LAW, STATE AND THE FAMILY: THE POLITICS OF CHILD CUSTODY JULIA ANNE BROPHY Thesis submitted for the degree of Ph.D. Centre for Criminology and Soclo-Legal Studies, the Faculty of Law, the University of Sheffield, December, 1985 Law, State and the Family: The Politics of Child Custody JULIA ANNE BROPHY SUMMARY La State and the Family: the Politics of Child Custody is an examination of the development of law and legal practices in relation to mothers and the legal custody of children. It maps the history of statute law and re-reads legal practice focusing upon the way in which these practices reproduce and sustain the conditions of motherhood. The first section documents the construction of the infant as a legal subject and the emergence of mothers legal rights in relation to children under the nineteenth century Guardianship Acts. The second section examines debates regarding the role of the state in the area of children and divorce following the Second World War. This section also examines the influence of ideologies of welfare upon the legal treatment of different categories of children during this period. In addition, this section also analyses the limited role which the law plays in the majority of decisions concerning custody of children following divorce. The third section documents and analyses women's experiences of contesting custody of their children through an empirical study of a sample of lesbian mothers. The focus is upon both the courts and legal processes involving lawyers and divorce court welfare officers. This section reveals the influences of notions of good mothering and perceptions of female sexuality upon those legal processes. The final section is concerned with contemporary debates in the 1980s regarding the role of the state generally in the area of children and divorce and particularly, discussions of the role of law in con- structing children's relationships with fathers. This section addresses the issues of 'joint custody' of children and conciliation schemes through a discussion of the implications of these practices in America. This section concludes with a discussion of the general trend away from 'law' and legal rules in this area, towards 'private ordering' in concilia- tions. Finally, it sets out the implications of that trend for feminist discussions of future policy in the area of children and divorce in Britain. ACKNOWLEDGEMENTS I would like to acknowledge the support I received from a number of people attached to the Centre for Socio-Legal Studies at the University of Sheffield: Tony Jefferson who took on the supervision of this research project in my final year at Sheffield, Kathy McCann, Elaine Fishwick and Mick Salter who gave me a great deal of support and encouragement. In particular, I would like to express my thanks to Carol Smart for her constructive comments on successive drafts of Parts I and II, for discussions on the issues raised in the Introductory Essay. I am enormously grateful to her for her encouragement and for her constant support of the research project as a whole. I would also like to thank Sarah Blandy, a family law practitioner, for her time and expertise; Sue Allen and Bernice Humphries, who both gave time and information which was central to the development of some of the themes expressed in Part III. Equally, I would also like to thank the lesbian mothers whose experiences are outlined in Part III of this research. Without their substantial courage - and indeed their support - important parts of this research would not have been possible. I would also like to express my thanks to Mary Eaton, for her constructive comments on Part III, for discussions and comments on the Introductory Essay, for her support and encouragement, and for her wonderful sense of humour. My thanks also to Stephen Ridall, for his support and encourage- ment throughout, for his patience and expertise in computer skills, and especially for the care and support given during the crucial 'writing-up' period. Finally I wish to formally record the role of Sue Macleanan. Although she did not live to witness the formal completion of this research project, her energy, and her belief in both author and content sustained me throughout. Julia Brophy CONTENTS Overview Introductory Essay: FEMINISM, SOCIOLOGY AND THE STUDY OF 'LAW' I - lv PART I CHAPTER 1 PATRIARCHAL RELATIONS AND LEGAL INTERVENTION State Intervention and fathers' rights 7 Mothers' Rights 9 Divorce law and child custody 15 Notes 29 CHAPTER 2 THE SOCIAL CONSTRUCTION OF CHILDHOOD AND THE PATRIARCHAL FAMILY 33 The reconstruction of motherhood 36 Ideologies of motherhood and the end of the patriarchal family ? 38 Notes 43 CHAPTER 3 MOTHER'S RIGHTS OR CHILDREN'S WELFARE - THE 1925 CUSTODY OF INFANTS ACT 45 The Equality debate and the position of mothers within the family 47 Mother's powerlessness, the state's response 53 Custody and maintenance on separation 58 Conclusion 65 Notes PART II CHAPTER Li WELFARE, CHILDREN AND THE FAMILY: 1945 AND THE POST WAR RECONSTRUCTION 69 Motherhood and the 1950s 70 Child centredness and the child outside of the conventional family 72 Divorce, children and legal procedure in the post war economy 77 Guilty wives - guilty mothers ? 88 Conclusion 96 Notes 100 CHAPTER 5 CHILD CUSTODY IN THE 1960s & 1970s: COURT PRACTICES AND THE EMERGENCE OF THE CH[LDREN'S RESIDENTIAL STATUS QUO HYPOTHESIS 105 Contested custody cases in the 1960s and the impact of law 107 Case law in the 197Os 113 Divorce court practices 115 The divorce court welfare officer and welfare reports 120 Notes 128 PART III INTRODUCTION 131 CHAPTER 6 SEXUALITY & SOCIAL CONTROL: LESBIAN MOTHERS, THE COURTS AND THE STATUS QUO HYPOTHESIS 135 Mothers and the status quo (i) overturned by courts 135 (ii) confirmed by courts 140 Fathers and the status quo confirmed by courts 143 Ci) (ii) overturned by courts 146 Parents holding a joint status quo 149 Conclusion 152 Notes 157 CHAPTER 7 IN WHOSE BEST INTERESTS? CHILDREN, THE COURTS AND LESBIAN MOTHERS 158 'Experts' and the case of L v L 160 Lesbian identities: myths and fears 166 The 'risks': homosexuality and gender confusion 169 psycho-sexual development - research 172 social stigma 174 Images of lesbians and the implications for lesbian mothers 178 Notes 186 CHAPTER 8 LESBIAN MOTHERS AND PRE-COURT PRACTICES 187 Separation and solicitors 189 Divorce court welfare officers and social enquiry reports 204 Mothers on Trial 215 Conclusion 224 Notes 229 PART IV CHAPTER 9 LAW, STATE AND THE FAMILY: THE POLITICS OF CHILD CUSTODY it1 THE 1980s 230 The law in relation to custody of children 232 The State, the child and divorce 235 Joint custody - California style 241 Patriarchal relations and child custody 251 Feminist policies 254 Notes 259 APPENDICES I Doing Research 260 II Interview Schedule 294 lIE Mothers and Children 310 LIST OF CASES 313 BIBLIOGRAPHY 317 OVERVIEW This thesis is the result of research into the issue of child custody in Britain. It looks at campaigns to achieve legislation, legislation itself, court practices and legal procedure and finall womens' experiences of law and legal procedure in Britain in the 1980s. The first part of the thesis is conceited with the absolute powers of fathers in the nineteenth century patriarchal family, and legal intervention. My concern was to to examine traditional explanations of the development of law in relation to the guardianship and custody of children. I argue that developments in this area of law cannot adequately be described simply in terms of the demise of 'father right' and the emergence of 'mother right'. Rather, I document the emergence of a third party - the State - in the management of the patriarchal family. I demonstrate how legal intervention was always tempered by a desire to preserve the family. Thus a concern for the custody and maintenance of children was mediated through a desire that 'any new law and legal practices should not appear to undermine the institution of the family1 by making separation and divorce a viable alternative for mothers, except in the most extreme of circumstances. I discuss the emergence of the infant as a legal subject and the shift in the ideology of the family which that focus brought about, particularly in relation to the recon- struction of the role of mothers. However, in examining the focus upon children,(and subsequently on mothers) over the turn of the century, I argue that, whilst 'motherhood' was indeed elevated in certain social practices, this did not necessarily lead to a simple re-evaluation of power within the patriarchal family (Donzelot 1980). Whilst nineteenth century campaigns demonstrated gross failures in the system of privilege and rights which the law attached to men, state intervention to pro t e c t/ women and children focused upon sustaining the family rather than undermining it. Thus the new rights which mothers did acquire under the Guardianship Acts in relation to children, were only operable on the breakdown of marriage. It was at the point of breakdown that welfarist discourses provided the dual mechanism through which childhood and hence motherhood become constituted in family law. In the second part of this thesis I focus on law and legal procedure in the post war years in relation to different categories of children - the orphan, the deserted and the illegitimate child. Here I examine the influence of ideologies of both welfare and motherhood particularly in relation to new procedures to deal with children and divorce. I analyse the tensions between two approaches to the role of the state in dealing with this issue. One approach, located in the Denning Report (1947) argued for increased power for the courts to investigate and report on the circumstances of all children whose parents divorce.