Fathers Are Right to Fear Family Court

Many dads insist they face an uphill battle when seeking custody of their children. Are their fears correct?

by Jake Rossen
A sketch of a father and son walking and a giant gavel above them, representing family court bias

After realizing his marriage wasn’t going to be the long-term union he had anticipated, Ian — not his real name — started to have conversations with his wife over the future of their 3-year-old son. Ian sought joint custody, suggesting an agreement that he and the boy’s mother split time with their child. It’s what he believed to be fair in light of the fact he worked from home and was a caregiver.

His soon-to-be ex-wife demanded full custody, allowing only that Ian be permitted to see his son every other weekend.

READ MORE: The Fatherly Guide to Stay-At-Home Parenting

Ian fought. So did she. Ian lost and felt unheard. “The overwhelming impression I had from the court system was pure disinterest,” he says. “The judge initially gave my ex everything she asked for, no questions asked, pending the outcome of the custody evaluation. I saw no indication that the judge even read the affidavits I provided.” When Ian explained he was interested in being engaged in his son’s upbringing, he says the judge exhibited “blatant disinterest and even bemusement when hearing about involved fathers.”

“Our judge was a 73-year-old white conservative Christian man from the south,” says Ian. “He seemed confused by the fact that I worked from home. He asked several questions that suggested to me that he believed this meant I was unemployed.”

Ian’s story is not unique. Increasingly, divorced fathers across the country have long expressed concern about a systemic bias in family court. In fact, perceived bias against men in family courts has, in large part, provided the so-called “Men’s Rights Movement” with momentum.

In 1925, family courts evaluating cases of separation were guided by the Tender Years doctrine, which observed that kids under the age of 13 were more likely to be psychologically dependent on their mother for care. As such, the majority of moms seeking custody got it. While it was phased out in the 1970s — replaced by the Best Interests doctrine that mandated that a judge should do whatever is in the best interests of the child — the stereotype of the father as the financial provider and the mother as the emotional caregiver appears to persist.

“I have plenty of stories in my practice of judges perceiving guys as the breadwinner and mothers as the stay-at-home nurturer,” says Scott Trout, CEO of Cordell & Cordell, a law firm with offices in 34 states that specializes in representing fathers. “Even though the roles have changed, it can be difficult to convince courts of that.”

In a 2004 Minnesota survey of Supreme Court judges, 56 percent supported the idea that children belong with their mother as a blanket statement. In Nebraska, a 2013 study showed mothers got sole or primary custody 72 percent of the time.

There is a large asterisk accompanying most of these statistics. In most cases, custody is settled between parties before a judge makes a final decision for them. So, how can there be bias if a father is agreeing to whatever stipulations are being set? According to Trout, it has to do with a less-than-level playing field: Men go into the dispute feeling cornered. “Guys settle for minimum custody because they think it’s all they can get,” he says. Pessimistic attorneys will tell their clients that it may be the best deal on the table. Rather than spend more time trying to aim for trial, they throw in the towel. “I’ve had guys tell me that, that it was their best-case scenario according to their former lawyer.”

Trout sees the issue as less about custody and more about a court’s overall view of gender roles. Men, he says, are swimming upstream when it comes to convincing courts they deserve anything that history traditionally relegated to women. “It happens in alimony, which I call ‘manimony,’ and adult abuse orders, too,” he says. “Men who are victims of adult abuse, it’s much harder to convince a judge to enter a restraining order than if you were representing them. There’s no equality here.”

Others argue that while precedence does play a factor in a court siding with a mother, it’s not due to traditional stereotypes but how large a presence fathers had before custody was in dispute.

“The father may have been the breadwinner, and when they separate, need to continue being the breadwinner,” says Jessica Smith, a family lawyer in Pennsylvania. “It takes more money to run two houses than one, and work could interfere with custody.” Fathers keeping long hours may find themselves at a disadvantage, as the courts — adhering to the Best Interests doctrine — will shy from having to wake a child too early or permit other inconveniences.

The PEW Research Center reported in 2011 that mothers spend twice as much time with children in a marriage as fathers, which naturally ingratiates them to judges. But that’s an average. In specific cases — perhaps more cases as times have changed — that’s not the case at all. It’s also a lousy metric for care either way. But if fathers are doing the bulk of the parenting, that doesn’t help. Stay-at-home fathers are not always cast in the best light. “It’s a case of, ‘Get your lazy behind off the couch,’” Trout says of judges addressing stay-at-home dads, adding that he heard one judge say almost precisely that.

“Judges, the bench, the bar, even lawyers, they think it’s not in a guy’s DNA to be a stay-at-home parent,” he adds.

In reacting to the perceived bias of courts, a grassroots effort of men’s rights activists has organized groups that try to call attention to the disparity. The groups often swap tips on choosing lawyers, offer support for cases they seem to be going awry, and generally beat the drum for a gender that’s already perceived to have the upper hand most of their lives. That can rankle feminists, who cite statistics supporting the settlements — and their assumed complicity with the custody arrangement — and resist the idea they have a presumption of caregiving in court without cause.

In the end, men who feel like they’re disadvantaged in court may be part of the last generation to have that experience. As judges clinging to stereotypes “age out,” Trout says, courts should eventually give way to more contemporary insight. That may not placate men who feel a bias when it’s really in the child’s best interests to be with their mother, but it’s a start.

“I’ve seen it in rural areas, where a judge has been on the bench for 40 years,” Trout says. “Turnover and legislation is when we’ll see things change.” In 2017, 25 states considered laws that would make gender equality in family court less cryptic, with co-parenting assumed unless there’s a compelling reason to rule otherwise. It’s a change that would have made Ian’s — and countless other men’s — experience less stressful. He spent years and thousands of dollars to compromise for joint custody.

Until then, Trout advises any father anticipating an upcoming custody dispute to document everything. His advice, which echoes that of all family law attorneys: “Be involved, stay active, and spend time with them. Keep a diary of what you did. Get off Facebook and social media. Don’t have arguments in front of them and don’t talk badly about mom.”