Why is there Gender Bias in the Family Courts?

I’ve searched high and low, and a lot of the articles I’ve come across seem to evade fully answering the question. Some believe the bias doesn’t exist. For those in the midst of a court battle, you’re more than likely aware of the discrimination. Perceptions aren’t concrete, but numbers are. I’ve already talked about how mothers are the sole custodial parent in more than 70% of cases settled in court. Only about 7% of cases conclude with the father having sole custody, leaving roughly only 20% of cases ending in shared custody. If both parents are capable, why is the lattermost number so low?

The most common reason I’ve come across is that the courts perpetuate the social construct of gender roles. Ie, men are breadwinners, women are caregivers. Most of us know this is an outdated and limited concept, however, there are those among us who haven’t come to terms with this – either consciously or subconsciously.

This seems to be the most likely explanation for the bias, but I still don’t think that’s the whole picture. Throughout my research, I’ve come across unsubstantiated claims as to why the court is in the woman’s favour: the law favours women, men have fewer rights, etc etc. Seeing as I’m not an expert in law and none of those articles cites reputable sources, I’m not going to indulge in those theories (yes – I realise the perpetuation of gender roles in family court is just a theory as well, but it seems to be the best fit thus far).

Another theory I have is that any allegations of drug use or domestic violence are extremely damaging towards innocent fathers. Whilst I concede that family violence is a major problem and that all claims should be taken seriously, false accusations can diminish the chances of shared custody being granted.

 

Still, I feel something is missing – something that gives a better explanation on why there is such a skew towards mothers receiving sole custody. What do you think?

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Profile #3 – False Accusations

This story is a little different from the others I have written about. It is a situation my friend Sarah* went through in her young teenage years with her mother and stepfather. It didn’t result in a divorce, but it does include a severe manipulation of the truth that had last effects on their family. 


 

Sarah’s* stepfather had always been more of a parent to her than her biological dad. Dave* had married in to the family when Sarah was a preteen and raised her and her sisters as if they were his own. Sarah’s mother, Mel*, was always a temperamental woman, quick to anger and give harsh judgement to her children. Dave, on the other hand, was the mediator between the girls, lowering the sky-high oestrogen levels in the house.

Mel’s temper manifested itself in verbal and physical outbursts towards her children and partner. In one particularly heated argument, Mel smashed a glass, cutting her hands and arms in the process and ran throughout the house, spreading blood on the walls. She then called the police on Dave. He was escorted away, charged and convicted, and spent a number of months in prison.

Sarah says her stepfather was tempted to file for a divorce after he returned from jail, but he knew he had no chance of fathering his stepdaughters with a violent conviction against his name. He is with Mel to this day, working on their relationship and her anger issues.

~~~

Due to the sensitive nature of the story, I have been unable to talk to Sarah about the current state of her family. The purpose of telling this story is to give an example of the kind of situations families are in and the false accusations that have lasting effects on the lives of those involved.

 

*names have been changed to protect those involved. 

Profile #2 – The Extended Family

Phil* and his family welcomed his daughter Josephine* in to the world two years ago. Premature, the small human was the apple of everyone’s eye, especially her great-grandfather. The family doted on the little girl every Sunday, when everyone would come together to have lunch.

Father’s Day 2016 marked four months since Josephine had seen her father or his family. Her mother accused Phil of “family violence”, but no evidence had been brought forward. He went from being Josephine’s full-time carer for 18 months, to not seeing her at all. His family was as involved as you would expect. Phil’s mother babysat Josephine when needed, and always ensured she was clean, fed, and happy. Phil’s family went from being an integral part of the child’s life to an absent space without rhyme or reason.

Phil and his family have become collateral damage to a system that favours winning over the humans involved. Josephine has been removed from her father’s care until further notice, without any evidence against him. This doesn’t just affect Phil; it affects his mother, grandfather, and the rest of the family that showed nothing but love and care for their newest member. Josephine is two now; I wonder if Phil will be able to see her before she starts primary school.

*Names have been changed to protect the identity of those involved.

Staying Together for the Kids?

What would you do if you were a father of two minor children in a highly dysfunctional marriage? Would you separate, knowing there would be a long, emotionally and financially draining journey ahead; or would you stay together for the kids?

The latter decision is ironic, seeing as the ongoing conflict in the family home has extremely detrimental effects on children, especially when they’re little. So what’s best, then, for the children? Being raised by two parents is certainly better than one, but this isn’t applicable for everyone. There comes a time where the tension and conflict prove to be too harmful to everyone involved.

On the flipside; imagine if this family, already dysfunctional, decides to divorce. Already unable to effectively handle conflict, the parents are put into overdrive by a sudden upheaval of their lives whilst still having to care for their young children. Statistics via the Australian Institute of Family Studies and the Attorney General’s Office (below) say that children will more often than not have their mother as the custodial parent by the time the divorce is settled.

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Source: Post-separation parenting, property and relationship dynamics after five years

Neither parent is neglectful; both parents are able to support the child, yet only one is granted custody. The other parent is reduced to function only as a bank account and, if lucky, the “good cop”. This refers to the situation where intermittent visitation from the non-custodial parent typically brings gifts and treats, leaving only one parent (usually the mother) disciplining the child

So, what’s the best choice? Riding out a dysfunctional family life for the foreseeable future, or divorcing and potentially living without your children?

The Problem with Men’s Rights Groups

Throughout my research, I’ve come to realise there’s not much in the way of information regarding bias in Family Courts. News articles are few and far between, and support/advocacy groups are even rarer. We all know the problem is out there, though: we’ve heard the stories, we might know people who have fought for – and lost – their children and some of us may have experienced it first hand.

I have absolutely no doubt that it is an extremely emotional and exhausting ordeal for those involved – especially for the fathers who are downgraded to visitors. Those involved know that gaining shared custody is an uphill battle, despite the law reforms from 2006 and 2012. Various forms of sites and bodies exist to respond to this issue. Information hubs/advocacy groups are all support networks that are essential during divorce and custody battles. They provide extremely beneficial services to those in need – resources on how to get the best possible outcome and information on what to expect. The give the much-needed evidence that those suffering are not alone.

What isn’t helpful, however, are those support groups and information hubs that resort to biased and/or inflammatory comments. The people who host these communities have a moral obligation to moderate the conversation and condemn those who are out of line. Many sites I have visited have not upheld this responsibility. While I do not wish to name and shame, a simple Google search will give examples of what I am talking about. These groups talk about men’s rights and father’s rights; the conversation should instead focus on the child’s rights.

Support sites are not the place to highlight the faults of women, or to give sweeping comments such as “she’s a bitch/crazy/psycho”. Whilst many cases do include women (and men) who vindictively use the Family Court to further their personal agenda, these sweeping statements do little to fix the situation. In fact, it can be more of a hindrance to justice than anything else.

Shared parenting works best under particular circumstances, especially when both parents are cooperative and are able to properly handle the emotions commonplace in divorce (see AIFS’s Prof Moloney’s report here and here). Defamatory comments on the Internet can very well be used in court to prove that one parent will cause conflict and disruption should parenting be shared.

Outside of court, misogynistic comments alienate the women – such as myself – who wish to support those felt by the injustice. The problem extends beyond the gender lines and into the judgments made by the court; it should not be about man versus woman, father versus mother. Pointing the finger will get us nowhere.

Shared parenting: What are the facts?

Experiences of child custody and the family court vary case by case. The Australian Institute of Family Studies states that most disputes as a result of divorce are settled out of court – either privately or from using some form of mediation. For a minority, however, unresolved conflict leads to a lengthy and costly court battle.

For those who use the latter-most option, they will be greeted with presumed shared custody – which means both parents automatically share the responsibility of their offspring. This is thanks to a change in legislation by the Howard government in 2006. Factors such as income stability, housing, and the ability to raise a child are considered to then sway responsibility either way.

The problem, however, is that “shared responsibility” does not equal shared time. Whilst the quality of time is certainly more important than quantity of time, you can argue that you have to have quantity in order to ensure quality.

A 2014 report of all custody cases in Australia found that more than 73% of children spend most or all of their time with their mother. Shared custody – which is defined as 35% to 65% of time with either parent – stands at 20%. That leaves under 7% of all children spending most or all of their time with their father. You can read the (very lengthy) report here.

The argument against shared parenting has its logical points – constantly moving between parents can have an adverse effect on very young children. However, studies have shown that the gender of the custodial parent does not affect the child and some overnight stays are not harmful (more information here). Further, the study does not take into account older minors. Surely teenagers should have some say on where and whom they live with. Unfortunately, it is hard to quantify that kind of information.

Child custody battles can range from petty to abusive. There are instances where a parent will go so far as to vilify the other parent in front of their child, not allowing the child to spend time with or even lying about the non-custodial parent. There are cases where parents try to undermine each other – arguing that the father or mother is incapable of raising children.

Then there are biases within the courtroom itself, where traditional gender roles come into play, and fathers are seen to be less equipped than mothers (even though there is no data to fully support this). Issues can lie outside the courtroom too – some advocacy groups can be sexist or state unsupported facts, or skew existing data.

Over the next few weeks, this campaign will address some of the key issues surrounding shared parenting and what ‘shared parenting’ actually means. I will look at the issues causing and affecting this very real bias in Australia. The aim, as always, is to encourage and facilitate engagement. Above all, the goal is to educate.