Gender Bias May Be Present in Your Case, But It Need Not Be Dispositive

Gender bias, in my opinion, is present in the courts where I practice. For example, the courts will tend to give Mom more residential time than Dad, even if both parents are of the same caliber. In addition, courts will tend to overlook Mom’s misbehavior and focus more on Dad’s misbehavior.

There are at least two historical legal bases for awarding more residential time to Mom than to Dad. The first basis is called the tender years’ presumption. Under this theory, infants need to reside with their mother so they can breast feed. Even after the child has been weaned, the child still needs the love and nurture that only mom can provide. This need persists during the child’s tender years – at least until the child enters school.

The second legal basis for awarding the child to mom was statutory. Per statute, a Washington court could not award equal residential time to both parents unless there was a history of shared parenting. This requirement essentially codified the tender years’ presumption. If the child was initially placed primarily with mom, he would then have to stay there based on history.

The tender years’ presumption went out of fashion a number of years ago, and no attorney would cite it today with a straight face. In fact, many attorneys would argue that breast feeding is irrelevant – Mom can get a breast pump. Likewise, the statutory provision about shared custody has been changed to allow split custody in more cases.

Nonetheless, I still think it is more difficult for dad to get split custody or to be the primary residential parent than mom. To address this problem, dad needs to stop thinking about himself and start thinking about the child.

Rather than complaining about bias, dad needs to develop the facts. For example, show that dad’s home is closer to the child’s school, that he is the parent who takes the child to ballet lessons, and stays home from work when the child is sick.