Women, Divorce and Custody

Heidi Sampson/Larson
GWS 220W
4/18/12

Women, Divorce and Custody

For many centuries, women have been deemed the property of men. This statement has literally meant that a woman belongs to either her father or her husband; it has also meant that a woman’s children are unquestionably the property of her husbands in the event of divorce. Depending upon which country a woman resides in, these historical assumptions surrounding marriage and divorce play a large part in whether or not a woman can legally even ask for formal custody of their children. Terms like “no-fault” divorce, although liberating women to equally seek divorce has brought about a whole new battle, in which out of backlash, highly popular father’s groups openly claim they have been the ones “left behind” in family courts. These groups have become instrumental in forcing ideas like presumptive joint custody into family courts everywhere as they employ feminist rhetoric towards their advantage. Historically, women have systematically been denied the right to their children, whether it has been in the U.S. or abroad, the false assumption that women have always and will always receive full custody in the event of a divorce is false, while the backlash from “no fault” divorce has sent many father’s rights activists into a frenzy employing double standards as a way to achieve custody, however, their continued use of feminist rhetoric hold many women in a constant state of custodial siege even after a divorce is finalized.
To get an accurate sense of the issues women face worldwide, we must look at the historical assumptions regarding marriage and divorce, and how those concepts continue to play a larger role in who gains formal custody of the children post-divorce. The cold hard fact is that “for more than five thousand years, men – fathers – were legally entitled to sole custody of their children. Women – mothers – were obliged to bear, rear, and economically support children. No mother was ever legally entitled to custody of her own child,” the way that men have always been granted this fundamentally basic right (Chesler ix). The most common misperception is that women are automatically granted custody of their children, when in fact, “82 percent of all custody battles result in paternal custody” agreements either immediately, or within the next two to three years following the actual divorce itself when the ex-husband remarries and gains a “mother replacement,” enabling him to gain custody at the later date (Chesler 76). In other countries like Israel, a place typically known for its strong religious values, civil marriage, as well as civil divorce, is considered non-existent for the most part, leaving many women at the mercy of the church. Rabbinical courts handle all Jewish marriages and divorces, which essentially is an all “male tribunal, completely governed by religious rules of procedure,” which in general tends to “favor the husband,” forces many women to bargain their children away for the divorce decree itself (Yadgar 909). Within the Iranian Family Courts, an area known to be based within Muslim practices, Iranian men have “presumptive rights to child custody,” leaving many women without recourse and without children (Osanloo 201). Sadly, historical misconceptions in truth, traditional ideas and religious laws have repeatedly striped women of their children, however in countries where women have gained some equality to that of men through the idea of no-fault divorce, right wing father’s rights activists groups have boldly risen up claiming inequality in family courts while implementing old-fashioned double standards as ways to keep control post-divorce.
Since the implementation of the no-fault divorce system, father rights groups have risen up an effort to regain control of the power they feel they have lost. The idea that men were the victims of the no-fault divorce law became their ultimate battle cry. They openly took the stance that, “each person should stand on their own two feet” following a divorce, and that there should be “a complete end to any type of maintenance payments” while pushing for a “presumption of joint custody or sole custody to fathers,” in hopes of regaining the control they felt they lost with the establishment of no-fault divorce (Thornton 218, 220). Within the United Kingdom, mother’s fighting for adequate child support, have personally witnessed the backlash of father’s groups successes, when their husbands contest custody and win as a result of old-fashioned double standards. A father who contests custody, by “accusing the mothers either of sexual or ‘uppity’ behavior,” in which, both accusations are unquestioned grounds for custodial care being appointed to fathers (Chesler 274). It is important to note that ‘Uppity behavior’ is defined as going back to school, or simply preferring to be a working mom while seeking custody. Improvement factors that could possibly put a mother ahead in areas of economic security, are often waged against a mother’s desire in achieving custody. Although some father’s claim that because of, “female egoism” and the idea of “‘life for oneself’” men have ultimately suffered, women claim that “behind the screen of fighting for equality of the sexes they (men) have simply declared war on the entire female gender,” as right wing father’s activists groups actively seek to regain parental control through any means possible (Osipova 38). While many father’s rights groups actively push old stereotypes of motherhood to ensure custody of children, they also openly employ feminist rhetoric as justification for their unethical manipulation of family courts in hopes of further tipping the hands of justice in their favor.
Terms like joint custody seem to favor both sides of a divorce, which is why many father’s rights groups openly push the idea as a feminist concept, by arguing joint custody keeps things equal between men and women. In all countries where joint custody is preferred, it is seen as “fair, progressive, feminist and in the child’s best interest,” despite the fact joint custody creates severe problems post-divorce (Chesler xvi). The current trend within the United States and many European countries, relies on “presumptions favoring joint custody upon divorce, regardless of who has provided care and nurturance during the marriage,” as joint custody only helps to reinforce the old standard that men don’t have to partake in women’s roles, but are fully able to claim them upon divorce at a later time (Chesler 311). Another major force behind the father’s movement for joint custody resides in the idea that by “having his children” he will no longer have to “subsidize them or their mother economically and without having to contend with the repeated demands for child support,” which puts the mother at an extreme disadvantage in terms of economics, as women are routinely paid less than their male counterparts in terms of paid labor (Chesler 311). The most problematic issue with joint custody however, resides in the concept that a man can “retain the martial home and other assets (including children) as a way of monitoring, controlling, and harassing his ex-wife” as joint custody continues to remain an excellent “threat for fathers to use to get mothers to back down from economic demands,” ensuring that women not only suffer economically but also personally, as many men take this control as a way to continue their abuse post-divorce (Chesler 311). For many father’s rights groups, they knowingly use feminist rhetoric as weapon to ensure an outcome that best suits their needs, while claiming it is in the interest of equality.
Contrary to popular belief, women have never been entitled to their children, nor are they likely to receive their children today without a tremendous custodially battle especially if they try to seek an equal settlement or lay claims to child support. Many traditional understandings of divorce and marriage continue to play out through religious laws that openly favor men in countries where religion and tradition remain unquestioned. The swiftly popular father’s rights groups, have formed as direct backlash to the establishment of no-fault divorce claiming the ruling favors women. In their attempt to maintain control they have pushed for old-fashioned double standards as a way to discredit women of their right to motherhood. In a cruel twist of fate, these very same groups have resorted to using feminist rhetoric to push concepts like presumptive joint custody into family courts around the world, ensuring a fathers reign of control post-divorce through decision making and custodially agreements. In essence, joint custody means women are never truly “free” of their spouse. A well-known Australian family court judge, Honorable Richard Chisholm is reported to have said, “men will be likely to experience the impact of a family law system as adverse to them. If they have more resources than the women in the first place, they are likely to end up with less resources. If they had more power, then suddenly they are not going to be able to get their own way,” which seems to be the major fuel behind father’s rights groups popularity, as they single handedly try to push the courts back into their favor, by establishing their future control within their ex-wives homes through ideas such as joint custody (Thornton 218). Throughout time, women have and continue to be denied the most basic right, the right to that of their child, while traditional and religious presumptions have prevailed in keeping women under control in many countries, father’s rights activists boldly work to discredit a woman’s right old-fashioned double standards of manipulation, while using feminist rhetoric as a way to gain support from women while hold mothers in a constant state of custodial siege.




Works Cited

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