Last week, many Canadian newspapers reported on an Ontario child custody case decided in mid-January wherein a judge of the Ontario Superior Court decided that a mother had alienated her children from their father over a period of fourteen years and granted custody of the children to their father. Here’s a report at The Star.
I’ve seen a lot of conversations going on in response to this decision and they follow the usual pattern – many men, some of them Men’s Rights and Father’s Rights advocates – but by no means all – see this case as an example of the terrible abuse that some men suffer at the hands of vindictive women. These men engage in a fight with women who have often been abused by husbands or partners or had difficulties with children. Everyone has an anecdote that’s supposed to be determinative. Shit gets flung. The conversation accomplishes little but for providing people with an opportunity to vent. Often the men and women involved in the conversation are people who have been badly hurt in their interactions with family law, I don’t dispute that and, also, I’ve been there.
It would be good, though, if these conversations could be based on knowledge rather than opinion. Besides having a personal experience with family law in Ontario, I’ve also practiced family law and done academic research and teaching in family law. So, I’m going to offer a few thoughts on this case and the issues involved in hopes that it might inspire some readers to dig a little deeper before offering their expertise – a bit of snark – sorry!
One of the problems with the PAS (“parental alienation syndrome”) deal, even if it really is a syndrome (and there’s more evidence that it isn’t than that it is) is that it makes it almost impossibly difficult for women who experience emotional, physical, sexual and economic abuse in a marriage or with a partner who is the father or in loco parentis to a child or children to have her allegations believed. It’s already notoriously difficult to prove these allegations and it’s aways been common that abuse is disregarded or put down to women/mothers being vindictive. Now, of course, it’s not impossibe that some women have used such allegations in a purely manipulative way. Similarly, women who have been victims of rape often have their cases “unfounded” by police and possibly there have been women who have concocted allegations for one reason or another. The problem is that the very possibility of that happening often, much too often, leads to law enforcement personnel “unfounding” rape charges because they’ve fallen into rape myth traps.
One of the problems I see, in both cases, is how easily the dominant “meme” or rhetoric or discourse or conversation , the one which characterizes the woman as lying, manipulative bitch, is accepted as the most likely truth of the situation. We fall into this pattern so easily – so much of the culture reinforces and reproduces the dominant memes, that it makes these ways of stereotyping women very easy and dangerous – the meme becomes one more tool in the toolbox for men and their lawyers. If it’s so easy to believe that a mother could be a lying manipulative bitch, why is it not similarly believable that a man might lie and deny abuse and use his power, his money and the patriarchal power vested in the “justice system” to get what he wants? IMHO, that’s actually the most likely result, given women’s inequality. NOT saying this is the fault of every individual man – it’s systemic and sometimes, men are the victims of it as well. The feminist points don’t go away just because patriarchy sometimes victimizes men.
Mediation and “collaborative justice” are also problemmatic for women. In fact, I did my Master’s Degree thesis on the use of mediation in the context of family law. I looked at the entire Canadian history of child custody decision making, attempting to document the specific, concrete ways in which dominant ways of thinking about marriage and mothers and children and fathers shifted over time, always put women at a disadvantage, even when granting women custody - and how those shifts still work to women’s disadvantage. There’s really good scholarship out there that demonstrates how even the ideas of gender neutrality introduced into Canadian family law in the ’80s works to obscure the unfairness of many decisions [for instance, google Susan B. Boyd]. What we’re looking for is a pattern. Everyone has an anecdote that falls outside the pattern. We tend to pay much more attention to the heartrending anecdotes than we do to the pattern. One anecdote from a man or his mother tends to trump several thousand of them from women. My colleagues and I have been talking lately about how much more attention the tropes about “women” and “mothers” get – those lying, manipulative, hysterical, spurned women – and how incredibly easily they are accepted as “truth”. Especially as compared to the stories of men which “we” (including the lawmakers and law enforcers) seem to find so much moe credible, most of the time.
As for the “new” process of “collaborative justice” now so popular in family law, there’s lots of critical work on that too. It seems to work for some people, but imagine how it can be used against a woman who is in a relatively powerless position considering how prone “we” are to setting women’s views of reality aside. Some truly terrible things result. Formal legal processes are often critisized, especially in the context of family law – another thing I looked at in my thesis. Thing is, formal legal processes have at their heart, supposedly, the protection of the rights of the parties. Sometimes, we get rights “right” and actually protect relatively powerless people. But “rights” aren’t first and foremost with mediation and collaborative law – an agreement, sometimes any agreement, is understood to be ”in the best interests” of children. Sounds good? Sounds “right”? That too depends on point of view. Where agreements reinforce the relative powerlessness of mothers and formalize abuse, as they often do, the harm to the mother becomes harm to the children as well – though there still seem to be few people who “get” that. There is still a view that a man can be almost as abusive as they come to his wife; as long as he hasn’t directly abused his children in a way that can be proved, he is almost always deemed to be a fit father, at the very least for the purposes of access to children which almost always necessitates an ongoing relationship with their mother. The emotional damage experienced by children whose mother’s are abused is ignored, though it seems just intuitively true to me. It’s not that I want to pay attention to mothers at the expense of children; I just have a broader concept of what’s good for children. Or at least children who have mothers as primary caregivers.
Hmmm. As always, I get back to how complicated it is, how much work it takes to understand it and how unlikely it is that most people can or will take the time or trouble to figure it out. Everyone seems to think they’re an expert in family law, certainly everyone who’s been through the system and lots of other people as well. Most people also think that when they read a case, or about it, everything they read ”true” or the judge wouldn’t say it. This despite the fact that judge-made law is known to be as gender biased as any other form of law. I’m being honest when I say, in family law, as with so many other things, it’s one step forward and two steps back for women.
One last note: it’s often said that “joint custody” works best for children and so it’s an inviolable “good thing”. As usual, for every study that says it’s best, there are a few more that show the flaws in those studies and more studies that show less glowing results. Again, the big concern is that joint custody regimes so easily reinforce the previous status quo in the relationship where the mother does all the work and the father has all the control. That’s what joint custody often means. Stats Can has some numbers that show that in by far and away the greater number of Canadian cases, joint custody means the mother has de facto custody and the father can intervene with regard to major (or minor) decision making. Those are situations in which the parties have come to an agreement. And clearly, it’s not custody or even shared time that many fathers want. It’s ongoing control.
I’m not saying all fathers, so don’t bug me! I’m sure there are plenty of engaged and involved and loving fathers and I wish them no harm. But an engaged and involved and loving father respects the mother of his children.
I’ve not included many links here because I just needed to get this off my chest. If anyone wants sources, ask me in comments and I’ll try to provide them.
And by the way, the three children in the case reported at The Star lived with their mother and her family for fourteen years, with almost no contact with their father. Even if that lack of contact was no fault of his and even if it was entirely the fault of their mother, I wonder how we can possibly say that it’s in the best interests of these children to be sent from the home of their mother to a courhouse to be handed over to the patriarch without the mother’s presence and to be entirely cut off from contact with her for the foreseeable future. Maybe this is justice for this father. It’s neither justice for the children nor good for them. If the situation was reversed, if the father had abused these children in this way, I can tell you almost for sure, they wouldn’t be handed over to their mother with no access for Dad. It doesn’t happen.
UPDATE: I’ve bounced the uglier comments. And I forgot one trope about women, specifically feminists: we’re all aching to “claim our victimhood”. No matter how uppity we get.