What Judges Really Think About Fathers: Responses to court-commissioned judicial bias surveys

(originally published in Transitions 31(4), November 2013)

Observing that a large percentage of cases are settled without a trial, a former family court judge asserted, without stating any basis in fact, that this simply means that “many men recognize that their children will be better cared for by the mother.”1 To this judge, a father who failed to concede custody to the mother early on in the proceeding almost certainly would be considered a “problem” litigant. How many judges approach contests between men and women with a predisposition to rule against the man?

While it might be thought that a statement such as the one quoted above represents only one judge’s opinion, surveys of judicial attitudes support the conclusion that his view is shared by a large number of judges.

A study conducted in 2004 found that although the tender years doctrine had been abolished some time ago, a majority of Indiana family court judges still supported it and decided cases coming before them consistently with it.2 A survey of judges in Alabama, Louisiana, Mississippi and Tennessee found a clear preference among judges for maternal custody in general.3

Another survey, this one  commissioned by the Minnesota Supreme Court, found that a majority (56%) of the state’s judges, both male and female, agreed with the statement, “I believe young children belong with their mother.” Only a few of the judges indicated that they would need more information about the mother before they could answer. Fathers, one judge explained, “must prove their ability to parent while mothers are assumed to be able.”4 Another judge commented, “I believe that God has given women a psychological makeup that is better tuned to caring for small children.”5

Judges’ self-reporting of their prejudices against fathers was consistent with practicing attorneys’ impressions of them. 69% of male attorneys had come to the conclusion that judges always or often assume from the outset (i.e., before being presented with any evidence) that children belong with their mothers. 40% of the female attorneys agreed with that assessment. Nearly all attorneys (94% of male attorneys and 84% of female attorneys) said that all judges exhibited prejudice against fathers at least some of the time.6

Similar findings have been made in court-sponsored gender bias studies conducted in other states. The Maryland study, for example, found that most attorneys perceived that it is either always or often the case that “[c]ustody awards to mothers are based on the assumption that children belong with their mothers.”7 A follow-up study conducted in 2001 “still indicates a preference to award mothers custody.”8 The majority of attorneys, both male and female, agreed that fathers either did not always get treated fairly in custody proceedings, or that they “often” did not. 6% of judges, 17% of female attorneys and 29% of male attorneys went so far as to say that no father ever receives fair treatment in a Maryland custody proceeding.9 Surveys of judges in Maryland, Missouri, Texas and Washington found that a majority of judges were unable to say that they usually give fathers fair consideration in custody cases.10 This matched the perception of members of the bar.11

A review of appellate court decisions led a team of psychology and law professors to conclude that the maternal preference is still the norm.12

The Georgia Commission on Gender Bias in the Judicial System uncovered judicial beliefs that mothers are always better parents than fathers; that children need to be with their mothers, but not necessarily with their fathers; and that a father cannot be a nurturing parent if he works outside the home. In addition, the commission uncovered a reluctance to deny custody of children to mothers out of fear that doing so will “brand” the mother as unfit or unworthy.13 No judges expressed any comparable concern for the reputation or feelings of fathers.

Every state has standards of judicial conduct that judges are expected to meet. The Minnesota Code of Judicial Conduct is typical. Canon 3 requires judges to “perform the duties of the office impartially.” Impartiality is defined as “absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintaining an open mind in considering issues that may come before the judge.” Canon 3(A)(5) makes it clear that this means sex-based preferences and discrimination are prohibited: “A judge shall perform judicial duties without bias or prejudice … including but not limited to bias or prejudice based upon … sex….” Yet neither the gender bias study committee nor the Supreme Court, which ultimately adopted its recommendations, convened an inquiry into the widespread violations of the Canons of Judicial Ethics the investigation had turned up. So far, it does not appear that the Minnesota Supreme Court even sees this as a problem. The implementation committee has recommended a number of programs to address the needs of domestic abuse victims, immigrant and refugee women, and complaints of female court staff about inappropriate comments made to them by judges, but no recommendation at all has been made to address the problem of judicial bias prejudicing the fundamental rights of fathers in family court proceedings.14

Policy-makers, and sometimes judges, are fond of saying that bias against fathers either never has existed or that it has been eliminated, and that mothers and fathers now stand on an equal footing in family court. Obviously that is not the case.

A system cannot be improved in the absence of a willingness to acknowledge a problem exists when  confronted with proof that it does. The question now is: Are judges and judicial policy-makers really committed to eradicating bias and prejudice in the judicial branch or not? If so, when will they begin?




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  1. Carl A. Weinman, The Trial Judge Awards Custody, 10 L. & CONTEMP. PROBS. 721, 723 (1944).
  2. Julie E. Artis, Judging the Best Interests of the Child: Judges’ Accounts of the Tender Years Doctrine, 38 LAW & SOC’Y REV. 769, 771 (2004)
  3. Leighton Stamps, Maternal Preference in Child Custody Decisions, 37 J. DIVORCE & REMARRIAGE 1(2002).

    In general, it seems that judges are unwilling to explicitly specify whether mothers or fathers are the preferred parents, with the exception of the situation when children are under the age of six, in which case they believe that the mother is the preferred parent. Although they disagreed with the specification of either parent as better than the other, … the disagreement was stronger with regard to the father. Overall, on each of the five items, the means indicated a preference toward mothers over fathers, which are consistent with the theory of maternal preference.

    Id. at 7.

  5. Id. at 23-24.
  6. Id. at 24.
  10. Douglas Dotterweich & Michael McKinney, National Attitudes Regarding Gender Bias in Child Custody Cases, 38 FAM. & CONCILIATION CTS. REV. 212 (2000). Moreover, “|w|hen asked whether the courts always or usually give fair consideration to fathers, only one third (33.4%) of all judges and attorneys answered in the affirmative. Id. at 215. Incredibly, even in the face of this finding, judicial bias against fathers was dismissed as merely a “perception.” Rather than acknowledging the existence of a problem and suggesting judicial education or sensitivity training to address it, the concluding recommendation was this: “perceptions of gender bias might be further mitigated if judges are careful to provide complete explanations for the rationale behind their decisions in custody cases.” Id. at 217.
  11. Id. at 213.
  12. GARY B. MELTON ET AL., PSYCHOLOGICAL EVALUATIONS FOR THE COURTS (1997); see also R.E. EMERY, MARRIAGE, DIVORCE, AND CHILDREN’S ADJUSTMENT (1999) (describing the maternal preference as the unarticulated “rule of thumb” guiding judicial decisions in custody cases); M. Garrison, How do judges decide divorce cases? An empirical analysis of discretionary decision making, 74 N.C. L. REV. 401-552 (1996) (coming to a similar conclusion); accord: LENORE J. WEITZMAN, L. J., THE DIVORCE REVOLUTION: THE UNEXPECTED SOCIAL AND ECONOMIC CONSEQUENCES FOR WOMEN AND CHILDREN IN AMERICA (1985)
  13. COMMISSION ON GENDER BIAS IN THE JUDICIAL SYSTEM: GENDER & JUSTICE IN THE COURTS: A REPORT TO THE SUPREME COURT OF GEORGIA (1991), reprinted in 8 GA. ST. U. L. REV. 539, 657-60 (1992). The Commission received testimony from a female attorney that in her experience the test that judges apply in custody cases is not the “best interest” test but whether the mother is fit; i.e., “|i|f the mother is fit then the father will not be awarded custody, and this is gender bias against fathers.” Other attorneys testified that even if the “best interest” factors favored the father, the mother would not lose custody unless she was shown to be palpably unfit to parent. Id. at 659-60. As further evidence that judges not only place the interests of mothers ahead of those of fathers, but also ahead of the interests of children, the report notes that despite extensive evidence of the mother’s psychological instability, and that it would not be in the children’s best interests to remain in her care, the judge nevertheless awarded custody to her, explaining that “it does something to a mother” to not be awarded custody of her children. Id. at 660.
  14. GENDER FAIRNESS IMPLEMENTATION COMMITTEE, 2006 PROGRESS REPORT (2006). As of this writing, no subsequent progress reports have recommended any action to address bias against fathers.

58 thoughts on “What Judges Really Think About Fathers: Responses to court-commissioned judicial bias surveys

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  3. My family court judge told me during my initial divorce hearing that “children belong with the mother”, and that I WAS going to pay the full, guideline amount of child support because my now ex-wife (NOT our chidlren) “deserves that money”.

    The problem is that she is also a member of the state committee that writes the child support and parental access guidelines.

    It gives new meaning to the description of the fox guarding the henhouse.

  4. Judges are truly biased against the men even tho the majority of them are men….I have been found not guilty in the criminal matter against my ex and then again no further action against me at the police station..SO how can the family court judge say he dont cre about the outcome of the criminal matter and not to bring it in the family courts? ??? Isn’t that biased????

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      • The very best family judges do not “decide” child custody/access matters, do not make court appointments, etc., because they know child custody/access litigation is severely harmful to children and parents, and that non-adversarial methods of dispute resolution (mediation, in particular) are Always better for the child and their entire family. Once they figure this out, not only do they no longer harm children and parents, they benefit them, while needing to do very little work. The best family court judges will treat biological parents of minor children equally and with respect, will ensure there is an inter-parent communication plan and a mediation schedule in place at all times. They will also refer to the bar, or have a stern talking with, any violent family lawyer attempting to file tactical or ex parte “protection” orders, or seeking to use litigation to resolve the matter.

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  11. How can we get them to admit their is a bias and change it? A change needs to happen for the sake of the children involved.

    • That’s great question. Publicizing the truth about bias, to counter widely circulating claims that there is no bias, is part of the answer. Men’s and father’s groups need to begin a conversation about ways to do more. One idea would be to study the methods women’s groups have used to combat what they’ve perceived as bias against women — judicial education programs, for example. Some state licensing boards require attorneys and judges to take classes on the elimination of bias, on a continuing basis. Women’s groups have sponsored a number of these. Fathers’ groups might try to put one together. Approaches would have to be tailored to specific states.

  12. Which is why I’m glad I never married. At 53
    I’m too set in the way I live and what’s more,
    I love it this way.

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  14. This article helps to respond to falsely held claims of no anti-father bias in family courts throughout our nation. I admire the courage of a praticing attorney to do the right thing. Most attorneys are busy cashing in, as they did in my divorce, even while telling me the system is biased. Thank you for providing valuable information on an important issue, that can only help to make justice for all.

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  16. This is absolutely sickening. How can they automatically “assume” that the mother is in a better position, mental capacity, financial and emotional position, etc. to care for a child. This is a real discredit to the child; who I “assume” should be first priority here! Too many instances arise that cause the child to suffer under these unfortunate set of circumstances. UNREAL!.. Are we not in the 21st century here? APPALLING!

  17. The problem is not that the system can not be improved, to the democratic majority the system works as intended. That is the real scandal here, and it means that the only way that those ground to pieces by the system is to disobey and resist. No man will ever get justice against a woman in any court of law anywhere in the world. So men need to take justice into their own hand. Sad, but this is the only way to change this system.

  18. May as well start having fathers ride the back of the bus…. This is absolutely appalling! Our children deserve SO much better!

    • Couldn’t have said it better myself Daryl John Budde. The Family Law Courts in North America need to be put on trial for child abuse, and of course violation of human rights. In the end, these judges will themselves be judged by “the Father!” May they rot in hell.

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