THE BLOG
03/28/2011 02:59 am ET | Updated May 27, 2011

The "Y" Factor: Gender Bias, Child Custody And The Great Parenting Myth

In the emotionally-charged world of child custody, there is a fundamental myth that both enslaves women and disenfranchises men.

While there are inherent animal instincts hardwired into our species when dealing with infants, parenting is a learned behavior. And the myth that women automatically know how to be a good parent solely by virtue of having given birth doesn't only put unfair expectations on women but minimizes the role of men in the rearing of a child. Short of not being able to breast feed, men have the same abilities to protect and guide the development of a child as women. Yet this myth propagates the notion that men are innately incompetent to nurture a child which, unfortunately, plays itself out daily in Family Court.

From a legal perspective, most courts are obligated to focus on the best interests of the child. However, the reality is that a gender bias exists due in large part to the antiquated notion that women make better parents. And even though statistics show unequivocally that children raised in single parent homes with limited or no access to both parents are at a far greater risk to commit crimes or abuse drugs, many men face an uphill battle when trying to assert themselves into their children's lives

In the late 19th century, the "Tender Years Doctrine" was created which presumes that the mother should be granted custody for children 13 years and under. While it is rarely used as today, and has been replaced with the "Best Interests of the Children" doctrine of child custody, this shift didn't fully take hold until 1989. But having been in countless court cases where I've seen men who wanted nothing more than to be actively involved in their children's lives fall victim to a system that regularly sides with gender over parenting skills, it's clear that statutes alone aren't enough to change the preconceived biases that still exist.

Just as no man should automatically be deemed an inattentive, emotionally distant and a poor caretaker by virtue of his chromosomal makeup, neither should a woman be presumed inherently skilled at caretaking, being attentive to the emotional needs of her children, or a more nurturing parent purely by virtue of her uterus. All aspects of humanity are relative. No one is "all good," just as no one is "all bad." Yet when it comes to child custody, the unique skills and life experiences of the individual, of either gender, are too often passed over in favor of outdated thinking that carries little weight in today's society.

I recently represented a man who by all accounts would be considered a great parent. When we first sat down to discuss his case he showed little care about the house and other material possessions but only wanted to make sure he had access to his children. He wanted to be more than just a monthly alimony check; he wanted to be a "Dad." But despite following the advice I give all my clients in cases involving children, the most important of which is to secure documentation that proves parental involvement in the child's life, he ended up with very constricted visitation rights. The reason? An aggressive attorney and a vindictive wife who testified that she felt her husband was an unfit parent and that her children didn't want to spend time with him.

It was heartbreaking to watch and, unfortunately, all too common. Not only does this strategy create a highly contentious court battle but the underlying message conveyed to a court already predisposed to thinking that women make better caretakers, is that the father is lacking in good parenting skills. While these cases can be fought the emotional toll it takes on the father, and the children, can be devastating.

Obviously, not all men make great fathers just like all women are not vindictive. The majority of cases I see involve two parents whose lives together didn't work out, want what is best for their children and understand the role each parent plays. But divorce does strange things to people. They will sometimes act out of character and with the urging of friends and attorneys take on a "win at all costs" attitude. And when this takes place it is invariably the child that ends up losing the most.

As long as the notion exists that gender serves as the defining factor in determining parenting skills both men and women will suffer. Good mom's will shoulder too much of the burden while good dad's are denied access to what matters to them most. And if they're bad parents neither is challenged to become a better influence in their child's lives. But ultimately it is the child who is the real victim in the perpetuation of this myth. While it can obviously be stated that not all children growing up in single parent households face problems later in life, to discount the role that each parent plays in raising a child is a recipe for creating the alarming criminal and drug use statistics for adults who grew up with limited or no access to both parents.

While the courts can't do much about the irresponsible sperm donator who impregnates a woman and then shirks his duties as a parent, they can do something to acknowledge and protect the rights of men who, for no reason other than having a Y chromosome, have been relegated to second class status as a parent.