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Legal Images of Motherhood: Conflicting Definitions from Welfare 'Reform', Family, and Criminal Law


Jane C. Murphy


University of Baltimore - School of Law

March 1, 1998

Cornell Law Review, Vol. 83, No. 3, 1998

Abstract:     
Part I of this Article explores the traditional idealized view of motherhood that child placement statutes and court decisions reflect. These laws include statutes and case law in custody disputes between parents and in child protection proceedings under civil and criminal laws where the dispute is between the parent and the state. Part II contrasts the legal construct of motherhood that child placement laws embody with the legal image of mothers in child support and welfare law.

Part III examines the impact of these conflicting images of motherhood on a particular group of mothers -- battered women. Battered women illuminate the thesis of this Article in a variety of ways. Being battered often pushes middle class women into poverty. The legal issues for these mothers may often move from conflicts with their partners over custody and child support disputes to struggles with the state in welfare and child protection proceedings. Battered mothers often fall short of the law's ideal image of motherhood, becoming subject to civil and criminal sanctions. At the same time, being battered makes them particularly unable to live up to the law's presumptions about economic equality. This Part considers whether the sanctions imposed on battered mothers are appropriate methods of protecting children and making mothers accountable for actions that truly endanger children. Further, it explores how laws governing economic benefits affect the choices of battered women, and whether the legal system adequately accounts for these constraints when evaluating maternal conduct.

This Article then contextualizes theories about the law's view of motherhood by examining how the law operates in practice where battered women come before the courts to resolve child placement or economic disputes. By closely examining three cases -- a contested custody and support case between two parents, a child protection proceeding where the state sought to remove a child from a mother's care, and the criminal prosecution of a mother accused of failing to protect her child from her partner's abuse -- the Article reaches some conclusions about the harm that flows to women and children from the law's conflicting images of motherhood.

Finally, the Article makes some preliminary conclusions about reforms that may assist the legal system in responding more appropriately to mothers in general and, in particular, mothers who are victims of domestic violence. These reforms call for changes in the law's response to both child placement decisions and policies affecting families' financial support. Courts and child welfare bureaucracies evaluating child abuse and neglect allegations must move away from assumptions that mothers and their children are adversaries. In most cases, particularly where the mother is also a victim of abuse, protecting children is often best achieved by protecting their caretaker parent -- their mother. Policies designed to ensure financial support for children need to re-emphasize fathers' financial responsibility to their children and recognize mothers' limitations in shifting from childrens' primary caretaker to their financial provider.

Number of Pages in PDF File: 80

Keywords: motherhood, child custody, court decisions, statutes, parents, civil law, criminal law, battered women, battered mothers, economic equality, poverty, child support, child protection, domestic violence

JEL Classification: K14, K19, K39, K49, I39, J12, J16

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Date posted: August 13, 2009  

Suggested Citation

Murphy, Jane C., Legal Images of Motherhood: Conflicting Definitions from Welfare 'Reform', Family, and Criminal Law (March 1, 1998). Cornell Law Review, Vol. 83, No. 3, 1998. Available at SSRN: http://ssrn.com/abstract=1438129 or http://dx.doi.org/10.2139/ssrn.1438129

Contact Information

Jane C. Murphy (Contact Author)
University of Baltimore - School of Law ( email )
1420 N. Charles Street
Baltimore, MD 21218
United States
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