Gender Bias and Custody

Bias is a prejudice in favor of or against one thing, person or group compared with another, in a way that is generally considered to be unfair. We encounter bias at all phases of our cases and practice. To begin with, there is primacy bias ' improperly leaning toward the position of the litigant who presents first. After that there is confirmatory bias, which is improperly leaning toward consistency with prior conclusions. Finally, there is recency bias, the tendency to give extra weight to the last thing that is said.

Bias comes in various forms: conscious and unconscious, personal and generic, cultural, social and political. Everyone has biases, despite admonitions to avoid them. Judges are supposed to render opinions free of bias, as are mental health professionals who do custody evaluations. Certain types of bias are actionable, others are objectionable and some, perhaps, are justifiable. Take gender bias.

Gender Bias: What Is It?

In matrimonial cases, the perception of gender bias runs high, particularly among litigants. In nearly all custody cases, for example, a father is pitted against a mother and one of them prevails. Since the contest, in its simplest form, relates to which one is the more appropriate (i.e., “better”) parent, the loser is not likely to acknowledge the wisdom of the decision and will look to place blame elsewhere ' possibly on the mental health professionals, the attorneys or the judiciary.

Gender bias in custody cases is a common complaint, with unsuccessful fathers claiming that mothers receive preferential treatment. In financial issues and domestic violence litigation, the gender bias claim is frequently heard, but it goes in both directions.

While the gender bias complaint may often sound like sour grapes, there is evidence indicating that bias exists among those who are called upon to assist in making custody determinations. (Because mental health professionals pride themselves on following the scientific method, they perform studies of nearly everything in their realm.) A number of studies demonstrate what we believe to be obvious, that gender bias plays a role in the recommendations that are made by professionals. See, e.g., Dutton, DG, Hamel, J and Aaronson, J, The Gender Paradigm in Family Court Process: Rebalancing the Scales of Justice from Biased Social Science. J Child Custody (2010); Bradshaw, ER and Hinds, RW, The Impact of Client and Evaluator Gender on Custody Evaluations. Family and Conciliation Courts Rev (1997).

Bias in mental health professionals is to be expected and there is a recognized means for bringing it out and dealing with it during the litigation process: that is through cross-examination. (In the absence of pretrial discovery, the presentation of a bias claim must await the trial, which in most cases, is after the harm has been done by the report's issuance.) Experienced litigators are trained in finding and exposing these biases which go to the weight of the evidence. Judicial bias is something else again.

Ethics and Bias

The Judicial Code of Conduct prohibits biased determinations. Even the appearance of impropriety is considered a reason to reverse a decision. On the other hand, in custody cases, the role of gender preference and pre-conceptions regarding parenting roles is a factor that cannot be ignored. Up until now, in matrimonial cases, unlike cases in all other areas of the law, 50% of the litigants are men and the other 50% are women.

Following the resignation of Justice David Souter, President Barack Obama stated that he was seeking someone on the Supreme Court who understood “how our laws affect the daily realities of people's lives” and indicated that “empathy” was “an essential ingredient for arriving at just decisions and outcomes.” Empathy is “understanding and identifying with people's hopes and struggles.” It differs from bias. Empathy is not precluded by the Code of Judicial Conduct; bias is.

The ABA Model Code of Judicial Conduct dictates that “[a] judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials or others subject to the judge's direction and control to do so.” Rule 2.3(A) and 2.3(B) of the ABA Model Code of Judicial Conduct (2007).

The commentary to the section of the Code states: “A judge who manifests bias or prejudice in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute. Examples of manifestations of bias or prejudice include, but are not limited to, epithets; slurs; demeaning nicknames; negative stereotyping; attempted humor based upon stereotypes; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant references to personal characteristics. Even facial expressions and body language can convey to parties and lawyers in the proceeding, jurors, the media, and others an appearance of bias or prejudice. A judge must avoid conduct that may reasonably be perceived as prejudiced or biased.” Comment to Rule 2.3 of the ABA Model Code of Judicial Conduct (2007).

Financial Determinations

That there is gender bias at play in financial determinations can be demonstrated from an analysis of the cases, comparing results where the facts are similar, but the results are different based only on gender. There is little controversy over the proposition that men will be treated differently from women when they make claims for economic relief. Husbands who come before the courts seeking support from their more successful wives do not receive as sympathetic responses as when the reverse is true. This is also true in terms of equitable distribution awards, where, on similar facts, women will receive a greater share of their husbands' property or have to give up less of theirs. See, e.g., Schiffmacher v. Schiffmacher, 21 A.D.3d 1386, 801 N.Y.S.2d 848 (4th Dept. 2005) (The Appellate Division, Fourth Department, held that, in light of the wife's “modest contributions” to the husband's attainment of his master's degree in business administration, the trial court should have awarded the wife “only 20 percent” of the value of the husband's enhanced earning capacity) as compared with Cabeche v. Cabeche, 10 A.D.3d 441, 780 N.Y.S.2d 909 (2d Dept. 2004) (After noting the husband's “de minimus” assistance to the wife in obtaining her license as a registered nurse, the Appellate Division, Second Department, held that the trial court properly concluded that the husband was not entitled to any share of the wife's enhanced earning capacity.)

However, just because there is gender bias does not mean that the result is unfair or wrong. In case after case where gender bias is evident, the results are upheld upon appeal because there are independent facts in the record that support the determination, notwithstanding the admonition concerning the appearance of impropriety.

Custody Cases

Gender bias in custody cases clearly exists, but awareness that it plays a part usually does not appear from reading the cases. See, e.g., Susan Beth Jacobs, The Hidden Gender Bias Behind 'The Best Interest of the Child' Standard in Custody Decisions, 13 Ga. St. U. L. Rev. 845 (June 1997). In the first place, judicial decisions are written in order to explain and justify the result. It is extremely rare that a biased judge would set forth in a decision statements reflecting that bias. Awareness is largely anecdotal ' those who practice in the area come to know which judges and which mental health professionals favor women or have pre-conceived notions as to parenting roles defined by gender.

Although the tender years doctrine was supposedly cast aside more than 30 years ago, everyone knows that it still exists. Men are often advised that they should not pursue custody cases where very young children are involved, and even in those few situations where fathers have the temerity to stake custodial claims, only a small percentage prevail. Many fathers are forced to litigate beyond the original custody decision to maintain parental rights and meaningful access to children.

Gender bias clearly exists, but this is likely because most people agree that “very young children are better off with their mothers.” That statement is clearly biased. However, it must be recognized that there is a difference between mothers and fathers, and that difference can either be ignored or taken into consideration. Elimination of the difference is not within the province of the legal system; nor is it currently possible through medicine, science or magic.

Historically, gender was taken into consideration, for the most part to deny women their equal rights. The equal rights movement and second-wave feminism brought goals of gender equality, which brought us Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102 (1979), and the theory that gender should play no role in legal determinations. While it may be true that gender plays no role, things that have to do with gender play a major role ' a distinction without a difference. For example, the American Law Institute has proposed that contested custody cases should be determined based on an approximation theory, first determining how much time each parent spent with a child pre-separation, and then allowing custodial responsibility in that same proportion. Joint custody would be available only when past caregiving had been exercised approximately equally.

The Approximation Rule

If the approximation rule were adopted, we would most frequently be looking to the primary caregiver to become the sole custodial parent, a throw-back to the “psychological parent” doctrine suggested by Goldstein, Freud and Solnit in 1973. Joseph Goldstein, Anna Freud and Albert J. Solnit, Beyond the Best Interests of the Child (1973).

In fact, there are no studies linking time spent with children and parenting ability. While only West Virginia has enacted the approximation standard, many states utilize the concept as an important factor in custody determinations and that factor is, in effect, a bias toward mother custody because, in intact families, mothers generally spend more time with their children than do fathers.

Nevertheless, the admission of bias is not the same as the admission of fault or wrongdoing. For example, qualities that are clearly identified as feminine are ones that the general population, including custody evaluators, consider positive in making custody decisions: qualities such as warmth, understanding, patience and compassion. While men can have these “feminine” qualities, such qualities are more closely identified with women while masculine qualities such as assertiveness, ambition and discipline are less associated with good parenting. (BEM Sex Role Inventory for a list of the masculine and feminine adjectives.)

In one of the most famous gender bias cases, Young v. Hector, 740 So. 2d 1153, 23 Fla. L. Weekly D1529 (Fla. Dist. Ct. App. 1998), an architect father decided to become a stay-at-home dad when his high-powered attorney wife was offered a position with a firm in Florida. The mother was awarded custody and the father liberal visitation after an en banc re-determination of the father's successful appeal. The majority of the en banc District Court of Appeal of Florida stated that the standard of review was whether the lower court abused its discretion and found that there was evidence in the record to support the award of custody to the mother. Specifically, the court found that there was evidence indicating that the mother was “the more economically stable of the two parents,” that the mother had been “a constant factor and dominant influence in the children's lives,” and that she had a “superior ability” to control her anger around the children. The dissent wrote that there was no question that gender bias was the reason for the decision and that in the reverse scenario, a father attorney “would have been virtually laughed out of court.”

Conclusion

We are left with the awareness that gender bias is with us, that it is not always actionable, or even objectionable, but even when it is, it will be extremely difficult to convince appellate judges that determinations made on that basis should be reversed.

Robert Z. Dobrish is the senior partner at Dobrish Zeif Gross, handling matrimonial and family law cases. This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.

Bias is a prejudice in favor of or against one thing, person or group compared with another, in a way that is generally considered to be unfair. We encounter bias at all phases of our cases and practice. To begin with, there is primacy bias ' improperly leaning toward the position of the litigant who presents first. After that there is confirmatory bias, which is improperly leaning toward consistency with prior conclusions. Finally, there is recency bias, the tendency to give extra weight to the last thing that is said.

Bias comes in various forms: conscious and unconscious, personal and generic, cultural, social and political. Everyone has biases, despite admonitions to avoid them. Judges are supposed to render opinions free of bias, as are mental health professionals who do custody evaluations. Certain types of bias are actionable, others are objectionable and some, perhaps, are justifiable. Take gender bias.

Gender Bias: What Is It?

In matrimonial cases, the perception of gender bias runs high, particularly among litigants. In nearly all custody cases, for example, a father is pitted against a mother and one of them prevails. Since the contest, in its simplest form, relates to which one is the more appropriate (i.e., “better”) parent, the loser is not likely to acknowledge the wisdom of the decision and will look to place blame elsewhere ' possibly on the mental health professionals, the attorneys or the judiciary.

Gender bias in custody cases is a common complaint, with unsuccessful fathers claiming that mothers receive preferential treatment. In financial issues and domestic violence litigation, the gender bias claim is frequently heard, but it goes in both directions.

While the gender bias complaint may often sound like sour grapes, there is evidence indicating that bias exists among those who are called upon to assist in making custody determinations. (Because mental health professionals pride themselves on following the scientific method, they perform studies of nearly everything in their realm.) A number of studies demonstrate what we believe to be obvious, that gender bias plays a role in the recommendations that are made by professionals. See, e.g., Dutton, DG, Hamel, J and Aaronson, J, The Gender Paradigm in Family Court Process: Rebalancing the Scales of Justice from Biased Social Science. J Child Custody (2010); Bradshaw, ER and Hinds, RW, The Impact of Client and Evaluator Gender on Custody Evaluations. Family and Conciliation Courts Rev (1997).

Bias in mental health professionals is to be expected and there is a recognized means for bringing it out and dealing with it during the litigation process: that is through cross-examination. (In the absence of pretrial discovery, the presentation of a bias claim must await the trial, which in most cases, is after the harm has been done by the report's issuance.) Experienced litigators are trained in finding and exposing these biases which go to the weight of the evidence. Judicial bias is something else again.

Ethics and Bias

The Judicial Code of Conduct prohibits biased determinations. Even the appearance of impropriety is considered a reason to reverse a decision. On the other hand, in custody cases, the role of gender preference and pre-conceptions regarding parenting roles is a factor that cannot be ignored. Up until now, in matrimonial cases, unlike cases in all other areas of the law, 50% of the litigants are men and the other 50% are women.

Following the resignation of Justice David Souter, President Barack Obama stated that he was seeking someone on the Supreme Court who understood “how our laws affect the daily realities of people's lives” and indicated that “empathy” was “an essential ingredient for arriving at just decisions and outcomes.” Empathy is “understanding and identifying with people's hopes and struggles.” It differs from bias. Empathy is not precluded by the Code of Judicial Conduct; bias is.

The ABA Model Code of Judicial Conduct dictates that “[a] judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials or others subject to the judge's direction and control to do so.” Rule 2.3(A) and 2.3(B) of the ABA Model Code of Judicial Conduct (2007).

The commentary to the section of the Code states: “A judge who manifests bias or prejudice in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute. Examples of manifestations of bias or prejudice include, but are not limited to, epithets; slurs; demeaning nicknames; negative stereotyping; attempted humor based upon stereotypes; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant references to personal characteristics. Even facial expressions and body language can convey to parties and lawyers in the proceeding, jurors, the media, and others an appearance of bias or prejudice. A judge must avoid conduct that may reasonably be perceived as prejudiced or biased.” Comment to Rule 2.3 of the ABA Model Code of Judicial Conduct (2007).

Financial Determinations

That there is gender bias at play in financial determinations can be demonstrated from an analysis of the cases, comparing results where the facts are similar, but the results are different based only on gender. There is little controversy over the proposition that men will be treated differently from women when they make claims for economic relief. Husbands who come before the courts seeking support from their more successful wives do not receive as sympathetic responses as when the reverse is true. This is also true in terms of equitable distribution awards, where, on similar facts, women will receive a greater share of their husbands' property or have to give up less of theirs. See, e.g., Schiffmacher v. Schiffmacher , 21 A.D.3d 1386, 801 N.Y.S.2d 848 (4th Dept. 2005) (The Appellate Division, Fourth Department, held that, in light of the wife's “modest contributions” to the husband's attainment of his master's degree in business administration, the trial court should have awarded the wife “only 20 percent” of the value of the husband's enhanced earning capacity) as compared with Cabeche v. Cabeche , 10 A.D.3d 441, 780 N.Y.S.2d 909 (2d Dept. 2004) (After noting the husband's “ de minimus ” assistance to the wife in obtaining her license as a registered nurse, the Appellate Division, Second Department, held that the trial court properly concluded that the husband was not entitled to any share of the wife's enhanced earning capacity.)

However, just because there is gender bias does not mean that the result is unfair or wrong. In case after case where gender bias is evident, the results are upheld upon appeal because there are independent facts in the record that support the determination, notwithstanding the admonition concerning the appearance of impropriety.

Custody Cases

Gender bias in custody cases clearly exists, but awareness that it plays a part usually does not appear from reading the cases. See, e.g., Susan Beth Jacobs, The Hidden Gender Bias Behind 'The Best Interest of the Child' Standard in Custody Decisions, 13 Ga. St. U. L. Rev. 845 (June 1997). In the first place, judicial decisions are written in order to explain and justify the result. It is extremely rare that a biased judge would set forth in a decision statements reflecting that bias. Awareness is largely anecdotal ' those who practice in the area come to know which judges and which mental health professionals favor women or have pre-conceived notions as to parenting roles defined by gender.

Although the tender years doctrine was supposedly cast aside more than 30 years ago, everyone knows that it still exists. Men are often advised that they should not pursue custody cases where very young children are involved, and even in those few situations where fathers have the temerity to stake custodial claims, only a small percentage prevail. Many fathers are forced to litigate beyond the original custody decision to maintain parental rights and meaningful access to children.

Gender bias clearly exists, but this is likely because most people agree that “very young children are better off with their mothers.” That statement is clearly biased. However, it must be recognized that there is a difference between mothers and fathers, and that difference can either be ignored or taken into consideration. Elimination of the difference is not within the province of the legal system; nor is it currently possible through medicine, science or magic.

Historically, gender was taken into consideration, for the most part to deny women their equal rights. The equal rights movement and second-wave feminism brought goals of gender equality, which brought us Orr v. Orr , 440 U.S. 268, 99 S.Ct. 1102 (1979), and the theory that gender should play no role in legal determinations. While it may be true that gender plays no role, things that have to do with gender play a major role ' a distinction without a difference. For example, the American Law Institute has proposed that contested custody cases should be determined based on an approximation theory, first determining how much time each parent spent with a child pre-separation, and then allowing custodial responsibility in that same proportion. Joint custody would be available only when past caregiving had been exercised approximately equally.

The Approximation Rule

If the approximation rule were adopted, we would most frequently be looking to the primary caregiver to become the sole custodial parent, a throw-back to the “psychological parent” doctrine suggested by Goldstein, Freud and Solnit in 1973. Joseph Goldstein, Anna Freud and Albert J. Solnit, Beyond the Best Interests of the Child (1973).

In fact, there are no studies linking time spent with children and parenting ability. While only West Virginia has enacted the approximation standard, many states utilize the concept as an important factor in custody determinations and that factor is, in effect, a bias toward mother custody because, in intact families, mothers generally spend more time with their children than do fathers.

Nevertheless, the admission of bias is not the same as the admission of fault or wrongdoing. For example, qualities that are clearly identified as feminine are ones that the general population, including custody evaluators, consider positive in making custody decisions: qualities such as warmth, understanding, patience and compassion. While men can have these “feminine” qualities, such qualities are more closely identified with women while masculine qualities such as assertiveness, ambition and discipline are less associated with good parenting. (BEM Sex Role Inventory for a list of the masculine and feminine adjectives.)

In one of the most famous gender bias cases, Young v. Hector , 740 So. 2d 1153, 23 Fla. L. Weekly D1529 (Fla. Dist. Ct. App. 1998), an architect father decided to become a stay-at-home dad when his high-powered attorney wife was offered a position with a firm in Florida. The mother was awarded custody and the father liberal visitation after an en banc re-determination of the father's successful appeal. The majority of the en banc District Court of Appeal of Florida stated that the standard of review was whether the lower court abused its discretion and found that there was evidence in the record to support the award of custody to the mother. Specifically, the court found that there was evidence indicating that the mother was “the more economically stable of the two parents,” that the mother had been “a constant factor and dominant influence in the children's lives,” and that she had a “superior ability” to control her anger around the children. The dissent wrote that there was no question that gender bias was the reason for the decision and that in the reverse scenario, a father attorney “would have been virtually laughed out of court.”

Conclusion

We are left with the awareness that gender bias is with us, that it is not always actionable, or even objectionable, but even when it is, it will be extremely difficult to convince appellate judges that determinations made on that basis should be reversed.

Robert Z. Dobrish is the senior partner at Dobrish Zeif Gross, handling matrimonial and family law cases. This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.