Author: Tori Chittmittrapap, Shrewsbury, '24
When asking people to choose who their favorite parent is, the majority tend to stay undecided. However, why is it that the law always seems to come to a definite conclusion in our modern society?
Reports show that in court custody battles between mothers and fathers, the mothers are awarded primary custody of their children around 68 - 88% of the time, while fathers are awarded primary custody in the remaining scenarios. This static has perpetuated the narrative that even the law is biased towards a certain gender.
Therefore, this article aims to answer the main question of whether the law is more likely to give custody to parents based on solely their sex and gender. To do this, we have to acknowledge the stereotypes of what people view as ‘motherly’ and ‘fatherly’; though they remain stereotypes that do not always hold. Even in the 21st century, it is clear that women are still viewed as nurturing and loving parental figures in some countries compared to men. It is vital to find out whether these stereotypes follow through to the courtroom.
To start with some concessions, it is unfair to say that gender bias is non-existent. Especially in the past, the ideal male and female figures within a household have been distinctly identified. The image of an ideal woman was obedient and submissive to their partners, yet caring and “motherly”, while the image of an ideal man was to be a natural leader, stoic and strong. These stereotypes most likely played their parts in custody battles; judges would have seen the woman as the parent the child was more likely bonded to. However, alongside changes that have developed as society continues into modern days, the “times have changed”. Nowadays, it is arguable that a widely objective decision is made during custody battles. Many factors are taken into consideration, some of which are explained below.
1. The age of the child. A principle formed in the late 19th century, the “tender years” doctrine states that in a custody battle where the child is between 0 and 4 years old, the mother receives primary custody over the child. In recent years, this law has been overruled due to its fundamentally compartmentalized nature. But, it is arguable that certain scientific aspects of a child’s growth would relay them to be more likely to stay with the mother. For example, a child’s reliance on breast milk, which is known to be better than formula milk due to its natural minerals and vitamins. Therefore this leads to the conclusion that when age is considered in deciding which parent receives custody of a child, this factor most likely favors the mother.
2. Economic and living situations. Arguably, stability is the most crucial factor in a healthy childhood. The main living situations of a child include location and money. Location is the determining factor of a child’s surroundings - therefore aiding in their growth. There is little to no correlation between location and sex, apart from the fact that those with higher incomes are more likely to be able to live in a “nicer” environment. This includes things such as safety from violence, criminals, and illegal substances, which the court would take into account. Moreover, the parent with custody over a child should be stable, with a stable job and income. Statistics show that women, on average, are paid 17.7% less than men for the same jobs. While it is unfair, it is a reality and should be accounted for. In 2010, polls revealed that the median earnings of a man were $813 per week, whereas the median earnings of a woman were $662 per week. Theoretically, this leads to the conclusion that in many cases, the father would have more income stability, therefore when living conditions are considered, the father most likely wins this point.
3. Relationship with the child. An article detailing the characteristics of ‘successful’ parents noted that some of the most important aspects of being a good parent include trying harder and the enjoyment of being a parent, both of which would account for a better relationship with their child. Reports show that mothers roughly spend 12.9 hours a week doing activities with their children, while a father spends around 6.5 hours a week. More time spent with the child most likely eludes to a stronger bond and therefore from the outside perspective of a judge, the mother is more likely to take this win.
While all of the points aforementioned are extremely vital in deciding which parent is awarded custody of a child, they vary from case to case. The verdicts of these factors are situational, therefore, it is impossible to judge custody battles based on external statistics and recorded averages. Perhaps, this is the reason that custody battles can continue for years upon years. At the end of the day, the most important input is that of the children themselves.
4. The child’s preferences. This links us back to the original statement made at the start of this article, which is why the court is most likely to be the one to decide the custodian of a child. But, in most cases, children over 12 years of age are given a choice to voice their preference. In situations where children decide to remain in the middle ground, third-party externalities are included. Many times when children are given this opportunity, they tend to choose their mother due to the description that mothers are ‘more supportive, more positive and less reactive’. A way that fathers can further bond with their children and address these stereotypes is to spend more time with them, as well as allowing their kids to express themselves and listening to what they have to say while continuing to be good role models for their children.
To conclude, there are many reasons why one parent may receive custody over the other. Therefore, to boil all those factors down to a single statement that custody is decided depending on “sex and gender” is unfair considering other moving parts that come into play in court custody battles.
Citations:
https://rightlawyers.com/do-courts-prefer-mothers-over-fathers/
https://www.liveabout.com/child-custody-there-is-no-gender-bias-during-custody-decisions-3974050
https://www.divorcenet.com/resources/divorce/divorce-and-children/the-best-interests-child-factors-ahttps://www.allprodad.com/7-characteristics-of-successful-parents/
Graphic by Mirna Vedula
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