Getting tough on mothers: regulating contact and residence

Abstract

This article critically examines the relationship between shared residence and contact after the breakdown of the parents' relationship. It examines the background to the government's main emphasis on methods of monitoring, facilitating and enforcing contact as the most efficacious method of proceeding in respect of the law reform agenda, focussing particularly on the potential impact of punitive enforcement measures on primary carers, usually mothers. The article sets the discussion within its wider cultural context in respect of fathers' rights claims that family law currently favours mothers, and shows how recent legal developments constitute part of a package to manage postseparation relationships between parent and children. It also examines some of the emerging case law to show how the judiciary is using shared residence orders and transfer of residence to deal with protracted and very difficult contact disputes, and in ways which were not anticipated when shared residence orders were first introduced. Drawing on feminist legal commentaries the argument will be made that the use of transfer of residence and shared residence orders in these disputes is extremely worrying, especially in light of the growing body of empirical research which heralds caution. The article will conclude by suggesting that far from favouring mothers, both the law reforms and the case law effectively construct mothers as integral to the problem of contact. They are treated as the site of and solution to the 'problem' of contact, and the means of dealing with the problem is by increasingly punitive measures which are inappropriate in a family law context. At the same time non-residential fathers who do not uphold contact escape legal sanctions.

‘I’d just lose it if there was any more stress in my life’: Separated Fathers, Fathers’ Rights and the News Media

“…Two of the fathers at the centre of the three cases analysed herein were represented sympathetically as basically good fathers who were engaged in a heroic fight to preserve their relationship with their child, something they are morally required to do by contemporary constructions of the good father, a construct that informs and is informed by fathers' rights discourse (Collier 2006;Jordan 2014;Wallbank 2007). The egregious act of violence perpetrated by the father at the centre of the third case meant that he was represented as a tainted and unsympathetic figure (Websdale and Alvarez 1998).…”

“…Specifically, both Jelicich and Jones assumed the mantle of heroic fighters for justice, who sought nothing more than an ongoing relationship with their children (Jordan 2014;see also Collier 2006;Wallbank 2007 Jayden's kidnapping; and, finally, to take the unprecedented step of having his lawyer file a writ of habeas corpus against Kay Skelton and others believed to be involved in Jayden's abduction.…”

Between a Rock and a Hard Place: Resident Mothers and the Moral Dilemmas they Face During Custody Disputes

“…1 Often invoked by family law professionals (i.e. judges, lawyers, psychologists and counsellors), the 'alienating mother' is charged with the misuse of maternal power to unjustifiably obstruct a child's relationship with her/his father to the child's detriment (Boyd 2004(Boyd , 2006Harrison 2008;Neustein and Lesher 2005;Rhoades 2002;Smart 1997;Smart and Neale 1999b;Tolmie et al 2009;Wallbank 1998Wallbank , 2007. The sheer prominence of the construct of the alienating and hostile mother within family law discourse, the media and in commonsense understandings of custody disputes means that women risk being constructed as hostile if they dispute fathers' claims for contact, even when the father concerned has a history of being violent (Elizabeth 2010;Eriksson and Hester 2001;Harrison 2008;Kaspiew 2007;Neustein and Lesher 2005;Rhoades 2002;Smart 1997;Smart and Neale 1999b;Tolmie et al 2009;Wallbank 1998Wallbank , 2001.…”

“…Despite insightful analyses of the moral terrain of post-separation parenting (see, for example, Boyd 2003; Kaganas and Day Sclater 2004;Sano et al 2008;Smart 1991;Smart and Neale 1999a;Wallbank 2001Wallbank , 2007 and critiques of the construct of the 'hostile custody mother' (see, for example, Boyd 2004Boyd , 2006Harrison 2008;Neale and Smart 1997;Neustein and Lesher 2005;Rhoades 2002;Sano et al 2008;Smart 1997;Smart and Neale 1999b;Wallbank 1998Wallbank , 2007, the image of resident mothers as hostile remains a powerful interpretive lens in shaping how family law professionals respond to mothers and fathers involved in custody disputes, as well as media representations of these disputes (see, for example , Elizabeth 2010;Dyer 2007;Tolmie et al 2009). For this reason, it is vital that feminist scholars continue to investigate the circumstances in which resident mothers are defined as hostile and alienating.…”

The Gendered Dynamics of Power in Disputes Over the Postseparation Care of Children

“…Hence, postseparation parenting is now conceptualized as a joint parenting project that requires parents to cooperate with each other and to engage in ongoing negotiations in the interests of their children (Rhoades, 2002;Wallbank, 2007). Joint parenting, however, can mean a number of quite different things.…”