It is no secret that fathers and mothers are treated very differently in the courts, whether that be Family Court or Criminal Court, judges, lawyers, social service workers, etc. all have their biases about either or both parents.  Consequently, the outcome of a case with same or similar facts may render a very different result depending on the particular position either parent takes.  There are statistics on the number of cases where sole custody is awarded to fathers, joint custody to both parents and sole custody to mothers, but nothing is up to date.  However, it is blatantly obvious that there is still some gender biases in awards of child support to custodial fathers, sole custody awarded to mothers and orders of protections issued to both. 

          Let us first take a look at fathers petitioning the courts for sole custody of their children.  Many studies, articles and statistical data indicate that approximately 10%-20% of fathers are awarded sole custody of their children.  However, this number fluctuates drastically depending on whom is asked.  Women’s rights groups and domestic violence prevention advocates will indicate that there are more fathers getting sole custody of their children, including those that have been accused of child abuse and domestic violence, than the data reports.  However, many fathers’ rights organizations report that only a small percentage of men are awarded sole custody, even in cases where women have been guilty of parental alienation and falsely reporting child abuse or domestic violence.  However, what is certainly not debated is the change or shift in the paradigm since the 1960’s. Up until the 1970’s, the courts consistently ruled in favor of mothers when it came to child custody, under the “tender years doctrine”. This was a judicial presumption that gave custody to mothers since they were considered the nurturers and the primary caretakers, and thus much more suitable for custody of young children than fathers.  This antiquated thinking was based on the pre-women’s movement belief that women were inferior to men, mainly capable of only tending to the home and family.  It was the second wave of the women’s movement, where the focus was on the inequality of laws and cultural inequalities, that somewhat served as the impetus for the “best interest of the child” standard in lieu of the “tender years doctrine”.  This transformation made it where it was no longer an “inherent” right of women to have custody. 

         Today, there are several factors the court will consider when applying the “best interest of the child” standard in child custody cases (along with all other cases involving children in family law).  And although one very important factor considered is the parent that was the primary caretaker, there is still gender bias in these cases.  The courts will not necessarily automatically ignore a father’s request for custody when he has been the primary caretaker, but there are many times when extra attention will be paid to “rehabilitating” the mother so that she has a fighting chance.  I have seen instances where the judge will give the mother every opportunity to prove herself by directing that she goes to parenting class ( or therapy even), by suggesting that she become more involved in the child’s life, etc.  While if it were the mother that was the primary caretaker and the father requesting custody, the courts will usually try to dissuade or discourage him from proceeding on a custody petition.  Oftentimes, court personnel, lawyers and mental health professionals will also attempt to influence the father this way.

         In child support cases, prejudices of the courts also come into play.  Although I have firsthand knowledge on the number of child support petitions filed by custodial fathers, as compared to those filed by custodial mothers, few will ever admit that there is a disparity based on bias.  For instance, more often than not, the custodial father will forego pursuing child support, while it is almost unheard of for a custodial mother put off seeking child support.  Since there is still a huge gap in the earning potential between men and women, the fact that child support is not sought by custodial fathers typically does not compromise their child’s standard of living as much as if it were the other way around.  Nonetheless, when the petitioners are fathers the courts generally take the noncustodial mother’s earnings as what is reported by her, as opposed to requesting that they prove what they can earn.    Furthermore, women and men may have the same job title or position, but the court will impute earnings for each using the same criteria differently.  In addition, women violators are not sanctioned as harshly as men who violate their child support orders.  And although fathers do in fact account for more than half of the payors of child support, the proportion of violators amongst gender may be near to or slightly less than equal.

         Many believe that having a women to represent fathers makes a huge difference.  And in many respects I think that there is some validity to that.  However, in cases where the judge is pretty fair in his or her decisions, a competent attorney is all that matters.

          Feel free to contact my office to discuss your family law matters.