“A Father is for life not just conception.” – Fathers 4 Justice
There is no point in denying or disregarding the argument that traditionally as the door of the home closed the State and the Law were often left out in the cold, allowing for little interference in the family. It meant that the power relations within families were mobilised without being reigned in, often inevitably and unfortunately allowing the man of the house to rule the roost and abuse the dominant position that society had bestowed upon him. In recent times however, Family Law has arguably had a sex change. It is no longer Male but Female. Justice Brennan’s claim in the U.S. Supreme Court case Frontiero v. Richardson that “romantic paternalism…put women not on a pedestal but in a cage,” is no longer the reality and discrimination is growing ever more prevalent against male partners, husbands and fathers.
Close to fifty percent of American marriages now end in divorce; it would seem that each year more married couples are making the conscious decision to end their unions or partnerships in dissolution rather than in death. It highlights a situation where many couples have shaken off the social stigma attached to divorce, where many women and men no longer have to suffer in silence but can break free from poisonous relationships. Many observers are quick to point to the rising numbers of divorce and the entrance of marriage into the public sphere as a positive transformation, it has led to empowerment of women but at what cost for men?
Emotion is interwoven into every aspect of our lives, from the classroom to the office but nowhere is an environment more emotionally charged than around the kitchen table of the family home. However in courthouses there remains an ever-growing problem in recognising emotion and human relationships as a central element of the family.
Past social norms and ideas of the aloof father figure have bitten back but in the 21st century contemporary culture that we now live in, why should the father’s emotional tie to his children be viewed as less important than that of the mother’s? In an era where it is now much more “normal” for men to express their feelings within the family and where breastfeeding has been exchanged for bottle feeding, how is a court supposed to measure relationships and bonds fairly without going back to biology or by asking the child directly, which is not ideal either.
The “special relationship between a woman and her child over the period which follows childbirth,” was highlighted in Pedro Manuel Roca Alvarez v Sesa Start Espana. However the question must be asked, why is this relationship placed on a pedestal compared to that of the father’s? The argument put forth by the Spanish Government for allowing women entitlement to leave work and look after their children was “to compensate for the genuine disadvantages suffered by women, in comparison to men, in keeping their jobs following the birth of a child.” Not only do such forms of affirmative action undermine men’s status within the family and put them “in a role subsidiary to that of women in relation to the exercise of their parental duties,” but this gender inequality has negative consequences for women also. It places mothers not on a pedestal but back in a cage. When the state sees it as a woman’s obligation over a man’s to carry out these duties what choice does a mother really have in trying to create a balance between her work and family life? The fact that mothers have a womb in which they carry the foetus seems in the eyes of the law to now be reason enough to not only give her more power in a custody battle but to remove the idea of there being a contest over children at all.
The “Best Interests of the Child Standard,” was introduced across American states in 1993, the aim being to measure what parent should be given custody of the children within a family on the basis of what is most suitable and positive for the child.
However this subjective standard requires that a prediction about the future be made based on past circumstances; the formulation of the primary caregiver is a perfect example of this. It relies on evidence regarding which parent carried out the most household tasks and looked after the children in the pre-divorce stage. Although there remains a clear and unfair gender inequality in that often these tasks fall to women to fulfil, this is not always nor often the fault of the husbands’ themselves. It is grossly unfair to hold men solely responsible for this continuing pattern of living, a tolerant society should not think ill of a man who wishes to live and work at home with his children, however this is the reality.
Formal equality measures have not equated into substantive equality and the male figure in a household is more often the individual who works, while some women stay at home, managing the household and carrying out the vital role of rearing the children on a day to day basis. There is no doubt that this division of labour between a couple should be looked upon on equal terms, however viewing these tasks as the definition of good parenting is not ideal, since it is the person who earns an income who ensures that the food is there to be prepared and eaten, that there is hot water to wash the children, clothes to dress them in and insurance to pay their medical bills. The only way to adapt this aspect of the “best interests” standard is to ensure that there are more women in the workplace, on an equal power with men. However since it does not appear that this situation will prevail anytime soon, Family Law must deal with the unequal reality that it faces at the present time.
These arguments relating to custody do not mean to illustrate that gender discrimination does not occur against women in Family Law. The favoured position means many employers will inevitably assume that if a female employee with children divorces, her productivity will be reduced, while divorced male employee’s will not be affected or their productivity may even increase as all they need to dedicate is the odd Sunday with a trip to the zoo or swimming pool.
As well as this, what happens when mothers actually don’t wish for the maternal presumption to go in their favour? Societal norms and legal patterns which have pursued in recent times impel many divorcing women to fight for custody when they do not really want it. Rather than face the social stigma and suspicion especially reserved for non-custodial mothers, many women seek what some might describe as the economic and emotional burden of single-parenthood even though the father may be able to bear them more easily. The maternal presumption in divorce proceedings is anathema to most feminists. The legal presumption that children belong with their mothers absent maternal unfitness reinforces the enduring stereotype of women as instinctive child rearers, inherently unsuited for worldly pursuits.
I am the first person to call for equal opportunities and female empowerment, from the public sphere, for example in the office to out on the street and right through to the private sphere within the cocoon that is the family home. My assertions are not meant to undermine the struggle the women’s legal movement has gone through and continues to go through to make gender equality a reality. However many of those who have called for a change in the status quo have been willing to reap the benefits that have come from the protest against male domination but when asked to make concessions in the areas in which they clearly have power many females have not been willing to do so. The Law in theory and in practice must now transform to facilitate changing norms from same-sex marriage to women’s equality in the workplace but men must also now be able to walk through the doors of the Family Courts on an equal footing with women.