Fathers Bear the Brunt of Gender Bias in Family Courts

The National Organization for Women’s recently released Family Court Report 2002 claims that family courts are "wrought with gender bias" against women. However, the respondents to the survey upon which the report is based were not chosen at random, but were instead self-selected from among those whom NOW calls its "constituents." If one selects a survey’s respondents, one can make the survey show almost anything. For this reason, these types of Self-selected Listener Opinion Polls, commonly known as SLOPs, are viewed as junk social science by serious researchers.

NOW’s report sounds the alarm on women’s "loss of custody through gender bias" but the vacuity of this claim can be demonstrated by examining how rarely courts grant custody to fathers in contested cases.

For example, a Stanford study of 1,000 divorced couples selected at random found that divorcing mothers were awarded sole custody four times as often as divorcing fathers in contested custody cases. A study of all divorce-custody decrees in Arlington County, Virginia over an 18 month period found that no father was given sole or even joint custody unless the mother agreed to it. According to Frank Bishop, the former director of the Virginia Division of Child Support Enforcement, almost 95% of custody cases in Virginia were won by mothers.

An Ohio study published in Family Advocate found that fathers seeking sole custody obtain it in less than 10% of cases, and a Utah study conducted over 23 years found similar results. According to the 2000 Census Bureau report, mothers comprise 85% of all custodial parents.

Even the 80% to 95% maternal preference documented by these studies and others understates family court discrimination against fathers by identifying many coerced child custody arrangements as "uncontested." The vast majority of divorces involving children are initiated by women, and women are usually granted temporary custody of the children. Judges are reluctant to switch children from the custody of one parent to another. Fathers, left to fight an uphill battle to gain custody and often out of both money and hope, sometimes give up. Others spend their life’s savings trying to obtain joint physical or sole custody so they can remain a part of their children’s lives. Devastated financially and with little hope of winning, they often sign consent orders granting custody to mothers. In both of these common scenarios, the child custody arrangement is "uncontested."

NOW has attempted to obscure this anti-father family court bias by claiming "according to several studies, when there is a custody dispute, fathers win custody in the majority of disputed cases." In other words, men don’t get custody because they don’t want it. Yet NOW’s claim, proclaimed in its 1996 National Conference Resolution attacking the fathers’ rights movement, and again in Family Court Report 2002, is without merit. All three of the sources NOW cites used survey pools which were either nonrandom or in which contested and uncontested custody cases were lumped together.

Once custody is lost divorced dads are often at the mercy of both custodial mothers and the family courts. Divorced dads’ complaints include: blocked visitation and unenforced visitation orders; "move away" spouses who permit or even use geography as a method of driving noncustodial parents out of their children’s lives; acceptance by the courts of false and/or uncorroborated accusations as a basis for denying custody or even contact between parent and child; rigid, excessive, and often punitive child support awards; and burdensome legal costs.

The presence (or absence) of a father in a child’s life is one of the largest factors in predicting whether a child will graduate high school, attend college, become involved in crime or drugs, or get pregnant before age 18. The greatest and least recognized force behind America’s epidemic of fatherlessness is the way courts allow custodial mothers to drive fathers out of their children’s lives.

The solution to the problem is shared parenting, which creates equality between divorcing couples by replacing the option of sole physical custody, which occurs in the vast majority of custody cases, with the presumption of joint legal and physical custody.

If divorcing parents are unable to agree on a shared parenting plan, the courts would order a plan which would afford both parents equal physical time and decision-making power. Children gain from shared parenting because it allows them to retain the ongoing emotional, physical, and financial support of both parents.

The National Organization for Women has lobbied hard against shared parenting legislation and today is the main obstacle to equality in family court. Yet during the 1960s and 1970s many of NOW’s leaders, including former president Karen DeCrow, were sympathetic to shared parenting as part of their efforts to erase all gender inequalities. Family Court Report 2002 again reveals just how far NOW has drifted from this admirable goal.