Archive for category Child custody
Lack of viable alternatives to motherhood
Boyd (2003) believes that ‘the ability and desire of women to leave their ‘special’ relationship with their
children behind may have been overestimated, particularly when the alternative was a perceived ‘choice’
to perform routine low paying jobs outside the home’ (39).
Mothers may find it easier to relinquish their role as primary care giver if they have an alternate identity
which is attainable and capable of replacing the fulfillment found in motherhood.
The reality for many mothers, having put their children’s needs first throughout the relationship, is
employment which is relatively low paid and of an inferior status to that gained before motherhood.
Allowing women to bear an unequal share of the financial burden of primary caring has no place in an
equal society. Mothers need, and deserve, support in re-establishing themselves in paid employment at a
level commensurate with their abilities, training and experience. Whether this should be provided by
fathers, at an individual level, or should be provided by Government, is a matter that must be addressed.
Relocation is a common family experience. Women in intact relationships, and their children, frequently
move areas – leaving jobs, schools, friends and sometimes family – to enable the father to gain improved
employment opportunities. Many occupations involve parents working away from home for substantial
periods, eg jobs involving business and sales travel, sports professionals, Members of Parliament and the
Armed Forces. An understanding of relocation after separation must be placed in context of normal
economic migratory patterns, and occupational choices that are considered acceptable within law.
Women at separation may be seeking to relocate for a variety of reasons. They may have a greater need
than fathers to relocate for financial reasons – they are more likely to be seeking new employment, and
require family help (particularly support from grandparents) with child care. In most cases, a mother’s
ability to relocate will have a positive impact, either directly or indirectly, on her earning capacity.
If the relocation of resident parents – mainly women – were to be restricted by the courts on the stance
that parent/ child contact is paramount, then the same concern, and laws of equality, must mean that non
resident parents – mainly fathers – are subjected to the same rules. In addition, the prioritisation of child/
parent contact above all else should allow for one parent to prevent the other in choosing a job which
involves significant amounts of time away from the child.
The universal restriction of occupation and relocation of separated parents would effectively immobilise a
large portion of the workforce, increasing unemployment and childhood poverty.
Attempts in Australia to control women’s freedom has led to increased litigation(40).
There is no justification for applying different rules according to gendered roles. Women deserve, and
have a right to, the same opportunities and freedom as men, and the security to know that this right is
enshrined in law. Relocation need not deprive a child of a parent when both are free to move.
The lack of protection for primary care giving role
Where there is a willing choice by both parents, shared care can be beneficial to children, but many
mothers report that their ex partner manipulated or forced a change of role at or after separation(41):
‘He forced the primary care to change – he got into severe debt, forcing me out to work and then claimed that as I was the best wage earner that he should stay at home….After six months he disappeared with our daughter and presented a case for custody as the primary carer. He is in prison now for sexually abusing her.’
When parental roles appear to have changed in the context of separation, court evaluators need to be
aware of the possibility of coercion, and the resulting risk to children.
Women are disadvantaged by divorce even when there is no abuse. In an intact relationship, women with
children typically work part time or limited their career choice to accommodate the needs of the children
and her partner’s career. The parents therefore work as a team, and neither could fulfill their role without
At separation, parents are already committed to those roles, and the couple’s greatest financial asset is
usually the non primary carer’s career, which the primary carer has contributed to. Primary carers ‘have
earned the right to an equal share of the fruits of the marital partnership’(42)
However, financial settlements rarely compensate women for the economic sacrifices they have made.
Women are unlikely to ask for a settlement which adequately reflects their contribution to the family
assets, and would often prefer to be poor than financially dependent on, and connected to, an ex partner(43).
It is therefore the responsibility of government to ensure that primary care taking is properly protected
when parents separate.
39 Child Custody, Law and Women’s Work, S Boyd, 2003
40 Flaws in John Howard’s parenting law, 3 June 09, The Australian http://www.theaustralian.com.au/news/nation/flaws-in-johnhowards-
41 Mothers’ narratives, Maypole Women 2008/10, MATCH Mothers 2008/09 http://www.matchmothers.org/pages/gallery.php
42 The Divorce Revolution, L J Weitzman, 1985
43 The Divorce Revolution, L J Weitzman, 1985
Sharing child care with a controlling ex partner can be particularly damaging.
Family law currently fails to recognize that women have psychological needs, and contact orders that fail
to take these into account are bound to cause distress and/ or fail. The psychological well being of the
child cannot be separated from that of the primary care giver, so that a recognition of primary care is best
placed to meet children’s needs.
Mothers are more likely to combine their children’s best interests with choice of employment(34). Research
shows that mothers also continue as the primary care giver even when both parents work full time(35).
Typically, this has a negative impact on career progression and earning capacity(36).
Although this usually remains submerged as an issue when the parental relationship is intact, it surfaces
as a significant gender inequality at separation.
Financial settlements rarely cover the true value of lost income and pension.
The primary care taker faces the following financial challenges at and after separation:
• reduced earning capacity – in comparison to:
o the non primary care giver
o the primary care giver’s actual earning capacity without child care responsibilities
• lower status jobs, with less flexibility and fewer, if any, perks
• reliance on state benefits and financial support
• restricted or no access to financial services
• significantly reduced pension
Women may also have experienced, from their ex partner, squandered joint income and savings, and a
lack of honesty in disclaiming finances.
Women who lose their role as main carer (if the child goes to live with the father more than half the time)
also lose eligibility for state benefits, even if they retain substantial child care responsibilities. Domestic
violence is a common cause of homelessness for women, and the family court system contributes to this
risk(37).Children spending a substantial amount of time with mothers on low incomes, who do not qualify
for state benefits, are likely to experience the worst poverty of any child.
Current UK family law, and the concept of shared care in particular, reinforces and increases gender
differences in economic well being after parental separation.
It is unrealistic to expect a woman to suddenly slot back into the workforce, with no transition period or
training provision, and be able to maintain an adequate standard of living for her children and herself.
The loss of benefits and financial support can pose a very real fear. Women may feel a need to weaken
contact with the father, to protect them from an impossible financial situation. This is evidenced in recent
At separation primary carers therefore deserve a financial settlement which includes an equal share of all
family assets to which they have contributed, enabling them to acquire long term economic independence
and security. Attention to these needs will reduce dependency on child support.
34 Women and Medicine, Royal College of Physicians, June 2009
35 Child Custody, Law, and Women’s Work, S Boyd, 2003
36 Women and Medicine, Royal College of Physicians, June 2009; Not Having it All: How Motherhood Reduces Women’s Pay and Employment Prospects, Jessica Woodroffe, 2009, Fawcett Society, Oxfam
37 Anecdotally, mothers report that they have lost their homes as the court’s and benefit system prioritise housing the children before, or instead of, protecting the mother from the consequences of abuse. This creates incentives for abusive fathers to claim residency, as a means to increase their share of state benefits and family assets, including (in some cases) the retention of the family home, Maypole Women 2008/10, MATCH Mothers 2008/09
38 Evaluation of the 2006 family law reforms, R Kaspiew et al, 2009