July 24, 2017

Law, Justice, and Citizenship in the Twenty First Century

Sílvia Portugal

At the end of the 20th century and beginning of the 21st century, in the Western societies, there are two crossed trends: on the one hand, a consistent increase of the child custody judicial cases, as a result of the interconnected transformations of family, parental and gender relations, and legal regulation of child custody, and the sentimentalization of childhood. On the other hand, the adoption of indeterminate and gender-neutral criteria, as the best interest of the child standard, and the requirement of individualized child custody judicial adjudications, means that courts rely increasingly on professional custody evaluators (experts). Although Portugal followed these international trends, studies on the relationship between law and experts are scarce and disregard child custody cases. Therefore it is crucial to understand the interaction between family and children law and other expertise, between judges and professional custody evaluators, in child custody cases in the Portuguese courts and their contribution to the direct or indirect (re)production of gender (in)equalities. This is the objective I propose in this thesis.

This research is based on two central hypotheses. The first hypothesis defends the centrality of the experts' opinions and reports in the judicial case and decision. The second hypothesis states that both experts opinions and reports and (consequently) judicial decisions are influenced by and reproduce dominant conceptions of motherhood, parenthood, and family. Consequently, the analysis is based on four objectives: 1. To ascertain what expertise is called to form the judicial decision; 2. Analyze the contribution of this expertise to the judicial case and decision; 3. Analyze how judges interpret and use (or not) the contribution of experts in judicial decisions in articulation (or not) with the law; 4. To find out how the expert and judicial discourse (re)produces dominant gender conceptions regarding parenting in the child custody adjudications.

From the methodological point of view, the pursuit of these objectives implied, first, the use of the coproduction concept and the sociological and comprehensive definition of expertise, rather than the legal one, as structuring elements of the analysis model. And, secondly, the document analysis, as the main information collection technique, and the interview, as a complementary technique. The research object is child custody proceedings, with judicial decision or homologation of an agreement, in 2014, in a specialized family and children court.

The developed analysis allowed, in general, to confirm the established hypotheses. First, the analysis reveals the extent and heterogeneity of the impact of expertise in child custody judicial cases, which extends beyond the judicial decision, to different procedural acts. Secondly, the analysis of expert and judicial discourse on men and women in relation to parenting skills shows different expectations for each of the sexes, based on dominant conceptions of fatherhood and motherhood, with direct consequences in the child custody arrangments. This research intends to contribute to the sociological debate on the impact of expertise on the child custody judicial adjudication and to open new paths of analysis for the discussion on the role of law and expertise, of judges and experts, in child custody regime.

Keywords: Child Custody; Experts; Judicial Decisions; Motherhood; Fatherhood