Divorce is a messy business, not the least of which is the child custody aspect of divorce. If you are a father, then you want to remain a part of your child’s life. You are often the one most financially able to handle the challenge of providing for the child’s needs.
Yet many fathers worry that divorce will mean the end of their time with their child, that the child’s mother will be granted custody simply because they are the mother. This isn’t an entirely unfounded belief, though the law tells us that it shouldn’t be true. Unfortunately, that isn’t always how it works out.
To better understand, we will examine why it is difficult to say if there is a gender bias at play in any particular child custody case. Then we’ll look at what the law tells us about gender bias in cases of this nature, as well as the reality of gender bias in child custody cases.
Why is it Hard to Say If There is a Gender Bias in Child Custody Cases?
The problem with any type of bias, whether it be gender or race, or something else, is that it often cannot be seen. After all, what judge is going to say, in reading their verdict, that they arrived at the outcome because of a bias that they have?
What this results in is an unclear picture of what to expect regarding bias with a particular judge. After all, one judge may have old-school ideas that a child should be raised by the mother. But a judge in the next county may think it is a man’s place to raise a child. Neither is likely to say this part of their decision-making process out loud, however, and part of the reason for that is what the law says about the matter.
Many people point to a study done in the early 2000s about national attitudes to gender bias in custody cases. The conclusions at the time were that attorneys found gender bias to be more of a factor than judges considered it to be. However, a judge admitting that it was an issue or who admitted that gender bias played a part in their decision-making process would be admitting that judges could fail at their duty to listen to the law when coming to a verdict. So it’s better to use real world statistics to come to a conclusion of how gender bias looks in reality.
What Does the Law Say About Gender in Regards to Child Custody Cases?
It’s interesting that we call it old-fashioned to believe that a mother should raise a child. The earliest laws in the area originally placed the custody of a child to the father automatically. However, that changed in the 1800s to something called the “Tender Years Doctrine.”
The Tender Years Doctrine reversed the previous ideas about child custody to instead favor the mother. Now the 1800s may sound like a long time ago, but this doctrine would have still been in effect during most of our grandparents’ lifetimes. It is from this doctrine that we get a great deal of gender bias.
But throughout the 1900s, specifically the latter half of the 1900s, the Tender Years Doctrine was overturned, and overturned often. It contrasts with the equal protection offered under the 14th Amendment. The 14th makes gender bias unconstitutional.
So, if it’s unconstitutional for gender bias to be a factor in determining who gets custody of the child, it should be a straightforward answer. Right? You’d hope, but reality often proves to be more complicated than we would like.
What is the Reality of Gender Bias in Child Custody Cases?
The statistics clearly show that women are awarded custody of their children more often than men are. This could be representative of gender bias, and in fact it almost certainly represents some, but there are also a couple of other explanations that may explain why this is.
For one, not only are women awarded custody more often, but they are also granted it through a decision with the father more often as well. This implies that it is often easier for the mother to take over custody than it would be for a father to. If we consider the way the nuclear family is designed, then this may offer one of the reasons.
In many families, it is the father that works the most to provide for the rest of the family. This leaves the mother often in charge of tending to the children, especially when children are too young to go off to school. As such, the work-life balance in many families is already designed around the mother spending the most time with the children. This makes it easier for a mother to be the one with custody since the father would have to reschedule their work and life.
Another reason is that many mothers take notes and keep track of calendar dates for the family and especially for their children. This can make them look like the more responsible parent when it comes to a custody battle in the courts. Whether or not this is a true indication of how fit they are as a parent is a whole different discussion entirely.
What’s the Best Way to Combat Gender Bias in a Child Custody Case in Maryland?
The absolute best way to combat gender bias is by demonstrating that you are the most fit parent to have custody of the children of the marriage. By presenting the most compelling argument and evidence, you make a powerful case.
It is not recommended that father’s try to do this on their own. It is always recommended that you work with an experienced child custody attorney that understands the law and how to put together a compelling case. They’ll also be able to better answer any questions you have about the process, as well as explain their experiences working on cases that are similar to your own.