Motherhood, Fatherhood and Law: Child Custody and Visitation in Israel
| Author | Daphna Hacker |
| Date | 01 September 2005 |
| DOI | 10.1177/0964663905054911 |
| Published date | 01 September 2005 |
| Subject Matter | Articles |
MOTHERHOOD, FATHERHOOD
AND LAW: CHILD CUSTODY
AND VISITATION IN ISRAEL
DAPHNA HACKER
Tel Aviv University, Israel
ABSTRACT
This article analyses the ways notions of fatherhood and motherhood are constructed,
negotiated and articulated during divorce proceedings in Israel. The analysis is based
on in-depth interviews with divorced parents, lawyers, judges and therapeutic
professionals, and on a wide sample of divorce court files involving child custody
arrangements. The main finding of the study is that while motherhood is ordinarily
perceived as a taken-for-granted caring essence, fatherhood is a vague concept that
has yet to acquire concrete meaning. Treating the law as an overwhelming arena of
conceptual negotiations and practical applications, the study also finds that legal
professionals have a significant role in shaping how both women and men grasp and
act upon their parental rights and duties. By and large, I find that the impact of legal
professionals to that effect, combined with a rather conservative family law system in
the shadow of which the parties operate, impedes innovation and discourages men
from assuming expansive parental roles after divorce. Hence this study provides a rich
example of the contribution of law to the gendered social expectations and coercions
determining women and men’s ability to shape their parental roles and identities.
KEY WORDS
custody; divorce; fatherhood; Israel; motherhood; visitation
INTRODUCTION
INThe Normal Chaos of Love Beck and Beck-Gernsheim (1995) argue that
because categories such as marriage and family are undergoing profound
changes and are marked with radical instability, children rapidly become
the last remaining object of unconditional love for both women and men
SOCIAL &LEGAL STUDIES Copyright © 2005 SAGE Publications
London, Thousand Oaks, CA and New Delhi, www.sagepublications.com
0964 6639, Vol. 14(3), 409–431
DOI: 10.1177/0964663905054911
05 054911 Hacker (bc-s) 12/7/05 3:22 pm Page 409
(p. 37). Consequently, they argue, new types of committed fatherhood
develop alongside the more traditional model of the ‘caring mother’ and both
women and men cooperate, or compete, in managing primary caretaking of
children. Hence the birth of ‘new fathers’, men who relate to their fatherhood
as a central part of their identity and construct their priorities in a way that
enables them to participate fully in the life of their children (see Coltrane,
1996; Lupton and Barclay, 1997; Burghes et al., 1997).
Alternatively, there are those who claim that nothing is significantly new
and that the contemporary nuclear family is still highly gendered. Mothers
still do the majority of childcare and housekeeping chores and create signifi-
cant emotional bonds with their children, while fathers continue to be
involved primarily in paid labour (Fineman, 1995). According to this view,
the discourse of the ‘new fathers’ who adopt maternal behaviours and
feelings only serves to mask the persisting division of labour between the
sexes and ignores the fact that strong social forces still construct motherhood
and fatherhood as two binary gendered categories (Lewis and O’Brien, 1987;
Ambert, 1994).
In this article, I engage the above-mentioned conflicting views about the
changing or unchanging roles of parents by looking at the process and
outcome of child custody and visitation arrangements upon divorce in Israel.
I posit that from a methodological standpoint, the process of divorce in
general and of shaping child custody arrangements in particular, provides a
unique opportunity to consider how people construct, understand and act
upon their identities and roles as parents. Sclater (1999a) argues that ‘divorce
represents a process in which the old certainties are dismantled and the
subject is confronted with the mammoth task of rebuilding the world and
the self’ (p. 175). In this process, the divorcees reappraise the past while
trying to reorganize their lives in the present and move forward to the future
stage of post-divorce family (Sclater, 1999b). From this perspective, the legal
procedure of divorce can be seen as a ‘moment’ when family relations in
general and parenthood in particular have to be reconsidered, renegotiated,
and rearranged, thus bringing to the surface heretofore taken-for-granted
gendered assumptions and expectations about parental roles and identities
(Smart and Neal, 1999a: 118; Thompson and Amato, 1999). In addition,
divorce procedures enable us to consider the role of law – in book and in
action – in reproducing or altering gendered concepts of parenthood. Law is
one of the primary social institutions that shape the normalizing expectations
regarding parental roles (Sevenhuijsen, 1992). Moreover, above and beyond
legal rules, divorce as a process that brings together various legal, psycho-
logical and social policy discursive regimes (Piper and Sclater, 1999) provides
an opportunity to explore the impact of legal and therapeutic experts on
shaping parents’ understandings and expectations concerning their own
parental roles and identities. Thus, another methodological benefit derived
from analysing divorce proceedings is that it contextualizes the way decisions
about children are being made, positioning the parents within a broader field
of agents and institutions that take part in the process.1
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