Are divorce courts biased towards either gender?
It’s not usually motivated by animus toward men or women (although there are some judges who are clearly biased against men or women), primarily it’s culturally motivated.
Culturally in the U.S. there is a deep-seated belief that:
- children need the care and attention of their mothers more than they need the care and attention of their fathers;
- women are better parents than men;
- mothers take a greater interest in their children’s welfare than do men;
- children fare better when they spend most of their time in one place, as opposed to “bouncing back and forth” between two parents’ separate homes;
- asking children how they feel about their parents and what their desires are for child custody and visitation is a bad idea—they are too immature, too easily coached, and will be traumatized by telling the court what they desire.
- wives are dependent upon men for their financial support and well-being;
- men can bounce back from the economic and financial setbacks of divorce easier than women can.
To be sure, some of these beliefs hold true in many divorce situations (but not in all of them!). The problem arises when legislators and judges confuse these beliefs with universal principles that apply to every family.
Thus, whether they realize they are doing it, far too many legislators and judges fall prey to cultural biases when deciding divorce and child custody cases. They substitute a thorough and impartial analysis of each particular case with “eh, odds are that the kids are better off with Mom” and/or “eh, odds are wife deserves alimony” and/or “the kids will somehow miraculously stay emotionally close to the noncustodial parent by relegating the noncustodial parent to “visitor” status every other weekend and a few other times throughout the year.” Children get short shrift because the courts usually (at least in the state in which I practice) ignore their input when crafting the child custody award.
Don’t misunderstand me. Frankly, in my experience and as a general matter, women often are the better parents, frequently when children are infants. Women frequently (though less frequently with each generation) are financially dependent upon their husbands. Sometimes one parent is the more organized and disciplined custodian than the other.
But too many legislators and judges craft laws, policies, and decrees around rules of thumb that simply do not apply universally (or fairly) to all families and people. The result is inequity and injustice for a parent and for the children. They deserve better than laws and decrees that derive from gut feelings.
Utah Family Law, LC | divorceutah.com | 801-466-9277