Gender Bias in Divorce: Is it More Difficult for Fathers to Win Child Custody?

Many have heard of men losing in divorce court with less-than-ideal child custody agreements. It does seem that women are more often awarded custody of the couple’s children, but is it true that the law and/or the courts are biased against fathers? The answer may be a bit more complicated.

Historical Preference for Mothers in Child Custody Matters

It's true that, historically, the law and the courts favored mothers. The “Tender Years” doctrine, which dominated thinking, said that children, especially when they were younger, were naturally more attached to their mother, who was their primary caretaker. Traditional thinking held that women were inherently better parents and that men were innately incompetent when it came to nurturing children. Laws were deliberately written to favor mothers. But as divorce became more prevalent, more fathers started challenging the bias against them as equal parents. They argued that parenting was a learned behavior, and that motivated men were equally as capable as women. Fathers’ rights activists lobbied legislatures, and laws were rewritten to remove gender bias. Nevertheless, judges who were steeped in the Tender Years doctrine were resistant to change, and continued to favor mothers when they exercised discretion.

Today, the prevailing attitude reflected in the law and in the courts is that children are best served by frequent, meaningful contact with both parents. In most states, custody laws have been rewritten to be gender-neutral. Courts in these states, such as New York, favor joint custody whenever practicable. But when the totality of the circumstances favors having children live full-time with their mother, judges order liberal visitation for the father.

If There Is No Bias, Why Such Disparate Outcomes?

Critics point to the fact that about 90 percent of child custody arrangements give primary custody to the mother. According to the U.S. Census Bureau, 79.9 percent of custodial parents are women. Why are the results so lopsided? Does the Tender Years doctrine still haunt family court despite legislative reforms? Or is there another explanation for the custody imbalance?

The truth is most child custody arrangements come from negotiated or mediated settlements between the parents. The judge only approves the settlement; he or she doesn’t impose it. This means that the overwhelming majority of couples agree that the mother should be the custodial parent and primary caretaker.

How do the parents arrive at this decision? Numerous factors come into play, but most often, it's to maintain the status quo. The mother is already acting as the primary caretaker, and having her continue in that role is the least disruptive option for their children. The father has been the primary breadwinner, and given the added expense of life after divorce, it’s better for all that he focuses his energy on his job. Nevertheless, the U.S. Census Bureau reports that there are more than 2.5 million single or divorced fathers with custody in the United States. This has been a significant increase since the 1960s, when only about 300,000 fathers had been granted custody of their children.

The good news for men who want to challenge the status quo is that fathers tend to win about 60 percent of child custody disputes that go to trial. Granted, this represents only about four percent of all child custody cases, so something "extreme" must happen. Usually, that means extreme tension between the parents, who feel the need, reasonably or otherwise, to fight a court battle. In many cases, one parent has an earnest and sincere belief that the other parent is unfit, and an award of custody would be harmful to the children.

How Can Fathers Win Child Custody?

Given the current state of the law, a father who wants joint custody of his children simply has to convince the court that he can fulfill the duties of a primary caretaker. This means he can:

  • Provide an appropriate residence for the children
  • Be available to supervise the children and provide nurturing
  • Take an active interest in the children’s lives, including their education, health, and welfare
  • Conduct himself maturely and responsibly

It also helps if the father has shown by past behavior that he is actively involved in his children’s lives. One factor that courts weigh heavily regarding the father is if the mother would interfere in his relationship with the children. If a mother has prevented the father from seeing his children during the divorce, simply out of resentment and not from concern for their safety, a judge could view joint custody as the most appropriate remedy for that situation.

If a father wants sole custody of his children, in addition to all of the above, he must prove that the mother is incapable of acting as a primary caretaker, and/or that living with her would be detrimental to the children’s welfare. There are a number of factors that could come into play:

  • Addiction to drugs or alcohol
  • Immoral lifestyle
  • Cohabitation with an unsavory individual
  • Anger management issues
  • Physical, sexual, or emotional abuse of the child

Courts will not award custody or visitation to a parent when it is not in the child's best interest. This is a fight worth having if allegations of unfitness are supportable with facts. However, making scurrilous accusations to get leverage in custody negotiations often backfires. You wind up in a protracted court battle, running up added expenses and putting your children through emotional turmoil, only to anger the judge for wasting the court’s time. That can lead to sanctions, such as being forced to pay the other party’s legal fees.

The best strategy in a custody dispute is to put your children first. Realize that they love both their parents, and their needs are best met by an arrangement that allows them to continue loving relationships with both parents.


Naomi Schanfield

Naomi Schanfield concentrates on all aspects of matrimonial and family law, including, prenuptial and postnuptial agreements, divorce, equitable distribution, child custody and visitation, support matters, family offense disputes, and domestic violence.

To connect with Naomi: 212.682.6222 | Online

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