Why Did Feminists Erase Motherhood in Family Court?

A noisy mass shouts “What’s Wrong with Family Court Custody Determinations? Abuse. Alienation.” Emotions are pumped. Solutions are spouted. Victims are cultivated. New labels created (coercive control, post separation domestic abuse). Truth is never divulged: Family Court operates exactly as envisioned.

Legal scholar Martha Albert Fineman anticipated built-in structural flaws. For this article, I extract from Fineman’s 1995 book, “The Neutered Mother: and other 20th Century Tragedies,” and her 1987 article “Custody Determination at Divorce: The Limits of Social Science Research and the Fallacy of the Liberal Ideology of Equality.” I simplify Fineman’s concepts, so that my readers can grasp the gaps in the foundation, which existed at the onset of construction.

Two major legislative actions influenced today’s family court operations. The Violence Against Women Act (VAWA), first funded in 1994, and 1996’s Welfare Reform (PRWORA), which reconstructed the way government addressed poverty and family. Instead of providing financial assistance to people, grants instituted service networks heavily tied to family court. In essence, private operators (individuals, religious organizations and universities) received funds to create treatment and management centers. Clients came from family court judicial orders. Grants created legislation-aligned research hubs. While VAWA’s stated intention was criminalization, programming embedded civil processing of intimate affairs. Fatherhood legislation reversed efforts of the domestic violence community meant to sway outcomes towards women. Fatherhood legislation privatized judicial adjudication.

Social preservation and restructuring were the unspoken goals of each ideological team. Predictably, implementers distorted procedure and corroded justice. Bedrock was laid by social scientists and legal practitioners, working in opposition at first, and collaboratively, once each side was well-established.

Law and Legislation

Law is fundamentally an unsuitable forum for social change.

Law is a process where legal norms are generated, selected, interpreted, and implemented through legislation. Law becomes policy, dispensed, and enforced by judges and courts.

Law is a coercive, punitive, ideological system. Law is a tool to manipulate and refashion society.

Law is crude; bound by dominant ideology. To win legislative support for policy proposals, reforms must reference the concerns of power. Because law orders society, it inevitably reverts to the dominant structure.

Law reveals government’s coercive power. Law has consequences. Law is not neutral and objective. Law is one system that interacts with multiple systems.

Law is the product of power and political struggle. Reform expresses political interests. When reform sacrifices context, reform becomes distorted, fails, and consequently exacerbates the problem.

Law is an inappropriate vehicle for social change because:

• Law is a conservative discipline;
• Law will not undermine the status quo;
• Law aligns radical ideas to the dominant power structure.

VAWA’s promised legal and social change predictably failed women with minor children. Mothers who dissolve relationships encounter fatherhood policy.

Fatherhood policy attempts to replicate and revitalize the nuclear family. Male interests dictate policy. He becomes a proxy for state power, head of women and children. Fatherhood access/visitation (custody) programs embedded “family court services and service providers.” AFCC, a business-minded, trade association, facilitates father’s possession of children. AFCC dominates training; research generation; treatment and management practices; fatherhood program review; and government protocol authorship.

Feminist Legal Theorists

Feminist “equality” ideology (dissimilarity between male and female is non-existent) held extreme, detrimental consequences for mothers. Devotion to assimilation omitted motherhood from feminist social goals. Certainty that difference was societal, culturally created, not biological, paved over the real truth: women’s life experience and social position is different from that of men.

Women gestate, give birth, lactate, and nurture offspring. Predominantly, women fulfill the needs of dependents and assume the caregiving role. Feminist reasoning was defective because women in society are not equal. Feminists ignored cultural and social differences that disadvantage women. Feminists disregard for biological function devalued, defamed, and dehumanized mothers. Gestation prepares women’s bodies to nurture the child through lactation and hormonal attachments. The natural process should be celebrated and encouraged.

Early feminists never planned to birth and nurture children. Feminists adopted male constructions. In doing so feminists assumed hierarchal positions within male-centric systems such as law, government, and the family. Feminists did not work to elevate, or equalize, women in their role within the family, as mothers and caregivers. Feminists viewed motherhood as an anomaly to be fixed, rather than pivotal to societies operation and maintenance. Feminists’ solution to the motherhood/caregiving problem, was increased male participation and shared parenting. Feminists embraced a paid-for-childcare, market solution, ignoring the low-wage paid to female staff.

Rather than consider women’s biology and role in procreation, feminist legal theorists split “special treatment for difference” into specific issues:

• Workplace / employment;
• Sexuality (gender, abortion);
• Domestic violence (VAWA).

Because of feminist’s disdain of motherhood, women must identify as victims of domestic violence to gain preferential processing in family court and custody determinations. Women’s role of “mother” and “primary caregiver” generates no exclusivity. Fatherhood merits value, motherhood doesn’t. To receive uniqueness in a legal environment, women must identify as “victim.”

Classification

Law relies upon classification, a process that gives facts legal meaning. Through classification similar structures receive similar treatment. Legislation itself relies on generalizations. Rules apply to all, even beyond personal circumstances. People are processed according to an assigned category. Litigants filing domestic violence protection orders fall into the category of victim. Fathers, categorized at support hearings as obligator, are offered a range of fatherhood custody services. Parents disputing custody, categorized as having “high conflict,” are sent to a range of mediation-centric services put in place through welfare reform.

Legal processes and outcomes harm those who do not fit neatly into a category. Categories, created for political reasons — to protect women, to increase father’s access, to “mediate” disputes — result in standardized processing. Individuals are harmed if circumstances fall outside of narrow parameters.

Classification is problematic because it:

• includes inappropriate cases and excludes appropriate ones;
• is symbolic not practical. Decisions made harm the unrepresented;
• involves assessment of similarity and difference;
• is mired in stereotypes and bias;
• is a political act reliant upon persuasion where reality is altered by framing.

In order to persuade Congress to pass VAWA, elite actors highlighted stories chosen for shock value: murders, mutilation. Ordinary, everyday degradations and oppressions were downplayed. Women’s successes and joys were hidden. To obtain membership in the class, women must recant emotion-laden lists of harms.

Today, women are required to present themselves as victims of male harm. Women are not classified as mothers or primary caregivers. Women can only distinguish their position in family court by assuming a victim role. Additionally, mothers must enfold maltreatment of their children into a domestic violence narrative thats benefits the political framework. Recently, domestic violence actors propagate “coercive control,” “post-separation domestic abuse,” and “coercive control of children” in a weak attempt to combat advances of the fatherhood movement.

Images of fatherhood are kind and caring. The reformed abuser. An outcast, kept from his children by their gatekeeping mom. Men who fight to win custody and hand-over childcare duties to girlfriends, family, new wives, and paid staff are kept out-of-sight.

When proof of severe maltreatment exists fatherhood legislation funds numerous treatment programs. Once treatment is concluded, or a protection order expires, the category is closed. Mediation and management become the new category. Supervised visits act in the same manner. If a parent is categorized as dangerous, supervised visits are ordered. Under fatherhood rules, a relatively short time yields fitness for unsupervised custody of children — this process is termed “step visitation.”

The way parents are categorized — victim or father — resulted in mothers losing custody and being judicially ordered to supervised visits because they fail to mediate and coparent, or continue to litigate and accuse fathers of harm. Ironically, the Office of Violence Against Women funded training judges that alienation was a reason to order supervised visits.[i]

The Model Code is an example of classification gone awry. Concurrent to VAWA’s 1994 passage, Feminist Legal Theorists, self-proclaimed “domestic violence experts,” wrote idealized statutes, meant for passage within each state. Police would arrest males. Women would retain financial assets and custody of children. Meanwhile, fatherhood embedded favorable legal practices, coupled with mandatory mediation, shared parenting, and friendly parent laws. The feminist domestic violence ideological side never acknowledged the oppositions gains. Even today, domestic violence actors frame the problem of child custody awards to abusive fathers in politically narrated terms.

Perspective Scholarship

Feminist legal theorists’ reliance on perspective scholarship urged the use of “extra-legal” material. Social workers, psychologists, replaced evidence-based adjudication. These non-legal mental health actors performed evaluations, assessments, and various decision-making roles. To this day, feminist actors endorse the use of court employed and private practitioners who present “witness,” “evidence,” make judicial determinations, and manage disputes, without accountability, oversight or adherence to due process conventions.

Research establishes a classifications parameters. Research influencing family court operations, is not neutral. Domestic violence and fatherhood create opposing data and conclusions. Separate funding sources yield research articles published in industry aligned publications. Foundational citations stem from each field’s experts. Given the existence of two divergent sets, both domestic violence and fatherhood social science is highly biased, unreliable, and even deceitful.

Conclusion

Feminists help society devalue caregivers, a role traditionally represented by the image of motherhood. Care is a non-monetized transaction. Care rarely generates profit and tax revenue. Even though caregiving is work and caregivers contribute to the overall health and well-being of society.

In 1995, Martha Albert Fineman proposed an alternative structure that put caregiving at the core of social service policy revision (as opposed to legislated fatherhood). Fineman proposed widening societies interpretation of personal relationships and dependences to include not only children, but the disabled, elderly, and ill. Instead of worshipping fatherhood, caregiving would be seeded. Social programs would maintain, respect and support those who perform crucial, caregiving duties, free-of-charge — the traditional role of females.

Thirty years of funding fatherhood and domestic violence family court classifications and processing have embedded corrupted, marketized systems that harm mothers, children and men. Feminists are culpable. Domestic violence actors are culpable, too.

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[i] the Clearinghouse on Supervised Visitation Institute for Family Violence Studies School of Social Work Florida State University became the contractor for the U.S. Department of Justice under the Office on Violence Against Women to provide technical assistance to federal Safe Havens — Supervised Visitation grantees. Director Karen Oehme, and Lynne Rosenthal (President Obama’s Domestic Violence Liaison), authored a judicial training manual that requires supervised visit staff to have proficient knowledge of alienation. The bibliography contains numerous articles that classify failure to coparent (alienation) a form of child maltreatment.