Gender Bias in Custody Decisions

A recent ruling in a Maryland appellate decision offers an excellent opportunity to discuss a topic frequently asked by clients – do judges tend to favor women in custody decisions?

In the Maryland case, a family court judge awarded sole physical custody of the parties’ fourteen-year-old daughter to the mother, stating in his judgment that his basis for his award was his belief in the importance of the mother-daughter relationship.  The Maryland appeals court reversed the judgment, noting that gender preference had been eliminated in the state over forty years ago.

Interestingly, currently pending in the Maryland legislature is a bill to create a rebuttable presumption in favor of joint physical custody, in part to eliminate any chance that a judge would start from a position long rejected in the law, namely that mothers raise daughters and fathers raise sons.  Many other states are considering such “50/50” laws, and some states already have them on the books.

Could what happened in the Maryland case happen in Missouri?

Generally, no.  Our statutes indicate that each parent has an equal right and interest in physical and legal custody, though they do not state explicitly a presumption in favor of 50/50 time, only a preference for joint custody.  Also, our statutes list numerous factors the court must address in its judgment for the basis of its custody award, thereby making it difficult to use gender alone as the basis for a physical custody award.  Missouri long ago abandoned any favoritism for mothers in raising the children and courts know to respect that each parent should be actively involved in the life of the child.

As we have noted in some earlier posts, certain groups feel that courts still hold latent favoritism toward mothers in awarding custody, and have urged our General Assembly to do what Maryland seeks to do – create a rebuttable presumption in favor of 50/50 custody.  Should our state do so, it would make it much harder for a judge to depart from that shared custody standard purely on the basis of gender, as the reason offered would have to overcome a legislative preference and do so only in unusual cases based on the evidence before the court.

We have only lived in a “no fault” era of divorce for roughly one generation, and the tender years doctrine and other social beliefs that favor mothers as primary parent.  We have not had enough time to live with the “new normal” of equal parenting, so we know and can expect some of those latent ideas to roam in the background in custody cases.  Perhaps a stronger and clearer legislative statement would help move us from a bygone era into the present day realities of co-parenting.

If you have questions about gender bias and custody, contact us – we can help.

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