Is There an Ideology of Motherhood in (Post)Modern Child Custody Law?

DOI10.1177/096466399600500403
Published date01 December 1996
Date01 December 1996
Subject MatterArticle
Is
THERE
AN
IDEOLOGY OF
MOTHERHOOD IN
(PoST)MoDERN
CHILD
CUSTODY LAW?
SUSAN B.
BOYD
University
of
British Columbia
THE
CONCEPT
of the ideology of motherhood was crucial to much
early feminist
work
on child custody
Iaw.'
This ideology consisted of
a set of 'common-sense' expectations that can be summarized as
follows: mothers must be full-time carers for their children; this care must
occur within the context of a heterosexual nuclear family seen to be'natural'
and timeless; mothers must
put
the interests of children before their own; and
they must be sexually pure and otherwise provide agood role model.
The
ideology of motherhood assisted in understanding
why
a field where women
appeared to 'succeed' -that is, statistically they ended up
with
custody of
children more often than men after the demise of paternal custody in the late
nineteenth century/ -nonetheless could be problematic from a feminist per-
spective.
Use of the ideology of motherhood has been subjected to various criti-
cisms. In this article, I review its use specifically in the context of child
custody and access law and examine challenges to its utility in the analysis of
women's oppression. Ithen suggest ways in which the ideology of mother-
hood continues to resonate as a conceptual tool, despite documented shifts
in its content and application in this legal field. In particular, Ihighlight the
ways in which the, shifting and enlarged concept of access produces
SOCIAL
&
LEGAL
STUDIES
ISSN 0964-6639
Copyright
©1996
SAGE
Publications,
London,
Thousand
Oaks,
CA
and
New
Delhi, Vol. 5 (4),495-521
496 SUSAN B. BoY[)
disciplining effects on mothers. Although the normative model of mother-
hood has different effects depending on factors such as a mother's race, class,
sexual orientation or (dis)ability, keeping its power as a normative model in
focus is crucial to effective analysis of the legal regulation of motherhood. I
also review the complexity of finding a strategy that is capable of challeng-
ing the numerous difficulties arising for modern mothers,
but
avoids rein-
forcing essentialist gender roles.
THE
IDEOLOGY OF
MOTHERHOOD
AND
CHILD
CUSTODY LAW
Feminist literature of the 1980s examined the ways in which custody law
reproduced, in different historical periods, adominant ideal of motherhood
located within familial ideology. Researchers investigated how judges
assumed that 'proper' mothers should receive custody, how they rewarded
many such mothers with custody and how custody claims were rendered
more difficult for, or denied to, women who departed from the norm. Such
work demonstrated that the damaging aspects of custody law operated both
ideologically and materially. That is, even when individual women 'won',
problematic assumptions about motherhood and womanhood were repro-
duced ideologically,so that women as a group lost. Given the small percent-
age of custody disputes that actually go to court, the ideological role of law
may well be of primary importance (Gavigan, 1988: 284). But the material
losses that sometimes occur when women fail to meet ideological expec-
tations, either in court or when bargaining in the shadow of the law, are also
manifest.
Authors such as Arnup (1989), Boyd (1989a, 1989b),Brophy (1985, 1989),
Brophy and Smart (1981), Girdner (1986),Olsen (1984), Polikoff (1983) and
Smart (1984) used the tool of ideology, or idealized norms of family and
motherhood, to understand the ways in which mothers who appeared to
place their own interests above those of their children were negatively con-
structed by judges and other legal actors. The construction of mothers who
were lesbian, adulterous, employed outside the home or who, for no appar-
ent reason, split up a family deemed healthy by judges, was critically analysed
by reference to the measuring stick of an idealized norm of motherhood sit-
uated within the dominant model of the heterosexual, middle class, nuclear
family. Some authors also explored the contradictory nature of the ideology
of motherhood for women. When placed alongside an increasingly prevalent
ideology of equality and gender neutrality that gave fathers a greater voice in
custody claims and devalued nurturing (Boyd, 1989a,1989b; Fineman, 1989,
1991a;Smart and Sevenhuijsen, 1989), the picture became grim for mothers.'
Some authors also looked at how the ideology of motherhood reinforced
in custody law related more broadly to the regulation of familial relations in
capitalist societies (e.g. Boyd, 1989b; Smart, 1984).This regulation in turn has
been connected, at least over the past century, to the subordinate status of
women (Chunn, 1992;Ursel, 1992).Although the mode of regulation of the

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