In recent months, the debate on co-custody has intensified. The occasion was the establishment of a special legislative committee by the Ministry of Justice for “the reform of family law”. The draft law proposed by the Commission provides for the joint exercise of co-custody, by a court decision, after divorce, without requiring the agreement of the parents.
After an intense debate that developed in the public sphere, on November 18, 2020, the Ministry of Justice withdrew the draft law and, in its place, released two new texts entitled “Short memo for family law” and “Draft amendments to family law”, which move in the same direction and also provide for the alternating residence of the child. Neither the initial draft nor the subsequent texts have been officially released, nor have they been introduced for public consultation by the ministry. On the contrary, they circulate as “leaks” to the media, raising a general concern about the lack of valid information about Greek society on such an important issue around which opposing social dynamics develop.
First of all, let us point out that family law (as well) has a gender dimension. In fact, it has often been revised, under the pressure of feminist mobilizations, in order to remove (indirect and direct) discrimination against women and LGBTIQ people, outdated patriarchal perceptions, or in order to become more inclusive in the context of gender equality. In the last decade alone, special legislative committees have been set up three times to amend its provisions.
The 2018 legislative committee focused on reforming the provisions on custody and contact issues for parents and children. Specifically, according to Article 1513 of the Civil Code, it is provided that “the exercise of parental responsibility may be entrusted (…), (to both parents-ed.) provided they agree, while defining the child’s place of residence, to both of them jointly”, which has been adopted and ordered by the Greek courts.
Legislative reform in our absence
The current public debate on the reform of family law is unfortunately taking place in a minefield. Women’s organizations and collectives, despite taking a public stand, were not invited to dialogue, nor did they meet with the Minister of Justice, despite their efforts. Nor was the state’s competent body, the General Secretariat for Family Policy and Gender Equality, invited to the dialogue; nor has it taken a public position to date. And all this despite the announcements that the new law will be inspired by the principles of “gender equality”.
At the same time, the argument in favor of compulsory co-custody expressed mainly by “dads’ associations” has dominated the public discourse. These (male) narratives lack criticism of stereotypical perceptions of gender roles, as well as claims to overturn them. On the contrary, sexist stereotypes about the vindictiveness of divorced women are reproduced, which are transformed into “shrews” who use children to harm ex-husbands, since they cannot conceive of an autonomous path as independent and self-governing beings outside marriage.
In fact, it is not uncommon for this (covertly) patriarchal and derogatory discourse to target women with the accusation that they instrumentalize motherhood in order to avenge men, refusing to grant their “privileges”. The so-called “parental alienation”, which the reform seeks to establish, is part of the same perspective, despite the fact that according to the strict recommendations of the GREVIO Committee for the Monitoring and Implementation of the Istanbul Convention, evidence based on testimonies that discredit or stigmatize on the basis of the alleged “parental alienation syndrome” should be explicitly prohibited when investigating incidents of gender-based violence. While relevant accusations by abusive fathers should be seen as a continuation of the power and control exercised by public bodies and institutions, including those deciding on custody of children.
These representations ignore the harsh reality according to which women assume almost exclusive parental responsibility, while thousands of fathers refuse to formally and substantially apportion this responsibility both before and after the dissolution of the marriage, even to pay the (adjudicated) alimony. Finally, we cannot fail to note an important fact that has recently become known concerning members of the legislative committee who are associated with the aforementioned associations, a fact that raises questions of impartiality.
Proposals for a more substantial legislative reform
In this dialogue on the reform of family law, Diotima Center, a women’s / feminist organization with a vision to highlight and address gender discrimination and support women experiencing discrimination and gender-based violence, seeks, in the first phase, to contribute with proposals, based on a long experience in providing legal aid.
- If the new law seeks to encourage shared parental responsibility, with the aim of undermining resilient and rigid gender stereotypes and roles on the basis of which gender discrimination and inequalities are found, this should be clearly and categorically stated. Because a fairer gender division in child-rearing and domestic work can only be a prerequisite for substantive and de facto gender equality, as: a) it will tend to bridge the gap between work and personal/family life experienced by the vast majority of working women due to multiple caring responsibilities; with significant psychological, social and economic implications b) could contribute to the creation of a more favourable environment for the equal integration of women into the labour market and their professional development, increasing education/training opportunities, promoting the removal of the gender gap at work, enhancing women’s ability to participate in political processes and representative bodies c) could work positively by strengthening women’s independence in their personal life, by freeing them from the exclusivity of the maternal role (d) it will potentially act in an educational way, so that an increasing percentage of fathers assume their parental responsibilities, reversing the dominant image of a “provider” and constantly absent father who only occasionally deals with childcare, actively participating with empathy in the cares and joys of upbringing, e) will contribute to the fact that the upbringing of children begins in practice to challenge gender stereotypes, sexist perceptions and expectations about the prescribed roles of people in the private and public space.
- Existing family law needs to be reformed more comprehensively and widely. Four decades after its adoption, socio-economic conditions have changed, gender roles have undergone shifts, and institutional developments have taken place that cannot be ignored (legal enshrinement of substantive gender equality, same-sex partnership, legal recognition of gender identity, Istanbul Convention). In this context it is necessary to extend the rights and obligations to parenthood; including adoption by LGBTQI+ people, and explicitly acknowledge the same rights to parents of children acquired both inside and outside marriage.
- Co-custody should not be compulsory and should not be introduced horizontally, in all cases without exception. Although the new law should put it forward as the best solution after divorce, it is necessary that when a dispute arises, and the parents go to court, the court has the discretion to decide, always in the best interests of the child, on the basis of the circumstances of each case, taking into account the circumstances of previous family life, the attitude of the parents, the personality of the parents and the child but also the relationships between them. At the same time, it is imperative that the child’s opinion be heard if it is judged, on the basis of its age and maturity, to be able to be heard, and that its internationally recognized rights, as guaranteed by the International Convention on the Rights of the Child, are not overlooked.
- It goes without saying that the law should explicitly exclude from co-custody the parent who inflicts violence or sexual abuse on the child.
- The exclusion of the perpetrator of domestic violence from the right to co-custody is imperative even in cases where the violence is directed exclusively toward the spouse/partner. Otherwise, there is a serious possibility that co-custody will become a factor in the re-victimization of survivors. The continuous and close contact of women with their abuser, as demonstrated by the experience of Diotima Center, increases the risk of re-exposure to physical, psychological, verbal, sexual, and economic violence. In this direction, the states in which the institution has been established exempt abusive spouses from the award of co-custody. Indicatively, we mention that French law expressly provides that the judge must take into account, for the attribution of co-custody, “the pressures and violence of any kind which one parent exerts on the other”. Even Council of Europe Resolution 2079/2015, which proposes co-custody and alternating residence, stresses that there should be exceptions “in the case of abuse or neglect of a child or domestic violence”.
- The mere prosecution of the above offenses (domestic violence and sexual abuse of a spouse/child) should be a factor of (at least temporary) exclusion from co-custody. An explicit reference is considered necessary as, with a few exceptions to the conviction of the offender in the process of committing an offense, the procedures for finalizing the criminal prosecution are extremely time-consuming. It is indicative that once a complaint is filed by the survivor, it will take at least two years for a case to reach the court, and if an appeal is lodged by the offender, it takes approximately another two years for the final court judgment. Is it possible during this period of time for fathers, against whom cases are pending for abuse or even sexual abuse, to have the right to co-custody or even the right to access their children?
- In any case, there is a need to create counseling structures for mediation and support of parents who proceed to the dissolution of their (legal) cohabitation. In particular, it is necessary to immediately implement Law 2447/1996, which provides for the establishment of a body of family social workers, and to be staffed by other professionals (e.g. psychologists). The body should be in cooperation with the judicial mediator already in operation.
- It is also necessary to establish family law courts, pursuant to Law 2447/1996. This is also necessary because of the specificity of family law cases. It is absolutely necessary to educate judicial officers on issues of domestic violence and child abuse.
- For any reform of family law to be effective, general support for parents, children, and single parents is required. Indicatively, a series of long-term horizontal measures should be designed concerning welfare policies (e.g. social benefits, creation of structures for childcare, leisure and artistic education, etc.), economic policies (tax exemptions for families with minor children, financial aid, etc.), labor policies (flexible working hours for working parents, support for unemployed parents with minor children, etc.) on the part of the State, as well as positive support measures for single mothers, given that they currently constitute the vast majority of single parents. Strengthening and supporting parenthood and children’s rights must not and cannot be limited solely to institutional arrangements for co-custody.
Concluding points for a dialogue with feminist peaks
Feminist critical theory has contributed to the deconstruction of the essentialist woman/man dipole, criticizing restrictive gender (heteronormative) roles in the family, biological determinism, the myth of the public/private distinction, but also dominant views of the family as an unchanging and safe “paradise”, questioning the monolithic form of family or that a particular type of family is the best.
The centrality of the position on fathers’ right to joint custody of their children (after divorce/separation) undeniably limits the debate on the form and content of the impending legislative change. Moreover, it implies and/or promises to challenge gender stereotypes in favor of a more symmetrical settlement that can only find allies among the ranks of feminists and the gender equality movement if and when it inflicts a critical blow to the essentialist dipole of gender roles and the divisions between them.
The resulting debate raises many questions as to the ignorance of the social, political, ideological, and cultural reception of the legislative change being attempted, and the silence on the re-imagining of the family, parenthood, motherhood, and paternity, the rights of children and parents, care and relationality that are its context.
Undoubtedly, a revision of family law rearranges not only the existing institutional framework, but also the symbolic, the collective imaginary, and the psycho-emotional field, in which fundamental issues are articulated that concern not only social norms but also co-raise deeper layers of the identity, desirable and imaginary core of our (gendered) subjectivities, bringing to the fore important cracks that have taken place and are silenced in the public dialogue that has been opened.
It is also good not to forget that the courts, the body of judges and lawyers in general contain and express to a large extent, the dominance of a white, male, middle-class position from which they speak, understand, and make decisions. This is particularly understandable in cases of litigation of cases of gender-based violence, not excluding femicide.
The view that invests in the expressive and symbolic power of the law to influence and transform social expectations and norms is therefore already undermined by social reality itself, which does not allow women to depend in the long term on the law and its implementation to ensure a fair treatment. In fact, changes in attitudes and expectations about family and social roles continue to be based on the broad assumption of the norm regarding the existence of a basic caregiver and a basic breadwinner.
In other words, changes in legislation alone are unlikely to bring about gender equality, and although anti-discrimination provision sets the basic parameters, it cannot overturn the gender social hierarchy. This is where the great refutation of formal equality is based, which has proved insufficient to guarantee the elimination of gender inequalities and discrimination, in our country and elsewhere.
Moreover, would such an effort impose a dominant social hierarchy in the most private sphere, contributing to a new type of subordination at least as oppressive as the current dominant ideology of gender roles? And even more so, does it damage the tradition of social and cultural differentiation and individual lifestyle choices already conquered?
The legal change being promoted is problematic as long as it is based on the view that it is good for male fathers and will therefore be self-evidently good for women-mothers. However, women’s interests cannot be squeezed into a single (regulatory) legal formula that ignores the politics of life and the fact that families with their power relations are already and always politically, tautologically, bio-psychologically, and socio-economically educational.
In conclusion, the choice lies not between compulsory co-custody and a neutral law, but between a law that provides for consensual joint parental responsibility, especially after the dissolution of the parent’s relationship, with custody arrangements that reflect different conceptions of family and parenthood on the basis of equality, and social justice. But above all on the basis of the rights of the child and the best interests of the child. Although, even if the law potentially pushes for a change of attitude or perception, in real life these changes depend more on subterranean and unseen influences, and influences that persistently bind gender subjects.