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Dispelling The Myth Of Gender Bias In The Family Court System

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We hear a lot about how the courts are biased in favor of mothers when deciding child custody. After a 10 year career as a divorce coach/consultant and doing extensive research on the subject, I've come to the conclusion that the courts are not the reason mothers retain custody in the majority of divorces. And, not the reason many fathers aren't involved in their children's lives post-divorce.

Below are a few stats from a Pew Research Center analysis of the National Survey of Family Growth (NSFG) released in June of 2011.

Married Fathers:

According to the report, a married father spends on average 6.5 hours a week taking part in primary child care activities with his children. The married mother spends on average 12.9 hours. Since two-income households are now the norm, not the exception, the above information indicates that not only are mothers working, but they are also doing twice as much child care as fathers.

It only makes sense that mothers who have a closer bond due to the time spent caring for a child be the one more likely to retain primary custody after a divorce.

Divorced or Unwed Fathers:

More startling are the stats on absent fathers, or the amount of time fathers spend with children once the divorce is final. According to the above study, when fathers and children live separately, 22 percent of fathers see their children more than once a week. Twenty-nine percent of fathers see their children one to four times a month. The most disturbing fact though is that 27 percent of fathers have no contact with their children at all.

When you take into consideration that mothers spend more time taking care of children before divorce and only 22 percent of fathers take advantage of spending what I would consider quality time with their children after the divorce, the fact that more mothers retain custody seems reasonable... doesn't it?

Many men argue that family courts send the message that fathers are not essential to raising children. Not essential beyond the point of giving a percentage of their paychecks to the mother of their children anyway. They argue that the courts consider them nothing more than weekend visitors and that so few fathers take an active role in parenting after divorce due to the blatant bias they experience during the divorce process and the determination of child custody.

Some fathers, those among the 27 percent who have no contact with their children post-divorce, may even argue that gender bias during divorce litigation is the reason they no longer engage in parenting or any form of relationship with their children.

But don't you need to take into consideration how child custody is decided in the majority of divorce cases before blaming gender bias on a father's post-divorce status? What do the statistics say about how custody is decided during divorce and whether or not there is a true gender bias?

According to DivorcePeers.com, the majority of child custody cases are not decided by the courts.

  • In 51 percent of custody cases, both parents agreed -- on their own -- that mom become the custodial parent.
  • In 29 percent of custody cases, the decision was made without any third party involvement.
  • In 11 percent of custody cases, the decision for mom to have custody was made during mediation.
  • In 5 percent of custody cases, the issue was resolved after a custody evaluation.
  • Only 4 percent of custody cases went to trial and of that 4 percent, only 1.5 percent completed custody litigation.

In other words, 91 percent of child custody after divorce is decided with no interference from the family court system. How can there be a bias toward mothers when fewer than 4 percent of custody decisions are made by the Family Court?

What do these statistics tell us?

1. Fathers are less involved in their children's care during the marriage.

2. Fathers are less involved in their children's lives after divorce.

3. Mothers gain custody because the vast majority of fathers choose to give them custody.

4. There is no Family Court bias in favor of mothers because very few fathers seek custody during divorce.

I fully understand and appreciate the value of fathers in the lives of their children. We as a society should do everything in our power to encourage responsible parenting by both mothers and fathers.

After studying the statistics and working with divorcing clients for more than 10 years, it's my opinion that the "gender bias" argument is used by some fathers who fail to understand the value of legally fighting for more time with their children during the divorce process.

A gender bias argument should not be used by a divorced father unless he has personal experience and can back up that experience with proof. Until the statistics tell us that more than 4 percent of divorced fathers are seeking custody through the Family Court system, there are few men who have such experience and proof of a true "gender bias."