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 Most of us know this is an outdated and limited concept, however, there are those among us who haven’t come to terms with this – either consciously or subconsciously.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?


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.


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?