Child Custody, Law, and Women's Work

Jeanne Fay teaches community practice and social policy at the Maritime
School of Social Work. She is also teaches poverty law and
anti-oppressive practice at Dalhousie Legal Aid Service. She has been an
anti-poverty activist and advocate in both the Unit

In her examination of child custody law in Canada from the early 19th
century to the present, Susan Boyd convincingly shatters the myth—one
that underpins fathers’ rights crusades—that the courts have
exhibited a pro-mother bias. She finds that fathers have always had
rights that mothers, as primary caregivers, have never enjoyed.

This unequal treatment has proved to be a double-edged sword for women.
On the one hand, until the 1990s, mothers were granted custody of their
children in most divorce cases, the vast majority of which were
uncontested. But when fathers actively contested custody, mothers were
never sure to have the upper hand. In these disputes, Boyd finds that
women raised allegations of abuse at their peril. Judges minimized such
allegations and blamed women for trying to deny the father’s rights to
his children. As well, the recent trend in joint custody awards has
meant that even when fathers lose sole custody, they win control over
living arrangements, travel schedules, and relocation plans.

Boyd concludes by reviewing the ways in which child custody law,
recently bolstered by fathers’ rights advocates and the Special Joint
Parliamentary Committee on Custody and Access (1998), reinforces the
privatization of mothering. The Supreme Court of Canada recently
determined that the family unit survives divorce: men continue to be
responsible for the support of their children and to have equal
parenting rights. This decision, according to Boyd, reconstitutes the
privatized, patriarchal, nuclear family that reinforces women’s
economic dependence on their ex-spouses. The Special Joint Committee
carries this idea to an extreme by recommending a gender-neutral model
of parenting that not only overlooks women’s disproportionate role as
caregiver but also minimizes concerns about abuse. Fathers’ rights
activists want the best of both worlds: less financial burden with
increased parental rights.

The solution is not more changes to child custody law, but rather, as
Boyd points out, social policy initiatives that enhance the ability of
both parents to participate meaningfully in the labor force and in
parenting. Research and writing in this field abounds, as do examples in
other countries of more collective, public systems of child rearing:
what we lack is the political will.