The legal regulation of family life and the global civilization of divorce

Paper Prepared for:
Civilizing Children and Youth: Missions and Sites of Transformation

Research workshop to be held in Copenhagen at the Danish University of Education Organizers: Eva Gulløv and Sally Anderson (Danish University of Education) June 4-5, 2007


Over the last half-century, high divorce rates in advanced industrial nations have been accompanied by a growing body of research on the impactof parental separation on children and their capacity to take their places as appropriately-formed and governable citizens. In that period, a paradigm shift has taken place in the way in which parent-child relations should be seen as surviving parental separation, from a ‘logic of substitution’, where a new family substitutes for the old, to a ‘logic of durability’, organized around the idea of ‘permanent parenthood’ and the child’s continuing relations with both parents. This paper will examine the ways in which the legal construction of post-separation child custody has played a leading role in this particular civilizing mission aimed not only at the children of divorcing couples, but also at the parents themselves. It will take a brief look at the similarities and differences in this area across a number of different legal cultures, including Australia, Germany and the Netherlands. Conceptually, drawing on Norbert Elias’s ‘The civilizing of parents’, the concern will be to illustrate the two-way or spiral-like character of civilizing process, with children constituted not simply as the objects of civilizing missions, but also as a means of transmission of their effects through to the wider network of adults of which they are a part.



  • The ways in which marriage/relationship breakdown is managed – legally and culturally – plays a significant role in the formation of particular types of habitus in children. It demands, imposes and elicits particular types of character traits – to do with negotiation, communication, management of emotions, constitution of the parent-child relationship, self-responsibility, etc – and those will change as the forms of management change.
  • Most recently there has been various types of moves towards changing the relationships children have with their divorced parents, which can also be usefully placed in the context of longer term social developments? What kind of civilizing mission or civilizing process is in operation?

The shifting legal regulation of family life & childhood

  • Legal history – different trajectories, different timing & complexion in different countries, but the basic transformations have a lot in common.
  • Core issue is the shifting positioning of father, mothers, children & the state.
    Gradual strengthening of the ‘Best interests’ idea = mother-child bond + single parent (Anna Freud at al).

    • ‘players’ were until recently the state and fathers,
    • mothers have had to fight to get legal recognition.
    • Mothers has a presence largely ‘by proxy’, bundled up with children’s interests.
    • Note state’s parens patriae jurisdiction, children generally ‘on licence’ from the state, as future citizens.
    • Although in practice the children generally ended up with mothers.
    • So from early on a split between
      • formal, legal rights, and
      • concrete practice,
    • prefiguring the current disputes. [Q of power, rather than actual care of children?]
  • So for much of the middle of the 20th century there was a ‘logic of substitution’, organized around the concept of ‘best interests’.
  • Breakdown of ‘logic of substitution’

    • No-fault divorce – harder to identify legitimate ‘loser’
    • Feminism attacked mother-child bond
    • Attachment to father
    • Indeterminacy of ‘best interests’.
    • Exclusion of ‘matrimonial fault’
    • Rise of children’s rights.
    • Broader social trends:
      • Fertility
      • Women’s workforce participation
      • Divorce – ‘harm’ to children
      • Crisis in welfare state – [need for fathers to provide support]
    • Increased emotional meaning of children
    • Best interests as code for all these other concerns
  • Co-parenting turn – logic of durability, permanent parenthood

    • Reduce conflict – no winner/loser (extension of no-fault principle)
    • Problem of loss of contact with father
    • Right of contact to both parents
    • In UK, 1989, Children Act, in US, since 1979, differing states, in Oz, 1995.
  • Problems

    • Pendlekinder – practical problems
    • Q of violence
    • Right but no obligation
    • Right post- but not pre-separation
    • Emotionally difficult – requires a lot of work
    • Vehicle for revenge, anger, etc.

Civilizing of children v civilizing of parents

  • Elias makes point that the discovery of childhood, i.e. the recognition of children as being relatively autonomous actors, places increased demands on parents, a higher degree of emotional self-control.
  • Transition from more authoritarian to more egalitarian family life, producing uncertainty.
  • Q of functions children have for their parents.
  • This puts them in a particular position in the power relationship with their parents.
  • The more complex and differentiated adult society becomes, the more complex is the process of civilizatory transformation of the individual, the longer it takes.”
  • Development of bodies of knowledge about children
  • Developments like children’s rights all re-configure the whole adult-child relationship, and demands greater emotional control of adults – democratization.

“…one can also speak of a democratization, for today the power balances between men and women, like those between parents and children, are, if not equal, still more equal than they used to be. The ‘discovery of childhood’, the ‘Year of the Child’ are indications of this transfer of power.Parents, teachers and occasionally also state officials, have greater regard for the particularity of children than ever before. Adults have ceased seeing themselves in children, that is, as little adults.”

  • “Parents themselves accordingly curb their initially violent superiority over children. Such a modified authority relation, however, now really demands of parents, as we can see, a relatively very high degree of self-control, which as a model and a means of education then rebounds to impose a high degree of self-constraint on children in their turn”.
  • Needs to be seen against the background of the contradictions of contemporary capitalism – both anti-children, but with children increasingly emotionally important as a bulwark against the meaninglessness of capitalism.
  • Children more valuable, raising the stakes of custody & divorce.
  • Focus on ‘best interests’ problematic because it takes attention away from reality of ‘civilizing process’.

Comparative questions

  • Beginnings in California
  • Spread to UK & Australia
  • Germany?
  • Problem of relationship between parental responsibility/authority and actual physical custody)
  • (rejection of pendlekinder, perhaps difference conception of ‘home (cultural difference).
  • European law?

Conclusion: Civilizing Missions (offensives) versus Civilizing Processes?

  • Elias did say that we should analyse the interweaving of intentional action with unplanned social processes.
  • However, in the substance of his analyses he laid far greater stress on the unplanned character of social change.

“Today one constantly encounters a series of stereotypical misunderstandings when one speaks, as is being done here, of long-term social processes, of which the introduction of an ever-longer preparatory period between childhood and adulthood is one example among many. One of these misunderstandings is the notion that the social change in this direction was brought about in a more or less planned and conscious way, perhaps on the basis of the ideas of some great men. I would like to call this the voluntaristic misunderstanding. Another is the notion that this change took place with the necessity of a naturally lawful progression, and thus had the character of a predetermined natural process. This is the naturalistic misunderstanding. The process model which can take the place of this portrait of voluntaristic and naturalistic concepts of social processes can here only be indicated in brief. The process model which I have in mind rests on two premises: first, on the insight that social compulsions differ ontologically and in terms of their structure from natural compulsions; they rest primarily on the constraints which interdependent people, secondarily on the constraints which groups of people and non-human natural processes – with changing power ratios – exercise on each other. Second, the interweaving of the planned acts of many people results in a development of the social units which they form with each other, unplanned by any of the people who brought them about. But the people who are thus bound to each other act intentionally, and always arising from the developments not planned by them and aiming at them. The process model which I have in mind encompasses as its nucleus a dialectical movement between intentional and unintentional social changes”

  • Commentators have argued that the result is a relative neglect of the organizing interventions of powerful social groups into the form and direction of civilizing processes.
  • Elias’s understanding of European history, suggests Arnason, ‘seems to leave no place for a relatively autonomous, let alone a “pace-setting” development of world views’ (1989: 56).
  • Haferkamp also argues that Elias did not ‘give much weight to the success of intentions and plans,’ nor did he ‘check to see when the planning of associations of action has been successful’ (1987: 556).
  • When Chartier speaks of self-discipline and emotional management as having been ‘instituted’ by the state (1989: 16), he is actually using a logic which is very different from Elias’s in The Civilizing Process,
  • There the emphasis is placed on the requirements of particular types of social figuration.
  • This is contrast to social historians, who paint a picture of European history where particular groups of lawyers, inquisitors, clergy, judges, entrepreneurs and so on played an active, constitutive role in shaping history, rather than merely reflecting their social context.
  • The argument can be summarized as revolving around whether we should speak of civilizing processes or civilizing offensives.