Father as Breadwinner or Father as Caregiver? Critically Assess Carol Smart’s Feminist Jurisprudential Arguments on the Politics of Child Custody

The purpose of this essay is to critically assess feminist lawyer Carol Smart’s analysis of and suggestions on issues about legal regulations and practices of child custody. She thinks the privileged status of mothers in modern family law system will be threatening by new voices and images from fathers and by the increasing interventions from professional. The discourse of ‘the best interests of child’ can no longer provide women the theoretical foundation of their controlling and defining power over child-relating issues as it did before. Worry about this could lead to the resurgence of negative patriarchal power in family, her main concerns then are to maintain the status quo privileged status of mothers in present family law system and, at the same time, to block the possibility and to refute the legitimacy of fathers to have similar say and weight as mothers over family affairs. Her ideal is allowing lone mothers to be able to live ‘autonomous motherhood’ without interventions from fathers or courts. She adopts a perspective of the politics of gender and suggests introducing ‘the primary carer principle’ into custody disputes to replace the discourse of ‘the best interests of child’. Formal equal parental rights and joint legal custody between father and mother is generally refuted under the primary carer principle. She believes the application of the primary carer principle can best protect and serve most mothers’ benefits by enjoying greater power in issues concerning child-caring in modern Anglo-American family law systems. In the majority of cases, mothers deserve greater say and control over their children because they ‘care for’ their children more and have better nurturing skills. Moreover, she criticizes the usual legal practice and arrangements about the court’s favour of issuing‘ contact order’ for non-resident fathers. She argues that it is mothers who should have the final say and decision over fathers’ access to children. In respect of the problem of economic conditions of lone mothers with child,