January 20, 2021 Diversity

The Status Gender Bias in Family Law Today

Kumudha Kumarachandran, Esq.

Family law is no stranger to gender bias. Overtime, the law has favored one sex over the other by virtue of the social construct of gender. The first historically known preference was for fathers, as they were considered the head of the family and had the ability to support the children. Then came the maternal preference through the tender years doctrine. That is, the principle that mothers should be the preferred custodian, barring a showing of unfitness, under the presumption that women by nature are better equipped to care for the children. Over the past fifty years, most jurisdictions have struck down the tender years doctrine as a violation of the Equal Protection Clause. In its place, the best interest of the child standard came about and has been used to put both parents on equal footing. This standard supports a much larger push for shared custody amongst fit parents with the support of studies showing that children benefit from having both parents equally involved in their lives.

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