When is Parenthood Dissoluble?

Abstract

Across the western world, there has been a major shift in the law concerning parenting after separation in the last thirty years. The notion that following the breakdown of a marriage, the court simply allocated the children to one parent or the other has given way to an emphasis on the importance of having both parents involved in children’s lives following separation. This typically involves joint parental responsibility even if the parents never married, and, where geographical proximity allows, some level of shared parenting. Whereas once family law was premised on the indissolubility of marriage, now a defining feature of family law in western societies is the notion that parenthood is indissoluble.

Women’s groups and feminist scholars have long resisted this transformation in family law, and one of the arguments used in recent years is that laws that promote the indissolubility of parenthood place women and children at risk from violence and abuse. This article considers how the issue of domestic violence should be dealt with in an era of indissoluble parenthood, using illustrations from the laws of Australia, California, Massachussetts, New York, New Zealand, Oregon and Wisconsin as examples of different approaches. Its premise is that an absolute priority must be given to the safety of women and children from a risk of serious harm and this means that parenthood must be dissoluble in some instances. However, many laws cast the net too wide by focusing on a history of violence rather than current safety concerns. There is also a need to differentiate between types of family violence in assessing the risk of violence or abuse in the future. There are not two irreconcilable choices – greater involvement of non-resident fathers on the one hand and protection from domestic violence on the other. There is nonetheless a need to recognise that by no means all father-child relationships should survive parental separation. Sometimes family courts try to hard to maintain parent-child relationships where contact is not safe and cannot be made safe for women and children.

Keywords: Children, Custody, Parenthood, Domestic Violence, Abuse, Legislation, Gender & Law, Safety

JEL Classification: K10, K30