Post on 24-Jan-2023
Autonomy for Mothers? Relational Theoryand Parenting Apart
Susan B. Boyd
Published online: 10 August 2010
� Springer Science+Business Media B.V. 2010
Abstract This article explores the tensions between autonomy and expectations of
mother-caregivers, in the context of normative trends in post-separation parenting
law. Going back to first principles of feminism, the article asks what scope for
autonomy there is for modern mothers in the face of socio-legal norms that prioritise
shared parenting. The very relationship between mother-caregivers and children
illustrates the important connection between relationships and autonomy: the
caregiving that mothers provide enables children to become autonomous persons
yet, at the same time, this caregiving relationship constrains maternal autonomy. In
the current context that encourages shared parenting, the potential for maternal
autonomy may be even more compromised—a deep irony in a supposedly post-
feminist era. A responsible mother is now expected to nurture a child’s relationship
with the father, unless he is proven to be harmful. The ability of women to be at all
autonomous from the fathers of their children in the face of this normative
expectation is dubious, even when the adults live separately. Moreover, the domi-
nance of the heterosexual and patriarchal family—always a challenge for women’s
autonomy—is reproduced in this imposition of equal parenting in the name of
children’s rights. This article uses a contextual approach to relational autonomy to
point to an approach that might challenge the normative climate of shared parenting.
Keywords Autonomy � Legal norms � Motherhood � Relational theory �Shared parenting
Story #1
In a 2006 case, the parents separated before their son was born, after a very short
marriage. The child, who was three, had always lived with his mother in Vancouver
S. B. Boyd (&)
Faculty of Law, University of British Columbia, 1822 East Mall, Vancouver, BC V6T 1Z1, Canada
e-mail: boyd@law.ubc.ca
123
Fem Leg Stud (2010) 18:137–158
DOI 10.1007/s10691-010-9152-3
and she had sole custody. The father saw his son each week. The mother had a good
job with flexible hours with a company. This company closed down its Vancouver
operations but offered her a position in either of Houston, London or Singapore. She
chose Houston because it was closest to Vancouver. If she did not move, she would
lose her job. There were no equivalent positions in Vancouver and she would have
taken a sizeable pay cut in any other job in Vancouver. If allowed to move, the
mother agreed to waive child support and facilitate visits to Vancouver. In other
words, this mother did all she could to ensure the move did not compromise the
relationship between father and son. She acted as a responsible breadwinner and
custodial parent. Nevertheless, she was denied permission to move because of the
distance and the effects on the access schedule, the young age of the child, and the
child’s relationship with extended family in Vancouver.1
Story #2
A woman wanted to have a child and raise the child on her own. Her difficulty was
conception. She accepted the offer of a man she was dating sporadically that she use
his sperm. Using IVF, she gave birth to twins. She never cohabited with the man and
concluded that to do so would be unhealthy for her and her children. She planned to
parent as a single mother, with the help of her father. Unluckily for her, legislation
that clarified that a sperm donor is not to be recognised as a parent unless the mother
is his spouse or a person with whom he is in a relationship of interdependence of
some permanence2 came into force only after a court recognised him as a parent.
Since the birth of the twins, the genetic father has claimed, and been awarded, more
and more parenting rights, including joint legal custody when the twins were two, as
a result of various court actions. The mother has been constructed as a problematic
parent who unreasonably resists shared parenting with the father. A parallel
parenting order has now been put in place in recognition of the fact that there is such
high conflict. The father now has virtually equal time with the children. The judge
stated: ‘‘A parent should not be deprived of the opportunity to play an active role in
parenting because of an innate inability of the parents to get along.’’3
Introduction
These two stories based on recent Canadian cases illustrate both the power of shared
parenting norms and the potential limits that these norms place on women’s
autonomy over life decisions for themselves and for their children. This article
explores the tensions between women’s autonomy and modern expectations of
mother-caregivers who do not live with the fathers of their children. It does so in the
1 Karpodinis v Kantas, 2006 BCCA 272, 27 RFL (6th) 254, leave to appeal to SCC refused [2006] SCCA
No 318 (16 November 2006).2 Family Law Act, RSA 2003, c F-4.5, s 13(3).3 Caufield v Wong, 2007 ABQB 732, 47 RFL (6th) 144 at [37].
138 S. B. Boyd
123
context of trends in post-separation parenting law, with a focus on heterosexual
relationships. The focus on opposite-sex parents reflects the historical dominance of
such relationships in parenting disputes that receive legal attention. However, the
norms discussed are relevant also to the increasing number of disputes between
lesbian mothers and sperm donors, and, potentially, even to those between lesbian
mothers.
Going back to the first principles of feminism and the women’s movement, I ask
what scope for autonomy mother-caregivers have in the face of socio-legal norms
that increasingly prioritise significant involvement of fathers in children’s lives,
often regardless of the quality of the relationship between the parents or whether
there has even been a relationship between the parents involving cohabitation or co-
parenting. I also situate this question in relation to the established legal principle
that guides decisions in this field, the best interests of the child, referring to social
science evidence. Specifically, I am concerned about the implications of normative
shared parenting for mothers who either never had, or no longer have, a
relationship-based motivation (such as love) for facilitating the child’s relationship
with the other parent. Finally, I lay some groundwork for using relational theory to
shift the normative force of shared parenting while also identifying some pitfalls in
this approach. I argue that the socio-economic system that exploits women’s
reproductive labour must be taken into account and that women must have some
ability to make choices of fundamental importance to their lives, even within the
complex relational ties of parenting.
Feminism, Autonomy and Relationships
Feminism has been centrally concerned with freeing women to shape their own
lives, rather than accepting the definition of womanhood given by male-dominated
society (Nedelsky 1989, pp. 8–9).4 In some sense, this is what women’s liberation
was all about at the outset of second wave feminism: the freedom to choose one’s
own relationships; the ability to leave destructive relationships; the ability to choose
when or whether to bear children; the ability to choose work that was not defined as
appropriate for women. This language of choice is notable, as it is a key component
of liberalism (Sandel 1998) and neo-liberalism (Harvey 2007), as, indeed, are many
approaches to autonomy (Schneewind 1998).
Yet feminists have also been critical of both the liberal concept of ‘choice’ and
the individualist version of autonomy at the core of liberalism and formal equality
(Mackenzie and Stoljar 2000, pp. 5–12). The feminist critique of choice, autonomy
and liberalism emerged particularly during the latter stages of the second wave
women’s movement when it became clear that, for women especially, achieving
autonomy is complex. Choices are shaped and often constrained by forces such as
the ties of family, familial and heterosexual ideology, and economic dependency
(e.g. Denbow 2005). Another way of putting this is that individuals and their choices
4 Feminists are also concerned with freeing men to live in ways that depart from culturally accepted
norms of masculinity, but this concern is more recent (see Collier 2006).
Autonomy for Mothers? Relational Theory and Parenting Apart 139
123
are socially constructed: we are deeply influenced by our social contexts and by
power relations and ideologies connected to gender, race and class. Meaningful
autonomy might, then, only be feasible in a completely neutral socio-economic
system that was free of, say, gendered power relations. Whether such a system is
even possible remains in doubt. In the meantime, the concept of autonomy must be
considered relationally within the context of power relations and ideologies that
shape and constrain choices. More specifically, it must be kept in mind that to date,
men have had systematically more material, institutional and discursive power to
shape the process of social construction, although clearly men’s power varies
depending on which men and which women we are examining, and according to
factors such as race, class and ability. Neither social construction nor power relations
are totalising or static, else feminism would have no purpose other than critique;
nevertheless, they have considerable influence on women’s lives and decisions.
Relationships often constrain women’s potential for autonomy, although they can
also enable autonomy (Mackenzie and Stoljar 2000, pp. 5–12). Relationships, too,
are socially constructed, for instance by heterosexism and the ideology of
motherhood. At a general level, relational theory reminds us that we are inevitably
shaped by our connections with others. Most relevant for this article, the very
relationship between women as mother-caregivers and children illustrates the
important connection between relationships and autonomy and the ways in which
relationships can constrain autonomy as well as facilitate it. Specifically, the
caregiving that mothers provide enables children to become autonomous persons
yet, at the same time, this caregiving relationship (inevitably?) constrains maternal
autonomy. Given the still powerful societal expectations that mothers will provide
primary care for children, and the strong sense of responsibility that many or most
mothers feel towards the well-being of their children, the constraints that parenting
imposes on female autonomy remain more significant than those on male
autonomy.5 Women’s ‘‘pregnant embodiment’’ (Collier and Sheldon 2008,
p. 60)—their more continuous physical experience in relation to children as a
result of pregnancy, breastfeeding and even caregiving responsibility—prevents
them from being able to opt in and out of involvement with children in the way that
men still can if they so choose. Despite long-standing calls for men to share
parenting and for society to support work-life balance, this constraint remains
surprisingly well entrenched. For instance, Canadian studies demonstrate that
despite increases since 1986 in the time that fathers with children under 19 spend
time on childcare, as of 2005, this time had increased more for mothers than fathers.
Moreover, women account for 89% of stay-at-home parents (Marshall 2006, p. 11).
The landscape of parenting thus remains stubbornly gendered.
The constraints on mothers are not simply biological or physical. The ideology of
motherhood ‘‘has an effect on women’s autonomy, so that we are often not viewed
as persons in our own right, with choices to make about ways of being and living’’
(O’Donovan and Marshall 2006, p. 103). This ideology is born of a still powerful
5 For an eloquent reflection on the pressures and constraints experienced even by a privileged, white,
middle-class feminist law professor with a husband who shared parenting responsibility, see Nedelsky
(1999).
140 S. B. Boyd
123
public/private divide, which holds women responsible for children and family, and
constructs women as separate and distinct from men, who still dominate the public
sphere (Boyd 1997; Thornton 1995). Moreover, although the ideology of
motherhood has changed, far from waning, the expectations of the ‘new momism’
also generate a constraining cultural norm (O’Donovan and Marshall 2006,
pp. 110–111).
Motherhood must also be seen as a relationship within larger social and
economic structures. Without a generous social or familial structure surrounding a
given woman’s mothering (for example, one that might allow her some time without
the children to pursue her own interests), her ability to make choices for herself is
inevitably constrained. The fact that women still are paid less than men on average
and remain concentrated in traditional, female-dominated fields of employment
goes some way to explain why women in heterosexual parenting dyads tend to take
part-time work more than their male counterparts (Statistics Canada 2008,
pp. 109–110). That is, they take more time out to cover family responsibilities.
Many workplaces are structured in a manner that fits poorly with parenting
responsibilities. As a result, enhancing a woman’s autonomy might mean not an
absence of state interference, but also ‘‘the positive provision of resources to enable
someone to have a meaningful set of options’’ (Jackson and Day Sclater 2009, p. 2).
Despite this relational nexus between motherhood and socio-economic structures,
in most western societies, the family itself is constructed as autonomous and as part
of the non-public sphere (see, e.g. Barrett and McIntosh 1991; Fineman 2004).
Parenting is very often accomplished in isolation from extended families and/or
without adequate childcare and other social supports, so that maternal autonomy
is correspondingly limited. Moreover, as Martha Fineman has documented, the
inevitable dependency of young children generates a derivative (economic and
structural) dependency in their caregivers, usually women (Fineman 2004,
pp. 35–37). As of yet, society has not fully recognised or accommodated this
derivative dependency, which in turn negatively affects the ability of mother-
caregivers to exercise autonomous choices or to achieve the economic stability
necessary for them to do so. Fineman suggests that autonomy is only possible in
conjunction with the meaningful and widespread attainment of equality, and that
equality must include equalisation of basic resources so that there is a ‘‘floor below
which no citizen shall fall’’ (Fineman 2004, p. 29). I do not suggest here, nor does
Fineman, that autonomy should be equated with independence and self-sufficiency;
rather, as we will see below, this feminist and relational approach to autonomy
would acknowledge that most if not all individuals live their (even autonomous)
lives ‘‘from within relationships with others’’ and that autonomy ‘‘is not realizable
without the ongoing support, care, and guidance provided by others’’ (Ball 2005,
pp. 358–359; Friedman 2003; Reece 2008). The difficult question is how to support
women’s autonomy within the context of these relationships, not all of which are
supportive and some of which may be oppressive, and in a society that does not yet
properly support mother-caregivers or women’s reproductive labour (Donchin
2009), but, rather, exploits it.
In the next part, I identify the ways in which the trends in child custody law affect
women’s potential for autonomy. Much has already been written about modern
Autonomy for Mothers? Relational Theory and Parenting Apart 141
123
trends in child custody law, the rise of the fathers’ rights movement, the normative
push towards joint custody and shared parenting, and the implications for maternal
claims for custody. However, little of this work has explicitly explored in any depth
the question of women’s autonomy in the face of these trends (but see Reece 2006).6
It has become taboo to emphasise women’s issues when the interests of children are
being addressed, especially in the face of expectations that mothers should be
selfless in relation to children. As Diana Meyers has said: ‘‘Mothers are culturally
represented as self-sacrificial, unconditionally loving, and totally identified with
their children—the prototype of a gladly nonautonomous being’’ (Meyers 2004,
p. 257). In child custody law, where the best interests of the child standard is the key
legal test, it is particularly difficult to centre women’s autonomy interests (a point to
which I return in the last part of this article).
That said, the ways in which normative encouragement of shared parenting,
typically done in the name of the best interests of the child, constrains women’s
ability to protect themselves and their children from abusive conduct by the other
parent have been well documented. I draw on that literature, as the clearest example
of the tension between autonomy and safety versus shared parenting norms, but I
also look beyond the context of domestic abuse in exploring the consequences of
normative shared parenting for women’s autonomy. We have begun to see the
problematic consequences (including for some children) of a bifurcated approach
whereby maximum contact or shared parental responsibility is presumed to be the
best scenario for most post-separation families, subject to limited exceptions
intended to protect the exceptional ‘minority’ of children who have been subjected
to or exposed to abuse (see Fehlberg et al. 2009; Rhoades 2008). It is therefore
important to re-insert the question of women’s autonomy into the picture, even in
scenarios where abuse or violence is not at issue (Reece 2006).
Consequences of Normative Shared Parenting for Women’s Autonomy
As the result of a rethinking of paternal responsibility in child welfare and
development, and the emergence of new socio-legal norms around shared parenting,
understandings about parenthood are being reshaped (Smart 1999). For instance,
fatherhood has become a new policy concern, with initiatives to promote ‘good’
fathering and social responsibility on the part of men, whether they are fathers
within intact families or outside that structure. As Richard Collier and Sally Sheldon
say, ‘‘[f]athers are now seen to have a more direct, unmediated relationship to their
children’’ (2008, p. 117) than in the past. In other words, paternal relationships with
children are no longer mediated by the type or quality of relationship that a father
has with the mother.
Some of these trends are positive, particularly for women who seek greater and
more direct sharing of parenting responsibilities by their male partners. Interest-
ingly, these trends arguably limit paternal autonomy in relation to children, for
6 Reece (2006) cites other feminist scholars as having adopted an autonomy-based approach (notes 75
and 76 at p. 547) but their treatment of autonomy is largely implicit.
142 S. B. Boyd
123
instance, by insisting on greater engagement with children as well as financial
responsibility for children. The modern ‘good father’ is supposed to be not ‘‘just a
breadwinner and remote disciplinarian, but also a hands-on carer and active
presence in his children’s lives’’ (Collier and Sheldon 2008, pp. 65–66). Children
can benefit from a less rigid sexual division of labour between their mothers and
fathers and the opportunity to receive engaged attention from more than one parent.
Enhanced child support enforcement also assists with redistribution of income to the
child’s household. However, it is also clear that child support law reforms have
spurred the fathers’ rights movement in its push for shared parenting norms
(Crowley 2008; Boyd 2003) with less than clearly positive results for mothers and
children.
In the current shared parenting climate, the potential for maternal autonomy is
arguably more compromised than it was a couple of decades ago—a deep irony in a
supposedly post-feminist era. In part, this is a result of the trend away from a legal
framework that tended to award sole custody to one parent (more often the mother)
and access to the other. Norms around fatherhood have been shifting in a manner
that also affects normative expectations of motherhood and complicates any claims
for autonomy that a mother might make. As family law policy has encouraged men
to take responsibility for child care by emphasising maximum contact between
children and ‘both’ parents after separation or divorce (Boyd 2003; Collier and
Sheldon 2008), as fathers’ rights have been emphasised by fathers’ rights advocates
and policy-makers (Collier and Sheldon 2006; Crowley 2008) and as sole custody
awards have waned in frequency and popularity both inside and outside courts, the
expected role of mothers and fathers in relation to children has begun to shift—at
least at the conceptual and policy level, if not always in empirical reality.
Canadian statistics for 2003 indicate that in 44% of court-determined custody
cases in the divorce context, the outcome is an order for joint custody, which is
more than double the number from the mid-1990s and four times the figure when
compared to the late 1980s. The rate at which women are awarded sole custody in
cases that go to court has fallen from more than 70% to just 48% from the late 1980s
to 2003. The share of sole custody awards to the father has also dropped from
around 13% to 8% in the same period, so that fathers are gaining custody through
joint custody awards, not sole custody (Statistics Canada 2006, p. 40). There is
much anecdotal and academic testimony to the normative power of shared parenting
in current decision-making (Fehlberg et al. 2009; McCarthy 2009; Rhoades 2002a),
with many Canadian lawyers reporting that joint custody is the de facto starting
point for most judges. It is likely that the percentage of joint custody awards has
gone up since 2003.
What could possibly be wrong with this picture of norms that promote engaged
fatherhood? The answer depends on the context within which claims around
fatherhood arise and, in particular, the extent to which policy assumptions about
children’s best interests are imposed in situations where a woman is effectively
parenting on her own but must cooperate with a father due to a joint custody award,
or where she may legitimately prefer to parent on her own. While many women seek
an engaged father with whom to co-parent, the trends to prefer shared parenting
present serious challenges to women who are parenting without the biological father
Autonomy for Mothers? Relational Theory and Parenting Apart 143
123
for whatever reason, whether it be abuse at the hands of such a man (Humphreys
and Harrison 2003);7 concerns about his ability to be a constructive parent (Rhoades
2002b); plans to parent with a same sex partner (Kelly 2004); or a wish to parent
autonomously or without a partner (an increasing phenomenon as ‘‘single mothers
by choice’’ increase in number (Hertz 2006)).
Despite these scenarios that may suggest a legitimate claim to a woman parenting
without the child’s genetic father, gender convergence has increasingly character-
ised modern accounts of fatherhood, with gender neutrality and formal equality
dominating discussions about parenthood in a way that tends to obscure the ongoing
gendered nature of reproductive labour. For instance, greater involvement by fathers
in decisions such as abortion and formerly women-centred processes such as
antenatal classes and births can be double-edged, as men’s greater involvement
tends to breed greater recognition and enlarged rights for fathers (Collier and
Sheldon 2008; see also Donchin 2009). These rights can translate into greater
control over a pregnant woman or mother, in relation to decisions that will have
more consequences for her life and body. At the very least, the centrality of the
female role in reproduction and parenting is being challenged and we need to
consider what space for her decisions should be preserved in this brave new world.
Moreover, although legal rhetoric promotes shared parental responsibility, in
practice few joint custody or shared parenting awards reflect meaningful shared
responsibility; many children reside primarily with one parent, usually the mother,
with the joint award dictating that she must involve the other parent in decision-
making at least (Fehlberg et al. 2009). A mother-caregiver is, then, both responsible
for childcare and for ensuring involvement of the father. In a supportive, non-
conflicted relationship between adults who both prioritise the interests of the child,
this model can work well for women and even give them more flexibility to pursue
their interests outside parenting. In other less supportive circumstances, the joint
decision-making limits a mother’s potential to make decisions that she may deem to
be in her child’s or her own best interests. If disputes arise, a responsible mother is
still expected to nurture a child’s relationship with the father, unless he is proven to
be harmful to the child. If she does not do so, she may well be labelled as an
‘‘implacably hostile’’ (Smart and Neale 1997, p. 336) or alienating mother. Mothers
who raise what may be legitimate concerns about the safety of contact arrangements
can be vilified as ‘‘no contact mothers’’ (Rhoades 2002b). In some cases, they lose
custody as a result. The ability of women to be at all autonomous from the fathers of
their children in the face of this normative environment is dubious, even when the
adults live separately. As Helen Rhoades has pointed out, the preference for joint
parenting in effect binds only resident or primary caregiver parents, usually women,
with no penalties being incurred by fathers who fail to live up to their (non-
financial) parenting responsibilities (Rhoades 2002b).
Even putting aside conflicted or abusive relationships, if a woman has cohabited
with the father (or he has gotten to know the children, as in Story #2), it is
increasingly difficult for her to later choose to formulate a life that is marked by
geographical distance from the father or make decisions that may limit his
7 Unmarried fathers are also increasingly gaining legal status (Collier and Sheldon 2008).
144 S. B. Boyd
123
involvement with the children—even if this involvement falls well short of shared
care responsibility. Restricting a mother-caregiver’s choices in this regard may well
have negative consequences for her relationships with family and new partners, her
career and her economic autonomy, as in Story #1. In relocation applications, a
woman might be denied the opportunity to move with her child to be nearer family
support networks, to take a better paying job, or to join a new partner. In some
cases, custody is changed to the non-moving parent, sometimes regardless of
whether the move actually happens (Thompson 2007, pp. 322–323). This normative
climate can also result in custodial mothers ‘choosing’ not to even try to move,
when the move may actually be in the best interests of their own or their child’s
security, or both, and/or their economic well-being. Even if the move cannot be
proven to be in the best interests of the child, or it may take time to tell (and this is
an inexact science), questions can be raised about the trend for government and
lawmakers to second guess a mother’s judgement about her own and her child’s
interests in the face of disagreement by the other parent.
Moreover, the dominance of the heterosexual and patriarchal family—histori-
cally a challenge for women’s autonomy—is reproduced in this imposition of equal
parenting by ‘both’ parents (a term that implies a biological mother and father,
regardless of actual familial circumstances or the possibility of multiple parents in a
child’s life) in the name of children’s interests. As Fineman puts it, ‘‘some recently
enacted family laws make it much more likely that traditional patterns of paternal
right and responsibility will continue even in a world in which the form of many
families will otherwise not be traditional’’ (2004, p. 185). Indeed, much fathers’
rights discourse is marked by a heterosexist concern with the consequences for
children who are raised without a male (heterosexual) role model (Boyd 2004) and
my interviews with fathers’ rights advocates in both the United Kingdom and
Canada reflect a tendency to talk about children having substantial contact with
‘‘both parents’’, typically with a focus on biology. It has been forcefully asserted
that children must know their (biological) fathers, both in the sense of knowing their
identity and having a meaningful relationship with them. In some jurisdictions such
as England, the right of children conceived from donated sperm to know the identity
of their donors, at least as of the age of majority, has been introduced.8 In others,
such as Canada, this right has not as yet been legislatively enshrined, but the notion
that maximum contact is normally in a child’s best interests has been legislatively
promoted and embraced by judges, sometimes regardless of marital status or even
demonstration of a father’s commitment to parenting.9 Sometimes these legal
developments are inspired by a state interest in the father assuming financial
responsibility for children (Boyd and Young 2007) but they go further to affirm
parenting rights, even if the father is not much involved in care responsibilities.
Many might say, what is wrong with these trends? Surely it is of crucial
importance for children to know their fathers. Some would also suggest that once a
8 Human Fertilization and Embryology Authority (Disclosure of Donor Information) Regulations 2004,
SI 2004/1511.9 Divorce Act, RSC 1985 (2nd Supp), c 3 s 16(10); Trociuk v British Columbia (Attorney General)[2003] 1 SCR 835, 2003 SCC 34.
Autonomy for Mothers? Relational Theory and Parenting Apart 145
123
woman has a child with a man, her autonomy should be constrained in the name of
the child’s best interests. However, there is something deeply troubling about the
suggestion that a woman’s autonomy should be limited by an overriding concern
that a child’s relationship with a father be prioritised, especially when seen against
the backdrop of the ideology of motherhood described above. Even as mothers are
embedded within parenting relationships, surely women must be viewed as having
some degree of choice to make decisions about ways of being and living. Otherwise
we concede that women’s socialisation into the normative frameworks of
womanhood and motherhood necessarily restricts their capacity for self-determi-
nation (O’Donovan and Marshall 2006, p. 119).
Has Normative Shared Parenting Gone too Far?
Some limits on women’s autonomy in the parenting context are of course inevitable,
but the question is to what extent they should be imposed by legislation or judges in
the name of children’s best interests, especially when the scientific evidence
remains unclear about the weight that should be given to factors such as paternal
contact. Constraints on a woman (for example, on her ability to relocate) may be
acceptable if they are negotiated respectfully between two adults, and with
flexibility regarding changes in plans and an ability to adjust arrangements
according to adult and child needs. However, even negotiated or mediated
agreements can be agreed to under coercive circumstances (Wiegers and Keet 2008;
Fehlberg et al. 2009). Moreover, in most cases that go to adjudicated dispute
resolution, respectful negotiation has failed, flexibility is unlikely, and a high level
of conflict is present, meaning that shared parenting or joint custody are rarely
appropriate. Moreover, shared parenting scenarios can be destructive to children’s
well-being as well as that of their mother-caregivers.
Research shows that any effort to impose a ‘one size fits all’ approach such as
shared parenting is both wrong-headed and ineffective. The increased burden that is
now placed on custodial mothers to ensure that children have contact with the other
parent, sometimes at significant costs to themselves or their children, has been
criticised in several countries (Rhoades 2002b; Cohen and Gershbain 2001).
Assuming formal equality between mothers and fathers in post-separation parenting
is misguided because, as Martha Shaffer has summarised:
The research…suggests that children do not necessarily benefit from greater
contact with their non-custodial parent—rather it is the type of parenting the
non-custodial parent engages in, not the amount of time that parent spends
with the children, that is most significant… [T]he research to date indicates
that children do not fare better post-divorce in joint custody arrangements than
they do in sole custody, and some children—including those in high conflict
families—may fare worse. Finally, the research confirms findings on the role
of conflict that have been well known for some time—parental conflict
significantly increases the risk of reduced well being on the part of children
who have experienced their parents’ divorce. (2007, p. 287, emphasis added)
146 S. B. Boyd
123
American research has also challenged false assumptions about the benefits of
imposed gender symmetry in parenting, showing instead that child well-being after
divorce is consistently associated with (a) the economic contribution of the father
and (b) the closeness of the mother–child relationship (Amato and Gilbreth 1999).
At a more general level, research does not support the proposition that children need
both a mother and a father (Biblarz and Stacey 2010). As well, United Kingdom
research has shown that children value the quality and flexibility of relationships
with parents rather than quantity of time (Smart et al. 2001). Concerns have been
raised in Australia about the impact on children of legislated shared parental
responsibility regimes, which may be a key variable in generating poor emotional
outcomes in children when their parents are in conflict (McIntosh and Chisholm
2008; Rhoades 2008, p. 280). Research suggests that the attributes that increase the
likelihood of shared arrangements working smoothly are not typically characteristic
of parents who litigate or otherwise require significant supports to determine and
administer shared parenting plans. These studies raise serious questions about the
durability of shared arrangements in high conflict climates as well as the power of
shared arrangements to improve parental cooperation and diminish children’s
perceptions of parental conflict (McIntosh 2009, p. 397).
Other studies focus more on adult relationships and the viability of shared
parenting. It appears that cooperative self-selection into shared parenting arrange-
ments is key to successful shared care outcomes, and yet, worryingly, studies point
to increased rates of shared parenting in populations of disputing parents (McIntosh
2009, pp. 391, 393). Bastard and Cardia-Voneche explain variable patterns of
contact and parenting after separation in the face of a growing socio-legal consensus
on the need for both parents to have a strong, ongoing relationship with children by
reference to the correlation between how parents functioned during their partnership
to how they function afterwards. They conclude that the norm of shared parenting
after separation may be simply irrelevant for parents who did not share that role
prior to separation (Cardia-Voneche and Bastard 2007). Earlier research in England
also indicated the relevance of pre-separation parenting patterns to post-separation
possibilities (Smart and Neale 1999), as does new research from Australia (Fehlberg
et al. 2009, p. 263). Gender asymmetry in adult parenting relationships is, then,
difficult to alter via the introduction of new legal norms.
The research suggests that social engineering through the introduction of legal
norms in the complex field of parenting relations has at best been overly simplistic
and at worst has generated problematic consequences for children and caregivers.
Moreover, mothers appear to be more burdened by the consequences of the new
norms than fathers do, with some women reporting that ex-partners try through
shared care arrangements to control their and their children’s lives (Fehlberg et al.
2009, p. 266). Yet judges (and lawyers and mediators assisting disputing parents)
increasingly feel that the normative starting point for decision-making is some form
of shared parenting, even if the governing legislation does not state a presumption in
favour of joint custody. Where the governing statute does indicate a preference for
shared parental responsibility, subject to exceptions, as in Australia, the normative
power is even greater (Rhoades 2008). Even in cases where problems with one
parent’s parenting behaviour have been identified, such as substance abuse
Autonomy for Mothers? Relational Theory and Parenting Apart 147
123
interfering with good judgement in care of a child or abusive behaviour towards a
child or caregiver, judges are reluctant to limit contact. Studies have shown that
supervised access is increasingly being ordered in the face of (usually paternal)
behaviour that does not necessarily show any promise of changing over time
(Sheehan et al. 2007; Fehlberg and Hunter 2007) and where access should perhaps
be restricted or terminated.
Some norms are of course necessary in this field; the question is which norms
might better take account of the complex social relations identified above and
diminish some of the more unreasonable limits on women’s autonomy? In
particular, norms must avoid a naive approach that assumes that equality between
women and men has been achieved, and instead attend to the need to take account of
inequalities between women and men that have been caused by the existing, still
highly gendered, allocations of household labour and childcare (Boyd 2003;
Fineman 2004, p. 183). Law makers should also focus less on developing
aspirational norms to guide those parents who can come to relatively easy
resolutions of their issues, and instead more cautiously direct norm creation to those
who are in higher conflict or in circumstances that dictate against shared parenting.
Otherwise we tend to fall into a false dichotomy that assumes that shared parenting
must be mandated in most cases versus a different resolution in exceptional
circumstances, for instance, those involving abuse, where a more exclusive form of
parenting will be permitted. The research does not seem to support a notion that
exceptional circumstances are rare.
A more complex view of ‘equality’ in the field of parenting is both warranted
and possible. As various methods of becoming a parent arise, the legal system
needs to avoid an assumption that all parents need to be treated ‘equally’. Drawing
on sociological research, Carol Rogerson (2001) makes a similar point in relation
to the legal recognition of step-parents, suggesting that differentiated notions of
parenthood in different contexts should be possible. In the next section, I try to
develop this idea in the context of parenting apart, using the concept of relational
autonomy.
Looking for Norms that Balance Responsibility and Autonomy
In suggesting a way forward, I want to draw more explicitly on relational theory, a
diverse strand of scholarship that has been developed mainly by communitarians
who emphasise the values of community (e.g. Sandel 1998; MacIntyre 1984; for a
review see Reece 2003) and feminist theorists (e.g. Nedelsky 1989; Mackenzie and
Stoljar 2000). Relational theorists generally seek, typically in contrast to liberal
individualist approaches, to understand individuals as socially embedded and as
developing their identities and capacities within the context of a complex web of
social relationships. As suggested in the first part of this article, individuals—and
autonomy—are inevitably shaped by relationships and exercised in a relational
context. The liberal individualist concept of autonomy is rejected as both untenable
and undesirable in relational theory and the idea of relational autonomy is proposed
instead. Of importance to my topic, however, is that a critical element is retained
148 S. B. Boyd
123
within this approach in order to acknowledge that unchosen attachments can be
problematic, especially for women (Leckey 2008, p. 10).
Robert Leckey identifies two strands, or unacknowledged tensions, within
relational theory and argues that its insights can be sharpened (Leckey 2008,
pp. 12–17). The weak version of relational theory is content neutral, descriptive and
focused on methodology (a focus on relationships), whereas the strong version
offers a more specific normative vision about the types of relationships that should
be regarded as desirable. These ‘thick’, interdependent relationships (ideally)
enhance the autonomy of each individual involved, such as relationships with
family members (Leckey 2008, pp. 15, 20–21). Some relational ties, however,
threaten autonomy, as we saw above, so that defining the criteria by which to
identify constructive relationships is crucial. The work of some relational theorists,
for example Jennifer Nedelsky (1989), manifests both the weak and strong versions.
Leckey suggests that slippage often occurs between the two conceptions, with the
weak version tending to slip into the strong. He favours the latter version, which
offers more analytical capacity, for application in family law, and it is this version
that I shall build on.
The strong version of relational theory is, Leckey suggests, quite simply, a
‘‘feminist political project’’ (Leckey 2008, p. 17) and feminists have indeed drawn
on it, including in relation to women’s reproductive issues (e.g. Donchin 2009). Yet
how to apply relational autonomy in particular contexts is potentially fraught, as
Jonathan Herring has emphasised in his work on rape (Herring 2009). It may well be
that ‘‘[t]o be autonomous, in a relational sense, is to be responsive and responsible to
others, and interdependent within complex networks of relationships’’ (Jackson and
Day Sclater 2009, p. 6). But being responsive and responsible to others remains a
highly gendered concept, especially within the heterosexual family, with women
tending to take more responsibility—and feel more responsibility—for the care of
others than men tend to. In emphasising the importance of care, relationships and
connection, there is a danger that a woman’s interests and her autonomy may be
overridden in the name of the family (and all the assumed social norms about
women’s roles within families). Herring does not reject relational autonomy in his
work, despite his caution that feminists should be wary of any suggestion that in its
name, women’s autonomy should be sacrificed for the common good. Instead, he
shows that in the context of heterosexual sexual relations, the question of ‘consent’
is shaped by the larger context, including ‘rape myths’ such as that women ‘‘like it
rough’’ (Herring 2009, p. 64). To understand when meaningful consent has been
given, the legal system must take that larger social context into account. In the child
custody context, I would suggest that the larger social context discussed earlier in
this article is key to understanding (a) the choices women make when parenting; (b)
the difficulties that post-separation parenting disputes pose in the face of complex,
gendered relationships; and (c) what sort of parenting arrangements are appropriate.
Leckey argues that Canadian family law now assumes and produces ‘‘contextual
subjects’’, that is, ‘‘subjects regarded as rooted in their relationships and social
settings’’ (Leckey 2008, p. 3). The self-sufficient liberal individual who is
autonomous (in the liberal sense) and rational in his choices has, Leckey says,
been supplanted by this new, contextualised legal subject. Iconic Supreme Court of
Autonomy for Mothers? Relational Theory and Parenting Apart 149
123
Canada cases that illustrate this transition include Moge v Moge10 on spousal
support and women’s economic disadvantage and Baker v Canada,11 an immigra-
tion case about a mother and child. Both majority decisions were authored by
former Justice Claire L’Heureux-Dube, known for her contextual approach to
judging, her invocation of social science studies and her attention to inequalities. In
Baker, a case involving the deportation of a Jamaican woman who was a non-status
migrant in Canada (an ‘overstayer’), the Court emphasised the significance of the
filial relationship between the woman and her Canadian-born children.
As we have already seen, the notion of autonomy—particularly an atomistic,
individualist notion of autonomy—is particularly fraught when considered in
relation to parenting, and a relational approach to autonomy is arguably inevitable in
this field. The caregiving relationship a mother has with a dependent child
constrains her autonomy, at least in the liberal individualist sense of the word, and,
in most contemporary societies, this relationship creates a derivative dependency in
the mother regardless of the pleasures of parenting. The ideology of motherhood
outlined above can shape, even constrain a mother’s potential for autonomy as well,
although this need not be so. Against this backdrop, the normative imperative for
shared parenting further impedes a mother’s capacity for self-determination, even
when she is ostensibly single parenting. If the highest truth of good parenting is
taken to be facilitation of a child’s relationship with the father, almost regardless of
the circumstances, a mother’s own autonomy interests are subordinated.
If, from a feminist perspective, this subordination is unacceptable, we can ask
what law and society might do differently to enhance women’s relational autonomy
in the parenting context. An individualistic approach to a mother’s choices is both
unrealistic and works against the impetus of a relational approach, so a focus on the
nature and quality of the relationships surrounding a mother’s parenting is essential.
At a social level, one might suggest that maximising a mother’s autonomy requires
‘‘social and community-based structures which will enable human interactions to
flourish’’ (Herring 2009, p. 57). Parenting a child might ideally involve multiple
adults and/or greater societal involvement in care for children, so that the onerous
responsibilities do not fall on one individual (usually a woman), thereby unduly
limiting her autonomy. But remedies such as these are unlikely to emerge in the
context of neo-liberalism and of privatised family law disputes; certainly they
cannot be ordered in a dispute between two parents (although some parenting plans
might involve a third party such as a grandmother). Critically, though, an approach
that says that ‘both’ parents must have contact with a child in order to ensure the
child’s wellbeing is not the same thing as providing greater social and economic
supports for mothers. The responsibility cast upon mothers to ensure contact
between children and fathers can be both a burden and a constraint on maternal
autonomy. It can increase a woman’s burdens without giving her any more social
support as a mother; it privatises her responsibility.
What does all this mean for legal norms? Mavis Maclean and John Eekelaar have
pointed out that it is
10 Moge v Moge [1992] 3 SCR 813, 99 DLR (4th) 456.11 Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817, 174 DLR (4th) 193.
150 S. B. Boyd
123
hard for the law to allow complete autonomy to two people in dispute who are
party to a joint enterprise—parenting—when not only are they in conflict, but
the interests of the child and the state have also to be taken into account.
(Maclean and Eekelaar 2009, p. 93)
At the same time, they suggest that the system can—and I would add should—seek
a resolution that gives as much scope as possible to the autonomy of each parent and
they point to some important process points. For instance, in difficult, conflicted
cases over contact, the work of the family barrister is crucial and there is a role for
courts in redressing potential domination of weaker parties and protecting the
interest of the children. Legal norms must permit lawyers and judges to perform this
role, even in the face of increased emphasis on (sometimes mandatory) mediation
and collaborative methods that has accompanied the normative rise of shared
parenting. Becky Batagol’s research also supports the important role that lawyers
can play in redressing the vulnerability of (female) clients in negotiating family law
disputes (Batagol 2008). Legal norms should also encourage lawyers to engender a
sense of self-trust (Goering 2009) in their mother-clients, so that they do not bow
too readily to normative pressure to share parenting in inappropriate circumstances,
in contrast to shared parenting norms, which tend not to permit this flexibility. The
preoccupation with elevating maximum contact through the language of shared
parenting currently creates a pressure generated by mediators, mental health
professionals, judges and lawyers to agree to some form of joint custody (McCarthy
2009).
The fact that the best interests test is the defining legal principle in children’s law
presents an obvious barrier to centring the autonomy interests of mothers in this
legal field. Although the ‘‘open-ended ‘best interests’ rule is an obvious invitation to
contextual assessment’’ (Leckey 2008, p. 81), plenty of research demonstrates the
uneven effects of the open-ended best interests test, which tends to incorporate
dominant societal assumptions that may work against the interests of disadvantaged
groups such as women and marginalised communities (e.g. Baldassi et al. 2010;
Kline 1992). As a result, we should be cautious about ‘‘uncritical calls for more
contextualism’’ (Leckey 2008, p. 81). Leckey suggests that the difficult question
often is not whether contextualism is appropriate or not, but whether something is
appropriately included within a relevant context or excluded from it. He indicates
that ‘‘[a] context will come into view shaped by the already existing relationships’’
(Leckey 2008, p. 268).
Efforts have been made by many feminist legal scholars and activists to refine the
best interests test in a way that would temper the power of normative shared
parenting, precisely by looking at such existing relationships and distinguishing
between the types of relationships in a child’s life. Some feminists, including
myself, have proposed that a primary caregiver presumption should be incorporated
into child custody determinations, while others have suggested that there should be
a presumption against custody or access being awarded to an abusive parent (for
examples, see Boyd 2003, chaps. 7 and 8). The suggestion is, at a basic level, that
the best interests test should not take the form of a de-contextualised formal equality
between fathers and mothers, with shared parenting as the normatively desired
Autonomy for Mothers? Relational Theory and Parenting Apart 151
123
outcome. Instead it should look at the context and lived relations of the family,
including past patterns of care and responsibility (which may well have involved
primary caregiving responsibility by mothers), any controlling or abusive conduct,
and meaningful engagement with children.
Similarly, from a psychological perspective, Jennifer McIntosh has recently
suggested, based on research suggesting that it is wrong-headed to encourage all
parents to ‘‘give shared parenting a try’’, that we need to bring finer distinctions to
our inquiries than have typically been made about shared parenting (McIntosh 2009,
p. 397, quoting Smyth 2009). Her relational approach would ask questions such as
‘‘[w]hat are the influences of various shared care climates and patterns on each
parents’ [sic] emotional availability to their children?’’ (McIntosh 2009,
pp. 397–398). For instance, the imposition of a rigid shared arrangement might
impede parents from adapting arrangements to their children’s developmental
needs.
I would add that the wider social setting must be considered, including the
ideology of motherhood, the sexual division of labour, and power relations within
the family, as discussed above. This wider context assists in highlighting any gender
asymmetries that should be considered when making decisions about appropriate
parenting arrangements. In turn, women’s autonomy issues may come more sharply
into focus even in an area of law that affirms the importance of relationships. As
Davina Cooper has suggested, looking at inequalities only in terms of the binaries of
social location (such as fathers and mothers) is insufficient (Cooper 2004, p. 52).
Instead, we need to look also to the normative principles that create subordinate
positions occupied by those who fail or refuse to live in accordance with prevailing
norms. For women in custody disputes, resisting prevailing norms may mean not
living according to dominant norms of motherhood; or failing to live up to the
demanding norms of post-separation parenting that may overvalue contact between
fathers and children. It may also mean escaping relationships that are exploitative or
demeaning. We need a framework that enables an understanding of and accounting
for how current post-separation norms and discourses gloss over the inequalities—
economic and otherwise—that complicate parenting relationships. We also need a
framework that does not unnecessarily prevent women from distancing themselves
from problematic relationships (Ball 2005, p. 95) or (drawing here on Goering’s
(2009) notion of self-trust) encourage them to question their own judgement about
what is best for themselves and their children. This approach ‘‘envisages autonomy
from within structures of power and authority’’ and is ‘‘sensitive to structural
inequalities and material conditions in the position of women’’ (Donchin 2009,
p. 38).
A nuanced focus on the quality of relationships and their relevance to parenting
and children’s interests has been offered by Carol Smart and Bren Neale (1999,
pp. 192–199), who argue on the basis of their empirical work that abstract notions of
child welfare should not form the basis of decisions. Instead, the focus should be on
the principle of actuality (for example, looking to the needs and wishes of children
as well as practical realities such as who the primary carer has been and whether
there is a climate of coercion and fear); the principle of care (placing the child
within a set of relationships, placing less emphasis on rights, and taking into account
152 S. B. Boyd
123
the need to care for parents as well as children); the principle of recognition of
selfhood (with a focus on women that suggests an interest in their autonomy, even
though this language is not used); and the principle of recognition of loss (which,
they suggest, may not be appropriate for legal resolution). Smart and Neale appear
to intend to replace the child welfare or best interests principle, at least when they
discuss the principle of care (1999, p. 193), raising the possibility that this principle
may need to be questioned or abandoned in order to avoid the problems inherent in
its recent re-interpretation as normative shared parenting.
Feminist legal scholars must, then, consider that resorting to the best interests test,
even if refined along the directions mentioned above, may not have the capacity to
address women’s autonomy concerns, precisely because ‘best interests’ is now
essentially interpreted to be shared parenting, barring exceptional circumstances. It
may be impossible to make women’s relational autonomy interests a key component
of the best interests principle, due to its emphasis on children’s interests and the way
that dominant ideologies have informed its interpretation. Some other way may be
needed to place the legitimate autonomy interests of mothers into play in parenting
disputes. Possibly a legislative emphasis on the ways in which current parenting
norms can compromise women’s equality interests is feasible. In the Canadian
context, where we have a constitutional equality guarantee, mothers who have been
forced to continue a relationship with an abusive partner in the name of their
children’s best interests have asked why their equality interests should not be
considered in child custody disputes. While recognising the fraught debates over the
meaning of equality, it may be possible to consider legislative reforms that limit the
extent to which women’s interests can be compromised in the name of paternal rights.
The way in which relationships are defined and considered is crucial to how we
think about law reform in this field. Specifically, it is not adequate to consider only
the relationship between those involved in a parenting dyad, but rather the wider
relational context must be brought into sight. Autonomy scholars working in other
fields have emphasised this point. Herring argues that in the case of rape, ‘‘consent
must be understood in the context of the interactions between the parties prior to the
event, the relationship between the parties, and the wider social setting’’ (Herring
2009, p. 53). Goering (2009) adds that developing meaningful autonomy (in making
post-natal decisions) requires attention to the coercive effects of oppressive social
norms. Donchin (2009) argues that reproductive autonomy must include respect for
women’s human rights and an appreciation of the political and legal contexts that
shape their options. The legal system is a challenging forum within which to try to
incorporate larger socio-economic and political questions and the affiliation of
family law with the ‘private’ sphere makes such incorporation even more difficult.
Nevertheless, I would suggest that an effort must be made to use critical work on
relational theory and autonomy in order to do so.
Conclusion
This article has identified the ways in which women’s autonomy interests are
compromised in the current climate of normative shared parenting and has argued that
Autonomy for Mothers? Relational Theory and Parenting Apart 153
123
these compromises are not always acceptable. I have also suggested that in
determining the rights and responsibilities that adults should have in relation to
children, especially where there are disputes, the legal system should rely less on a
notion that rights should automatically accompany genetic definitions of parenthood
and focus more on relational aspects of parenting, including its wider social context.
This approach should promote women’s relational autonomy, taking account not only
of the quality of their parenting relationships but also of the broader social context
within which they engage in parenting. Judges in family law typically pride
themselves on their ability to distinguish fact situations from one another and to apply
flexible norms to these varying situations. They should, in theory, then, be well
equipped to make the finer distinctions outlined above and, indeed, we do see evidence
of their ability to do so in some cases. It would be helpful if normative frameworks
guided them in their application by directing them towards significant factors.
These relational factors would include both factors connected to the relationship
between the adults and the relationships between the adults and the children, as well
as the larger relational social context (that is, the gendered division of labour,
violence against women, and so on). For instance, factors informing decisions about
parenting disputes would include: past patterns of care and responsibility, including
primary caregiving; the type of relationship each parent has with a child; whether
there have been patterns of domination, or worse, a climate of coercion and fear
between the adults or between the adult(s) and children; whether the parents have
elected a shared arrangement; degree of geographical proximity between parental
residences; ability of the parents to get along well and communicate; confidence in
the other parent’s parenting competence; and what the impact of proposed
arrangements on a caregiver’s ability to be emotionally available and attentive to a
child and the child’s views and needs would be (cf. Smart and Neale 1999,
pp. 192–197; McIntosh 2009).
In Story #1, the relocation case I started out with, the following factors arguably
should have been given more weight: the mother’s history of primary caregiving;
the fact that the marriage had been short and had ended before the child was born;
the care and responsibility that the mother had shown in making her decision to
relocate so as to best accommodate the father’s contact (thus showing a concern to
balance her parental responsibility to the child and the other parent with her interest
in economic autonomy); and the overall interest that society should have in
facilitating women’s economic autonomy alongside their childcare responsibilities.
Story #2 (the IVF scenario) is more difficult for many people, precisely because
the mother explicitly tried to delineate the parameters of her familial autonomy in a
manner that accorded the genetic father (sperm donor in her mind) far less than
equal parenting rights. Under current norms, which expect facilitation of contact,
this mother did not appear to be a ‘responsible’ parent citizen and, indeed, that is
precisely what the Alberta court concluded. They were not at all convinced by the
mother’s form of ‘attachment’ parenting.12 Nevertheless, this admittedly difficult
12 Supra n 3 at [6]. Although we seem generally content to allow parents to adopt their own parenting
styles, short of actual harm to a child, once a dispute arises, it seems that they can be taken to task for their
choices.
154 S. B. Boyd
123
case requires us to consider the question of reproductive labour and maternal
autonomy. The following factors arguably should have dictated against the original
joint custody award: the fraught nature of the adult relationship, which had been
both short and had never involved cohabitation; the original intention of the mother
to parent on her own and the efforts she went through to do so (IVF etc.); and the
high conflict between the adults. The later parallel parenting award is perhaps more
difficult, as by then the father had established a parenting relationship with the
twins. Yet concerns have been raised about the efficacy of parallel parenting in high
conflict cases, just as they have regarding joint custody:
while perhaps well intentioned, parallel parenting is deeply flawed, reflecting
less a concern with the best interests of children than judicial resistance to the
imperative to ‘choose’ between parents, a narrow and formal conception of
parental equality, and an unstudied faith in the ability to compile co-operation
between hostile litigants. (Epstein and Madsen 2004, p. 2)
A relational approach would require attention to the potential for healthy,
cooperative relationships between the adults themselves, and the adults and
children. For mothers who attempt to achieve a degree of autonomy from what they
regard as unhealthy relationships, this approach may afford some greater degree of
ability to determine the terms under which they parent.
The difficult question is whether the best interests principle and socio-legal
policy generally can find space for this type of parental asymmetry and autonomy in
a time of rising fathers’ rights and gender convergence. We do see evidence that
policy makers and judges can sometimes resist a non-nuanced gender convergence.
Joint custody awards that give one parent primary residence or decision-making
power, which are common in Canada, are one example. Alberta’s law on sperm
donors, which states that a sperm donor is not to be recognised as a legal parent
unless the mother is his spouse or a person with whom he has been in an
interdependent relationship of some permanence, is another.13 Canada’s Minister of
Justice has asserted that children’s interests rather than a fathers’ rights must take
priority, in reacting to a question about the latest private member’s bill to propose
the introduction of ‘equal’ parenting to divorce law.14 And Australia has begun to
re-assess its controversial shared parental responsibility law, particularly in light of
concerns about its impact on family violence (Overington 2009). The norms that are
put in place to guide decision-makers are of crucial importance. If, instead of formal
equality rights, relational autonomy can be emphasised within modern laws
regulating disputes between parents who live apart, the ability of mothers to
determine the direction of their lives may be affirmed.
13 Supra n 2.14 Bill C-422, An Act to amend the Divorce Act (equal parenting) and to make consequential
amendments to other Acts, First Reading, 16 June 2009, second session, Fortieth parliament, 57–58
Elizabeth II 2009. The Minister’s statement, made at a Canadian Bar Association Annual Meeting in
Dublin, was reported by O’Neil (2009). However, the minister also emphasised that his government had
not yet taken a formal position on the bill.
Autonomy for Mothers? Relational Theory and Parenting Apart 155
123
Acknowledgments The author acknowledges funding support from the Social Sciences and Humanities
Research Council of Canada and the UBC Law Class of ’68 Award, research assistance by Eiad el Fateh
and Bree Makohn, and the constructive feedback of two anonymous referees as well as audiences at the
5th World Congress on Family Law and Children’s Rights in Halifax, Nova Scotia, 23–26 August 2009
and the Centre for Feminist Legal Studies Lecture Series, University of British Columbia, 19 January
2010.
References
Amato, Paul R., and Joan G. Gilbreth. 1999. Non-resident fathers and children’s well-being: A meta
analysis. Journal of Marriage and the Family 61: 557–573.
Baldassi, Cindy, Susan B. Boyd, and Fiona Kelly. 2010. Losing the child in child-centred legal processes.
In Lost kids: Vulnerable children and youth in twentieth-century Canada and the United States, ed.
Mona Gleason, Leslie Paris, Tamara Myers, and Veronica Strong-Boag, 192–212. Vancouver: UBC
Press.
Ball, Carlos. 2005. This is not your father’s autonomy: Lesbian and gay rights from a feminist and
relational perspective. Harvard Journal of Law and Gender 28: 345–379.
Barrett, Michele, and Mary McIntosh. 1991. The anti-social family. New York: Verso.
Batagol, Becky. 2008. Fomenters of strife, gladiatorial champions or something else entirely? Lawyers
and family dispute resolution. Queensland University of Technology Law and Justice Journal 8:
24–45.
Biblarz, Timothy J., and Judith Stacey. 2010. How does the gender of parents matter? Journal ofMarriage and Family 72: 3–22.
Boyd, Susan B. 1997. Challenging the public/private divide: Feminism, law, and public policy. Toronto:
University of Toronto Press.
Boyd, Susan B. 2003. Child custody, law and women’s work. Ontario: Oxford University Press.
Boyd, Susan B. 2004. Backlash against feminism: Canadian custody and access reform debates of the late
twentieth century. Canadian Journal of Women and the Law 16: 255–290.
Boyd, Susan B., and Claire F.L. Young. 2007. Feminism, fathers’ rights, and family catastrophes:
Parliamentary discourse on post-separation parenting. In Reaction and resistance: Feminism, lawand social change, ed. Dorothy Chunn, Susan B. Boyd, and Hester Lessard, 198–228. Vancouver:
University of British Columbia Press.
Cardia-Voneche, Laura, and Benoit Bastard. 2007. Why some children see their father and others do not:
Questions arising from a pilot study. In Parenting after partnering: Containing conflict afterseparation, ed. Mavis Maclean, 29–39. Oxford: Hart Publishing.
Cohen, Jonathan, and Nikki Gershbain. 2001. For the sake of the fathers? Child custody reform and the
perils of maximum contact. Canadian Family Law Quarterly 19: 121–183.
Collier, Richard. 2006. Feminist legal studies and the subject(s) of men: Questions of text, terrain and
context in the politics of family law and gender. In Feminist perspectives on family law, ed. Alison
Diduck and Katherine O’Donovan, 235–258. New York: Routledge.
Collier, Richard, and Sally Sheldon (eds.). 2006. Fathers’ rights activism and law reform in comparativeperspective. Oxford: Hart Publishing.
Collier, Richard, and Sally Sheldon. 2008. Fragmenting fatherhood: A socio-legal study. Oxford: Hart
Publishing.
Cooper, Davina. 2004. Challenging diversity: Rethinking equality and the value of difference. Cambridge:
Cambridge University Press.
Crowley, Jocelyn Elise. 2008. Defiant dads: Fathers’ rights activists in America. Ithaca, NY: Cornell
University Press.
Denbow, Jennifer. 2005. Abortion: When choice and autonomy conflict. Berkeley Journal of Gender,Law and Justice 20: 216–228.
Donchin, Anne. 2009. Toward a gender-sensitive assisted reproduction policy. Bioethics 23: 28–38.
Epstein, Philip, and Lene Madsen. 2004. Joint custody with a vengeance: The emergence of parallel
parenting orders. Canadian Family Law Quarterly 22: 1–36.
Fehlberg, Belinda, and Rosemary Hunter. 2007. Children’s contact services in Australia: The referral
process. In Parenting after partnering: Containing conflict after separation, ed. Mavis Maclean,
169–191. Oxford: Hart Publishing.
156 S. B. Boyd
123
Fehlberg, Belinda, Christine Millward, and Monica Campo. 2009. Shared post-separation parenting in
2009: An empirical snapshot. Australian Journal of Family Law 23: 247–275.
Fineman, Martha. 2004. The autonomy myth: A theory of dependency. New York: New Press.
Friedman, Marilyn. 2003. Autonomy, gender, politics. Oxford: Oxford University Press.
Goering, Sara. 2009. Postnatal reproductive autonomy: Promoting relational autonomy and self-trust in
new parents. Bioethics 23: 9–19.
Harvey, David. 2007. A brief history of neoliberalism. Oxford: Oxford University Press.
Herring, Jonathan. 2009. Relational autonomy and rape. In Regulating autonomy: Sex, reproduction andfamily, ed. Shelley Day Sclater, Fatemeh Ebtehaj, Emily Jackson, and Martin Richards, 53–71.
Oxford: Hart Publishing.
Hertz, Rosanna. 2006. Single by chance, mother by choice: How women are choosing motherhoodwithout marriage and creating the new American family. New York: Oxford University Press.
Humphreys, Cathy, and Christine Harrison. 2003. Squaring the circle–contact and domestic violence.
Family Law 33: 419–423.
Jackson, Emily, and Shelley Day Sclater. 2009. Introduction: Autonomy and private life. In Regulatingautonomy: Sex, reproduction and family, ed. Shelley Day Sclater, Fatemeh Ebtehaj, Emily Jackson,
and Martin Richards, 1–16. Oxford: Hart Publishing.
Kelly, Fiona. 2004. Nuclear norms or fluid families? Incorporating lesbian and gay parents and their
children into Canadian family law. Canadian Journal of Family Law 16: 71–94.
Kline, Marlee. 1992. Child welfare law, ‘best interests of the child’ ideology and First Nations. OsgoodeHall Law Journal 30: 375–425.
Leckey, Robert. 2008. Contextual subjects: Family, state, and relational theory. Toronto: University of
Toronto Press.
MacIntyre, Alasdair. 1984. After virtue: A study in moral theory. Notre Dame, IN: University of Notre
Dame Press.
Mackenzie, Catriona, and Natalie Stoljar (eds.). 2000. Relational autonomy: Feminist perspectives onautonomy, agency, and the social self. New York: Oxford University Press.
Maclean, Mavis, and John Eekelaar. 2009. Legal representation and parental autonomy. In Regulatingautonomy: Sex, reproduction and family, ed. Shelley Day Sclater, Fatemeh Ebtehaj, Emily Jackson,
and Martin Richards, 93–107. Oxford: Hart Publishing.
Marshall, Katherine. 2006. Converging gender roles. In Perspectives on labour and income, vol. 7, no. 7,
ed. Statistics Canada, 5–17. Ottawa: Ministry of Industry.
McCarthy, Martha. 2009. Why custody labels matter. The Lawyer’s Weekly, 25 September.
McIntosh, Jennifer E. 2009. Legislating for shared parenting: Exploring some underlying assumptions.
Family Court Review 47: 389–400.
McIntosh, Jennifer E., and Richard Chisholm. 2008. Cautionary notes on the shared care of children in
conflicted parental separations. Journal of Family Studies 14: 37–52.
Meyers, Diana Tietjens. 2004. Gendered work and individual autonomy. In Being yourself: Essays onidentity, action, and social life, ed. Diana Tietjens Meyers, 257–273. Lanham, MD: Rowman
Littlefield Publishers.
Nedelsky, Jennifer. 1989. Reconceiving autonomy: Sources, thoughts and possibilities. Yale Journal ofLaw and Feminism 1: 7–36.
Nedelsky, Jennifer. 1999. Dilemmas of passion, privilege, and isolation: Reflections on mothering in a
white, middle-class, nuclear family. In Mother troubles: Rethinking contemporary maternaldilemmas, ed. Julia E. Hanigsberg, and Sara Ruddick, 304–334. Boston: Beacon Press.
O’Donovan, Katherine, and Jill Marshall. 2006. After birth: Decisions about becoming a mother.
In Feminist perspectives on family law, ed. Alison Diduck and Katherine O’Donovan, 101–122.
New York: Routledge.
O’Neil, Peter. 2009. ‘Kids’ interests no. 1 priority in divorce, Justice Minister says. The Gazette(Montreal), 17 August.
Overington, Caroline. 2009. Shared parenting laws on the way out. The Australian, 19 October.
Reece, Helen. 2003. Divorcing responsibly. Oxford: Hart Publishing.
Reece, Helen. 2006. UK women’s groups’ child contact campaign: ‘So long as it is safe’. Child andFamily Law Quarterly 18: 538–561.
Reece, Helen. 2008. Review article: The autonomy myth: A theory of dependency. Child and Family LawQuarterly 20: 109–124.
Rhoades, Helen. 2002a. The rise and rise of shared parenting laws: A critical reflection. Canadian Journalof Family Law 19: 75–115.
Autonomy for Mothers? Relational Theory and Parenting Apart 157
123
Rhoades, Helen. 2002b. The ‘no contact mother’: Reconstructions of motherhood in the era of the ‘new
father’. International Journal of Law, Policy and the Family 16: 71–94.
Rhoades, Helen. 2008. The dangers of shared care legislation: Why Australia needs (yet more) family law
reform. Federal Law Review 36: 279–299.
Rogerson, Carol. 2001. The child support obligations of step-parents. Canadian Journal of Family Law18: 9–158.
Sandel, Micheal J. 1998. Liberalism and the limits of justice, 2nd ed. Cambridge: Cambridge University
Press.
Schneewind, Jerome B. 1998. The invention of autonomy: A history of modern moral philosophy.
Cambridge: Cambridge University Press.
Shaffer, Martha. 2007. Joint custody, parental conflict and children’s adjustment to divorce: What the
social science literature does and does not tell us. Canadian Family Law Quarterly 26: 285–313.
Sheehan, Grania, John Dewar, and Rachel Carson. 2007. Moving on: The challenge for children’s contact
services in Australia. In Parenting after partnering: Containing conflict after separation, ed. Mavis
Maclean, 147–167. Oxford: Hart Publishing.
Smart, Carol. 1999. The ‘new’ parenthood: Fathers and mothers after divorce. In The new family?ed. Elizabeth Bortolaia Silva, and Carol Smart, 100–114. London: Sage Publications.
Smart, Carol, and Bren Neale. 1997. Arguments against virtue: Must contact be enforced? Family Law27: 332–336.
Smart, Carol, and Bren Neale. 1999. Family fragments. Cambridge: Polity Press.
Smart, Carol, Bren Neale, and Amanda Wade. 2001. The changing experiences of childhood: Familiesand divorce. Maiden, MA: Blackwell Publishers.
Smyth, Bruce. 2009. A 5-year retrospective of post-separation shared care research in Australia. Journalof Family Studies 15: 36–59.
Statistics Canada (ed.). 2006. Women in Canada: A gender based statistical report, 5th ed. Ottawa:
Target Group Project.
Thompson, Rollie. 2007. Ten years after Gordon: No law, nowhere. Reports of Family Law 35: 307–330.
Thornton, Margaret (ed.). 1995. Public and private: Feminist legal debates. Melbourne: Oxford
University Press.
Wiegers, Wanda, and Michaela Keet. 2008. Collaborative family law and gender inequalities: Balancing
risks and opportunities. Osgoode Hall Law Journal 46: 733–772.
158 S. B. Boyd
123