Studies Show Judicial Bias Against Dads

July 16, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

This article isn’t new, but it’s new to me (TomJamesLaw, 12/1/13). I write about it because it’s too important not to.

The subject is judicial bias in family courts. Now, we’re frequently told that there is no judicial bias on the part of family court judges, that judges rule neutrally on neutral categories. We’re 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. That, we’re given to understand, isn’t as important as changing diapers, feeding and bathing the child. It’s so unimportant that it merits Dad being ousted from his child’s life despite the small avalanche of data demonstrating that children suffer terribly the loss of a parent.

I’ve argued long and hard that one of the reasons family court judges do such a poor job of deciding custody and parenting time is that whatever the education they receive regarding the best interests of children doesn’t match up with the social science on the matter. That’s true enough and it’s outrageous that we aren’t teaching judges the basics on which to base their custody and parenting time orders.

But lack of education isn’t the only problem. As the article shows, anti-father/pro-mother bias on the part of judges plays an enormous role. Studies of judicial attitudes in eleven states reveal that bias and attorneys practicing in family courts confirm the findings. Read on.

How many judges approach contests between men and women with a predisposition to rule against the man?... A study conducted in 2004 found that although the tender years doctrine had been abolished some time ago, a majority of Indiana family court judges still supported it and decided cases coming before them consistently with it.2 A survey of judges in Alabama, Louisiana, Mississippi and Tennessee found a clear preference among judges for maternal custody in general. Another survey, this one commissioned by the Minnesota Supreme Court, found that a majority (56%) of the state’s judges, both male and female, agreed with the statement, “I believe young children belong with their mother.” Only a few of the judges indicated that they would need more information about the mother before they could answer. Fathers, one judge explained, “must prove their ability to parent while mothers are assumed to be able.”4 Another judge commented, “I believe that God has given women a psychological makeup that is better tuned to caring for small children.”5

That bias hasn’t escaped the notice of lawyers practicing in family court.

Judges’ self-reporting of their prejudices against fathers was consistent with practicing attorneys’ impressions of them. 69% 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. 40% of the female attorneys agreed with that assessment. Nearly all attorneys (94% of male attorneys and 84% of female attorneys) said that all judges exhibited prejudice against fathers at least some of the time.2 Similar findings have been made in court-sponsored gender bias studies conducted in other states. The Maryland study, for example, found that most attorneys perceived that it is either always or often the case that “[c]ustody awards to mothers are based on the assumption that children belong with their mothers.”7 A follow-up study conducted in 2001 “still indicates a preference to award mothers custody.”8 The majority of attorneys, both male and female, agreed that fathers either did not always get treated fairly in custody proceedings, or that they “often” did not. 6% of judges, 17% of female attorneys and 29% of male attorneys went so far as to say that no father ever receives fair treatment in a Maryland custody proceeding.9 Surveys of judges in Maryland, Missouri, Texas and Washington found that a majority of judges were unable to say that they usually give fathers fair consideration in custody cases.10 This matched the perception of members of the bar.11 A review of appellate court decisions led a team of psychology and law professors to conclude that the maternal preference is still the norm.12 The Georgia Commission on Gender Bias in the Judicial System uncovered judicial beliefs that mothers are always better parents than fathers; that children need to be with their mothers, but not necessarily with their fathers; and that a father cannot be a nurturing parent if he works outside the home. In addition, the commission uncovered a reluctance to deny custody of children to mothers out of fear that doing so will “brand” the mother as unfit or unworthy.13 No judges expressed any comparable concern for the reputation or feelings of fathers.

Reread those figures and let them sink in. A majority of attorneys said fathers didn’t always get treated fairly or that they often did not. And large numbers of judges and lawyers agreed that “no father ever receives fair treatment in a Maryland custody proceeding.” That’s right, even some judges agreed with that frank statement of bias and judicial malpractice.

Those studies cover the states of Indiana, Alabama, Louisiana, Mississippi, Tennessee, Minnesota, Maryland, Missouri, Texas, Washington and Georgia, i.e. a hefty percentage of the country. Are there any studies indicating judicial fairness toward fathers?

Meanwhile, the article states the obvious — that judges are supposedly bound by a code of judicial ethics that requires them to rule impartially in every case. And yet studies reveal judges themselves frankly admitting that they do not do so. Picture the statue of blind justice peeking out from under her blindfold to gauge the sex of the litigants.

The fine article confines itself to revealing the frank bias of family court judges, but I’d like to add a bit of content: judicial bias against fathers is also judicial bias against mothers and children. It’s nothing more than the obvious. Take a father out of a child’s life and the child is damaged, all but invariably. There’s far too much science on the matter to deny the fact that children need both their parents. And yet family courts take one parent away from children all the while intoning the mantra of the “best interests of the child.”

And of course anti-father bias is anti-mother bias too. Turning over 80% - 100% of the childcare duties to Mom does her no favors. It makes her dependent on Dad’s child support and alimony instead of working, earning and saving for herself. That dependency is for her, as it would be for anyone, dangerous. If Dad dies, becomes disabled or loses his job, how does she support herself and their child? Like men, women deserve the feeling of confidence that comes from being self-reliant. Mothers shouldn’t be made dependent on anyone. They should be allowed the time in which to work, earn and save for retirement that everyone else has. In the long run, they’ll be better off that way and their kids will likely respect them for it.

That’s what equal parenting post-divorce does; it benefits fathers because they don’t lose their kids; it benefits mothers because they’re freed to work, earn and save, and be independent in the process; and it helps children because they maintain real relationships with both of their parents. In the end, everyone is better off, healthier, happier, more independent and self-actualized.

What’s not to like?

Family court judges apparently believe there’s something.

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