The mother and child reunion: a reconception of child custody litigation and mediation
University of British Columbia
Master of Laws - LLM
Many women have shared with family lawyers such as myself their stories about how the legal system marginalized their maternal connections and child caregiving experiences by imposing on them legal positions and constructs about mothering and caring that differed from the reality of their experiences. This thesis develops the argument that neither the litigation nor the mediation of child custody disputes in Canada address the systemic problems association with the marginalization of women. Both processes reflect white, male, middle class, heterosexual expressions, productions and perpetuations of patriarchy. I first define the dominant ideology of motherhood and present differing mothering experiences which more accurately reflect the realities of caregiving. I then deconstruct the legal and social methods used in both the litigation and mediation of child custody in order to demonstrate their use of dominant ideologies of motherhood and family to limit women’s caregiving opportunities. From the context of two women’s legal experiences, I explore the possibility of introducing feminist legal methods into mediation and litigation in recognition of the fact that women must engage with the legal system to address the practicalities of childcare, economics and shelter. I respond to the popular argument that mediation is a panacea to the ills of litigation by taking the position that both are situated along a continuum perpetuating the same ideological assumptions about mothers and family which oppress all women to some degree. I argue that mediation is ultimately more oppressive to women because unlike litigation, systemic problems in mediation are obscured by romanticism and rhetoric. Firstly, I attempt a mother and child reunion by trying to create a place for feminist conceptions of caregiving within child custody litigation and mediation which would empower women. I conclude that it will be difficult to create a space for feminist methodology in custody litigation and mediation without the continued efforts of lawyers to reconstruct the ideology of mother.
Parent and child; Custody of children; Feminist jurisprudence
Law, Peter A. Allard School of