The Chorus of Formal Equality: Feminist Custody Law Reform and Fathers' Rights Advocacy in Taiwan

Abstract

In Taiwan, paternal preference has a long history, and the introduction of the best interests of the child doctrine is a relatively new development attributed to the feminist legal reform movement. Yet anti-feminist fathers' rights movements, which are widespread in many countries, find no counterpart in Taiwan. This article explores the unusual relationship between feminist custody law reform and fathers' rights advocacy and argues that this relationship has been developed in a context where the idea of formal equality prevails and the development of post-divorce custody arrangements is both constitutive and reflective of this idea. The discussion begins with a review of how fathers' rights were privileged in law, challenged, and then reclaimed in the name of gender neutrality as gender equality. It is followed by an investigation into the reality of post-divorce custody arrangements, which identifies the trend towards “equal” distribution and debunks the myth of the courts' maternal preference. This finding leads to the conclusion that the chorus of formal equality by both feminist and fathers' rights advocates has handicapped the emergence of an anti-feminist fathers' rights movement. It also suggests the need for critical reflections on formal equality and further empirical studies of child custody that would better inform the pursuit of gender equality.