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Jack Mandel

Ms. Thibodeau

World Literature 9H-7

18 November 2021

How Gender Bias Affects our Custody Cases

Throughout the history of the United States, gender bias has been evident in our society.

Our courts are no different, and gender bias has plagued our courts for centuries. This is

especially the case in custody hearings. Historically, mothers have been favored over fathers and

usually are granted custody of the minor children upon divorce, even if the father is a more

suitable parent. However, in recent years many people believed that this systemic bias has to end,

and change is finally here now. People have tried to stop gender bias by both assembling task

forces whose sole objective is to eradicate bias and by fighting the bias directly in a court of law.

The main reason that the courts favor mothers in custody hearings is due to the many

stereotypes regarding mothers and fathers in our legal system. These stereotypes can either be

positive, by making one gender look better than the other, or negative, by making one gender

look worse than the other. The first gender stereotype falsely assumes that women are the ideal

parent in every situation simply because they are women. According to Psychologist Marc S.

Reubins, “One bias that many people share -- including many experts -- is that women are

inherently better able to care for children than men, that their ability to nurture is something

biologically determined.” This excerpt illustrates the idea of women being better caretakers due

to being women. The author explores the idea that courts believe that women are naturally better

at taking care of and nurturing children than men, and that being a good parent directly correlates
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to someone’s biology (Reubins 14). This stereotype ignores that there are many women who are

unable to properly care for a child, and fuels the issue of custody bias by spreading false

information about gender. Another stereotype in the courts is that women are more trustworthy

than men, and therefore would be more of an ideal parent. This stereotype is known as the

“reasonable woman standard.” (Riger et al, 465). This standard can be detrimental in a variety of

ways. One is that the courts reach verdicts on prejudice and not fact. Another is that courts make

verdicts prematurely. Finally, women can abuse this power and mislead the court since they

know they will be trusted more than men. Overall, this stereotype can result in unfair judgments

and must be abolished. So far, only stereotypes that make women look better than men have been

discussed. However, there are other stereotypes that end up making men look worse rather than

making women look better. Reubins has a very good summary of this issue. He explains that the

courts think that "a single father's wish for custody is often perceived as a tactical maneuver, not

a sincere desire to care for his child. A more extreme version of this type of bias suggests that

single-father custody is dangerous for the child." This quote discusses the terrible stigma placed

on fathers. Oftentimes it is believed that men only want custody for personal motives and not for

the best interests of the child and that fathers are not proper custodial parents for their children…

These biases make men look worse in these cases (Reubins 14). In short, these gender

stereotypes have negatively impacted the court hearings by having a judge or jury make an

assumption about people early due to their gender.

All of these stereotypes can create real biases in the courts. Although the courts try to be

as impartial as possible, it is harder than it looks. Many legislatures or courts use criteria that

seem to not include gender bias. These criteria seem to include every factor that is needed to care
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for a child effectively. These criteria include comparative parenting skills, moral fitness, age of

the child, gender of the child, willingness to cooperate with the other parent, the quality of the

relationship between the child and each parent, the child's adjustment to the home, school, and

community, and much more. However, these criteria are more biased than first thought to be.

These factors are "subjective," meaning the women will be favored anyway (Bartlett, 30). Over

time, people have tried to find solutions that can skip bias altogether to no avail. Many people

have tried to fix the gender bias issue by suggesting a compromise. These people believe that the

best way to not encounter bias is through joint custody. However, the courts often do not grant

joint custody as the bias is there, making the entire ordeal much more difficult (Bartlett, 30). In

conclusion, these gender stereotypes have impacted our courts and caused some bias to be a part

of the verdict.

These stereotypes do not just negatively affect the parents. In most cases, it is the child

who is most negatively impacted by these biases. One reason why this occurs is that the custody

hearings are more focused on the parents rather than the child’s needs. Anthropologist Katherine

T. Bartlett explains this in a good way. She says that: "importantly, differences of opinion are not

resolvable by scientific evidence; even experts can disagree about which available option is

‘best’ for a child, making judicial reliance on child custody evaluations another version of the

problem, not a solution to it." This portion of the article discusses the fact that the decisions

made in these hearings do not address the child’s interests in the best way, as the experts have a

hard time agreeing on the best option for the child. (Bartlett, 30). In addition, the child’s rights

are not considered. Lawyer Erin Wynne dives into the topic of child rights. She explains that in

these child custody cases, children have no rights. An example used to illustrate this is the case
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of Jessica Deboer, who was the subject of a custody case. Jessica was ultimately taken away

from both of her parents and was unable to do anything about it but cry. The hearings are more

focused on the gender of the parent than the child who is being affected (Wynne, 179). Finally,

the child could be at risk of falling into poverty due to these biases. According to Psychologist,

Virgil L. Sheets, the child is more likely to experience economic troubles when his or her parents

are divorced. The child usually will end up living with the mother who is less economically

stable, causing poverty (Sheets et al, 336). In short, the gender bias that impacts the verdict can

also negatively impact the children involved.

Luckily, many states are looking to eradicate the bias in courts. They are doing this by

assembling task forces to identify and eliminate the bias. “Spurred by the National Organization

for Women's National Judicial Education Program to Promote Equality for Men and Women in

the Courts (established in 1980), many states have created task forces to explore the

pervasiveness of gender bias in aspects of court functioning and to use the findings as to the

basis for judicial education” (Riger et al, 466). These states are doing the right thing by

following the lead set by the National Organization for Women's National Judicial Education

Program to Promote Equality for Men and Women in the Court. The best way to fix the issue is

to educate people, which is why these task forces are exactly what we need. These task forces

have also gone a long way since their origins. At the beginning of their history, the task forces

for gender bias were only used in state courts. However, after 1992, the Ninth Circuit Court

became the first court within the federal system to report bias and work towards eradicating it in

its verdicts. This evolution causes these task forces to produce more reports on these biases,

making it less likely to occur (Resnick, 953). Judith Resnik discusses the details of the task
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forces in her research paper on the topic. Resnik points out that these task forces lay out the rules

up front for what they aim to do and what they are all about, which includes asking questions

they hope to answer in the future. Resnik recognizes that these task forces are trying their best to

eradicate bias and let the world know what they plan to do (Resnik, 954). They keep everything

out in the open. These types of strategies may fix this problem, and I think that the fact that these

task forces are asking questions will make the system better in the long run. In short, the use of

task forces to eradicate all gender bias from custody hearings is very innovative and will greatly

help our legal system in these cases.

It is not just the states that are fighting to eliminate bias. There are regular people like

you and me who are also fighting these biases in a court of law. In fact, several men from New

York filed a lawsuit against the state courts, claiming that institutional gender discrimination

caused them to lose their custody cases. The plaintiffs claimed that in New York, mothers were

always granted custody due to the stereotypes adhered to by the courts. The main stereotype was

that women are natural parents and therefore should have custody. (Schafran, 22). In short,

normal people like you and me are working for a change and bringing bias down.

In conclusion, people have recognized the gender stereotypes and discrimination in

custody cases, and the resulting negative impact on the children involved, and decided that it was

enough. So, they banded together, assembled task forces, and sued the courts. Because of this,

laws have changed and custody hearings have started to be decided in accordance with the actual

best interests of the children and not a false assumption by the court on who would be the better

custodial parent.
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Work Cited

Bartlett, Katharine T. "PRIORITIZING PAST CARETAKING IN CHILD-CUSTODY

DECISIONMAKING." Law and Contemporary Problems, vol. 77, no. 1, Duke

University School of Law, 2014, pp. 29–67, http://www.jstor.org/stable/24244691.

Resnik, Judith. "Asking about Gender in Courts." Signs, vol. 21, no. 4, University of Chicago

Press, 1996, pp. 952–90, http://www.jstor.org/stable/3175030.

Reubins, Marc S. "Spotting Gender Bias in An Expert." Family Advocate, vol. 17, no. 1,

American Bar Association, 1994, pp. 14–15, http://www.jstor.org/stable/25805654.

Riger, Stephanie, et al. "Gender Bias in Courtroom Dynamics." Law and Human Behavior, vol.

19, no. 5, Springer, 1995, pp. 465–80, http://www.jstor.org/stable/1394196.

SCHAFRAN, LYNN HECHT. "Gender Bias in Family Courts: Why Prejudice Permeates the

Process." Family Advocate, vol. 17, no. 1, American Bar Association, 1994, pp. 22–28,

http://www.jstor.org/stable/25805656.

Sheets, Virgil L., and Sanford L. Braver. "Gender Differences in Satisfaction with Divorce

Settlements." Family Relations, vol. 45, no. 3, [National Council on Family Relations,

Wiley], 1996, pp. 336–42, https://doi.org/10.2307/585506.

Wynne, Erin E. "Children's Rights and the Biological Bias in Biological Parent versus

Third-Party Custody Disputes." Child Psychiatry & Human Development, vol. 27, no. 3,

Spring 1997, pp. 179–191. EBSCOhost, doi:10.1007/BF02353697.