Divorce Law Blog Post

There is a great big elephant in the courtrooms of the land that no one wants to talk about: gender bias. Gender bias in the courts is the rotting swamp all fathers have to slog through getting from the shoals of a shipwrecked marriage to solid ground. It infects every step of the journey. It haunts every waking moment of your escape from perdition.
The bias is the myth that females are inherently more nurturing, honest and decent than males. It has run so deep for so long in our culture that even if you are not caught in the court system, you can’t escape its effects in everyday life.
True, the courts have come some way in putting less weight on that
debunked myth. There remains much too much of what I call the
judicially sanctioned kidnapping of children by mothers. While it may
be a collective criticism one can properly make of judges that the
system remains biased against fathers, it is hard to fault the individual
judge unaware of this very subtle prejudice we are all brought up with.
While judges may recoil at this analogy, gender bias was historically as
deeply ingrained as racial prejudice. Both have soggy remnants that
need to be dragged out into the clear light of focused heat to be
shriveled and discarded like a cancer tumor.
It takes hard work and a great deal of finesse to educate your judge
on gender beliefs, understandings and sense of fairness without being
accusatory or blaming.
Prepare what you naturally and honestly want to say to tell your
story. Don’t directly confront the judge’s personality with his/her
understandable bias. You can challenge what a judge does in court.
You can challenge his/her reason for it with your own common sense
opinion. Good judges often like to engage in an intelligent debate on
what subjective decision the judge should make.
Having stated my views, in fairness I have to recognize those few
enlightened men and women judges who have overcome the biases and
afford their cases with a sense of fairness to children sadly lacking
elsewhere. More laudable praise belongs to those rare few who can
recognize the personality disorders in the tragic mothers who come
before them in court.
Gender bias needs to be addressed at the beginning of any
discussion on fathers and their parenting roles post-separation. A lot
has been written and a lot more will be written on gender bias in society
and the courts.
When I used to want to start a debate at a boring gathering of
lawyers and judges, or the politicians who write the laws, I would bring
up the subject of the continuing gender biases against men in family
law. I would suggest that one of the great legal myths of all time is that
lady justice is blind and that all who come before the law are treated
equally. The apologists in the crowd would be quick to point out that
the language of the statutes and laws that govern all the issues in family
law are gender neutral. There are no longer any presumptions in the
written law or statutes favoring mothers, etc. It is the mantra for the
apologists. They are technically correct. But they are missing the point:
the prejudice against fathers, as stated above, is very subtle and lies
deep in the minds and belief systems of the men and women whose
role it is to administer the so-called gender neutral statutes. It is also in
the minds of too many psychologists who advise the judges and should
know better. (The role of psychologists in perpetuating bias is for
another book).
I have never met a father who doesn’t know in his bones such a bias
exists. They feel it. A father coming into my office for the first time
knows he is about to enter into an stadium where the mother is given a
big handicap and he gets none.
Many men have come to my office feeling deep fear they cannot
articulate. When the trial is over, those same men all admit to how
naïve they were the first day they came into my office. The bias is larger
and trickier than they suspected.
Every separated father has to learn to live with the fact that there
may be no equal justice. It isn’t magically going to get better. The goal
of a father is to get through trial suffering the least injustice possible.
A word to those who not only rightfully want to see the system
changed but demand it occur right now, in their case! As I discuss in
more detail in the next chapter, family court is certainly not a game. But
the metaphor of “game” is useful to make an important point: if you
don’t learn to play by the key rules of the game, you are probably going
to lose. Finish the game. Then set about changing the rule.