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Abstract
Based on two empirical studies conducted in Belgium in different courts of family justice and interviews held with families and other stakeholders, this contribution addresses the issue of child residency after separation or divorce in families with a migrant background – mostly of Moroccan origin. The study of families' pathways to justice constitutes an interesting starting point to reflect on the diversification of family configurations which often develop in the margins of the standards shaped or conveyed by the law. In this article, the authors examine how lived realities of child residency in families with a migrant background interplay with the Belgian Law of the 18th of July 2006, which institutes equal shared residency as the reference model for child residency after parental disunion. By associating legal and socio-anthropological perspectives, the article highlights how the gap between mainstream ideals (for example, equal shared residency) and the lived realities of (migrant) families can sometimes work against the egalitarian myth pursued by the legislature and the judiciary, as well as against the interests of the child, but also of its parents, particularly at the expense of the mother, throughout but also after the judicial process.
Acknowledgements
The work referred to as Study 1 was supported by the Belgian Science Policy Office (BELSPO) [TA/00/38].
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes
1. The law of many Western countries, including Belgium, distinguishes between different parental rights, covered under the notion of ‘custody’, namely the notion of parental authority (often referred to as legal custody rights), the question of children's residence (physical custody rights), and finally a third kind of ‘limited’ right: visitation rights (of the non-resident parent). For the clarity of our purpose in this article, we decided to use the term ‘child residency’ rather than ‘physical custody’.
2. Throughout this article, we will use the term ‘traditional’ to refer to modes of family organization tending towards De Singly's (Citation2007) understanding of it. We will, however, use quotations marks to invite the reader to consider the concept with caution.
3. This is a research project financed by the Belgian Science Policy Office (Belspo) and realized by the University of Ghent in collaboration with the Université Libre de Bruxelles. In total, 73 interviews and 15 focus groups have been conducted by the University of Ghent researchers. Respondents included first-, second-, and third-generation members of families with Moroccan, Turkish, or Pakistani roots living in Brussels or various cities in Flanders and in Wallonia.
4. In Study 2, ‘families with a migrant background’ were understood as families where at least one of the parents has personally experienced migration and may thus be considered as a ‘first-generation migrant’ in Belgium.
5. This refers to hearings based on former article 223 of the Belgian Civil Code, as it was drawn up prior to the transfer of its jurisdiction to the new ‘Family Court’ (Tribunal de la Famille) that was established as a new section of the Courts of First Instance by the law of the 30th of July 2013, entered into force the 1st of September 2014.
6. Sixteen ‘art. 223’ court sessions have been observed in Justice of the Peace Courts in Brussels, totalling 59 court cases.
7. Thirty-one court sessions in Juvenile Courts have been observed, totalling 280 court cases.
8. Since these are qualitative studies, no statistical representativeness in relation to a larger population is aimed at. In order to resist any temptation to ‘quantify’ the qualitative analysis hereby presented, we will use terms like ‘some’, ‘several’, and ‘many’ to describe the frequency of occurrence of an observation in our cases. Extracts from interviews are intended to illustrate our statements, but the heterogeneity of the experiences and ways of organizing family life do, of course, not allow generalization to all migrant families.
9. Study 1, interview on 1 November 2012. Female respondent of Moroccan origin (first generation), age 43, married to a man of Moroccan origin as well (first generation), with four children.
10. Study 1, focus group on 1 March 2013, participant no. 6. Female participant of Moroccan origin (second generation), married with 2 children. Husband is also of Moroccan origin (second generation).
11. Study 1, interview on 1 November 2012, see endnote 9.
12. Study 1, interview on 15 January 2013 with a (Sunni) Muslim religious advisor in a Brussels mosque.
13. In order to briefly clarify the proceedings: prior to the entry into force of the law establishing a Family Court, the ‘art. 223’ proceedings allowed the spouses to go to the justice of the peace of their municipality to request a simple separation and – as the case may be – organize the terms thereof. The terms relating to divorce (or the separation of unmarried couples) were – to be brief – subject to the jurisdiction of the Juvenile Court within the Court of First Instance. Now it is the Family Court, a specific section of the Court of First Instance, that has jurisdiction both for separations and divorces as well as the disunion of unmarried couples.
14. Study 1, interview on 31 July 2012 with a second-generation female respondent of Moroccan origin, of age 43, divorced with four children. Her former husband is also of Moroccan origin (first generation).
15. Study 1, interview on 16 March 2013 with a divorced father of age 52, of Moroccan origin (first generation, arrived in Belgium as a very young child), with three children. His much younger former wife, a first-generation Moroccan migrant, came to Belgium through marriage migration in 1994.
16. Study 1, focus group on 20 April 2013, participant no. 2. The same participant was also interviewed individually, see previous endnote.
17. Study 1, interview on 10 May 2013 with a (Shia) Muslim community leader involved in (transnational) religious advice giving.
18. See Section 3.3.
19. Some interviewed women experience the refusal of their request for principal residency as a ‘loss’ of their children.
20. Study 2, Juvenile Court, no. 12: the case concerns a divorced couple with three children. The plaintiff is the mother, who has Belgian nationality. She was born in Turkey in mid-1970s and immigrated to Belgium in the 1990s. The father is of Turkish nationality, born in Turkey in the 1970s and immigrated to Belgium a few years later. They were married and divorced (ten years later) in Turkey.
21. Study 2, Justice of the Peace, no. 29: the case concerns a couple with three children in the process of separation. The plaintiff is the father, who holds the Belgian nationality, but was born in Morocco. The mother, who is pregnant at the time of the hearing, is Moroccan and immigrated to Belgium through family reunification in 2010.
22. Study 2, Justice of the Peace, no. 31: the case concerns a couple with four children in the process of separation. The plaintiff is the mother, of Congolese origin holding Belgian nationality. The father is a Belgian, without a migrant background.
23. Study 2, Interview with a lawyer, 16th of January 2015.
24. Study 1, see endnote 14.