The Maternal Bond – Part 4 – The Family Law System

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By Anne P. Mitchell, Esq.
Dec 3, 2004, 11:27


Summary: The Maternal Bond was originally published in the American Journal of Family Law, and is serialized here at by special arrangement with the author.

1992 (c) Anne P. Mitchell, Stanford Law School
Published in: American Journal of Family Law, Volume 9, Number 3, Fall, 1995

Part 4

IV. The Family Law System A survey of almost 700 of the divorcing couples in the Stanford Child Custody Study found that in 12.8% of the cases where both the mother and father indicated that they wanted the father to have custody of the children, the court still awarded custody of the children to the mother.20

This one statistic speaks volumes about the role that women have been relegated to play in our society. For all the advances women have made, in a time when women have won the Nobel Peace Prize, gone up in space, and are
being admitted to professional schools in large numbers, our family law system still operates on the premise that a woman’s place, first and foremost, is taking care of the children. In the Stanford Child Custody Study alone there were nearly 100 women who chose to be the non-custodial parent. It is probably safe to assume that at least some of these women made this choice based on a desire to pursue their career, or to avoid the constant tension between the rigors of a particularly demanding career and the responsibility of being the primary caretaker (or indeed to avoid subjecting their children to the same). These are choices which are, or should be, a woman’s right to exercise as a free and equal member of society. For the family court to determine that the woman must be the primary caretaker, against her wishes, and at odds with her career, is indefensible.

This is one example of how the family law system coopts women into maternal bondage. It is a rather blatant example, given that the mother had expressed her desire not be burdened with primary caretaker responsibility, and the father had expressed his willingness to take on the responsibility of custody.

More insidious, and more prevalent, is a subtle coercion which foreshadows almost all contested custody cases, in almost all jurisdictions.

Women who are going through a divorce or other legal custody dispute find themselves confronted with a stark economic reality: if they get custody, they get more money. Almost all states21 have in place a child support formula which guarantees the mother a percentage of the father’s gross income, per capita, for child support. In many states this figure works out to at minimum 20%-25% of the father’s gross income for 1 to 2 children.

There is no need to rehash the theory of maternal subsidy at this juncture, however it is important to consider the economic consequence of it. Women, having already been subordinated to a role in which they are unable to achieve self-sufficiency, often face the divorce process from a position of under- or unemployment. Depending on a woman’s educational background, and the prevailing job market, her prospects of recouping or achieving self-sufficiency may be quite bleak. Faced with the choice of treading into an unclear employment situation, or continuing to provide primary caretaking services while receiving a maternal subsidy, it is understandable that many women opt for the latter.

But so long as the maternal subsidy exists, women will continue to allow themselves to be pushed into the subordinated role of caregiver, giving up their own careers, and believing that they have somehow protected their autonomy and independence with the insurance of future child and spousal support should divorce occur. Unfortunately this “protection” is one more link in the chains of the maternal bond. Rather than being protected they are being overprotected, and to no good end, not unlike when a weak child is “protected” by an overprotective parent. Both do the recipient more harm than good, as neither woman nor child will be allowed to develop into an independent and responsible member of society, capable of taking care of themself. Instead, they will always be dependent upon their provider.

[Continued in Part 5]

19 “Should You Stay Home with Your Baby”, Burton L. White, 1981, as reprinted in The Psychology of Women: Ongoing Debates, Walsh, Yale University Press @ p.364.

20 “Dividing the Child”, id.

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