Gender Bias Continues to be Cited in Child Custody Battles

Posted by Steven D. Eversole | Mar 30, 2015 | 0 Comments

Throughout most of the 20th Century and up until quite recently, most family law courts would almost automatically grant child custody to the mother, unless there was ample evidence proving she was unfit.

That has changed. Most states do now favor some form of joint custody arrangement, but there are those who say the courts still tend to show an unfair preference toward women. Certainly, there seem to be ongoing examples of this throughout the country.

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Just recently in Maryland, an appellate court overturned the child custody ruling of a county circuit court issued last year, citing gender bias in the placement of a 14-year-old girl with her mother. The appellate court ruled the placement was a contradiction of both judicial precedent and state law.

The trial court in its ruling noted that it is most important for an adolescent female to have a close relationship with her mother. This may well be true, but, the appellate court pointed out, that kind of maternal preference was expressly dropped by the state in 1974. The “maternal preference doctrine” was the statute under which children were presumed to belong to their mother.

The state's highest court ruled 14 years later that the state-level Equal Rights Amendment bars custody rulings based on gender preferences.

The presumption of the mother as the better parent, more inherently entitled to receive child custody, no longer receives the support of the law.

The father in the case had appealed the decision to award physical custody of his teen daughter to his former wife, arguing (rightly) the law bars a generalization that fathers are better for raising sons or mothers are better for raising daughters.

Those kinds of arrangements can certainly have their advantages, but the reality is, it is unfair to offer preference to one parent or the other simply on the basis of gender.

A proposed measure in that state would require family law judges to apply a rebuttable presumption in cases where parents are estranged, awarding joint physical custody of the child. Legislators say the move is needed to help counter the systemic preference judges show mothers over fathers.

Still, there is other evidence to suggest those biases may not be as widespread as some think. The Pew Research Center issued a report in 2011 indicating that married mothers spend an average of 13 hours weekly engaged in primary child care activities while fathers tend to spend about 6.5. This is despite the fact that women are working in fairly equal numbers. In examining the best interests of the children, courts will often analyze the closeness of the parental bond, and given these figures, it's not surprising that mothers – on average – may be closer to the children.

Further, in 51 percent of cases, parents agree on their own together – before taking the issue to court – that the mother should be the one to retain physical custody.

But every case is different.

When these matters do go to court, the judge has a duty to make a determination based on the best interests of the child. Parents in the center of a custody dispute will need to secure representation from an experienced legal advocate in order to ensure their rights and those of their children are protected.

Additional Resources:

Gender bias and child custody, March 18, 1015, Opinion, The Frederick News-Post

About the Author

Steven D. Eversole

J.D., Samford University's Cumberland School of Law, Birmingham, Alabama B.A., University of Alabama, Tuscaloosa, Alabama

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