Primary caregiving and "mothers with a difference" : A feminist analysis of developments in custody law
University of British Columbia
Master of Laws - LLM
The resolution of child custody disputes is a process fraught with controversy; this dissention has carried over into discussions regarding the perspectives to utilize when analyzing and resolving disputes. There is, however, virtually unanimous belief that the best interests of the child standard has failed to resolve the majority of issues raised in this context. One ground for this consensus is the lack of statutory guidance regarding the weight that should be accorded to the presence or absence of certain factors considered during custody disputes. Many feminist theorists suggest that this lack of guidance results in the operation of bias during the decision-making process. A central theme of this thesis is that societal expectations of a "good" mother operate within the custody realm. These expectations serve to disempower women whose lives are seen as deviating from the normative model. This thesis reviews the historical background to the current best interests of the child standard. It is suggested that children, as well as their primary caregivers, will benefit from a custody standard which focuses on one essential aspect of continuity in a child's life, this being primary caregiving. Enactment of a strong primary caregiver presumption, with a clearly defined "unfitness" rebuttal, is the most effective way to address the concerns of indeterminacy and bias in the custody realm. With this presumption in place, judges, as well as those acting in the "shadow of the law", will be less likely to be governed by arbitrary factors because the permissible scope of inquiry will be drastically reduced. In terms of specific groups of marginalized mothers, this thesis focuses first on the custody rights of lesbian mothers. The denial of custody rights to lesbian mothers may be viewed as one end of the spectrum in which deviations from the dominant ideology of motherhood are penalized. A solution may be found in enacting a primary caregiver presumption which curtails, as much as possible, the operation of this ideology. However, any endorsement of the presumption must entail a consideration of the implications it will have for women who are oppressed on more than gendered grounds, in particular First Nation and disabled mothers. Such implications suggest that any reform must be carefully drafted so as to provide for the many ways in which caregiving may be performed by women. Also integral to this discussion is a consideration of various reform alternatives.
Law, Peter A. Allard School of