Are men unfairly treated in child custody cases?


Fact Box

  • The 1979 movie, Kramer vs. Kramer, starring Dustin Hoffman, explored the theme of fathers’ rights in child custody cases and went on to win a best picture Oscar, among many other awards.
  • According to Census data from the 1960s, there were only 300,000 households run by single fathers in the US--a number that, as of 2011, had risen by 900% to about 2.6 million.  
  • A Custody X Change nationwide study revealed that fathers get about 35% of child custody time; however, the averages change from state to state. Tennessee ranks the lowest, with only about 21% child custody time awarded to fathers. 
  • In 2013, over 25% of all children under age 21 in the US lived “in families with only one of their parents while the other parent lived elsewhere.”

Erica (Yes)

The stats are in, and they clearly show that men are unfairly treated in child custody cases: fathers receive custody only 18% of the time and are awarded support in only 28.8% of cases. There are many apparent reasons for these appalling statistics. Cultural gender norms, biased courts, and precedent laws favoring mothers are some of them. 

Historically, women have earned less than men, and it was only The Equal Pay Act of 1963 that made women's unequal pay illegal. However, such gender norms persist and are reflected in courts that often demand fathers to be financially responsible, while women receive child custody in divorce cases. Census Bureau statistics reveal that fathers must pay child support 89.2% of the time. 

In 2010, the average judge was over 65 years old, which suggests that courts are typically biased towards an older generation's views. Legal systems reflect society's cultural beliefs, and today's societal expectations and realities ingrain gender bias into those who decide custody. In many states, such as Texas, a mother is awarded automatic custody of a child if she is unmarried at the time of birth--a law that leaves many fathers without access to their children. In these cases, children live without their fathers' presence until paternity is established through the courts. And this process can take months or even years, depending on the situation. 

Navigating the legal system can be challenging and often inaccessible; however, it is even more difficult for fathers vying for rights in biased courts.

Sheryll (No)

The notion that family courts are biased against fathers in child custody cases is widely understood today to be a myth. It is indeed true that mothers retain custody in most divorces and often have more involvement in their children’s lives post-divorce, but this is not because the system treats men unfairly. 

On the contrary, mothers tend to win custody because they are more likely to be identified as primary caregivers by courts, not because the courts favor women per se, but rather because women are usually the ones to take on a caregiver role both before and after a divorce. However, despite mothers generally being recognized as the primary caregivers, fathers still retain parenting rights in up to 93% of custodial cases, meaning that they must be consulted about major parenting decisions. 

Studies on child custody cases find that family courts also always seek to promote as much contact as possible with both fathers and mothers, even in proven domestic violence cases. Since the court presumes that a parent’s involvement in their child’s life would always be to the child’s benefit, the system often gives the benefit of the doubt to both parents, resulting in orders that often force children to spend more time with an abusive dad. 

The court, therefore, does not operate on a presumption that women make better parents. Mothers being more successful in getting child custody is not the result of bias but rather a reflection of social realities. 

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