Child Custody, Women and the Law

Paper Summary:

This paper explains that issues of custody, childcare, social responsibility, as well as the structuring of the family and economic relationships all have to be addressed within one context. The paper then argues that the legal and judicial system, both at the local and international level, regularly fails to acknowledge the context and uses approaches based on misguided assumptions. The paper further asserts that principles such as best interests of the child and primary caregiver often function in the interests of the male partner and to the detriment of both the woman and her child. The paper concludes that although feminists are advocating for legislative change at the provincial, national and international levels, it will take time before positive outcomes will be achieved.

From the Paper:

"The principle of the best interests of the child has served to guide the law of custody. In order to implement the principle of the best interests of the child, considerations of custodial arrangements are inadequate; what must be regarded as the priority is the quality of the child's life which will be the result of the custody award (Rogerson, 1988). Gender is significant because of economics and the fact that women as custodial parents have a vastly different financial potential than men. Rogerson charges that current family law is unequipped to address the economic issues after marriage breakdown. Crossman and Ryder (2001), for instance, maintain that the legal system needs to avoid assumptions associated with relationship status and focus on the economic and emotional interdependence between the two partners."

Sample of Sources Used:

• Boyd, S. (1991). Potentialities and perils of the primary caregiver presumption. Gender issues in law: Cases and materials, Volume I. Toronto: University of Toronto.
• Crosssman, B. & Ryder, B. (2002). What is marriage like? The irrelevance of conjugality. Canadian Journal of Family Law, 269.
• Engle, K. (1993). After the collapse of the public/private distinction. Re-conceiving reality: Women and international law. American Society of International Law, 143.
• Frug, M. (1992). A postmodernist feminist legal manifesto. Postmodern legal feminism. London: Routledge.
• Johnson, R. (2002). Taxing choices. Vancouver: UBC Press.

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