A Therapist’s Mandate?: Integrating an Ethics of Care into Custody Law by Recognising and Responding to Post‐separation Parental Loss of Connection with Children

Abstract

In 1999 Smart and Neale published their seminal book Family Fragments, arguing for the replacement of the ethics of justice that currently informs custody law and practice with an ethics of care. Recognising loss is one of four principles they identify as being key to care-based processes for managing post-separation parenting arrangements. Here they had in mind the non-resident fathers in their study, who were often anxious, angry, and resentful about their diminished fatherhood. Yet gender-neutral custody laws and the greater prominence given to shared care across the West means that increasing numbers of separated mothers are also experiencing diminished connections to their children, either by becoming non-resident parents or through shared care arrangements. Research into post-separation fathers' and mothers' experiences of loss and grief in relation to their children is sparse and largely consists of small-scale qualitative studies focusing either on fathers or mothers. Nonetheless, these studies show that the grief talk of post-separated parents is strikingly similar, except that mothers who become non-resident parents commonly talk about a sense of stigma and shame, while fathers are more likely than mothers to resort to the language of anger and rights. Despite Smart and Neale's call roughly 20 years ago, custody law systems across the West continue to neglect parents' need for recognition and support. This paper seeks to rectify this social neglect through describing a dual program of therapeutically informed interventions with separated mothers and fathers. This is designed to recognise and respond to parental loss and grief experiences, whilst simultaneously fostering personal self-reflexivity and transformation. The latter is no easy task but is frequently an essential basis for workable co-parenting post-separation.

“The troublesome other and I”: Parallel stories of separated parents in prolonged conflicts

“…Positioning the self as a legitimized victim of traumatic events caused by the troublesome other gives validation to the need for protection, and hence, what we coin as the term traumatic violations of trust becomes a barrier to parental cooperativeness. Being violated and deprived of an opportunity for reconciliation and forgiveness make it difficult to change positions since doing so would involve the threat of delegitimizing past violations and the loss of holding onto the right of being hurt as a justified victim (Elizabeth, 2019). In addition, traumatic violations of trust make it difficult to reestablish trust.…”

“…The disempowered parent could feel pressured to be submissive, combined with a lack of trust. Being disempowered as an unequal, feeling disrespected, and being unable to reposition oneself could fuel anger and resentment that ignite conflict dynamics (Elizabeth, 2019).…”