Gender, Biology, and Third Party Custody Disputes

Abstract

This article explores the significance of gender difference in the custodial claims of biological parents where de facto care of children has been transferred to unrelated parties. Drawing on media accounts, the trial transcript, and the 2007 decision in Hendricks v. Swan (the “Saskatoon Dad” case), as well as an extensive survey of similar reported cases, the author identifies changes in the construction of birth mothers and genetic fathers over time, both as claimants and non-claimants of custody. The author contends that despite significant differences in their biological roles, mothers and fathers are constructed as formally equal claimants in this context. Both mothers and fathers nonetheless lose out more often than not to third parties, often on grounds of instability rather than bonding. The role of gender in the application of the best interests test to claims by biological parents, particularly the extent to which gendered norms affect assessments of stability, is analyzed. In relation to biological non-claimants, the author addresses the erasure of the birth mother’s experience in Hendricks through the use of a formal equality lens and examines assumptions regarding non-disclosure of paternity that privilege the interests of genetic fathers. In conclusion, potential ways of avoiding or minimizing the trauma associated with these cases are briefly canvassed.