Is There Gender Bias in Child Custody?

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How Do Courts Address Gender in Child Custody?

Courts are not suppose to factor in gender when making a child custody decision. The Supreme Court has ruled that the judicial use of gender to justify a child custody decision is sex discrimination and a violation of the Constitution.

However, judges may decide how child custody is divided partly on who the “primary caregiver” was. The “primary caregiver” is the parent who took care of the child the most before the custody hearing.

For example, if a mother took care of the child while the father was at work, then the mother is primary caregiver and the judge may take that into account. The primary caregiver may not always be the mother though. If a father was most responsible for raising the child prior to the custody hearing, then the father may be the primary caregiver.

So Courts Don’t Favor Mothers over Fathers?

Before the 1980s, courts followed the “tender years doctrine.”The idea was that young children were attached to their mothers, especially if the children were breastfeeding. The doctrine mandated judges to award custody to mothers unless there was evidence that the mother was an unfit parent.

Today, the “tender years doctrine” has been abolished. Instead, courts now follow the primary caregiver and only use it as one factor among many other factors.

At least, that’s how it works in theory. There may still be judges who, consciously or subconsciously, award child custody based on the perception that women are better suited to childcare. If a judge outright states that women, as a sex, are better suited to be parents, then the case should be appealed. 

Do I Need a Lawyer for Child Custody Proceedings?

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Last Modified: 02-26-2015 02:01 PM PST

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