The Neutered Mother

This article evaluates the consequences for Mothers of the de-gendering of family law, particularly in the context of child custody. It traces the history of child custody in family law from the early Anglo-American rules that extended paternal property rights to the development of the best interests of the child standard with the supplemental “tender years” doctrine that often favored Mothers. The shift away from paternal rights towards a presumption of maternal custody was due in part to the powerful cultural image of Mother as nurturer and caretaker. However, Professor Fineman argues this shift actually reinforced patriarchical norms as fathers’ rights groups in the 1970s absorbed and redeployed liberal legal feminists’ arguments against gender-specific tests in law. Pushing the symbolic Mother to the periphery of family law discourse in the name of gender neutrality has tended to harm the most vulnerable mothers. “Parenting” has replaced Mothering in family law discourse. The valorization of the individual as an unencumbered economic actor by liberal legal feminists and the emphasis on the heterosexual couple as the basic unit of the family in legal discourse give no consideration to the unique role of Mothers in child rearing. In fact, the sexualized family marks as deviant and dangerous the family unit of mother and child. While gender-neutrality in legal rule-making represents the triumph of the assimilationists, it also means that any preferences based on the gendered concept of Motherhood have to be purged from the law. This purge leaves Mothers vulnerable before the law. Fineman argues that the results from the neutering of Motherhood in law should make feminists wary of equality. In her view, feminist legal theory cannot be gender-neutral and cannot strive for equality in the traditional, formal, and legal sense of that word if it is to address the needs of Mothers. Instead, feminist legal theory should incorporate the gendered experiences of women’s lives to demonstrate that the concept of differences is necessary to remedy the harms to women. The contest over the definition of Mother in law will of necessity challenge patriarchy’s core concepts such as equality