Fact or Fiction: Is There Family Court Bias Against Fathers?

Family Court Bias: Perception Vs. Reality

Many fathers and their advocates feel that the family courts have a bias against men. Unfortunately, this perception is only exacerbated because many studies show that mothers typically have physical custody awards more often than fathers. While a small percentage may very well be due to a pro-mother bias favoring women, a greater number of the results are skewed because many fathers seek primary physical custody in the first place after divorce. Furthermore, although custodial mothers may be granted child support, child support obligations are also typically imposed on them under most child support guidelines. Therefore, in addition to custody being an issue in the divorce, it may be additionally skewed since fathers are more likely to pay child support. This does not deny the reality that some family courts have been shown to demonstrate a pro-mother bias. This has been recently demonstrated in several appellate decisions within the past few years. In one case, the appellate court reversed the trial court’s (the parent with sole legal custody) ruling that the father could not exercise visitation with the child unless the father complied with a counseling requirement. See D’Onofrio v. D’Onofrio, 2019 WL 2320905 (N.J. Super. Ct. App. Div. 2019). As noted, we are not writing this blog post to deny that the family courts have a pro-mother bias. This bias, however, actually appears to be seemingly overlooked when determining custody for a parental grandparent who is seeking visitation, which ultimately may affect custody to the parent.
Take for example, Sanchez v. Sanchez, 2017 N.Y. Misc. LEXIS 3134 (N.Y. Fam. Ct. 2017). In Sanchez, a father sought sole custody over his children. The children’s maternal grandmother, an Argentinian citizen, also petitioned for visitation rights with the children, who lived in the United States with their father. The family court granted the maternal grandmother’s petition for visitation, but subsequently denied the father’s petition for sole custody . The appellate court noted that in awarding grandparent visitation rights, the underlying custody award was not appropriate nor was it customary for the family court to do so. Moreover, the appellate court stated that "a grandparent’s visitation rights are built on the presumption that the parent remains a fit and proper person to have custody of the child". In this case, despite the apparent pro-mother bias at trial, the appellate court noted that the trial court had failed to even consider whether the grandmother’s requested visitation would violate the father’s custody interests or be detrimental to the children. Plainly, law enforcement may have somewhat of a bias against domestic violence offenders, which may explain the detention and removal of fathers from their homes, despite the mother’s violent acts. However, in cases where custody of children is potentially in dispute, many fathers have felt as if the family courts have somewhat of a bias against them, despite the fact that extensive interviews and home visits with the police, child protective services, and social workers have been done. When such bias is detected, particularly whereby a decision is made which arguably creates such bias, there are possible remedies available to address this: take the matter up on appeal, file an interlocutory appeal, file a post-judgment motion, or file a motion for recusal.
Ultimately, another issue associated with parenting time and custody in these types of circumstances is that children are placed on the highest pedestal within the family law system. It is the most important thing to the courts; therefore, the best interests of the child are always evaluated as a primary concern when making such determinations. For this reason, when mired in custody or parenting time disputes, do not speak poorly or negatively about the other parent, as the court may frown upon this as being contrary to the best interests of the child.

A Brief History of Family Court Decisions

In understanding family court decisions, it is crucial to explore their historical development. Specifically, we must address the question, "Is family court bias against fathers?", through the context of child custody and division of property during pre- and post-modern times. In the 20th century, decisions in family court were largely motivated by patriarchal norms, and judges operated under the gender presumption that mothers should have primary caretaking responsibility for children. The legal rationale for this judicial discretion was parens patriae, or "parent of the country," the idea that government had the authority to act as guardian or protector for those unable to do so themselves (e.g. children and the mentally ill).
During this period, the notion of primary caregiving was often determined by social constructs regardless of actual circumstances. For example, stay-at-home mothers, with no employment prospects other than the home, were presumed primary caretakers. Working fathers, who contributed to the home financially but were not in the everyday child-rearing role, were not generally awarded joint custody of their children if there was a divorce. After all, raising a child was viewed as a full-time occupation.
Today, however, gender roles and primary caretaking of children are less strictly delineated, having evolved from these patriarchal norms. Federal legislation such as the Child Support Enforcement Amendments of 1984 advanced the notion of gender equality by mandating child support payments to the custodial parent (usually the child’s mother) regardless of whether that parent was a man or a woman. A 1989 Family Supreme Court decision in Caban v. Mohammed, also based on this principle, awarded child support payments to unmarried, custodial mothers during a divorce. By the late 1990s, joint custody and child support awards became gender neutral, allowing for a more egalitarian standard of shared child rearing. The laws in family court, however, have been slow to adapt to modern changes in society.
The traditional notion of fathers as solely wage earners and non-custodial parents has remained prevalent in the courts. Presumptions in favor of mothers have historically persisted despite the fact that many fathers today are the primary caregivers in the home. True, mothers who serve as primary caretakers are more nurturing and less aggressive, according to Judith Segaloff, domestic relations attorney at The Segaloff Law Group, LLC in New Jersey.
Indeed, historical representations of fathers have placed them in a subordinate role, as in Scott Turow’s Presumed Innocent, in the divorce, custody, or death of the mother in Of Mice and Men by John Steinbeck and Little Women by Louisa May Alcott. In interviews with fathers going through custody battles, Segaloff hears far more complaints about the judge’s lack of knowledge about the role of fathers and children today than about any gender bias the decisions might display.
Segaloff says that the perception of bias suggests a systemic problem in the courts where fathers are treated differently. "The presumption in favor of mothers in child custody cases is indicative of an antiquated assumption based on a typical stereotype, rather than a necessary fact of modern life," explains Segaloff. Previously, fathers had only financial responsibility for the family, while mothers were the primary caregivers for their children.
More than ever, fathers today are taking on the primary caregiver role and are seeking joint custody of their children in the event of a divorce. They are mothers and fathers who participate in child rearing; it is neither a merit nor a gender based argument, yet fathers often feel misrepresented in the eyes of the law.

Statutes and Standards: A Legally Informed Look

"Best interests of the child" is one of the most commonly referred to terms in statutes and court orders when determining custody arrangements. In simple terms, the best interest of the child is determined based on what is best for the child. And while that term might seem simple in its meaning, the factors that courts consider to be in the best interest of the child are numerous. These factors can vary by state laws and sometimes are even case-specific, but usually include considerations such as the child’s age, health, emotional ties and structural bond with each parent, the parents’ physical and mental health, the parents’ relationship with the child, and the parents’ ability to provide basic necessities (food, clothing, medical care, etc.) to the child.
Another common factor in determining custody is domestic violence. While many states tend to view abuse as a clear indication of who should receive more time with the child, some states view the occurrence of domestic violence as a possibility of future harm from the abuser and therefore a reason to limit their access to the child. However, if the parent who commits the abuse can present themself as a safe option for the child, some states will overlook the history of violence. Thus, when a parent carries the burden of showing threats in the presence of a child, the burden alone does not mean visitation should be denied. The question then is considering is whether the non-abusive parent actively aided in the abuse, and if so, is it truly in the best interest of the child for them to witness the parent they love, trust and rely on abuse someone they love, trust and rely on.

Case Studies: The Role of Fatherhood in Family Courts

While there have been many anecdotal claims about father’s rights in the family court system, evidence-based case studies can be a valuable tool in determining if bias really exists. The cases below show what happens when fathers go to court without representation, or with an attorney who is ill-equipped to combat biases in family courts. These cases demonstrate the type of discrimination fathers are dealing with in a biased system.
Case Study 1
John is denied parenting time with his son, Chad, a toddler. He has filed numerous motions and made several requests for discovery in his custody case. To have his day in court, John agrees to undergo an evaluation with a psychologist, but his funds run out during the process. While he was qualified for a free evaluation, the others were unable to help him because he felt "too poor" for their services but "not poor enough" for free legal services. On his third motion to compel discovery, the judge amends the order to award him only 2 hours a month (which is anotehr issue to be examined later) with little time allowed spanning more than a single day. Thus, John’s next motion to compel discovery is denied, despite an overdue evaluation being conducted and even though Chad’s mother fails to appear in court.
Analysis:
Case Study 2
Tom is a self-employed father who hasn’t seen his son, Trent, at all since the birth, now three, due to Chad’s mother moving out of state. Tom discovers that his son is being poorly cared for by an anti-social aunt and that the aunt was soon fired from her job for leaving Chad unattended during work hours. Tom files a series of motions to obtain parenting time, child support and a paternity test. The judge continues to deny visits out of state, despite the out-of-state aunt agreeing to meet without objection.
Analysis:
Case Study 3
Tom and his wife have two children. Both parents agreed to joint custody and parenting time order, and their agreement was signed by the judge.
In year one after divorce, Tom was awarded all of the court-ordered parenting time. In year two, Tom was awarded 8 days in a month.
Analysis:
As these case studies demonstrate, the family court system can often be biased towards mothers. In addition to fathers losing rights to their kids, the observed patterns also can result in child alienation and emotional damage. It is important for fathers to be aware of these issues to better prepare them for their day in court.

Consequences of Perceived Bias for Fathers and Children

The impact of perceived bias on fathers and children may be profound. The perception of a bias perceived to be against fathers can have psychosocial impacts that affect a father’s post-separation behavior. If a father is perceived – rightly or wrongly – to be biased against, he may be less likely to be actively involved in his child’s life after a divorce. This perception of unequal treatment may also affect the father’s willingness to continue to invest in the post-divorce family. It may be so strong in certain fathers as to disposition them to scream, "lawyer, heal thyself". On the other hand, some may use the same perception to motivate themselves to make up for the "perceived discrimination" against fathers by being even more involved parents.
The potential psychological implications for fathers, however, are far more concerning to our society as a whole. Even if a father is not the object of discrimination, the perception of discrimination could push fathers away from their children. This is particularly true in certain minorities where the father may already have a very limited or no bond with their father and the judicial process is seen as reinforcing that perception. As reflected by the article cited below, the potential for this to create problems down the line is clear. As reported by Janet R. Johnston, Ph.D . , Professor (Emerita) of Psychiatry at the University of California, San Francisco, from her review of studies of over 5,000 families with children, she found:
Dr. Johnston points to research showing that children of divorce (whether there was extensive litigation in the divorce proceeding or not) who had relationships with their fathers were more likely to live with a mother who encouraged contact with their father than children of divorce whose fathers chose to withdraw from their lives. Not only do the children of divorced parents generally suffer a poorer relationship with their father, they also suffer psychologically. Johnston has studied differences in children of divorcing parents involving cases in which parents remained involved with their children post-separation and in cases where the father withdrew from his children post-separation because of the negative perception of his treatment by a "mother’s court".
Contrary to widespread notions that good paternal involvement is detrimental to child outcomes in comparison to maternal involvement, fathers can be positive, loving, and responsible people who are important to their children married, divorced, or never married. Johnston’s studies show that for fathers involved in their children’s lives, this involvement is (after controlling for paternal education levels and income) correlated with positive behavioral outcomes for those children.

The Role of Legal Reforms and Demands for Equality

Legal Reforms and Advocacy for Fairness in Family Courts
In recent years, there has been a growing recognition of the need to address bias in family courts and ensure that they operate fairly for all parties, regardless of gender. Advocacy groups and lawmakers have called for reforms that promote more equitable outcomes for fathers and mothers alike. Several key organizations have emerged to support these efforts.
One such organization, the National Parents Organization, has advocated for shared parenting and judicial reforms to reduce bias in family courts. They argue for a presumption of shared parenting in custody disputes, which would help ensure both parents remain active in their children’s lives after separation or divorce. Legislative changes at both the state and federal levels have begun to reflect these calls for reform. For instance, some states have passed laws that encourage or require judges to consider joint custody arrangements and equitable distribution of assets in divorce cases, instead of favoring one parent over another based solely on gender.
In addition to legislative efforts, family court watchdog organizations have sprouted up in various states to monitor proceedings and ensure that due process is upheld. These organizations empower parents, particularly fathers, to hold judges accountable for biased decision-making and to challenge rulings that they believe are unfair.

Tips and Tricks for Navigating Family Court as a Father

Preparing for family court can be a challenging process for both fathers and mothers alike. It’s important to keep in mind that the court’s main priority is to determine the best interests of the child. The following practical advice can help fathers present a fair case in front of a judge:
Secure legal representation
While it’s not uncommon for people with a background in family law to navigate the process themselves, finding an experienced family lawyer to represent you during court proceedings can help fathers make a strong case for their parental rights. A family attorney can help gather necessary documentation to present to the judge to support their case. Additionally, a family lawyer can offer clarity for fathers who have any questions regarding the family court process.
Have sufficient documentation
Fathers are not required to provide documentation when attending family court, but this paperwork can often be an integral part of receiving favorable results. For example, documentation can include evidence proving sufficient income for child support or visitation. Any other pertinent documentation should also be present at family court. This paperwork can provide evidence in the case, and having this information present can help fathers receive a positive outcome.
Speak in respect of the judge
While it may be tempting to lose cool when emotions run high, avoiding negative comments about the other parent, and maintaining an overall respectful tone towards the judge can help fathers present their case in a fair manner.

Looking Forward: Changing Trends in Family Court

As societal attitudes toward gender roles and parenting responsibilities continue to evolve, so too do the court’s considerations during custody proceedings. Previously held beliefs regarding fathers’ roles in child-rearing have changed over recent years, giving way to a growing body of research suggesting that both parents are integral to their child’s emotional and social development, regardless of their gender.
The recognition that fathers provide unique character traits and insights that are essential for a healthy relationship with their children has begun to shift family court biases away from the traditional "mother is inherently better parent" line of reasoning. Furthermore, as more families move toward "shared parenting" arrangements wherein each parent carries equal responsibility for his or her offspring, the need for gender-neutral family law procedures becomes even more apparent. The balances of power between mothers and fathers upon separation need to represent the realities faced by parents and children alike.
For example, many women find it difficult to enter into the workforce after extended child-rearing leave or work part-time. This , along with differences in physical size and strength, may be a reason for judicial inclination to favour mothers with respect to parenting time. However, this bias undermines the importance of allowing fathers to develop their own unique relationships with their children—an opportunity which may be stifled due to the judicial inclination to afford more parenting time to mothers as the "default" scenario.
In determining whether to award guardianship, parenting time, contact, or to modify the previous arrangement, a "best interests of the child" analysis will be performed in order to arrive at a determination which is most beneficial to the child(ren). Although male bias continues to be a common and contentious issue in today’s society and within family courts, the future looks promising. It is anticipated that the parental role, by virtue of societal changes, will be treated as gender-neutral with regard to courts’ determinations in custody proceedings, such that the best interests of the children are appropriately balanced with the realities of today’s family.