Anti-Father Gender Bias in Child Custody Court: A Saga of Parental Alienation, Child Abuse & CoParenting Failures.

There are various recent articles disputing the fact that gender bias plays a role in child custody decisions in California Family Law Courts. The arguments are based on singular attorney narratives about particular clients or general opinions, or they’re based on unscientific interpretations of vague and/or unsubstantiated statistics as analyzed by people with irrelevant credentials. The governmental bodies do not make it easy to criticize their work-product when they refuse to release regular or timely reports on child custody decisions in their courts.

In California, the only official report that one can find after substantial searching is issued by CA Family Court Services, and it is entitled “Visitation with Children: A Followup of Court Mediation Clients.” This report was released about 23 years ago in November 1994 based on a time-lapse study in 1991 and 1993. It provides the statistics noted in the following paragraph. First, it’s important to understand two basic definitions: “physical custody” refers to where the kids live, while “legal custody” refers to decision-making powers regarding the kids’ day-to-day lives.

In the sample size of 1000+ families that used California court-based mediation, this study found that children in these families spent overnight times only and exclusively at their mom’s home 58% of the time, exclusively at dad’s home 18% of the time, and overnights split in some fashion at both parents’ homes 21% of the time with the majority of such split time spent at mom’s home and a true 50/50 split of overnights occurring only about 4% of the time. Id. at 2, 3.

Further, 76% of these kids spent most of their time with only 1 parent, obviously mainly with mom. Id. at 3. And 69% of the time, mom maintained sole physical custody of the kids, regardless of court orders. Id. at 7. California Family Law Courts awarded sole physical custody to moms 49% of the time, to dads 12%, and joint physical custody 24% of the time. 15% of the time, court orders didn’t discuss physical custody or made alternative arrangements undisclosed in the study. Thus, when joint physical custody is ordered, as we can see from the other statistics above, the majority of such physical custody is granted to moms, with equal time-shares accounting for only about 4% of the time.

As for legal custody, moms were awarded sole powers 35% of the time, dads 4% of the time, and joint legal custody was awarded 46% of the time by the courts. Id. at 7. Given that physical custody was awarded to moms most of the time, one can infer that mom exercised de facto legal custody in line with the percentage of time that the kids spent at her home rather than in line with the court-ordered legal custody percentages. One can reasonably conclude that it doesn’t seem likely or necessarily practical that moms would call their estranged ex’s to confer about day-to-day decisions about the kids when the kids were spending the majority of the time at the moms’ homes. Such “legal custody” decisions may include the schools the kids attend, after-school activities, selection of doctors, events in which the kids participate, clothes and other things purchased for the kids, and people with whom the kids regularly interact.

When the children spend the majority of time at one parent’s home, it shapes their lives along the lines drawn by that parent. When this is happening 76% of the time as noted in the study, this can certainly negatively affect the child’s relationship with the other parent, i.e., more often than not with dad. There are several books written by developmental psychologists and psychiatrists discussing how kids need to have both parents equally in their lives and how the lack of equal time with dads is an epidemic in our culture with substantial negative implications on all of us. Yale University professor and psychiatrist Dr. Kyle Pruett, who wrote a seminal book on the issue of “Fatherneed”, had this to say on the subject in a May 7, 2000 interview with The New York Times:

“Q.: Are men that important in the well-being of their child’s lives?

A.: An involved father does change children in a positive way. Children raised with a father who plays a role in their daily life stay in school longer. They are less involved in the juvenile justice system. They tend to marry later and tend to have their first sexual experience later. When they do marry, they stay married longer. They have fewer job changes over the course of their lives. They have stronger problem-solving skills. They do less gender stereotyping. The other side of this is what does having children do for men? Men who have been involved as fathers live longer. They die much less frequently from accidents and from suicide. Their overall health is slightly better. They are better workers. They tend to stay in their intimate relationships longer. There is something very sustaining of a physical and emotional nature when involved in the life of your child.

Q.: How serious is the issue of absent fathers?

A.: Deadbeat dads get an absurdly large share of media coverage in terms of absent paternity. For every one of those guys that shows up on a post office wall there are thousands of men doing the best they can. It may not satisfy the State of Connecticut but if they are involved in the life of their child, their kids are going to feel he did his best. We have to be careful about the political stuff. The way to get children out of poverty is not by making fathers pay. If all the fathers in the United States paid their child support you still would not have enough money to lift vast numbers of children out of poverty. There is a little too much enthusiasm for punishment and retribution, and not enough clear thinking about what those families really need. The fathers need jobs, help getting over their shame, support in reconnecting with their children, and the mothers need support in allowing them to return to nurturing interactions with their children.” Id.

As an attorney dedicated to human rights, I aggressively support the rights of children to have two good, healthy parents in their lives. I strongly oppose the unethical practices of child custody lawyers who foment discord between parents to prolong litigation. I encourage amity between litigious parents whenever possible, seeking practical rather than vengeful resolutions to child custody disputes. This serves not only the interests of clients and their children but also of our society.

Judges, lawyers, therapists, mediators, and parents too often suffer from bias in their actions: this much is clear from the statistics noted above. Dads are not just walking away from their kids: they are being pushed away by our system. The language reflects this: “mothering” a child has the connotation of caring for a child, whereas “fathering” a child connotes impregnating a woman. Our cultural infrastructure emphasizes this gender bias as well. We see parenthood and home-making associated with moms in tv shows and ads more than with dads, who are primarily associated with professional and “breadwinner” roles. For example, maternity leave is culturally far more acceptable than paternity leave. A 2014 Fortune magazine article reported that “University of Oregon sociologist Scott Coltrane said a longitudinal study of 12,000 individuals found men suffered lower lifetime wages to a similar degree as women when they took time away from work to care for children, whether as leave or as a part-time schedule.” The article also stated that “[o]nly 12% of U.S. employers surveyed by the Society for Human Resource Management offer paid paternity leave”. Id. It’s not that dads don’t want to be involved in their kids’ lives: “A whopping 99% of men […] surveyed felt that companies should offer paid leave to new dads”. Id. But when taking an extended paternity leave has serious negative consequences on keeping your job and getting a promotion, men simply can’t take the risk. Thus, in 2016, the Chicago Tribune reported that “[r]esearch from Boston College in 2011 found 16 percent of U.S. men took no leave after the birth of a child, and 60 percent took a week or less.”

While there are unending examples of gender bias in our culture, the impact of such bias in the Family Courts is most damaging to children. The resulting Parental Alienation Syndrome has been found to be tantamount to child abuse. Edwark Kruk, Ph.D, states in a 2013 article in Psychology Today,

“There is now scholarly consensus that severe alienation is abusive to children (Fidler and Bala, 2010), and it is a largely overlooked form of child abuse (Bernet et al, 2010), as child welfare and divorce practitioners are often unaware of or minimize its extent. As reported by adult children of divorce, the tactics of alienating parents are tantamount to extreme psychological maltreatment of children, including spurning, terrorizing, isolating, corrupting or exploiting, and denying emotional responsiveness (Baker, 2010). For the child, parental alienation is a serious mental condition, based on a false belief that the alienated parent is a dangerous and unworthy parent. The severe effects of parental alienation on children are well-documented; low self esteem and self-hatred, lack of trust, depression, and substance abuse and other forms of addiction are widespread, as children lose the capacity to give and accept love from a parent. Self-hatred is particularly disturbing among affected children, as children internalize the hatred targeted toward the alienated parent, are led to believe that the alienated parent did not love or want them, and experience severe guilt related to betraying the alienated parent. Their depression is rooted [in] feelings of being unloved by one of their parents, and from separation from that parent, while being denied the opportunity to mourn the loss of the parent, or to even talk about the parent. Alienated children typically have conflicted or distant relationships with the alienating parent also, and are at high risk of becoming alienated from their own children; Baker reports that fully half of the respondents in her study of adult children who had experienced alienation as children were alienated from their own children.” Id.

So, what to do?

First off, if you’re trying to co-parent with a narcissist, California social worker Linda Esposito offers some sage advice in a 2015 Psychology Today article where she recommends that you curtail unnecessary contact with the other parent, draw firm boundaries, keep cool to avoid conflicts, set a good example for your child, nurture your child’s independence, don’t bad-mouth the other parent, and keep it real — coparenting can’t happen with an abusive ex. Id.

Legally, a parent facing false accusations of child abuse or neglect can file a motion for sanctions against the defamatory parent and seek increased custody rights based on such abuse of process. It’s important to bring expert testimony into such Family Court proceedings.

Finally, whenever possible, negotiating for peaceful and healthy child custody resolutions are best, as they can mitigate the emotional damage to all parties involved. Despite all the shallow language of CA Family Court services and related child custody statutes, staying out of court can often be what is truly in the child’s “best interests.”

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Ali Shahrestani, Esq.

Ali Shahrestani, Esq.

Exclusive Legal Representation for Discerning Clients. Serving CA, NY, MA. Business, Criminal, Divorce, & Education Law.