Dalhousie Journal of Legal Studies


This article surveys a very specific legal context: the claims of mothers, who are lesbians, in custody disputes over their children, with their heterosexual ex-spouses, in Canadian courts. The author examines the developments in judgments surrounding custody involving a lesbian mother over the past two and a half decades, focusing on the line of reasoning within the judgments rather than the substantive results (that is, to whom custody is granted). The end result will be an attempt to better understand the interaction between law as a discourse and the dominant ideologies of familialism, motherhood, and heteronormativity. In Part Two, the author sets the "legal stage" by outlining the specificities of custody law, which remain relatively insulated from other aspects of legal equality discourse. Next, she problematizes the underlying assumptions of the dominant ideologies of familialism, motherhood, and heteronormativity, and the support they receive in law. For this section, the author draws mainly from feminist work to deconstruct the institutions of family and motherhood and their effect on the oppression of women in society. The article will also show how these ideologies interact with each other, and in tandem with the ideology of heteronormativity, to oppress the experiences of lesbians in law – in particular, lesbian mothers. Part Three cites specific examples of lesbian mothers' custody claims, outlining the dominant approaches judges have taken in certain historical periods, and shows how these approaches support the perpetuation of dominant ideologies and the consequent marginalization of lesbian mothers. Lastly, Part Four offers some preliminary conclusions and proposes a principled legal approach which may assist in avoiding the mistakes of the past.

Creative Commons License

Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License.