Open AccessGender, Biology, and Third Party Custody Disputes
Author(s) -
Wanda Wiegers
Publication year - 2009
Publication title -
alberta law review
Language(s) - English
Resource type - Journals
eISSN - 1925-8356
pISSN - 0002-4821
DOI - 10.29173/alr319
Subject(s) - privilege (computing) , context (archaeology) , child custody , test (biology) , de facto , law , family law , affect (linguistics) , sociology , psychology , political science , criminology , biology , paleontology , communication
This article explores the significance of genderdifference in the custodial claims of biological parentswhere de facto care of children has been transferred tounrelated parties. Drawing on media accounts, thetrial transcript, and the 2007 decision in Hendricks v.Swan (the “Saskatoon Dad” case), as well as anextensive survey of similar reported cases, the authoridentifies changes in the construction of birth mothersand genetic fathers over time, both as claimants andnon-claimants of custody. The author contends thatdespite significant differences in their biological roles,mothers and fathers are constructed as formally equalclaimants in this context. Both mothers and fathersnonetheless lose out more often than not to thirdparties, often on grounds of instability rather thanbonding. The role of gender in the application of thebest interests test to claims by biological parents,particularly the extent to which gendered norms affectassessments of stability, is analyzed. In relation tobiological non-claimants, the author addresses theerasure of the birth mother’s experience in Hendricksthrough the use of a formal equality lens and examinesassumptions regarding non-disclosure of paternity thatprivilege the interests of genetic fathers. Inconclusion, potential ways of avoiding or minimizingthe trauma associated with these cases are brieflycanvassed.