour, actions and comportment” of mothers (MacLeod and Durrheim 2002, p. 45).
In New Zealand, the phrases ‘day-to-day care’ and ‘contact’ recently replaced ‘custody’ and ‘access’. The corresponding terms in England and Wales are ‘residence’ and ‘contact’.
Fathers are also subject to norms of conduct, particularly in relation to financial provisioning, but also increasingly in relation to the development of a close and caring relationship with their children (Ribbens McCarthy et al. 2000, 2003). However, as a number of authors have noted, evaluations of parenting are beset by the use of a double standard (Boyd 2003; Chesler 1991; Smart and Neale 1999b). As a consequence, “there is one set of expectations for mothers and another less demanding set for fathers” (Chesler 1991, p. 410). The fact that we hold fathers to much lower standards is especially evidenced by the continued construction of violent men as ‘good enough’ fathers, except in instances where they have committed egregious and proven violence against their children (Boyd 2003; Chesler 1991; Collier 2006; Douglas and Walsh 2010; Eriksson and Hester 2001; Kaspiew 2007; Harrison 2008; Rhoades 2002; Risley-Curtiss and Heffernan 2003; Smart and Neale 1999b). Although further discussion of this double standard is obviously warranted, such a discussion is beyond the scope of this article.
Although outside of the scope of this paper, it is worth noting that the good post-separation father of today also faces gendered moral imperatives: he must continue to provide financially for his children and he must sustain an intimate, caring relationship with them (Boyd 2003, 2006; Collier 2001; Kaganas and Day Sclater 2004; Smart and Neale 1999b). Yet, as many authors have noted, these twin moral imperatives are given different legal weight: while a father’s financial support is technically legally enforceable, a father’s relationship with his children remains outside of the realm of legal coercion (see Dowd 2000; Fineman 1988; Smart and Neale 1999a; Wallbank 2001, 2007).
Although fathers now figure centrally in evaluations of maternal conduct, such evaluations continue to be framed from the vantage point of the child. Thus mothers who fail to actively facilitate children’s relationships with their fathers are typically condemned for failing to meet their children’s needs, rather than being condemned for failing to support the needs and rights of fathers.
Such pejorative constructions of post-separation mothers fuel the stock stories of custody disputes which typically “feature hostile and possessive mothers on the one hand, and frustrated men on the other, men who have had to resort to court action in an attempt to see their children and who have found the legal system wanting” (Rhoades 2002, p. 73).
To further protect participants’ anonymity we have used different pseudonyms for the same participant in separate papers arising from this research.
Māori are the indigenous peoples of New Zealand.
Pākehā is the Māori word used to describe the white settler population in New Zealand, the majority of whom are of Anglo-Celtic descent.
The Domestic Purposes Benefit is a social welfare payment in support of single parents and other people involved in the care of a qualifying dependent.
The fact that so many of our participants separated either prior to or within a year of the birth of their child may have contributed to a heightened sense of responsibility amongst these mothers for the wellbeing of their children, because they would have been caring for their children (almost) single-handedly. In this context, fathers may have had little or no relationship with their children and little or no experience with parenting their children. For this group, father contact often involved the creation of a relationship rather than the preservation of an already existing relationship. However, it is important to acknowledge that all of the mothers in our study reported that they were overwhelmingly responsible for their children’s wellbeing and were thus the primary parents of their children.
These women’s stories were chosen because they capture something of the diversity of positions adopted by the mothers in our study in relation to fathers over time: Tara and Kirsty’s stories reflect the dominant pattern of contingent support for the involvement of fathers, whilst Caitlin’s story reflects more stable support for father involvement and the dilemmas that arise for mothers even in these circumstances. In addition, these women’s interviews provided us with the kind of rich detail that enabled us to put together temporally ordered narratives.
When Daphne reached the age of three Tara asked for and received a small amount of child support from Andy. Andy had paid Tara child support on a regular basis since then; however, this was at a level that could be considered tokenistic and well below the level he would be required to pay if their agreement was based on the government set formula.
A guardian of a child is an adult who undertakes day-to-day care of a child, contributes to the child’s development and who is involved in big decisions like where they go to school. In New Zealand, mothers are automatically guardians of their children. The guardianship of fathers is dependent on their relationship status with mothers. A father will autormatically be a guardian if he was married to or living with the child’s mother at any time from when the child was conceived until it was born; or, if he was recorded as the father on the birth certificate; or, if the Family Court appoints him as a guardian. See http://www.justice.govt.nz/courts/family-court/what-family-court-does/care-of-children/guardianship.
The Hague Convention on the Civil Aspects of Child Abduction is an international treaty that was established to ensure that children who are abducted from their country of residence will be returned as quickly as possible to that country where care and contact issues are to be resolved.
It took Caitlin nearly four years to reach an out-of-court property settlement that resulted in Stuart paying her a fraction of the value of the assets they had built up together. Despite running a successful business and owning substantial assets, Stuart paid a minimal amount of child support to the state and Caitlin received the Domestic Purposes Benefit. At the time of the interview, Caitlin worked part-time, although she would have liked to work full-time. However, because Stuart provided neither childcare support nor financial support, and because she did not have a family network in New Zealand, she was unable to countenance full-time work.
References
Arendell, Terry. 2000. Conceiving and investigating motherhood: The decade’s scholarship. Journal of Marriage and the Family 62: 1192–1207.
Bock, Jane D. 2000. Doing the right thing? Single mothers by choice and the struggle for legitimacy. Gender and Society 14: 62–86.
Boshier, Peter. 2006. Media openness in the Family Court. http://www.justice.govt.nz/courts/family-court/publications/speeches-and-papers/media-openness-in-the-family-courts Accessed 10 January 2010.
Boyd, Susan B. 2003. Child custody, law and women’s work. Don Mills, ON: Oxford University Press.
Boyd, Susan B. 2004. Demonizing mothers: Father’s rights discourses in child custody law reform processes. Journal of Association for Research on Mothering 6: 52–74.
Boyd, Susan B. 2006. Robbed of their families? Fathers’ rights discourse in Canadian parenting law reform processes. In Fathers’ rights activism and law reform in comparative perspective, ed. Richard Collier, and Sally Sheldon, 27–52. Oxford: Hart Publishing.
Chesler, Phyllis. 1991. Mothers on trial: The custodial vulnerability of women. Feminism and Psychology 1: 409–425.
Collier, Richard. 2001. A hard time to be a father? Reassessing the relationship between law, policy and family (practices). Journal of Law and Society 28: 520–545.
Collier, Richard. 2006. ‘The outlaw fathers fight back’: Fathers’ rights groups, Fathers 4 Justice and the politics of family law reform—reflections on the UK experience. In Fathers’ rights activism and law reform in comparative perspective, ed. Richard Collier, and Sally Sheldon, 53–78. Oxford: Hart Publishing.
Douglas, Heather, and Tamara Walsh. 2010. Mothers, domestic violence, and child protection. Violence Against Women 16: 489–508.
Dowd, Nancy E. 2000. Redefining fatherhood. New York: New York University Press.
Dyer, Clare. 2007. Judges get tough on fathers’ rights to contact with children. The Guardian, 16 July.
Elizabeth, Vivienne. 2004. Viewing mothering, violence and sexuality through the lens of ethnicity: Mainstream media constructions of Tania Witika. In Sex and the body, ed. Annie Potts, Nicola Gavey, and Ann Wetherall, 51–70. Palmerston North: Dunmore.
Elizabeth, Vivienne. 2010. Turning mothers into villains: Gaps and silences in media accounts of custody abductions. Feminist Media Studies 10: 50–67.
Elizabeth, Vivienne, Nicola Gavey, and Julia Tolmie. 2010. The gendered dynamics of power in disputes over the post-separation care of children. Violence Against Women (forthcoming).
Eriksson, Maria, and Marianne Hester. 2001. Violent men as good-enough fathers? Violence Against Women 7: 779–798.
Fineman, Martha A. 1988. Dominant discourse, professional language, and legal change in child custody decision making. Harvard Law Review 101: 727–774.
Fraser, Nancy. 1989. Unruly practices: Power, discourse and gender in contemporary social theory. Cambridge: Polity Press.
Gillies, Val. 2007. Marginalised mothers: Exploring working class experiences of parenting. Milton Park: Routledge.
Glenn, Evelyn Nakano. 1994. Social constructions of mothering: A thematic overview. In Mothering: Ideology, experience and agency, ed. Evelyn Nakano Glenn, Grace Chang, and Linda R. Forcey, 1–29. New York: Routledge.
Harrison, Christine. 2008. Implacably hostile or appropriately protective? Women managing child contact in the context of domestic violence. Violence Against Women 14: 381–405.
Hays, Sharon. 1996. The cultural contradictions of motherhood. New Haven, CT: Yale University Press.
Henderson, Angela C., Sandra M. Harmon, and Jeffrey Houser. 2010. A new state of surveillance? An application of Michel Foucault to modern motherhood. Surveillance and Society 7: 231–247.
Hester, Marianne. 2004. Future trends and developments. Violence Against Women 10: 1431–1448.
Kaganas, Felicity, and Shelley Day Sclater. 2004. Contact disputes: Narrative constructions of ‘good’ parents. Feminist Legal Studies 12: 1–27.
Kaspiew, Rae. 2007. Empirical insights into parental attitudes and children’s interests in Family Court litigation. Sydney Law Review 27: 131–162.
Kopels, Sandra, and Marcie Chesnut Sheridan. 2002. Adding legal insult to injury: Battered women, their children and the failure to protect. Affilia 17: 9–29.
Lacroix, Carol. 2006. Freedom, desire and power: Gender processes and presumptions of shared care and responsibility after parental separation. Women’s Studies International Forum 29: 184–196.
Laing, Karen. 2006. Doing the right thing: Cohabiting parents, separation and child contact. International Journal of Law, Policy and the Family 20: 169–180.
Lawler, Steph. 1999. Children need but mothers only want: The power of ‘needs talk’ in the constitution of childhood. In Relating intimacies: Power and resistance, ed. Julie Seymour, and Paul Bagguley, 64–88. Hampshire: McMillan Press.
MacLeod, Catriona, and Kevin Durrheim. 2002. Foucauldian feminism: The implications for governmentality. Journal for the Theory of Social Behaviour 32: 41–60.
Malson, Helen. 2000. Fictional(ising): Ontological assumptions and methodological productions of (‘anorexic’) subjectivities. In Lines of narrative: Psychosocial perspectives, ed. Molly Andres, Shelley Day Sclater, Corrine Squire, and Amal Treacher, 150–163. London: Routledge.
May, Vanessa. 2003. Lone motherhood past and present: The life stories of Finnish lone mothers. NORA: Nordic Journal of Feminist and Gender Research 11: 27–39.
May, Vanessa. 2004. Narrative identity and the re-conceptualization of lone motherhood. Narrative Identity 14: 169–189.
May, Vanessa. 2005. Divorce in Finnish women’s life stories: Defining ‘moral’ behaviour. Women’s Studies International Forum 28: 473–483.
May, Vanessa. 2008. On being a ‘good’ mother: The moral presentation of self in written life stories. Sociology 42: 470–486.
Neale, Bren, and Carol Smart. 1997. Experiments in parenthood. Sociology 31: 201–219.
Neustein, Amy, and Michael Lesher. 2005. From madness to mutiny: Why mothers are running from the Family Courts—and what can be done about it. Boston: Northeastern University Press.
Peckover, Sue. 2002. Supporting and policing mothers: An analysis of the disciplinary practices of health visiting. Journal of Advanced Nursing 38: 369–377.
Powell, Anastasia, and Suellen Murray. 2008. Children and domestic violence: Constructing a policy problem. Social and Legal Studies 17: 453–473.
Rhoades, Helen. 2002. 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.
Ribbens McCarthy, Jane, Rosalind Edwards, and Val Gillies. 2000. Moral tales of the child and the adult: Narratives of contemporary family lives under changing circumstances. Sociology 34: 785–803.
Ribbens McCarthy, Jane, Rosalind Edwards, and Val Gillies. 2003. Making families: Moral tales of parenting and step-parenting. London: Sociology Press.
Risley-Curtiss, Christina, and Kristin Heffernan. 2003. Gender biases in child welfare. Affilia 18: 395–410.
Sano, Yoshie, Leslie N. Richards, and Anisa M. Zvonkovic. 2008. Are mothers really ‘gatekeepers’ of children? Rural mothers’ perceptions of nonresident fathers’ involvement in low income families. Journal of Family Issues 29: 1701–1723.
Sayer, Andrew. 2005. Class, moral worth and recognition. Sociology 39: 947–963.
Smart, Carol. 1989. Power and the politics of child custody. In Child custody and the politics of gender, ed. Carol Smart, and Selma Sevenhuijsen, 1–2. London: Routledge.
Smart, Carol. 1991. The legal and moral ordering of child custody. Journal of Law and Society 18: 485–500.
Smart, Carol. 1995. Law, crime and sexuality: Essays in feminism. London: Sage.
Smart, Carol. 1996. Deconstructing motherhood. In Good enough mothering? Feminist perspectives on lone motherhood, ed. Elizabeth Silva, 37–57. London: Routledge.
Smart, Carol. 1997. Wishful thinking and harmful tinkering? Sociological reflections on family policy. Journal of Social Policy 26: 301–321.
Smart, Carol. 1999. The ‘new’ parenthood: Fathers and mothers after divorce. In The new family?, ed. Elizabeth Silva, and Carol Smart, 100–114. London: Sage.
Smart, Carol. 2006. Preface. In Fathers’ rights activism and law reform in comparative perspective, ed. Richard Collier, and Sheldon Sally, 7–13. Oxford: Hart Publishing.
Smart, Carol, and Bren Neale. 1999a. Family fragments? Cambridge: Polity Press.
Smart, Carol, and Bren Neale. 1999b. “I hadn’t really thought about it”: New identities/new fatherhoods. In Relating intimacies: Power and resistance, ed. Julie Seymour, and Paul Bagguley, 118–141. Basingstoke: Palgrave Macmillan.
Smyth, Bruce, Catherine Caruana, and Anna Ferro. 2004. Child-father contact after separation. Family Matters 67: 20–27.
Terrance, Cheryl, Karyn Plumm, and Betsi Little. 2008. Maternal blame: Battered women and abused children. Violence Against Women 14: 870–885.
Tolmie, Julia, Vivienne Elizabeth, and Nicola Gavey. 2009. Should father contact be prioritised over all other considerations when negotiating parenting arrangements after separation? Raising questions about current family law practices. New Zealand Law Review 4: 659–694.
Tolmie, Julia, Vivienne Elizabeth, and Nicola Gavey. 2010. Is 50:50 shared care a desirable norm following family separation? Raising questions about current family law practices in New Zealand. New Zealand Universities Law Review 24: 136–166.
Van Krieken, Robert. 2005. The ‘best interests of the child’ and parental separation: On the ‘civilising of parents’. Modern Law Review 68: 25–48.
Varcoe, Colleen, and Lori G. Irwin. 2004. “If I killed you, I’d get the kids”: Women’s survival and protection work with child custody and access in the context of woman abuse. Qualitative Sociology 27: 77–99.
Wallbank, Julie. 1998. Castigating mothers: The judicial response to ‘wilful’ women in disputes over paternal contact in English law. Journal of Social Welfare and Family Law 20: 357–376.
Wallbank, Julie. 2001. Challenging motherhood(s). Harlow: Pearson Education.
Wallbank, Julie. 2007. Getting tough on mothers: Regulating contact and residence. Feminist Legal Studies 15: 189–222.
Wuest, Judith, Marilyn Ford-Gilboe, Marilyn Merritt-Gray, and Shannon Lemire. 2006. Using grounded theory to generate theoretical understanding of the effects of child custody policy on women’s health promotion in the context of intimate partner violence. Health Care for Women International 27: 490–512.
Acknowledgments
First and foremost, we are grateful to the women who chose to share often painful stories about personal aspects of their lives with us. Without their willingness to share their stories our work as researchers would not have been possible. We are also grateful for the research assistance provided by Jade le Grice in the early stages of this research and by Helen Cox in the preparation of this article. Lastly, we are appreciative of the helpful comments we received from the anonymous reviewers.
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Elizabeth, V., Gavey, N. & Tolmie, J. Between a Rock and a Hard Place: Resident Mothers and the Moral Dilemmas they Face During Custody Disputes. Fem Leg Stud 18, 253–274 (2010). https://doi.org/10.1007/s10691-010-9159-9
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DOI: https://doi.org/10.1007/s10691-010-9159-9