Gender inequality in child custody cases has been happening since custody hearings were created. Today, fathers are less likely to win custody of their children; resulting in court and legal fees that the mothers do not have to pay. Regardless of the parents living situation or income, if the mother is physically healthy enough to raise the child, she has a major advantage. On top of everything else, men are more likely to owe increasing child support, even if they are hurt or arrested for non-payment.
It’s inequality like this that has plagued the family courts forever, giving them a biased and bad name.
Going back to times such as the 1970s, it is well noted that even then gender inequality was quite rampant. Not only is it now well-known and admitted, but many feel with the removal of ‘tender years’ law (feeling that women raised the children, this should be primary caregiver) that inequality was taken care of; this obviously not being the case.
“Indeed, typical statutory provisions at least implicitly encourage courts to consider past parental participation. Moreover, evidence that courts continue to favor mothers in custody disputes suggests that the pre-divorce caretaking function is valued.” (Elizabeth S. Scott) Not only is this seen and documented to be the same for many states; it can get even worse for small towns and municipals as their rulings have a higher chance to be biased and go unpunished and undocumented. While there are waivers to get court fees waived, many times the court rejects these fee waivers; resulting in immense costs for father. If the father wants to claim custody of his child, some places may make the father file a petition for adoption (even if he is the biological father), which cost money to file. Fees for this could range from $20 to $200; something a struggling father with legal fees could usually not easily pay. With all these legal fees the father will also have to pay for any attorney fees; and for the attorney themselves.
There have been many reported cases of mothers who can not support their children, being awarded custody for supposedly other reasons; while the father who could support the child is writing off as unfit. For example, there have been several cases where homeless mothers were award full custody of their children, while the father had a stable living situation. Not only living situation wise, but women who don’t have a stable source of income are often not seen as a problem in the eyes of the court. It operates under the guidance that women can get more government aid (such as welfare) for their children; often resulting in poor treatment of children due to improper nutrition and medical care. All of this is taking place due to courts going for what they feel would be the ‘best interest’ of the child, rather than the main negatives and benefits for each parent. More often than not, more care is done when a parent informs the court they want to move out of state with the child. This usually brings about a full inspection into both parents history, so to decide the right choice and not send a child out of state with an unfit parent. Operating on this backing is wrong, and this concept should be applied to every family court case regardless of circumstances or not. However, if a father was awarded custody, and wanted to move out of state to “start fresh again” or maybe “pursue love in another are”then more often than not the court would deny the father the ability to move out of state. “Where I practice, a parent wishing to move with their child out of state has to pass a two-part test. Part One: show the court a legitimate reason to move. Part Two: show the court that the move is in the best interests of the child.” (Nancy Shannon) More often than not courts find a problem with moving the child out of the mother’s state, due to incorrect thinking that all mothers are the best fit to parent their children; or they need to have the ability to be in contact with their children.
On top of the discrimination and work required most fathers need to do in order to get custody of their child if they fail the results could end up being crippling and life ruining. If a father is made to pay child support, right out of the court he is already in debt. Not only are the legal fees now imposed, but he now has to pay an additional monthly fee; sometimes even surpassing the cost of their monthly rent. This leads a lot of child support payers to end up not being able to pay; resulting in their arrest. What makes the entire situation worse is that once in jail their fees do not stop. The debts continue to accrue and once they get out, it could become a vicious cycle of not being able to pay, being arrested, and then being released. Yet somehow this is not the entire story of it. If you get hurt or have a medical injury making you unable to work, your payments still do not stop. You have to make a petition to the judge with proper documentation (which could be costly to print out depending on state medical information laws) and even then a judge may decide your injury is not debilitating enough. This one event in a person’s life could result in the rest of their life being ruined. “All I was saying was, ‘Give me an opportunity instead of throwing me in jail because that just puts me further behind in child support,’” Ferebee says. “Let me find work so I can earn money.’” This year, Ferebee was headed to jail a fifth time for failure to pay child support.” (Tina Griego) This could turn your life into a ‘debtors prison’ where there is no hope for escape, and once the process has started each day makes recovery more and more improbable. There should be more options available to the father that cannot pay; such as working the payment off in community service or being forced to an assigned job for a certain amount of payment until the balance is resolved. This not only means fewer people in the jails for non-violent crimes but a better chance at actually paying the debt. Unfortunately, the standard today is to just increase the debt hoping that the person could eventually afford it.
One of the most compelling arguments against gender bias in court would have to be that because women usually take care of the children more often, they should be the primary caretaker. Several well-known judges had been surveyed about this, and many have told they feel this is not bias. Most judges are not getting a direct view of the household. That is why each case needs to be verified on a person-to-person basis, rather than a gender basis (i.e. look at BOTH the mother and father for the best living situation). “Her article holds that mother preference is not a gender biased opinion if the mother was the primary caretaker of the child‟s past. She writes that bias is often seen because “fathers are often given more credit than mothers for doing what is expected of mothers, to penalize mothers more than fathers for extramarital affairs, and to think that a mother‟s investment in her career is selfish while a father‟s is the act of a responsible provider” (Lindsay R. Estep) This quote does wonder for speaking about the current legal system regarding gender. The court official who spoke in that quote clearly demonstrates (albeit with a bit of truth in some parts) gender bias, and fails to recognize it. There are also a few things that need to be addressed regarding the quote. When the official speaks about the mother being the primary caretaker, her assumptions are wrong. If a mother was a primary caretaker of the child (i.e. father works while the mother stays at home) that does not give her any more parental rights than the father and vice versa. One of the reason’s a divorce could be happening is due to the mother’s neglect of the child while the father was away. Going with the current logic of the court official, the neglectful mother would be given the child, due to previous caretaking. The issue is that is not just an isolated problem, many places all over experience this issue, and it’s met with no resistance. The correct part of the quote is true, a mother can work while the father stays at home and vice versa. If this was the case she would not, and should not be penalized.
The problem with this all is nothing is being done. Even though the mass public outrage, and people standing up against bias, places like the Supreme Court fail to do anything to prevent further discrimination. “No case so clearly prohibits consideration of sex in custody cases. It should be noted, however, that there was a potential gender issue in Palmore that received no attention from the Supreme Court. It appears that Linda began cohabiting with Clarence before they were married.” (Katherine Bartlett) This case Is well known because it enforced and helped prove the clear gender bias of sex without marriage; regardless of if the bias was on the female “Nothing more seems to have been made of this factor, either by the trial court or on review, but some courts have since noticed that mothers who cohabit outside of marriage, tend to be penalized in ways fathers who cohabit outside of marriage are not.” (Katherine Bartlett) While women face the same gender bias in some ways, in the ways people tend to care about (who gets the child, who pays fees, etc.) is where men get overlooked in quality. This quote is important because if it’s known and documented of a clear gender bias, why hasn’t the Supreme Court stepped in and introduced better legislation and guidelines to prevent further bias? The problem is old legislation, and the refusal to make a change. A currently former Supreme Court judge Antonin Scalia was quoted as saying the constitution does not dis-allow gender bias. While not true, a Supreme Court judge, who supposedly should be speaking for the constitution, should not help spread and promote miss-information. On top of that, he was never corrected or reprimanded. The only consequence of that action was ‘bad press’. This quote not only helps smaller local courts continue their bias but miss-informs them that they are acting legally. Better legislation and better education for judges need to be passed before anything can be done.
And while there are many arguments that women also face these problems (and while that may be true) the problem it’s usually the men. Women are given more chances and exceptions than the men. Several document court cases have shown that on average women are given more chances to earn money and pay it, should they be ordered to pay child support. This could either be the judge informing them of state opportunities like welfare and social security, unlike the men who usually are faced with arrest threats or an actual arrest. Another idea in the system is that the reason they are in family court is often due to the father being unfit in the first place (I.e Domestic violence, threats, abuse). This is an obvious oversight into a small population of the people. More often than not it’s just a case of a family not working well together, and no actual abuse or crimes have taken place. On top of that, when it comes to dishing out child support, the mother will likely have the advantage; also awarded more money “In spring 1992, about one-half (6.2 million) of the 11.5 million custodial parents were awarded child support; award rates were higher for mothers than for fathers (56 percent compared with 41 percent)” (U.S. Department of Commerce)
Overall, when it comes to dealing with the family courts, men are less likely to win custody of their own children. Those who have a chance at it, are often met with extreme legal fees more so than the mother. Women are often seen as a child’s protector so in the eyes of the court they are usually seen as the fit parent right from the start. It has also been noted that men’s job status and living situation is looked into more than the women’s. This is due to the assumption that women get more government aid to assist them than men; this not being true but is still a common misconception. Inequality in the courts has been taking place ever since they have been around. The problem isn’t that they refuse to acknowledge it, the problem is it’s acknowledged and yet nothing is done about it today.
Elizabeth S. Scott. Pluralism, Parental Preference, and Child Custody
Berkley Scholarship Law, May 1992
Nancy Shannon. Custody Relocation Case Study: A Judge’s Ruling on Moving Out Of State
Cordell & Cordell Divorce Lawyer May 2014
U.S. Department of Commerce. Who Receives Child Support?
Economics and Statistics Administration. BUREAU OF THE CENSUS June 1995
Tina Griego. Locking up parents for not paying child support can be a modern-day ‘debtor’s prison’
September 26, 2014
Lindsay R. Estep. Mommy or Daddy?: Perceived Gender Bias and Court Awarded Custodial Guardianship
April 27, 2011
Katherine Bartlett. Comparing race and sex discrimination in custody cases
Duke Law EDU