Perception: the courts are biased against fathers, who almost never get custody.
Fact: Though it is true that women are far more likely to be awarded custody, they are also far more likely to ask for it in the first place. To establish bias, one must show (at the very minimum) that equally qualified fathers who request custody are denied more than half of the time, and here the data prove inconvenient. Courts can't be expected to award what they're not asked to. It turns out that fathers who ask for custody (and don't give up) are very likely to get either sole or joint custody:
From a state of Massachusetts study of custody awards at the state and national level come these studies of cases where fathers requested custody:
Study 1: MASS
2100 cases where fathers sought custody (100%)
5 year duration
29% of fathers got primary custody
65% of fathers got joint custody
7% of mothers got primary custody
Study 2: MASS
700 cases. In 57, (8.14%) father sought custody
67% of fathers got primary custody
23% of mothers got primary custody
Study 3: MASS
500 cases. In 8% of these cases, father sought custody
41% of fathers got sole custody
38% of fathers got joint custody
15% of mothers got sole custody
Study 4: Los Angeles
63% of fathers who sought sole custody were successful
Study 5: US appellate custody cases
51% of fathers who sought custody were successful (not clear from wording whether this includes just sole or sole/joint custody)
The study concluded:
The high success rate of fathers does not by itself establish gender bias against women. Additional evidence, however, indicates that women may be less able to afford the lawyers and experts needed in contested custody cases (see “Family Law Overview”) and that, in contested cases, different and stricter standards are applied to mothers.
More on fathers and custody:
Through most of Anglo-American legal history, there was little custody litigation because there was nothing to fight over. Dad always got the kids. Under English and early American common law, children were regarded as paternal property.
In the mid-1800s, the Industrial Revolution swept fathers out of jobs at or near home and into factories and businesses, prompting the courts to reverse course on custody. Under the “tender years” doctrine, eventually adopted in every state, the mother was presumed to be the proper custodian, especially for young children.
In the 1970s, this doctrine was replaced by the ostensibly gender-neutral “best interest of the child” standard. Today, only five states—Alabama, Louisiana, Mississippi, South Carolina and Tennessee—have some form of maternal preference in custody statutes or case law, says Jeffrey Atkinson, author of Modern Child Custody Practice, 2d ed., and professor at DePaul University College of Law in Chicago.
Although the U.S. Supreme Court has not ruled on maternal preferences, Atkinson believes these holdout states are on shaky constitutional ground. “A presumption that women are inherently better able to care for children than men is not a legitimate, accurate method for determining custody,” he says.
Old stereotypes die hard, though, and fathers’ rights advocates say neutral statutory language has done little to change the courts’ pro-mother leanings. Moms are granted custody in 85 percent of all cases, notes Dianna Thompson, executive director of the Washington, D.C.-based American Coalition for Fathers and Children. She says the expense of litigation and likelihood of losing discourages many dads from even fighting for custody.
However, statistics on custody awards can be deceiving, since most custody orders are uncontested or negotiated by the parties. A 1992 study of California cases showed that fathers were awarded primary or joint custody in about half of contested custody matters.
Some lawyers believe the gender gap in custody awards reflects a preference for the status quo, rather than bias against fathers. “Family law is a case-by-case, judge-by-judge affair,” says Joel Bigatel, a family lawyer in Narberth, Pa. “If there’s a bias in awarding custody, it’s in favor of primary caretakers. If dad is the working parent, and mom is the stay-at-home, she generally has a leg up.”
Working fathers have the best shot at being named primary caretakers if they have flexible schedules, or if the mother is also working and the children are already in day care or school, says Bigatel.