Members Only | September 19, 2021 | Reading Time: 4 minutes

Weekend read: No, family courts are not biased against men

They favor men, actually.

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The last few years have seen the growth of groups who call themselves “Men’s Rights Activists.” These are often men who think feminism has gone too far and now men are the oppressed group. Some of their favorite issues are poor incels, circumcision, rape laws run amok, and of course, that the family court system is biased against men. 

While the general public has mostly dismissed these rallying cries as misogynistic and ridiculous, though incels seem to garner a bit too much sympathy for comfort, somehow the idea that the family court system is biased against men has stuck. Maybe it’s because that myth is actually based on a patriarchal idea that women are natural caregivers who should be home with their children. In reality, the family court system, like most systemic systems, is biased against women and mothers, and regularly rewards abusive men. 

One way the myth that family courts are biased against men is the misuse of statistics. While it is more likely that women get custody of children after a divorce, about 68-88 percent across jurisdictions, 91 percent of custody agreements are decided without any court interference and in 51 percent of child custody cases, both parents mutually decided that the mother would have full custody. 

Men’s Rights Activists will use the fact that women usually get full custody of children as proof that the system is biased against men without including the context that most men don’t fight for full custody.

How can courts be biased when they’re not even involved? Additionally when a judge gets involved and awards the mother custody, it’s often based on outdated gender stereotypes or the assumption that men don’t want full custody (that’s not exactly a feminist victory). 

Men’s Rights Activists will use the fact that women usually get full custody of children as proof that the system is biased against men without including the context that most men don’t fight for full custody. It’s also important to note that an arrangement with mothers having full custody doesn’t mean fathers never get to see their children. Mothers are often awarded full physical custody so that children aren’t shuffling between homes during the school week.

Women are more likely to get custody, which means they’re also more likely to get child support orders — a fact that, of course, serves the myth that the family court is biased against men. I’m sure you’ve all seen narratives about women spending their exes money meant to support children. Unfortunately, despite the orders, only 44 percent of child support orders are collected in full and about 30 percent of those owed child support received no payments at all. Single parent households are more likely to be headed by women and more than 30 percent of households led by unmarried women live in poverty (compared to 15 percent of households led by unmarried men).

Unfortunately, when one considers divorce cases where there is actually abuse, we do see there is family court bias — in favor of fathers. Many of the custody cases that go to trial involve domestic abuse of some kind. These are called “high conflict” divorces. 

The abuser often controls the money and can afford a better lawyer while appearing more amenable and “stable” in court. In contrast, an abused woman might appear emotional and combative, which can turn off a judge and be used against her. Additionally, family courts favor the parent who wants to maintain the children’s relationship with the ex. If a woman is afraid of her abuser, she’s not inclined to prioritize contact with her ex. Abuse results can often make a woman seem less fit as a parent. She might have PTSD or have been isolated from a support system. If a woman seems angry or too emotional in court, this will be used against her. Accusations of abuse will also be suspect as opposing counsel can dismiss them as a ploy to win custody.

Battered women’s advocates suggest that many high conflict divorces result from abuse even if it isn’t brought up during litigation. While there isn’t much research on the subject, a 1997 study suggests that domestic violence is an issue in 20-55 percent of contested custody cases. A 2004 study actually showed that bringing up domestic violence during a custody battle made it more likely a woman would lose custody of her children. However, if a mediator discovered the abuse without the mother bringing it up, they were likely to recommend forms of protection like supervised visits. 

Unfortunately, children testifying to abuse doesn’t always help, even if the children are the ones being abused. In 1985, child psychologist Richard Gardner coined the term “Parental Alienation Syndrome” to describe a set of behaviors he saw in children to explain why they were hostile or afraid of one parent. The “syndrome” was famously used by Woody Allen against Mia Farrow to discredit Dylan Farrow’s abuse.  Parental Alienation Syndrome (PAS) has no empirical studies backing it up, was excluded from the DSM and has not been accepted by major medical or psychiatric associations. But that hasn’t stopped courts from accepting evidence of PAS to ignore testimony about abuse. 

Richard Gardner was convinced there was hysteria around false sexual abuse claims in the 1980s, which likely colored his work. His 1987 book on the syndrome, The Parental Alienation Syndrome and the Differentiation Between Fabricated and Genuine Child Sex Abuse is full of sexist explanations for why he thought a “vindictive” mother, because of course he said it was usually mothers, would want to turn a child against their father using false sexual abuse allegations including the classic “Hell hath no fury like a woman scorned.” Gardner would recommend that children be placed with the spouse who didn’t “concoct” false sexual abuse allegations over the child’s objections. 

While some parents claim PAS is real, and while some parental alienation might exist, there is no proof of a recognizable syndrome. Unfortunately, that doesn’t stop some courts from still considering it. One study found that abuse claims make it more likely the person bringing up the allegation loses custody and that alleging parental alienation by a father doubles the likelihood a mother loses custody.

As long as our larger legal system is biased against women, and populated by judges with patriarchal conditioning, the family court system will replicate those biases. We can’t allow decontextualized statistics about custody to blind us to the reality of the family court system’s complicity in covering up abuse. Family courts must have better screening systems for abuse, must not be immediately suspect of abuse allegations, and absolutely must connect physical abuse to parenting skills. Claims that the family court system is biased toward women are not only wrong, but serve to hide the ways in which abusers are able to manipulate the system for their own benefit.

Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.

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