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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However, it appears that gender bias does remain, at least on an implicit level. A 2018 study showed that nationwide, fathers are likely to receive about 35% of child custodyThe very nature of disputing what goes on behind the closed doors of each litigant lends itself to a “he said, she said” type argument. There are so many gender stereotypes that open the door for bias to populate the mind of the trier of fact. For example, the stereotype of men being the family’s financial provider can impact a man’s claim for alimony. The stereotype that women are the natural caregiver of the children can subject a working mom to a higher level of scrutiny for not putting her career on hold for her kids. The notion that men cannot be victims of domestic violence can affect a man’s ability to receive needed protection. The belief that a woman who has been the child’s primary caregiver is better suited to continue that role neglects to consider the restructure of the parental roles when going from a family unit to a single parent home. LGBT families or other families, where there is no legal parentage or biological ties to the children, are disproportionately affected by the presumption that a traditional two parent household is best.
With so much relying on the credibility of each party, it is essential for legal professionals to guard against implicit gender bias in family law proceedings. Rule 8.4 of the American Bar Association’s Model Rule of Professional Conduct, extends its definition of misconduct to a lawyer that “engage[s] in conduct that the lawyer knows or reasonably should know is arassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”
This begs the question: What can we as family law practitioners do? Everyone brings their own preconceived notions with them, whether it be based on stereotypes or their own upbringing. The biggest step is acknowledging and educating ourselves on bias to ensure we are not contributing to the problem. Nationwide, many court systems have developed gender bias task forces to investigate gender bias in their judiciary, to develop and implement programs to challenge gender bias, and continue to monitor the effectiveness of their initiatives. Find out what your jurisdiction has in place, and see how you can get involved. Push for the usage of court appointed third party professionals to conduct a neutral custody evaluation. This may help alleviate the dependency on the parties’ credibility alone. Gender bias is entrenched in family law due to the long standing history of preferences. It is up to us as practitioners to recognize and challenge bias in order to even the playing field.