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SEMI-PLENARY SESSIONS
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Family and law: Relationship breakdown and gender inequality

From
June 29, 2021 13:15
to
June 29, 2021 14:45
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Organizers

Fiona Friedli, University of Lausanne, Centre de recherche sur l’action politique; Michelle Cottier, University of Genève, Centre d'étude, de technique et d'évaluation législatives; Gaëlle Aeby, University of Geneva, Centre d'étude, de technique et d'évaluation législatives

Speakers

Joan Meier, Professor of Clinical Law and Director of the National Family Violence Law Center, George Washington University Law School

Emilie Biland, Professor at Sciences Po, CSO, IUF

Michelle Cottier, Professor of Law, University of Geneva (main communicant); Eric Widmer, Professor of Sociology, University of Geneva; Gaëlle Aeby, PhD, research associate in sociology, University of Geneva; Bindu Sahdeva, MLaw, doctoral student in law, University of Geneva

The COVID-19 pandemic that broke out in 2020 has pointed out several issues regarding our family justice system. Whether it is, for example, procedures related to the settlement of a divorce, or procedures related to child protection, the sudden focus on urgent cases has left many people, often women and children, in situations of material and emotional insecurity. More generally, this crisis has highlighted the contemporary challenges faced by the justice system regarding the timeframe of the proceedings (that does not correspond to the temporality of family life) or the fact that even if family law has changed dramatically over the past years (promotion of formal equality, extension of rights to LGBT rights, participation of the child in proceedings) many inequalities remain both in access to justice and in the modalities of litigants’ involvement in decision-making processes. Considering these observations, our panel aims at highlighting how judicial practices affect the reproduction of gendered patterns. In this respect, we will consider child custody outcomes in cases with parental alienation and/or abuse allegations in the U.S. (contribution of professor Joan Meier), access to justice in the context of the liberalization of divorce in France and Quebec (contribution of professor Emilie Biland), and the role of lawyers in the negotiations of divorce agreements in Switzerland (contribution of professor Michelle Cottier and colleagues).

Keywords: Family justice system; family law; relationship breakdown; divorce; gender inequality

U.S. child custody outcomes in cases with parental alienation and/or abuse allegations

Joan Meier, Professor of Clinical Law and Director of the National Family Violence Law Center, George Washington University Law School

Professor Meier will report on her 5-year, federally-funded national empirical study, Child Custody Outcomes in Cases Involving Parental Alienation and Abuse Allegations.   This study was launched to shed light on debates about how family courts respond to women and children reporting abuse.  The substantial media response to the findings  confirms that neutral empirical data is critical in educating the public and lawmakers about the realities in family court.   Findings reported address (1) frequencies of courts’ rejections of reports of fathers’ abuse of women or children, with and without crossclaims of alienation; (2) comparison of courts’ responses to child abuse vs partner violence claims; (3) frequencies of custody reversals when women report family abuse, with and without crossclaims of alienation; (4) gender bias and lack thereof in relation to abuse and alienation claims; and (5) outcomes for mothers when neutral evaluators or Guardians Ad Litem are appointed.  The findings strongly reinforce widespread anecdotal and survey reports of family courts’ negative responses to women and children claiming paternal abuse, particularly where the mother is accused of alienation.

Keywords: Custody disputes; domestic violence; family court; U.S. 

Joan Meier is a Professor of Clinical Law and Director of the National Family Violence Law Center at the George Washington University Law School. She graduated magna cum laude from Harvard University in 1980, received a Juris Doctor (JD) from the University of Chicago Law School in 1983, and clerked on the US Court of Appeals for the Seventh Circuit. Professor Meier founded three pioneering interdisciplinary domestic violence clinical programs. Her major study, “Child Custody Outcomes in Cases Involving Parental Alienation and Abuse Allegations,” funded by the National Institute of Justice, was completed in 2019.

Why the Liberalization of Divorce Leads to Intersectional Inequalities in Access to Justice

Emilie Biland, Professor at Sciences Po, CSO, IUF

This talk will draw on a decade of empirical studies conducted collectively to compare two contexts, France and Quebec, in order to assess the ways their court systems shape intersectional inequalities as families encounter the law and its professionals in ways that affect their lives long afterward.

On both sides of the Atlantic the goal of fostering amicable and self-regulated forms of separation has led to an unprecedented range of options available for dealing with the legal consequences of separation. Now that anyone has the right to separate, and the right to choose how they will go about it, differentiation in the ways procedures are appropriated and the varying availability of professionals represent the elementary form of inequality separating couples face. In France, the principle of a “judge for all” has long been held up as an ideal – yet it has never translated into the same experience for everyone. In Quebec, the principle of “to each according to their need” has become “to each according to their means.” Beyond differences in the two systems themselves, the liberalization of divorce is experienced differently by individuals depending on their social status, their gender, and even their national background. 

Despite the legal aid system, members of the lower classes have limited access to lawyers; they are less likely to be represented by one; and, when they are, they are able to spend less time with them. In Quebec, they are less likely to appear before a judge, and in France, their time in the courtroom is more limited. These socially inflected experiences of the justice system are also inextricably linked to gender: among the lower classes, the justice system comes together with social services to monitor mothers and leave fathers to fend for themselves. Among the middle and upper classes, gender differences are less stark. The wealthy are more able to choose who is involved in their family cases – in both the public and the private sector. They are also more able to decide, depending on the balance of power between the two parties, between settling their disputes out of court (and outside of the gaze of the state) and investing significant time and financial resources in long court cases.

Keywords: Law; family; courts; inequality; gender; France; Canada 


Emilie Biland is a full professor of sociology at Sciences Po, in Paris (France). She is also a long-term visiting professor at Laval University (Québec) and a research fellow at the Institut Universitaire de France. She is concerned about the part that organizations and professionals play in the shaping of inequalities based on class, gender, race and sexuality, both at work and at home. She is currently doing fieldwork on LGBTQ parental rights in France, Canada and Chile. She authored many articles in peer-review journals as well as three books, including: Gouverner la vie privée. L’encadrement inégalitaire des separations conjugales en France et au Québec.

Family justice, private ordering and gender equality in Switzerland

Michelle Cottier, Professor of Law, University of Geneva (main communicant); Eric Widmer, Professor of Sociology, University of Geneva; Gaëlle Aeby, PhD, research associate in sociology, University of Geneva; Bindu Sahdeva, MLaw, doctoral student in law, University of Geneva

Socio-legal research has been interested since the 1970s in the move to private ordering of the legal issues of separation and divorce. The role of the family justice system is more and more reduced on the one hand to providing the normative framework, or to speak with Mnookin & Kornhauser (1978-1979) the “bargaining chips” for the negotiation between family members, and on the other hand to judicial control of the agreement reached as a result of that negotiation. The first part of our presentation will discuss this interplay, drawing on the international literature. 

We will then present our model of three gender-related dimensions of the configurations in which the negotiation of the divorce agreement takes place: firstly, different conceptions of gender equality co-exist in written law (legislation, case law, legal writing). Written law may give clear guidelines as to the different legal aspects that need to be settled in a divorce, such as parental responsibility and the child’s residence, matrimonial property, the family home and maintenance. Secondly, gender shapes professional practices: divorce lawyers hold different attitudes towards post-divorce gender relations and they can be expected to interpret written law in a way that is consistent with their attitudes. Thirdly, divorcees’ personal life trajectories are the result of concepts of gender relations institutionalised in family and social policies, the organisation of the job market as well as social norms.

Finally, we will present results of an ongoing online quantitative survey of Swiss divorce lawyers. The research questions guiding the survey are: What are the attitudes and assumptions of divorce lawyers concerning gender equality in divorce law, and to gender equality in general, and how are these attitudes manifested in particular professional styles? 

Keywords: Divorce agreement; lawyers; gender quality; Switzerland 


Short bio (for main communicant only)

Michelle Cottier is Professor at the Faculty of law of the University of Geneva. Her fields of specialization include family law (especially child law), comparative law, sociology of law, interdisciplinarity in law, and the study of gender, sexuality and law. Michelle Cottier is director of the Centre d'étude, de technique et d'évaluation législatives (CETEL) at the University of Geneva and leads currently two projects financed by the Swiss National Science Foundation: The negotiation of divorce agreements and gender (in)equality in Switzerland (2019-2023); Integrity, autonomy and participation in child protection: How do children and parents experience the proceedings of Child and Adult Protection Authorities? (2018-2022). Formerly she has been an Assistant Professor at the University of Basel, a Visiting Professor at Humboldt University in Berlin and a Visiting Researcher at Harvard Law School as well as at the Universities of Kent, Cardiff and Keele.