Gender bias in Family Law Proceedings

(Reproduced here with permission. The author's comments are annotated with research references for the 2003 Hull Commission report. The studies and references illustrate contempory and timely research. Emphasis added.)

My comment speaks to the issue of gender bias in family law proceedings

Little is known how couples' perceptions about the equity or inequity of the divorce agreement affect their ongoing parental negotiations or their level of conflict. However, equity theory predicts that perceived inequity would increase the likelihood of conflict. That is, the greater the inequity the greater the need to restore equity (Walster, Walster & Bershield 1973). Some legal authors argue that parents may have a constitutional right to a rebuttable presumption for joint residence (Note 1980; Canacakos 1981).While this argument addresses the U.S. Constitution it may have local legal relevance.

There's no doubt injustice has been done to men. The classic situation is the good father who sees his children every day and then bang: the couple separates and the court gives him every second weekend. To have a dear little child that you love, and suddenly your contact to him is so restricted. It's a basic cause for the anger so many men feel about the Family Court.

“Familiar words? The sense of loss of one’s child and sense of injustice experienced by fathers over their treatment in the Family Court is a constant theme in our society. Yet this time the complaint comes from the heart of the Family Court––in an exclusive interview with Geoffrey Walsh, recently retired after 18 years as a judge in the Victorian Family court” (Arndt 1996).

The legal victimisation of non-resident fathers is widely acknowledged (Family Law Pathways Advisory Group 2001), though from a scholarly perspective, this problem has only occasionally been investigated (Gersick 1979; Goldstein 1983). However, anecdotal literature cite numerous specific examples of legal victimisation (Head 1991b; Lovorn 1991. Non-resident fathers repeatedly report that sexist statements are made against them by judges and quite frequently recorded on the court transcript.

When one seeks research support for these anecdotal claims, very little research is available. However, some available evidence does tend to support the hypothesis that non-resident parents are victimised by legal bias (Gersick 1979; Goldstein 1983; Burmeister 1991c; Bordow 1994). For example, Goldstein (1983) used 48 judges in an analogue decision-making task to examine the sex of a parent as a determinant of residence. Four equivalent parent descriptions were presented to each judge in two hypothetical cases, and judges were asked to decide each hypothetical case. Mothers were seen as more effective parents than were fathers in spite of the fact that the parenting descriptions were the same. Also, mothers were more likely to receive sole residence awards by a ratio of three to one.

Lawyers frequently discourage fathers from pursuing residence, even when the father has a valid reason for desiring residence (Gersick 1979). The Lone Fathers Association of Australia conducted a survey of 10,000 divorced fathers. The poll found that 80% of divorcing fathers are told by their lawyers not to apply for residence orders in the Family Court because they would be unsuccessful in what would be costly proceedings. However, this does not mean that lawyers are part of an anti-father conspiracy. The essence of a lawyer’s job is to give honest advice, and that in the case of most fathers’ parenting attempts, the honest advice was that the father was unlikely to succeed (Abernathy 1993)

Often, the advice continues that Besides, if you petition for residence, you will cause her to be upset, and she will probably make it tough on you to see the children after you lose. Be cooperative, leave her and the kids in the house, and I’ll try to get the most liberal contact for you (Fay 1995).

Damaging and invalid preconceptions, so long erroneously held, cause and blend nicely and logically with the terrible legal and psychological positions taken to produce a father who, though he loves his children and parents them well, is persuaded and convinced that by not taking the kids from their mother he is taking the right and best course for his children’s future (Levy 1987).

The brave and loving who have remained committed despite incredible odds may still have a battle ahead:

You have never seen a bigger pain in the rear end than the father who wants to get involved; he can be repulsive. He wants to meet the kid after school at three o’clock, take the kid out to dinner during the week, have the kid on his own birthday, talk to the kid on the phone every evening, go to every open school night, take the kid away for a whole weekend so they can be alone together. This type of involved father is pathological.

(Judge Richard Huttner former Chief Judge of the New York Kings County in The Fathers Also Rise. New York Magazine, 18 November 1985 pp 50-75). The idea that fathers should be significant caregivers in a post-divorce situation sits uneasily with received notions of men as primary breadwinners and women as carers. In this context, fathers are assumed to be unable to look after their children and must prove their childcare abilities, whereas mothers' competence is taken as given. One judge from the Family Law Court in San Diego California spoke to a support group of fathers in that city about how they might gain sole residence or joint residence of their children. Unabashedly she told the fathers they must present the court with documented evidence of their parenting skills. Asked by the fathers in this support group if she would be more specific about the skills needed, she replied:

Skills like cooking, diapering a baby, giving the children baths, cleaning, doing the laundry...

Some of the fathers protested to her that mothers are not required to provide the same kind of documentation. The judge replied unhesitatingly:

All I can tell you is that if men want custody or joint custody, they will provide the documentation (Silver & Silver 1981)

As distasteful as her advice was to the fathers, the judge did realistically represent the situation of fathers seeking sole residence or joint residence. There is a presumption that the mother will be awarded residence and the father will be given reasonable contact and will pay child support (Pearson & Ring 1983, Rassam 1994).

Research in the U.S. suggests that many judges bring a sexist view of parenting to the bench and that when fathers are awarded residence it is not because they are the more appropriate parent for the children to reside with. Rather fathers obtain residence because mothers are found to be unable to conform to certain stereotypical views of motherhood. Notwithstanding that current legal statutes instruct the courts to award residence in the best interests of the child the evidence suggests the dated maternal presumption doctrine continues to have an influence. Pearson & Ring (1993) write:

More detailed questioning revealed that most judges remain very attached to the tender year presumption. As one older judge put it: ‘If both parties are seeking custody and there are children of tender years, biologically the mother should get custody. Men sometimes want custody but usually want something more, like not paying child support.’ and in the words of a younger judge: ‘I do not care what the statute may say about sex neutrality. If the mother has been there and the children are small, I give custody to the mother. The bond between young children and their mothers is important.’

In 1991, the Georgia Commission On Gender Bias In The Judicial System released a report listing culturally based gender-biased beliefs that influence some judges and disadvantage fathers. The Commission found that these beliefs included:

• The belief that a mother is a better parent than a father.
• The belief that children, especially young children, need to be with their mothers.
• The belief that a father cannot work outside the home and be a nurturing parent
• The belief that because a mother is presumed to be the better parent, fathers must prove the mother unfit in order to gain residence.
• The belief that if a court grants residence to a father, it brands the mother as unfit and unworthy

The Commission noted that in addition to the actual application of these biases by judges, perceptions of gender bias discourage fathers from seeking custody by creating a 'chilling effect,’ thus convincing fathers that it is not worth their effort to even seek residence.

A brief review of a local appeals case illustrates the overseas findings. In McMillan v Jackson (1995) an unemployed father denied sole residence of his son because the trial court considered him a poor role model for his son was found to be the victim of gender bias. The child was originally handed over to his maternal great-grandmother whom the trial judge said may well wear the pants in her family.

It goes without saying that the child’s respect for his father as a role model will be immeasurably heightened if he perceives his father as the parent who is supporting him from his own exertions’ his decision also said.

The Full Court upholding the father’s complaint of gender bias ruled that it was wrong for one of its judges to say the child in question was at risk of welfare dependency because his father chose to be a full-time parent father than a wage earner. The judgment found the trial judge‘s pre-conception that a father should be out working to support his son rather than staying at home to look after his day-to-day needs, played a significant part in the determination of the case.

In addition, the trial judge had failed to notify the father of his views during cross-examination. The appeals court noting that it had the obligations and responsibility to reflect community standards and opinions subject to the Family Law Act 1975 found that the judge was out of step with community values.
The Sunday Telegraph in 1996 reported on a residence case where the mother made a sexual abuse allegation about the father towards the child. Justice Joseph Kay found the mother to not be a believable witness and that she would try to deny any meaningful relationship to the children with their father.
He further found that her behaviour was positively destructive to the emotional needs of the children and would psychologically harm them. He then awarded her sole residence because the husband lacked instinctive insight into the needs of children. The continuing education of which many judges and magistrates already undertake needs to address issues such as these (Family Law Pathways Advisory Group 2001).

Several N Z decisions further illustrate the problem of judicial gender-bias. “In Logan v Robertson (1995), late submission of a husband's affidavit was not permitted because the directions of the Court were not to be treated as non-binding guidelines. In Nichols v Nichols (1996), the same judge allowed late submission by a wife on the grounds that an injustice could have been done to the wife if she had been unable to have the affidavits introduced. Any underlying justification for these conflicting approaches is not presented.
It is as if there is a menu of principles, which can be drawn from as necessary to support the desired result. Under such circumstances arbitrary or biased decisions could be made with the appropriate explanation added, and we would be none the wiser. In other words, even if a decision appears to be well reasoned and internally consistent, it may not give a complete and transparent explanation. This potential for decisions based on unstated assumptions gives further cause for concern about the information, which might be shaping judges' opinions” (Birks 1998).

Beyond this overt legal bias against fathers seeking residence, there are anecdotal reports (Lovorn 1991) and some research evidence (Vogtli 1989) of social and legal bias against non-resident mothers. When a woman chooses to give up residence, for whatever reason that woman may be negatively stigmatised for life (Vogtli 1989), and that stigmatisation may impact her chances for future modification of residence/contact orders.

By requiring mothers to be the primary caregivers of children, whether or not they desire to be, society continues to communicate to mothers that they must choose their children over all else or risk being labelled a failure as a mother, and as a woman (Greif & Pabst 1988). Thus, women who voluntarily relinquish residence are frequently seen by society as misguided, selfish and unnatural (Sanger 1996). This refrain continues, despite the fact that numerous opportunities, notably in education and employment, have opened up to women over the last thirty years (Chavez 1996). Clearly, the legal/social victimisation results in demonstrable injustice against non-resident parents of both sexes.

It is somewhat surprising that this evidence of bias and legal victimisation of non-resident parents has not been investigated more thoroughly. Further, it is interesting that this legal victimisation has been allowed to continue as long as it has, given the sensitivity of lawyers, parliamentarians, and courts to other complaints of victimisation from other disenfranchised and powerless groups.
It may be that the calls for ending this legal victimisation have been muted because of the sex of the majority of the victims happen to be male. While our society has become increasing cognizant of instances in which women are victimised, victimisation of male members of our society is, almost, an unheard of issue, and researchers may have chosen not to investigate this mounting evidence because of this general societal perception (Wright 1992)

Yuri J

PS Additional references can be traced by contacting James Adams of fathers4equality; or reading the submissions here. The author's conclusion is that former Chief Justice of the Family Court Alastair Nicholson's positions are demonstrably erroneous. --PD