The Role of Gender

I have been working as a guardian ad litem for quite some time and do you know that I have NEVER been asked the following question?

“Does the court favor mothers?”

However, if I had a dollar for every time I have been told by men involved with custody suits that, “Everyone knows the courts favor women,” I could probably afford a new Samoyed puppy - and they don't come cheap. I don’t want to be too dismissive of the sentiment lest I give the impression that I am not sensitive to how frightening that must be to fathers. Court is terrifying enough without walking into the courthouse believing that you won’t get custody of the light of your life due to your gender. Moreover, I am well aware of the sag in the shoulders that occurs when a desperate father finds out that the guardian ad litem is a woman who he "knows" will side with the mother.

At different times in our history, the courts definitely favored one gender over another. I understand that at the beginning of the 20th century, children routinely went to the father in the event of a divorce. The pendulum swung back by the time we were in the fifties and sixties. A common perception was that older children sometimes went with their father but only if they wanted to and only if they were male. The idea of custody of a pre-adolescent daughter being granted to her father (assuming the mother had thrown her bonnet into the ring) was not only bizarre, it was a little creepy. After all, a girl “needs” her mother. Who else can explain to her about all the changes she will be going through, including … periods?

Recent case in point - Did you see all those photographs of the mothers in that polygamous cult down in Texas who had the funny hairdos and the dowdy clothing? Did you see the pictures of them clinging joyfully to the children who had been returned to them after the social services separated them for several weeks following allegations of sexual abuse? Who among us would be so heartless as to try to separate those mothers from their beloved children? (Was I the only one who wondered why they didn't have pictures of the fathers hugging their children?). I think that is the mentality that many people in the general population still have. In the past, short of her mother being a notorious prostitute, a girl stayed with her mother. Moreover, even if her mother was advertising her services on the sides of buses, if her father was single with no suitable female relative living under his roof, the female child remained at the brothel to protect her delicate sensibilities from the mistakes of her clumsy father.

But let’s discuss the world, today. All states are different, all courts are different, all judges are different. That being said, in my state (and this is pretty uniform) the standard the court uses when deciding custody/visitation between parents is the “best interests of the child.” The difference between most states has to do with how specific the legislature has been regarding what sorts of things the judge must consider. Typically, the court is supposed to consider the specific characteristics of the child (age, health, special needs), the child’s reasonable wishes, the health of the parents, how likely they are to support a relationship with the other parent, etc.

I believe it is absolutely true that most of the time, mothers get custody of young children. There are reasons for this beyond a preference of the female gender by the judge, however. For example, it is extremely common for the PARENTS to decide that the mother should have custody. Moreover, prior to the break up, the parents may have opted to have the mother be the primary caregiver and the court may not want to disturb that. He/she would be just as likely to keep things in place if the primary caregiver was male.

But do judges have a predisposition to favor mothers when it comes to custody/visitation matters? Clearly, a lot of men (and their mothers) think so. If they can scare up the money to afford a female attorney, they do it. Apparently, they think that the judge will think a female attorney wouldn't represent a man who wasn't nice to children (I'd never tell them that in the small legal community where everyone knows everyone that the mere fact that their attorney has the "right equipment" means zilch. Some women would sell their OWN children for the cost of a retainer). Personally, I believe the judges are willing to listen to the facts of the actual situation before making a decision.

Here is the deal: you see it all in family court. I’ve seen mothers (quite a few, actually) inject their children with chemicals in order to cause seizures so that they can “save” them and be hailed as a heroine (also known as Munchhausen’s by Proxy). Some of them prefer the pillow method. I’ve seen very few females willing to give up their heroin or oxycontin for the sake of their children. Women standing by the man who molested their children (male and female) are so common that I am surprised when it DOESN'T happen. Women who cheat and lie and who are exposed by DNA tests as adulterers are so common that I hardly even notice it anymore. The number of bogus domestic violence claims based on nothing but an angry girlfriend’s say so (at the time) is so widespread that it undermines claims by her truly abused sisters. There is a reason police officers are frequently so skeptical and it has little to do with any good old boy network (unless he works for the police department in question). In these days of voice mail and e-mail, it is quite common for the sweet, demure little lady on the stand to be revealed as a ranting, vicious, profane, abusive and furious harridan on her time off.

I am not simply trashing women. I have seen mothers who would fight a wildcat in Times Square wearing nothing but a thong to save their child. Women (and men) are people - as a group they are neither saints or sinners - it comes down to the individual. My point is that family court judges see it all. Any romantic notions he or she might have about a mother’s love and superior parenting skills are subject to proof. Fathers get the same deal. All things being equal, they MIGHT favor a mother with a small child but I rarely see all things being equal when it comes to parents who can't reach an agreement out of court.