Law, Blood, and Custody: Sexual Minority Mothers and Heteronormativity

ABSTRACT

This article analyzes how couples made up of two mothers redefine their roles when they break up as well as how legal professionals frame the custodial arrangements of these former same-sex couples. To do so, we focus on the case of Quebec, Canada, where parentage equality between mothers was attained as early as in 2002. We rely on individual semi-structured interviews with mothers’ (N = 17) and legal professionals’ accounts (N = 23) as well as on court records regarding physical custody arrangements. We find that the legal recognition of both mothers favors coparenting practices, and especially joint physical custody. However, the heteronormative frame of custody arrangements lingers. Sexual minority mothers struggle with the valorization of birth motherhood and with the standard of gendered parental complementarity. Indeed, professionals can still fall back on heteronormative norms, notably by assigning to non-birth mothers a “paternal” role. In the end, the inexperience of many professionals on LGBTQ+ issues, the embeddedness of heteronormativity in day-to-day relations, as well as the permanence of heteronormative legal categories and professional practices are all factors that set these families apart.

KEYWORDS:

• Motherhood
• heteronormativity
• divorce
• same-sex couples
• Canada
• law
• lesbian mothers

Acknowledgments

This article owes a great deal to the students and colleagues who worked with us on this research over years. We would like to thank Isabel Côté, Michelle Giroux, Flavy Barette, and Mélina Chasles, as well as Samuel Shapiro for English editing. We are grateful to the Quebec Ministry of Justice, to the Superior Court of Quebec, and to the LGBT+ Family Coalition for their support.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. In 2021, 42% of couples were formed by de facto partners in Quebec, compared to 16% in the rest of Canada (Institut de la statistique du Québec, 2023)

2. All interview excerpts were translated from French by the authors.

3. In 2020, judges from the Superior Court of Quebec earned 338,800 CAD.

Additional information

Funding

The work was supported by the Partenariat de Recherche Séparations parentales Recompositions Familiales; by the Ministère de la Justice du Québec, and by the Institut Universitaire de France.