Backlash and the Construction of Legal Knowledge: The Case of Child Custody Law

This article argues that legal knowledge is socially constructed rather than given and that law reform and legal change represent struggles over meaning and over desired norms. When struggles over legal norms arise between groups that have unequal power in society, analysis of the process must consider the relationship between knowledge creation and power. The article first reviews literature on \u27backlash\u27 or resistance to progressive social and legal change. It then explains why, as producers of legal knowledge, law schools must ensure that students understand that law is not a neutral set of norms, but rather a site of struggle over social meanings. A case study is then offered of how backlash discourse has influenced the construction of legal knowledge in child custody law reform. This part argues that gendered power relations influence both the ways in which statistics and social science studies are invoked in law reform processes and the direction of law reform itself

Can Law Challenge the Public/Private Divide? Women, Work, and Family

This article addresses the key elements of the public/private divide which predominates in western societies such as Canada. In particular, its ideological effects in constructing gendered divisions between state regulation and family relations, and between work and family are traced. The history of the divide is outlined, with attention to its differential operation according to race, class, and other social relations of power. Efforts to shift the divide through law are traced and its intransigence is demonstrated by reference to socio-economic studies. Case studies of feminist efforts to shift the divide through litigation and through legislative reform are used to illustrate both the pervasiveness of the divide, and the tension between short term and long term strategies to deal with its consequences. It is concluded that although law alone cannot shift the embedded nature of the public/private divide, and extra-legal strategies are required, neither can law be abandoned as a site of struggle

No Presumptions! Joint Custody in the British Columbia Court of Appeal

This paper examines the treatment of joint custody in the British Columbia Court of Appeal from 1996 through 2008, comparing to the “cautious” approach taken by the Ontario Court of Appeal. The B.C. Court of Appeal has taken a strong stance against the use of presumptions, either for or against joint custody. However, in a society and a legal system that increasingly favours shared parenting, the lack of a cautionary approach to joint custody can lead to complacency about its appropriateness in circumstances that either generate risk (to a parent or a child) or are not conducive to consensual decision-making. Moreover, the ability of B.C. judges to order joint guardianship (which usually connotes some form of joint decision-making) even when joint custody is deemed inappropriate suggests that the trend towards some form of joint award is quite strong. That said, judges often craft an award that preserves final decision-making for one parent

Equality: An Uncomfortable Fit in Parenting Law

This chapter uses laws on parenthood to study the contradiction between the trend towards formal equality and ongoing gendered patterns of care, as well as the growing phenomenon of parenting by lesbians and by gay men and by single mothers by choice, by which a woman plans to be a child’s sole parent. Specifically, it assesses the innovative potential of the new Family Law Act (FLA) in the Canadian province of British Columbia, which redefines legal parenthood and alters the regulation of post-separation parenting. The new definitions of legal parenthood respond to calls for the recognition of same-sex parenting and reproductive technologies. The new norms on post-separation parenting respond to calls for equal treatment of fathers, but they also take account of research on the troubling impact of shared parenting law reforms regulating post-separation disputes over children. As such, the FLA arguably eschews strict formal equality

Motherhood

An extensive feminist literature explores how law interacts with the social institution of motherhood and with the ideological frameworks that contribute to women’s oppression in western, liberal states. This chapter’s main concern is with feminist theories about law’s role in relation to motherhood, which reflects both coercive and ideological aspects. Women can be coerced into normative ideals of motherhood and penalized for failure to conform, but they can also \u27consent\u27 or choose to conform to ideological norms, raising far more complex questions for feminists and for feminist legal strategy. The chapter also explores the degree to which law and feminist legal strategies reinforce and/or challenge dominant ideologies of motherhood, which are rooted in the histories of race, class, gender and sexuality. Another theme is the differential impact of legal regulation, depending on whether a mother is working class or middle class, racialized or non-racialized, lesbian or straight, disabled or able-bodied, and so on. All women can be detrimentally affected by dominant legal norms, but women who depart from normative white, middle-class, heterosexual motherhood are likely to be scrutinized more heavily and treated more coercively than those who are able to conform. The question of law’s differential impact on women whose social location differs from this standard also poses important questions about feminist legal strategies, including whether they lapse into essentialist or \u27maternalist\u27 modes of analysis. The chapter proceeds on the premise that motherhood is socially constructed through the interaction of complex structures and ideologies. The first part explains this process and is then followed by two illustrative case studies on criminal law and family law. The risk of essentialism is taken up in the next part on legal strategy. The last part uses examples of \u27transgressive motherhood\u27, including single mothers, to suggest future directions for feminist legal theory. I conclude with questions that continue to challenge feminist legal engagement with motherhood

Backlash Against Feminism: Custody and Access Reform Debates of the Late 20th Century

This article examines the images of feminism and women’s groups in family law reform debates, particularly in the 1998 presentations of fathers’ rights advocates and related participants in Canada’s public consultations on child custody and access. These images are placed in the context of an increasingly sophisticated “backlash” literature that critiques feminist engagement with law and public policy. The article suggests that the fathers’ rights discourse invokes a caricature of feminism and identifies several mechanisms through which the discrediting of feminism occurred in the 1998 hearings. Feminism is also portrayed as a threat to dominant images of family, including the heterosexual norm. These portrayals of feminism and women’s groups in turn influence the law reform process due to the way in which “legitimate” knowledge is constructed. The article concludes with a discussion of why feminist voices are susceptible to discrediting and offers some suggestions for reasserting feminist analysis in areas that are critical to women

Gendering Legal Parenthood: Bio-Genetic Ties, Intentionality and Responsibility

Recent legal developments in Canada have produced contradictory trends in relation to defining parenthood and determining parental rights and responsibilities. In some cases, the intention to parent appears to be given considerable weight. In others, bio-genetic ties prevail, or influence the extent to which intentionality will be recognized. This article suggests a feminist approach to the determination of legal parenthood, drawing on literature about the gendered nature of parenting law, fathers\u27 rights, and the fragmentation of parenthood. It explores the apparently contradictory legal trends by examining the extent to which bio-genetic ties and intentionality inform the fragmentation of parenthood, and argues that gender still plays an important role in mediating both intentionality and bio-genetic ties. Strategic possibilities in relation to law reform are suggested, drawing on empirical studies about non-traditional families, especially lesbian-headed families. These studies point to a complex approach to bio-genetic ties and intentionality that the law may need to address in order to better protect the best interests of children and to enhance the autonomy of women who wish to define the conditions under which they parent a child

Marriage is More than Just a Piece of Paper\u27: Feminist Critiques of Same Sex Marriage

This article reviews feminist critiques of same sex marriage and analyzes how marriage as a socio-legal institution relates to inequality based on factors such as sex, race and class. The article first identifies how the legalization of same sex marriage can be viewed as a positive step in the quest for equality and recognition of lesbians and gay men. It then describes the legal and statistical trends in relation to marriage in Canada, as one of the first countries to legalize same sex marriage. The heart of the article discusses the key feminist critiques of both marriage and same sex marriage, drawing on an international survey of primarily English language literature. It considers why these critiques have been understated in the debates on same sex marriage and reviews empirical studies on the views of lesbians and gay men on marriage. While acknowledging that legal marriage can offer important rights to some couples, the conclusion suggests alternatives to placing marriage at the center of the lesbian and gay movement for equality and recognition