Gender Bias In Family Court
Exploring Different Perspectives on Gender Bias and the Role of Abuse and Violence in Family Court Proceedings
Family court proceedings have a lasting impact on the lives of parents and children, shaping their relationships, emotional well-being, and financial stability.
Concerns about the presence of gender bias in the system have also sparked intense debates and discussions — on both sides of the fence.
On one side, mens rights groups argue that the family court tends to favour mothers over fathers when deciding custody and contact arrangements for children.
This perception stems from traditional gender roles, where mothers are often seen as the primary caregivers, while fathers are viewed as the breadwinners.
Critics claim that this bias results in unfair treatment of fathers, who following separation, may struggle to gain equal access to their children or face challenges in obtaining joint or sole custody.
In these cases, fathers feel that the court system is not acknowledging their “parental rights”, leading to feelings of frustration and helplessness.
On the other side, are women’s rights advocates who argue that the court system does not adequately acknowledge and address cases involving domestic violence and abuse, consequently putting mothers and their children at risk.
In such cases, the issues are ones of safety for women and children.
Alongside this, is whether family courts should be determining “parental rights” or children’s “best interests”.
Father’s rights groups frame things in terms of their “rights” to their children.
Women’s groups frame things in terms of their own and children’s “right” to be safe from violence and abuse.
I’m going to present two generalised, hypothetical scenarios here to help clarify these issues and discuss the merits (or lack thereof) of each side’s position.
I’m also going to talk about what researchers know family court’s actually do, and examine how family courts typically respond to such situations.
The Mens Rights Story
John and Jane were married for eight years and had two young children when they decided to divorce. Their relationship had been strained for some time, and both parties agreed that it was in their best interest to separate. However, they couldn’t come to an agreement on child custody arrangements, so they ended up in the Family Court.
John felt that he was an involved and caring father who could provide a loving and stable home for his children. He requested joint custody, believing that the children should have equal time with both parents. However, Jane argued that she had been the primary caregiver throughout their marriage and that the children would be better off living with her full-time, with John having visitation rights.
Throughout the court process, John felt that the judge and other court professionals seemed to favour Jane, taking her claims at face value without considering his perspective. The judge ultimately granted Jane primary custody, with John receiving limited visitation rights.
John was devastated by the decision and felt that the court had failed to consider his rights as a father. He worried about the impact of the custody arrangement on his relationship with his children and felt that the system was biased against him because of his gender.
In this fictional story, John perceives the outcome of the custody arrangement as an issue of gender bias against fathers.
The central question in this context is whether the father’s right to see his children should be the primary focus (as advocated by the fathers’ rights argument often promoted by men’s rights groups), or whether the “best interests of the child” — prioritising children’s needs — should take precedence.
In the majority of cases such as these, the parties determine their own arrangements between themselves, or with the assistance of mediators or similar, prior to the need for a hearing — that is, without the assistance of a judge ultimately.
In such cases, majority care does usually end up with the mother, reflecting the gendered reality of parenting that in most cases, will also have occurred prior to the break down of a relationship.
In this story, Jane was the primary caregiver throughout their marriage, so her continuing with this role would arguably be the natural course for things following separation too.
Most parties come to the understanding that what worked prior to the relationship is likely to work following it, although obviously with some tweaks needed to reflect the new reality of separation too— i.e. some “contact” time for the parent who otherwise hasn’t been the main carer.
In the more contentious cases — those that ultimately require a judge’s intervention — the issues become more challenging though.
In such situations, the court will still likely consider who has been the primary caregiver for the children during the relationship, as this can reflect a stable and consistent presence in the child’s life.
The court may determine that maintaining this continuity of care is in the best interests of the children, providing them with stability and familiarity during a time of significant upheaval and change.
While it may seem reasonable to argue that the gendered reality of pre-parenting should continue after separation, in order to minimise disruption for children, social science researchers have actually discovered that this is not typically the outcome when a judge is required to make a formal decision in such cases though.
In the majority of family court cases across the Western world, where disputes have been so contentious that a judge must decide on care arrangements, the majority of care is actually ultimately usually awarded to the father.
So to be clear, yes most post separation cases end with the mother retaining primary care of the kids — because this tends to be what the parents ultimately agree on between themselves, often with the assistance of family court professionals, but without the need of a judge formally deciding matters for them.
It is only when cases end up before judges that we then see this gendered reality turned on its head.
In those cases, fathers are often likely to end up with more care than mum.
The question that needs to be asked, is why?
And is this actually in the best interests of the child(ren)?
The Women’s Rights Story
Emily and Tom had a tumultuous relationship marked by episodes of domestic abuse. When Emily finally decided to leave Tom and seek a divorce, she also pursued a protection order and full custody of their two children to ensure their safety.
During the court proceedings, Emily felt that her claims of abuse were not taken seriously. She provided evidence of Tom’s abusive behavior, including police reports and medical records, but the judge seemed skeptical and questioned her motives for raising these allegations.
The judge suggested that Emily might be using the claims of abuse as a tactic to gain an advantage in the custody dispute, implying that she could be exaggerating or even fabricating the incidents. Emily felt disheartened and invalidated, as she had expected the court to recognise the danger she and her children faced and to act in their best interest.
Despite her evidence, the court granted Tom joint custody of the children, and Emily’s concerns about their safety were largely dismissed. She felt that the court’s decision demonstrated a gender bias against women who claim abuse, as her experiences were not taken seriously, and the safety of her children was seemingly compromised.
In this fictional story, Emily experienced gender bias and a lack of understanding from the Family Court when she raised allegations of domestic abuse.
The underlying dynamics in this situation can be attributed to several factors.
In the story, the judge appeared to be skeptical of Emily’s claims of abuse, even though she provided evidence that included police reports and medical records.
This disbelief is likely to stem from misconceptions about the prevalence or severity of domestic abuse, or a lack of understanding of the complexities and dynamics of abusive relationships.
When the judge questioned Emily’s motives for raising the abuse allegations, it suggested that she might be using the claims as a tactic to gain an advantage in the custody dispute.
This is a relatively common scenario in family courts and can be seen as a form of victim-blaming, where the victim’s credibility is questioned, and they are held partially responsible for the abuse or its consequences.
The court’s handling of Emily’s case could also reflect a lack of training or understanding of domestic violence among the judge and other court professionals.
This might include limited knowledge of the signs and impacts of abuse, the cycle of violence, or the barriers that victims face when trying to leave abusive relationships.
The court’s decision to grant joint custody to Tom, despite the abuse allegations, also reflects a focus on preserving parental rights rather than prioritising the safety and well-being of Emily and her children.
Very arguably of course, this is also contrary to the “best interests of the child” test too, that is generally intended (by legislation / law) to be at the heart of decision making in the family court.
Is There Gender Bias in Family Court Decisions?
This is something I have written on extensively now. It is also an issue that I have been researching for coming up seven years — since I left my almost decade long career as a lawyer, in late 2016.
And while some argue that there is a systemic bias against fathers or mothers, others (family court professionals and judges generally) contend that most courts make decisions based on the best interests of the child only.
So, we have father’s rights groups pointing to erroneous statistics that they say show mothers are more likely to be awarded primary or sole custody of the children.
Then we have women’s rights advocates in turn, arguing that family courts do not adequately address issues related to domestic violence and abuse, which disproportionately affects women.
They contend that courts may not take abuse allegations seriously, may minimise the impact of violence on children, or may not provide appropriate resources and support for victims.
In such circumstances, we often see arguments of “parental alienation” trumping allegations of abuse, too often then resulting in the transference of children’s primary care from mum to dad.
That might explain at least some of why dads end up with more care than mums when the matter is decided by a judge, rather than between the parties.
Then we have family court professionals themselves saying that they do not favour mothers over fathers — and that they understand abuse and violence, with this apparently accounted for in their decisions of what is in a child’s “best interests”.
Which is the correct narrative?
It is of course also important to note that the experiences of individuals in family courts can vary widely depending on the specific circumstances of the case, the jurisdiction, and the professionals involved.
While some people may experience bias or unfair treatment, others may find that the court system works fairly and equitably.
I’m always heartened when I hear stories of the family court successfully identifying and protecting women and children from violence or abuse.
I love knowing that there are some judges who do understand the dynamics of these relationships, who have been able to overcome the societal prejudices that inherently govern how many view such allegations, and that there are cases where the family court has done what it is meant to be able to do.
Against that of course though, are then the many many negative stories I have seen, heard, read about, or written about here, where the exact opposite is true — and there are literally hundreds that I know about in this respect.
Based on my professional, academic, and personal understanding of the various costs involved in successfully navigating the family court system too — financially, emotionally, physically, and as a parent — I feel compelled to question the structure of these processes.
The challenges of preparing for and engaging in legal battles, often without adequate resources and against a backdrop of trauma, highlight the need to reevaluate the way family court proceedings are conducted at all.
It is a brutal process.
One that, even with the right outcomes, does not give serious credence to the costs involved.
Neglecting to acknowledge, support, and alleviate the burden on the primary parent during these processes — especially the one who takes on the majority of caregiving responsibilities, both emotionally and physically, for their children — is a particularly concerning aspect of how family courts operate.
Statistically, we know that the primary caregiver is often the mother. This oversight emphasises the need for a more compassionate and equitable approach in family court proceedings.
Why Do We Even Have Family Courts?
Family courts are intended to be specialised judicial bodies designed to address and resolve family-related disputes, including custody battles, divorce settlements, child and/or spousal support, and issues surrounding domestic violence or abuse.
The aim is to provide a more focused and empathetic approach to resolving family disputes than traditional courts were able to manage, recognising the unique complexities and sensitivities that often arise in such cases.
Central to family court decisions is this concept of the “best interests of the child.”
This guiding principle is intended to prioritise the well-being, safety, and emotional and developmental needs of the child above all other considerations.
In making decisions related to custody, contact, and other aspects of a child’s life, family courts are meant to evaluate a range of factors, including the child’s age, the quality of the relationship with each parent, the ability of each parent to provide a stable and nurturing environment, and (perhaps most significantly, from my perspective) any history of abuse or neglect.
By focusing on the best interests of the child, the intention is that family courts will ensure that their decisions promote the overall well-being and healthy development of the child, both in the short term and in the long run.
Parental “rights” are not meant to be part of this equation.
Within this context men’s rights groups argue that traditional societal norms, which place women in the role of primary caregivers, can influence court decisions, leading to an assumption that mothers are inherently better suited to care for children.
This, they believe, is why their “rights” are not given priority.
Anecdotal accounts from fathers who have experienced challenges in custody disputes serve to illustrate the emotional toll and sense of injustice that can accompany perceptions of gender bias in family court proceedings.
However, my question is this: to what extent is this sense of grievance actually about control?
The loss of control that some men may experience when a relationship ends (statistically, we know that women are primarily the ones who file for divorce) and the loss of control over family life post-separation could be significant factors.
What if a father’s pursuit of custody or desire to remain involved in his children’s lives is driven not by genuine concern for the children’s well-being, but rather by an attempt to retain control over the family and, perhaps, his ex-partner?
This raises important questions about the motivations underlying some custody disputes and the need for a more nuanced understanding of family dynamics in such cases.
Even in the modern era, as we continue to dismantle some of the traditional hierarchical structures that, for instance, confined women to their homes, allowed husbands to rape and abuse their wives (both of which were legal until relatively recently), denied minority groups equal rights, and perpetuated class divisions, statistics reveal that certain strongly held beliefs and biases persist within Western societies (and of course within more blatantly patriarchal systems).
The emergence of incel culture and controversial male “gurus” with misogynistic messages (for example: Andrew Tait and Jordan Peterson), highlights this issue.
It raises the question: How do our cultural arrangements, which often position men as having more control over their families and communities (as evidenced by various statistics), influence scenarios in the family court, including the way men view their purported loss of “rights”, as well as with respect to judges beliefs?
And why do some men think they have “rights” that trump their children’s needs?
Abuse & the Struggle for Truth in Family Court Cases
In cases where abuse or violence is involved, the stakes are much higher than in ordinary family court cases, with the potential consequences of gender bias posing life-altering or even life-threatening risks for both the victim and their children.
We know that violence and abuse tends to be about control.
We know that most violence and abuse is perpetrated by men — against women, children, and other men.
It is indeed true that men can be, and sometimes are, victims of violence, including at the hands of their female partners. However, statistically, men are more likely to experience violence from other men.
When female partners do perpetrate violence, social science research indicates that it tends to be retaliatory in nature, rather than part of a systematic attempt to exert control, as is most often the case with male violence against their partners.
This distinction is important to consider when examining the dynamics of violence and abuse, and highlights the importance of considering the broader context of violence and abuse when addressing family disputes.
Statistics also show that women and children are frequently not believed when they do allege abuse, even though the evidence is that they rarely lie about such matters.
While the burden of proof in family court is meant to be “on the balance of probabilities,” in many instances, women who allege abuse are held to something akin to the criminal burden of proof — they must prove their claims “beyond a reasonable doubt.”
This pervasive skepticism towards abuse allegations is deeply problematic, as it reinforces traditional gendered hierarchical structures where men retain control, even when it is blatantly inappropriate.
Perhaps family courts do not intend to perpetuate such outcomes (I still like to think I have some faith in humanity), but skepticism and failure to believe women seem to be deeply ingrained in the perspectives of many, if not most, family court judges — whether explicitly or unconsciously.
It is my opinion that family courts should begin with the assumption that allegations of abuse are more likely than not, to be truthful.
Given the current adversarial processes and the prevalence of abuse and violence within families, perhaps the burden of proof should shift to the accused to disprove the allegations.
Acknowledging the widespread statistics on violence and abuse, as well as the likelihood of women and children telling the truth, does not of course mean accepting allegations blindly.
However, it does imply starting from a more informed standpoint.
Gender is indeed very much relevant in the family court, and addressing these biases can help create a more equitable and just system for all parties.
