The Family Courts and Institutional Control of Women

Abstract

This chapter discussed the history of custody jurisprudence in the family courts and the treatment of women in the courts. Initially, it was assumed that fathers received custody of all property in divorce, including the children. This was followed by the use of the “tender years” doctrine, in which mothers received custody of young children, followed later by the adoption of the “best interests” of the child legal standard. While the best interest standard has been described as gender neutral, it has been criticized for ignoring the power imbalances and differential treatment of women in the courts. The research on legal abuse as another form of coercive control used against women during family law litigation has indicated that mothers are harmed economically and emotionally by endless motions and delays. As a result, without oversight and transparency, the family court’s exercise of institutional control has become another form of coercive control.