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NATIONAL ATTITUDES REGARDING GENDER BIAS IN CHILD CUSTODY CASES
Abstract
Recent changes in family law have mandated equal treatment in child custody cases. Sweys of 4,579 attorneys and judges from four states, deemed to be nationally representative, were used to discover whether attorneys or judges perceive any favoritism toward mothers' or fathers' claims in the awarding of custody of children. Whereas attorneys, particularly males, perceive that mothers continue to be favored over fathers in custody cases, judges do not share this opinion. Within the past 15 years, "forty-two of the fifty states . . . have established some form of task force or committee to study gender issues" (Wilker, 1989, p. 14). Many of these studies have included surveys of judges and attorneys regarding their attitudes toward the existence of gender bias in the handling of child custody cases in their court systems. "These task forces have turned out to be more than a collection of stare specijic data (italics added) on gender issues in the courts. Rather they have reinforced the idea that needed reforms will be the result of self-scrutiny from within the court system" (Wilker, 1989, p. 14). The aim of this study is to analyze the results of several of the existing state task force reports to provide a national perspective regarding attitudes toward gender bias in child custody cases. It concludes with some general policy recommendations to state court systems that might help to eliminate perceptions of gender bias that may continue to exist. Initially, we reviewed all the publicly available state bar association stud- ies of gender bias to determine if the same, or similar, questions and response categories were used by several states. We prepared a spreadsheet and exam- ined the information to determine if state-specific analyses could be expanded to provide a national perspective on the issues. We did not intend to alter the content or meaning of any question or response category, we did not preselect any questions, nor did we desire to alter any state-specific analysis. Rather, our intent was to broaden the scope of each individual state's exami- nation to draw conclusions across states. The spreadsheet identified those questions and response categories for items that were identical, or very simi- lar, in surveys from the states of Maryland, Missouri, Texas, and Washington. These items are included in this article. The similarity in questions and
... Social desirability is also very prominent in surveys (e.g., [14]). For instance, judges subjectively report (15%) far less favoritism towards mothers compared to attorneys (49.9%), which is not surprising [15]. ...
Background
Gender discrimination of women is often emphasized in work contexts, whereas less focus is on how men are discriminated against in social relationships. Gender discrimination in decisions of family relations, is essential to study as the contact between parent and child is commonly viewed as the most important relationship in people’s life, as well as being the most important aspect of our life. Following separations, decisions on custody disputes are made by social workers. The purpose of this paper is to study gender discrimination in such decisions.
Method
Participants were instructed to give a recommendation of shared parenting based on a custody case vinjett, where we manipulate the gender of the risk parent.
Results
The participants’ recommendation of living was mainly dependent on the risk parent’s gender, where the mother was considerably more likely to receive shared custody than the father.
Conclusions
Professional social workers show selective gender discrimination against fathers in terms of living recommendations.
... They will also accommodate some biased reasoning, procedures and/or actions during the decision-making process such as gender bias (12.1). This type of bias is well known within the child custody field and has been identified in surveys and experiments indicating that 'mother primacy' still plays a role in the decision-making process (Costa et al., 2018;Dotterweich & McKinney, 2000). ...
When separated parents cannot reach a settlement regarding child custody and access/contacts, it can become a judicial matter. Despite being a small part of the total number of parental separations, these cases pose a challenge to family courts as they tend to be complex and involve different factors that will impact the decision-making process and the child’s best interests. The current literature has not yet examined, under a naturalistic decision-making approach, how uncertainty is structured in child custody decision-making and what strategies legal actors might apply to cope with that uncertainty. Adopting a naturalistic decision-making approach and a cross-cultural perspective between Brazil and England, this thesis aims to: (1) describe the decision-making process in child custody cases after parental separation; (2) identify strategies used by legal actors (judges, prosecutors, lawyers, psychologists and social workers) during the decision-making process; and (3) understand how the best interests of the child are affected during the decision-making process. The thesis is divided into three parts. The first one comprises a theoretical framework concerning the judicial process in child custody cases in Brazil and England. It also addresses a systematic-narrative review of the best interests of the child in English and Portuguese literatures. A brief review of naturalistic decision-making approach and its appropriateness to child custody cases is also addressed. The second part presents the data collection and data analysis. There was an exploratory mixed-methods approach, with three studies: (1) a pilot study addressing a child custody decision-making task with 530 ‘naïve’ participants (law, psychology and social work undergraduate students); (3) a reflexive thematic analysis with 73 experts (judges, prosecutors, lawyers, psychologists and social workers); and (4) a child custody decision-making experiment using verbal protocol analysis – 45 experts took part. The results indicate ways in which uncertainty can affect the decision makers’ performance as well as cognitive strategies used to cope with uncertainty. The main source of uncertainty was the family’s developmental struggles regarding parental separation. The legal actors’ coping strategies had the effect of reducing, acknowledging or ignoring uncertainty. All strategies seemed to have an impact on decisions and the child’s best interests. Based on this, this thesis proposes the FESFS (Familiarisation, Evoking experience, Selection, Forestalling and Suppression) model for coping with uncertainty in child custody cases. The third part of the thesis comprises some conclusions and presents a Child Custody Decision-making System (CDMS), which assembles factors concerning the child custody context and custodial decision-making. This CDMS interacts with other systems to support decision-making regarding with whom a child should live and/or the contact/access they should have with the non-custodial or residential parent.
... These views did not differ by attorney gender or by whether they primarily represented mothers or fathers. Dotterweich and McKinney (2000) also obtained evidence that attorneys in Maryland, Missouri, Texas, and Washington thought judges preferred to award custody to mothers. Lawyers' advice may be realistic. ...
... Divorce Decrees,Children's Outcomes,and Three Unconfounded Determinants 183 conveys the bottom-line message that judges are predisposed to award custody to mothers and that the odds of successfully opposing this bias are slim (Dotterweich & McKinney, 2000). Another factor is prevailing public opinion, which, the evidence indicates, holds that the courts operate with a maternal preference (Braver, Fabricius, & Ellman, 2008). ...
This article examines evidence on 3 determinants of the outcomes of children of divorce that are shaped but neither confound or are confounded by court decrees for custody and parenting time: father contact or involvement, high interparental conflict, and domestic violence. This evidence is brought to bear in an analysis that contrasts predictions based on the rationales for sole maternal versus joint custody and explores implications for judicial decision making. It is found that the best-interests-of-the-child standard better serves children in contested cases when this evidence is taken into account. A call is made for rebuttable presumptions for joint custody and commensurate parenting time except when parent-perpetrated violence or other patterns of abusive behavior are substantiated. Steps for judicial reform are proposed.
... Likewise in surveys of 4,579 judges and lawyers from Maryland, Missouri, Texas and Washington, nearly two thirds of the judges said that maternal preference was still common and two thirds of the lawyers said that dads were treated unfairly in custody cases (Dotterweich, 2000). In yet another survey with 150 judges from Alabama, Louisiana, Mississippi, and Tennessee, 40 percent believed that mothers were better parents than fathers and 60 percent believed that children under the age of six should live full time with their mother (Stamps, 2002). ...
... To recall, the respective rates of citizens saying they themselves would order equal parenting time were 69%, 47%, and 46%. Evidence also exists that divorce attorneys in Maryland, Missouri, Texas, and Washington (Dotterweich & McKinney, 2000) and Arizona (Braver, Cookston, & Cohen, 2002) believe the courts in their areas are biased toward mothers in awarding parenting time. Thus the reason that the practice of equal parenting time lags the consensus about its value, despite much evidence that fathers desire more parenting time (see Fabricius et al., 2010), appears to be that fathers do not bargain harder because of the guidance they receive from attorneys, and their own widespread belief, that the system has a maternal bias. ...
... 31 The results of the survey identify important facts that have a direct bearing on the nature of family court contact with military families and corresponding educational needs. While any national survey of judicial experience is difficult to achieve-leading many scholars to review individual states' studies in an effort to approximate collective results 32 -the NCJFCJ surveyed judges under identical conditions during a standard timeframe, offering more reliable indications of nationwide perspectives. One of the most important findings relates to the frequency of judicial contact with military families. ...
... The identities of the parties of the case might also affect judges' response to a case. Thus there is ample literature claiming that in many settings there is some gender bias in courts (Reza 2005;Dotterweich & McKinney 2000;Special Report 2000), or in other wordsthat the outcomes of a case might be influenced by the gender of the parties. Similarly, it has been found that harmed children invoke more empathy than harmed adults, which might lead to differential rulings according to the plaintiff's age (Batson, Lishner, Cook & Sawyer 2005). ...
This article analyzes state courts’ decisions to change tort law by accepting the doctrine of Loss of Chance in favor of the plaintiff. Our database consists of forty four court decisions that for the first time in each state either explicitly accept or reject the doctrine. The results indicate that this decision is influenced by much more than the policy considerations that courts usually relate to in their decision to change tort law. Thus, it is associated with the defendant’s behavior and the parties’ identities; with the state’s politics - the partisan affiliation of the governor and legislature; and with judges’ term length and retention method. However, it has only an indirect association with judges’ ideology and gender. This analysis promotes our understanding of the factors that affect judicial decision making in torts, a subject which received almost no empirical attention thus far, while controlling for factual and legal factors.
... On the other hand, in a survey of 345 divorcing couples in North Carolina, 20% of the fathers were awarded shared residential parenting by a judge, versus only 5% who reached an agreement with a mediator and 10% with a lawyer (Peeples, Reynolds, & Harris, 2008). On the other hand, in several surveys lawyers and judges have stated that there is a bias against fathers in the family courts (Braver, Cookston, & Cohen, 2002; Dotterweich, 2000; L. Stamps, 2002; Wallace & Koerner, 2003; Williams, 2007). But the point is that a father who believes there is a bias is more likely to give the mother sole residential custody of the children. ...
One of the most complex and compelling issues confronting policymakers, parents, and the family court system is what type of parenting plan is most beneficial for children after their parents' divorce. How much time should children live with each parent? An increasing number of children are living with each parent at least 35% of the time in shared residential parenting families: How are these children and their parents faring? In what ways, if any, do divorced parents who share the residential parenting differ from parents whose children live almost exclusively with their mother? How stable are shared residential parenting plans? By reviewing the existing studies on shared parenting families, these questions are addressed.
This article will first discuss the conflict in the mediator's role as a neutral and impartial third party with no interest in the outcome and his or her role as guardian or advocate for the best interests of the child. That discussion will define terms, consider the legal standard for the best interests of the child as it is used by the courts, and lay out how the legal standard is problematic in general but even more so for mediators. Part 3 will discuss options for mediators attempting to resolve this conflict by looking at a continuum of alternatives, using examples of opening statements that illustrate positions ranging from extreme nonintervention to complete inte mention. An assessment follows each example.
Washington State Task Force on Gender and Justice in the Courts. Gender and justice in the courts
Washington State Task Force on Gender and Justice in the Courts. Gender and justice in the
courts: Appendixes. (1989). Olympia: Office of the Administrator for the Courts.
Water on stone: A perspective on the movement to eliminate gender bias in the courts
- Wilker N. J.
Wilker, N. J. (1989). Water on stone: A perspective on the movement to eliminate gender bias in
the courts. State Court Journal, pp. 13-18.
Gender bias in the courts
Special Joint Committee on Gender Bias in the Courts. (May 1989). Gender bias in the courts.
Annapolis, Maryland.