Gender Bias in the Family Court System

From our experience working with families, we have realized family court can be biased towards mothers and against fathers in custody disputes. Many fathers we have represented can personally attest to experiencing a negative outcome in a custody dispute because of gender bias in the court system. Often, fathers will make the mistake of assuming that because we are a nation of laws not men, they will get a fair hearing by a judge or hearing officer who is unbiased. This is not always the case.

Gender Bias in Custody Disputes

Only after being initiated into the reality of gender bias do fathers understand that the courts do not always view cases from an unbiased standpoint when it comes to child custody disputes.

To dive into this, we need to look at the general demographic of individuals we would expect to encounter at our local family court. Typically, seven out of ten of them are women. This includes court clerks, the judge, the judge’s staff members, hearing officers, family court clinic staff members, court monitors, and bailiffs, etc. It should be noted that our courthouse is only one among thousands across the nation and, while this demographic can vary, the type of individual you would expect to find at our local family courthouse is usually a woman.

While there has been growing and often angry public debate regarding notions of defined gender roles, this is not what we wish to focus on here. Conscientious clients prefer to be told the truth straight, so here it is from our firm to you. To begin, let us examine where this gender bias in the family court system comes from.

Where Does Family Court Gender Bias Originate From?

To examine gender bias in the court, we first need to understand how gender roles play out in a family unit and what happens when a custody dispute disrupts this dynamic.

Parents who are in a custody dispute did not start off that way. Typically, at some point in the past, both parents intended to maintain a family unit that operated for the good of all members involved. It is helpful to consider how this family model operates when it is at its best. From there, we can consider what happened to the mother/father relationship.

There are many factors that have contributed to gender roles. Whether it is a societal or institutional reason, mothers and fathers have generally settled into gender norms as parents. It is also a widely understood notion for many individuals that, because of these established gender roles, men are the providers and women are the nurturers of the family unit.

Mothers generally settle into an administrative capacity where the children are concerned, which comes naturally for them as they have that nurturing quality mothers tend to be wired for. Whether it is providing day-to-day care for young children, finding day care, dealing with various service providers, completing school registration paperwork, or taking the children to doctor’s appointments, mothers are typically on point with these tasks, and fathers are genuinely supportive.

And, frankly, fathers in intact families are usually happy to let them, as they know they do not need to worry about those matters since they trust their partner. This also frees up fathers’ time to do things related to the qualities they tend to be wired for: providing. Fathers settling into their role of provider comes as naturally as any other aspect of their role in the family.

In a healthy relationship, partners allow themselves to be uninformed or vulnerable in certain areas, trusting and even authorizing the other to act with autonomy for the good of the family. As such, fathers might be looked down upon by the court in a child custody case for “not doing enough.” For example, in an intact family, if you ask a father when his child’s next regular doctor’s checkup is, he might not know. This should not be counted against him though as he knows the mother has these details. Since he trusts her, he knows she will take care of this. Additionally, if she needs help, he knows she will tell him so.

This is admittedly and intentionally a gross generalization, as well it should be, because this “traditional” form of a parental relationship resulting in a nuclear family actually occurs commonly enough for it to distort any pretense of a “clean slate” going into family court, and we are foolish to believe otherwise.

If the health of the interpersonal relationship with the other parent depends on mutual trust, consider how the relationship changes when mutual trust is gone. When a father goes into court and admits that he does not know when the next regular checkup is, it will be held against him (even if it was never a prior source of conflict).

In this example, we can see how gender roles play out in a “traditional family” and why this can lead to gender bias in the family court system. When working out a child custody dispute, it is helpful to know that when unity turns to conflict, your new opponent will use their knowledge of your vulnerability against you, and you will do the same. Make sure you plan for this.

How to Best Plan for Gender Bias in the Court

If a father believes that figuring out child custody and timesharing privileges will be points of conflict, he will need to plan to proceed affirmatively. Do not wait until it is too late to do so. To ensure gender bias does not happen in court, make sure to understand the following advice:

Do not leave the family residence without a known and agreed upon timesharing schedule (ideally in writing and signed by both spouses).
Do not make an emotional decision and leave the family residence abruptly, leaving custody of the child/children in the hands of the other parent for an extended period.

If a father leaves the child/children in the residence with the other parent without a timesharing agreement, he is ultimately placing himself at the mercy of the other parent’s willingness to share them. The straight truth is that eight out of ten times, it is the father who leaves. The father leaves his partner with the same autonomy she had during their relationship, but now there is much less accountability for her because the interpersonal relationship itself is no longer at risk.

It is usually at this point that both partners decide to seek out child custody, and, if they are married, file for divorce. Over time, absent from the home and thoroughly discouraged at what his timesharing has become under the circumstances, the father may seek relief from the court. It is important to understand that at this point a lot of time has passed, so it may be months before the father can get a hearing date set to establish more timesharing privileges. By then, the status quo has become established. In this case, if the father has left the residence for some time and his partner is seeking primary physical custody, she now has several months of experience as a single parent to prove how well she can function without the father.

In this scenario, eight out of ten times the court is more likely to say, “the mother is the one doing all the parental work here” and may not grant child custody or timesharing to the father. This is an example of gender bias. However, here we see how it did not get there all at once. This gender bias built over time, but in increments. It started with a rash decision to leave the family residence and grew from there. When the father finally goes to court to ask for joint or partial child custody and timesharing, it will be too late. It will not matter what kind of involvement the father had months ago because the court will be focused on his absence instead.

How Can a Family Law Attorney Help?

Our family law lawyers understand the importance of hiring an attorney in the event that something unexpected happens in court. Do not let unexpected factors affect a child custody case. To avoid gender bias and prepare for uncertainty, create a plan with an experienced attorney. It is never too soon to start planning! When it comes to child custody and timesharing, the stakes are high.

At Sandia Family Law, we understand the ins and outs of child custody cases and how to protect a family. Put our extensive knowledge and experience to work. We can help you navigate the pitfalls associated with gender bias in the family court system.

Fathers should not have to learn some of the lessons mentioned above the hard way. However, if this is the case, understand that many other fathers have experienced these lessons as well. We help fathers develop a plan to turn their child custody situation around.

Contact our office online today or call us at (505) 544-5126 to schedule a consultation with one of our friendly and caring attorneys.