A Critical Examination of Whether Women Have a Bias in Custody Cases Over Men

“Born a natural parent” – how do you decide who is a “natural” parent and who is not? Many people promptly believe that women are “born natural parents”, however how do people know that this is not the case for men too?

What is gender bias in the terms of custody cases?

Gender bias is when there is favour towards one parent over the other and the aim of winning custody cases is to provide the child with the best and most stable home life. Gender bias can occur in the justice system when laws, processes, and decisions benefit one gender over the other. When producing a custody and access order under the Guardianship Act 1968, a judge must put the child’s welfare first. (Commission, 2018). Children aren’t materialistic objects to be passed back and forth or something to be divided between hungry parents. They need stability, security and a routine. Gender bias is an issue within courts as there may be a “pro-feminist, anti-male bias” in courts (Commission, 2018). This can show that maybe courts have already made up their mind about who’s going to take custody before the cases are even heard. However this could then change when cases are heard, as courts may hear new evidence that was not heard of previously. Gender equality is seeing males and females as being of equal status and value. It is judging a person based on their worth, and not viewing them as inferior or superior purely based on their gender (Alba, 2018). This is shown in many custody cases.

Gender bias in custody cases usually happens when conciliators and decision makers refer inappropriately to gender during court processes and base their actions on stereotypes about the nature and role of men and women (Commission, 2018). This demonstrates that gender bias in custody cases are more lenient towards women because of their stereotypical role in society. Most laws guaranteeing and regulating civil rights (including laws relating to gender discrimination) originate at the federal level, through federal legislation (such as the Equal Pay Act) (Find Law, 2019). This essay will be “a critical examination of whether women have a bias in custody cases over men.” This will be explored in subsections: a background of gender bias, what the effects and consequences are, the history behind gender bias, primary effects and why there may not have been a solution, the limitations of gender bias.

Misconceptions about gender bias in custody cases

A common misconception is that mothers are the ones who are the primary carers of young children however in some incidences, men are the only ones who take care of their children whilst women go out with their friends and partying. This can then be shown as unfair towards the men as these same women still receive custody of their children without showing any stability in the child’s life previously. A case study from a single fathers point of view says that, the ONS data from 2012 shows that of the UK’s four hundred thousand single-parent families, only thirteen and a half percent of these (fifty four thousand) are single fathers (Parfitt, 2017). This may show how unfair and bias judges are being towards men as they instantly could believe a woman is the better primary caregiver to the child, however it may also show that not many men apply to receive custody which, may be the reason statistics for custody cases won by men are very low. However, men may not be applying for custody because they themselves believe that men always lose and so they may not bother so they don’t feel the disappointment of losing custody of their children so they just give up. A BBC report also suggested that in 2011, men accounted for only 8 percent of the UK’s single parents. However, there is contrasting evidence. A 2015 study by the University of Warwick concluded that family courts do not discriminate against the father (Parfitt, 2017). It is also shown that in family law, there are a few studies of which fathers who pay exorbitant child support and yet rarely get to see their children. Evidence of this is in a case study where a father had lost custody of his children yet was still allowed to spend time with them (Chapin, 2016). However, this was at a certain price for a certain amount of time. Jones anxiously told the judge all he wanted was equal time with his children. The following month, he received a letter from the court saying he owed one thousand, three hundred dollars a month in child support – a payment that would be a big stretch on his wage of twenty six dollars an hour. He had already cleared out his savings to pay off his and his wife’s combined debts, so to keep up with payments Jones sold his truck, four thousand dollars’ worth of tools, and stopped eating out or having a social life. This goes to show how many men give up almost everything for their children and yet only have a short amount of time with them. Jones was allowed to see his children eight days out of the entire month. The most common issues, he says, are that men rarely get equal access to their children and are often victims of false abuse allegations. Eighty two percent of mothers have primary custody of their children (Chapin, 2016). Could this be coincidental or because of gender bias towards women?

Throughout history, gender stereotypes have played a key role in child custody dispositions. There was once a presumption that children should always stay with their mother following a divorce (Guerin, 2018) this could mean that some judges and attorneys still could believe this presumption, and that this could be the reason that there is gender bias, because of outdated and old fashioned beliefs. Women being shown bias in custody cases has been a prominent issue in the world especially the UK and North America. Men have long lacked equal rights with respect to child custody under English common law. Under English common law, women had a natural right to custody of children they bore outside of marriage. An unmarried, single father, in contrast to fathers who were married, had no right to custody of his child. The unmarried father had only a legal obligation to provide periodic payments to the mother (Galbi, 2019). Poor mothers could retain custody of their children and receive financial child support from the father or others. This could show that men were seen as the figure who would only supply money and not be involved in the child’s life. Fathers who were poor were much less likely to receive financial support and much more likely to be deprived of custody of their children. Men historically have been treated as socially disposable people (Galbi, 2019). Many men, quite a lot of the time, appear to see looking after young children as boring, unrewarding, low status and they don’t want to do it (Phillimore, 2017). This could also show how men are perceived to be uncaring and unloving. Men have long lacked equal rights with respect to child custody under English common law. Under English common law, women had a natural right to custody of children they bore outside of marriage (Galbi, 2019). This may suggest that women were always the one to turn to for everything and could be one of the reasons why women are shown bias because children may not feel comfortable to seek help and feel emotional around men. Previously, if the maternal grandfather is more affluent than the father, then the father could legally be reduced to a visitor in his child’s life (Galbi, 2019). This can show how fathers were perceived to only provide money and not really care for the child or look after the child. However, this can be a good idea, as some fathers are not a good influence on their child, especially if it involves crime, drugs or negative factors that can affect the child.

Women may not be biased in custody cases

In 1998, the Office of the Commissioner for Children reported that forty one percent of the Family Court’s clients surveyed believed fathers were discriminated against in proceedings, while thirty four percent were unsure, and twenty five percent disagreed (Commission, 2018). However, women, on the other hand, argue they are disadvantaged by gender stereotypes. This is because there is a perception that women’s behaviour is assessed differently from men’s (Commission, 2018). Some women may believe they have to act of a higher class and be very well behaved in order to gain custody for their children, and they may also believe that men do not need to behave this way and yet still have a chance of gaining custody- this could be a reason why women get so infuriated and passionate about winning custody and could be the reason most women win custody cases. A common view is that judges sometimes apply double standards in assessing men and women’s behaviour and contributions to childcare (Commission, 2018). According to the “We must stop turning children against divorced fathers” report, in ninety six percent of cases in the UK, the parents who apply to a court for “access” to their children are men (Poole, 2015). This can show that men do apply for custody, but are not shown in favour. Could this be because of gender bias? This can also show how men should not be perceived as being less caring or less invested than women when raising their children as they are usually the ones who apply for custody cases to provide a better and more stable life. The fact is, we live in a society where it is the accepted norm that women should demand equality in the public sphere while maintaining special privileges in the private sphere (Poole, 2015).

An example, of where women may have been shown bias would be in California where a group of women have filed suit in a federal court charging state courts of discrimination against mothers in custody suits (Schafran, 1995). The women fought for custody for their children against their apparent physically violent husbands. However, courts gave custody to the men and the women claim they’ve failed to protect their children from harm. This can be a clear case where women may have been shown right to gain custody as their husbands where portrayed to be violent and aggressive, nevertheless, courts may have other proof that shows that these husbands were not aggressive or violent and therefore could show that the women may be lying to gain custody of children. If the women had been lying abut their husbands, this may have given the courts even more reason to award custody to the fathers due to them not being trustworthy enough.

A limitation could be that many judges are not able to factor out their personal beliefs while they are considering court cases, even when they have the best possible intentions. In the divorce case, the father and mother both sought primary custody of their two children. Both spouses worked full-time jobs and sometimes had conflicts with caring for their children. Judges and lay people who supported traditional gender roles allocated more custody time to the mother than to the equally-qualified father, but the judges were even more biased in favouring the mother than were (Miller, 2018) Only three percent of the judges in the sample gave the father more custody time than the mother - a limitation would be judges are being biased. This could be because of old and out of date beliefs that the mother would be better suited to care for the child. One can also say that another factor courts use in making custody case decisions is the relationship between parent and child. The younger the child, the more likely it is that the bond between the mother and child is greater than the bond between the father and child (Guerin, 2018). This can show that, the bond between the mother and the child or the father and child can be taken into account for custody cases. Judges and attorneys can then analyse and infer which parent is best fit and able to look after the child. One may be told that the reason fathers so rarely get custody or meaningful time with their kids is that they don’t deserve it because they’ve only earned the money to keep the family housed, fed and clothed (Franklin, 2015) This can also be shown as stereotypical as judges are posed to believe that men don’t really interact with the child, but they just provide money. Sixty nine percent of male attorneys had come to the conclusion that judges always or often assume from the outset (i.e., before being presented with any evidence) that children belong with their mothers (Franklin, 2015). This can show clear bias and favouritism towards females, as attorneys have already agreed on the assumption that the child is better suited with the mother. Forty percent of the female attorneys agreed with that assessment and nearly all attorneys (ninety four percent of male attorneys and eighty four percent of female attorneys) said that all judges exhibited prejudice against fathers at least some of the time (Franklin, 2015). Judges and attorneys can show prejudice towards fathers because they may believe that fathers are not willing and able to provide what a mother could provide- love and care. Judges and attorney may believe that fathers just provide for the child because they have to, and that they don’t actually care for the child- this could influence judges and attorneys decisions, and therefore make them believe that women are better carers for the child instead of men.

Why courts may not be the reason for gender bias in custody cases?

However, one can say that the courts are not the reason mothers gain custody in the majority of divorces. A married father spends, on average six and a half hours a week taking part in primary child care activities with his children. The married mother spends, on average almost thirteen hours- almost double of what the father does. Since two-income households are now the norm, not the exception, the above information indicates that not only are mothers working they are also doing twice as much child care as fathers (Meyer, 2017). Therefore this makes sense that mothers who have a closer bond due to the time spent caring for a child be the one more likely to obtain custody during a divorce. Also according to the Pew Research study, when fathers and children live separately, twenty two percent of fathers see their children more than once a week. Yet, the most shocking would be that twenty seven of fathers have no contact with their children (Meyer, 2017). This could be a reason why people may believe that there isn’t bias in custody cases, as many men do not put the effort in to see or have contact with their children, however there may be unknown circumstances such as, the father not being allowed to see his children that can show that twenty seven percent of fathers have no contact. However, eighty three percent of the time of these custody cases, the mother ended up winning the custody case because the father chose to give her custody (Meyer, 2017). This could be another reason as to why, some believe there isn’t gender bias, as men willingly give custody to the woman- they can be shown to not care about their child, so all men are generalised to be shown as unprotecting and not caring. Fathers can be shown as not nurturing and not as loving as mothers and they can be shown as not having enough time for the child which could be another reason judge’s give custody to mothers. Fathers go to court with the idea that their cases will be dealt with fairly but often find a legal system they claim doesn’t want them to be too involved in looking after their children. As result of this, they too often come away with limited access rights (Courtney, 2016). This could mean that fathers have the misconception that they have already lost and may give up immediately as they believe they won’t win custody. However some men may want to try to prove this source wrong and fight harder to try to win custody to show that men may also get custody of their children without there being gender bias.

There shouldn’t be any gender bias during these custody cases, however there should be gender equality. Many people believe gender equality is about people, nonetheless it’s also about men having equal value to women - in this case, for custody cases (Kimmel, 2018). Gender equality is valuable to everyone. Gender equality works at breaking the stereotypes of the patriarchal / matrilineal society. An example of patriarchal / matrilineal society would be that men are only good for finances and working whereas women are only good for caring for the children and staying at home. These need to be broken so that men can also be shown as loving and caring towards the child, and women don’t have to be seen as the only carer for the child. Both men and women should be portrayed at the same level to care for their child but this may not be shown as there may be some bias in the courts. Sole custody is where one parent shoulders most of the responsibility for the children (Anzilotti, 2017). This is the norm in United States, and women are awarded sole custody in eighty percent of such cases. Despite current gender‐neutral statutes, men's advocacy groups claim that custody decisions continue to discriminate against fathers. Women's advocacy groups and the media counter that custody decisions discriminate against mothers (Warshak, 1996).

The law is clear in nearly every state in North America, and ongoing efforts to enforce gender non-bias are proceeding in several states: the gender of the parent shouldn’t matter when determining the best interests of the child. Unfortunately, there are precious few guidelines for judges as to what “best interest” actually means — which opens up the courtroom to the opinions of a wide variety of expert witnesses who may or may not have their own agendas (The Gucciardo Law Firm, PLLC, 2016). This highlights how judges infer that the mother is always the best option to win custody without hearing any evidence of how the father may be better or the mother may be the worse option.

Custody Cases

A custody case that may seem familiar will be the Blac Chyna and Robert Kardashian case. Rob Kardashian pays Chyna $20,000 a month in child support (Erikson, 2018). This is an exorbitant amount of money per month to pay- this can show how men are only used for the money and expenses. Although Rob Kardashian does not mind paying this amount of money, it can show that there is bias towards women and it may be unfair for the men. Women often don’t pay this amount of money for their child per month, so what makes it fair for a male to pay this exorbitant amount of money? Even in high profile cases, women are shown bias and receive an outrageous amount of money regardless of their net worth - Chyna also has a lot of money yet demands for $20,000 a month more from Rob Kardashian. Tokyo (Chyna’s mother) said that she believes Chyna's personal life is currently a 'mess' and that Dream Kardashian [the daughter] should stay with Rob until things are sorted (Lawrence, 2019). Chyna’s own mother believes Blac Chyna is not fit to look after the two-year-old child, yet judges have still given custody to Blac Chyna instead of Rob Kardashian. This too can show bias towards the mother since Blac Chyna’s own mother feels that Chyna is unfit to look after her two-year-old daughter Dream Kardashian. However, Rob Kardashian has also been seen to do actions to spite Blac Chyna such as showing her nudes, therefore this could be a reason why Blac Chyna received custody and it may not be down to gender bias at all.

Another custody case would be the Marcia Clark custody case. Marcia Clark is an America prosecutor, with her most famous case being the O.J. Simpson murder case. Marcia Clark (the prosecutor) and her second husband Gordon were going through a bitter custody battle over their two sons, and she was trying to balance prosecuting the biggest case in the country at the time while raising the two young boys (Spargo, 2016). The father was a full-time working parent who still had to juggle looking after his children. Marcia Clark frequently had to rush off to work leaving Gordon Tolls Clark to care for the children. Marcia Clark always put her work before her own children whereas Gordon Clark put his children before his work. Although it seemed as if the father cared more for the child, Marcia Clark was the one who was given custody of her children. Marcia, however, was never usually home to feed or care for her children so this could give connotations that judge, and attorneys gave her custody due to another reason. This can be that judges and attorneys believed that since the mother should be the primary caregiver, she should automatically be better prepared to look after the children and therefore may have been shown bias. This specific custody case shows a clear sign of bias because both parents had full time jobs and cared for the children. Neither parent had a bad situation in life such as being an alcoholic nor being on drugs, therefore were both parents on the same playing field except it seemed that the father looked after the children more but that wasn’t taken into consideration as full custody went to Marcia Clark.

There are still very few solutions for gender bias because deciding on who receives full custody of the children is a subjective statement. A subjective statement is an opinionated statement so it depends on judges and attorneys own opinions to give custody to a parent. Using a subjective statement can be a negative decision because the decision lies on someone who doesn’t necessarily know you personally to give full custody of a child to a parent who may be faking their attitudes and beliefs in court. This can affect the child in a negative way because it can affect them in later life if placed with the wrong parent.

One solution for gender bias can be giving joint custody to both parents instead of full custody to one parent. This would allow for both the mother and father to be equally involved with the child’s life. This would then also prove that there wouldn’t be any bias towards the mother as both mother and father have a say in the child’s life. However, a disadvantage would be that one parent may deserve to have full custody over the other because they are more fit and stable whereas the other parent is unstable.

Another solution could be listening to the child’s perspective as to who would be a better parent to them and who should therefore have full custody over them. The child should be able to put an input as to who would be a better parent, and this is due to a few different reasons. One reason would be because the child would be the one who has to live with the parent who receives full custody and therefore will affect them the most. Another reason would be the child is probably the only person who knows each parent best, to find out who would give them the most caring and loving life. The child knowing each parent best would then allow for judges and attorneys to have a better picture of how each parent’s character is built. However there are also a few disadvantages. One disadvantage would be that the child may be bias and favourite one parent over the other and therefore may give a better insight on one parent who may not be able to give the child a good and stable enough life. Another disadvantage would be that the parents may be involved with the child’s opinion. This would mean that parents may talk to the child and influence what the child may say so that they can gain full custody, therefore making this solution unreliable and dangerous. This can be shown as unreliable and dangerous because extraneous variables such as the parents will influence the child and they may be doing this in a threatening way which would show the parent is not fit and stable enough to look after a child.

Effects and consequences of gender bias in custody cases

One effect of gender bias in custody cases would be that it could increase conflict and tension among families (Quain, 2019). This is because as one family gain custody, the other may feel hatred towards the family who gained custody because they may believe that they should have received custody over the child. However, this may not happen, as the families may in some cases, come together to try to provide the child with an easy life and stability, which would be the purpose for a child custody.

A consequence of gender bias in custody cases would be that other men may feel like there is no point to apply custody due to repeatedly being declined of gaining custody over their child. In New York, a group of fathers have filed a report charging state courts of discrimination of men against fathers in custody suits (Schafran, 1995). The fathers claimed that courts award custody to mothers due to habit and allowing the myths that mothers are natural parents (Schafran, 1995). This may be shown to be discouraging to men to apply for custody because they are regularly and repeatedly shown to lose the custody battle to the mother because they are “born natural parents”. However, this may also make some fathers encouraged to prove that the previous statistics will not get in their way and will therefore fight for custody to try to prove that, men too are just as good as parents as women.

Another effect or consequence of gender bias in custody cases would be that the child may be placed with the wrong parent/ guardian due to lies. Some mothers or fathers may lie to judges and attorneys to gain custody of their children. This will later affect the child in their future if placed with someone who is less able to provide for them due to lies or due to stereotypes of mothers being the better gender to look after and care for their children. However, in most cases, the child is placed with a parent who can give them a stable and happy life as the judges hear both cases and do thorough check-ups so there is a very small chance of the child being placed with the wrong parent.

Many men also feel as if they are not able to ever trust women again as some women can lie during the court case, so they are unable to trust women as they believe that other women will also perform the same acts.

Conclusion

Overall, there has been shown that there is some gender bias in custody cases due to stereotypes and women being labelled as “born natural parents” which can be seen as unfair towards men as they too should be equal towards women when raising a child and providing a stable and happy life for the child. However, in some instances in including the Robert Kardashian and Blac Chyna case, where the man had just as good a plea as the women, yet the women were still given full custody instead of sharing custody. However, there are also some instances where it’s not gender bias being the reason of the mother gaining custody and the woman genuinely had a good plea, with the father having an awful plea. Men therefore tried to blame gender bias for them not reviving custody when in fact they were not able to provide stability for their child’s life. Gender bias has evolved and moved on within time, as there are less women gaining custody due to the stereotypical aspect of women being natural parents being grown out of. However, many men are still using the idea that women are shown bias in custody cases, to blame the courts and judges of losing custody so they can be given child custody. There also may not be any distinct solutions for gender bias as of now because judges deciding who gains custody is a subjective matter, meaning that it will be biased partially because it is an opinion and therefore, there may not be any solutions to prevent gender bias from happening. However, to reduce gender bias from occurring, people such as a jury should be asked to give an input of who should gain custody, so it becomes fairer due to there being more opinions, instead of there being just one. Also, there are many misconceptions about gender bias such as women are always given custody when in fact men are also given custody however, there are just a smaller number of men who gain custody.