The Hypocrisy of 'Equality'
in a Family Law Context

(C)1991 Anne P. Mitchell (

I. Introduction

The Fourteenth Amendment states quite simply, and succinctly, that no State shall "...deny to any person within its jurisdiction the equal protection of the laws." Constitution of the United States, Amendment XIV.

The Fourteenth Amendment was ratified on July 9, 1868, and has been the law of the land ever since. The Equal Protection Clause (as this portion of the Fourteenth Amendment is known) has been the rubric under which a multitude of diverse issues have been decided:

  • does one have the right to marry a person of a different racial background? (Loving v. Virginia, 388 U.S. 1 (1967));
  • are married, female service members eligible for the same automatic dependent's allowance for their husbands as married, male service members are for their wives? (Frontiero v. Richardson, 411 U.S. 677 (1973));
  • and, is a system of separate (but allegedly equal) schools considered equal treatment of blacks under the Equal Protection Clause? (Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483 (1954)).

Here we see different groups of people all appealing to the Constitution for equal protection under the law, and all receiving it.

  • Are whites who choose to marry blacks to be afforded the same treatment as whites who choose to marry whites? Yes.
  • Are women in the service entitled to the same dependent benefits and benefit-determining procedures as men in the service? Yes.
  • Are blacks entitled to the same quality of education and the same educational opportunities as whites? Yes.

Are men who land in our nation's family courts entitled to be judged by the same standards as the women who sit opposite them?


Are those men in fact afforded such equal treatment?


II. Maternal bias in custody matters

A. Generally

Years ago, at common law, custody of minor children automatically went to the father. The husband's word was law. He was master of his family, and along with the responsibility of being the head of the family came a "corresponding entitlement to the benefits of his children, i.e., their services and association." Ex Parte Devine, 398 So.2nd 686 (1981). Children were, in effect, so much chattel, as the cows, the plow-ox, the family homestead, etc.

Many courts still held to this notion far into the 19th century. An Illinois case, for example, held fast to this rule even though by the time the case was decided (1889) many states had started to drift from this position. In Umlauf v. Umlauf the Supreme Court of Illinois says: "Unquestionably no other person can feel for a boy, or show to him the love and affection which he receives from his mother. But the rule is 'that the right of the father is superior to that of every other person, and can only be made to yield when it is manifestly inconsistent with the health and welfare of the child.' 3 Smith Lead. Cas. 375." Umlauf v. Umlauf, 21 N.E. 600 (1889)

In the early-to-middle 19th century this hard and fast rule began to be softened in order to consider the rights and feelings of the mother, leading to what was to become known as "the tender years doctrine". This doctrine suggests that custody of a child could be awarded to its mother if the child were of "tender years".

The tender years doctrine's application in the United States can be traced back as early as the year 1830, to the Maryland decision Helms v. Franciscus. The Helms decision opined:

"The father is the rightful and legal guardian of all his infant children; and in general, no court can take from him the custody and control of them, thrown upon him by the law, not for his gratification, but on account of his duties, and place them against his will in the hands even of his wife....Yet even a court of common law will not go so far as to hold nature in contempt, and snatch helpless, puling [sic] infancy from the bosom of an affectionate mother, and place it in the coarse hands of the father. The mother is the softest and safest nurse of infancy, and with her it will be left in opposition to this general right of the father." Helms v. Franciscus,2 Bland Ch.(Md.) 544 (1830).

This doctrine appears to mark the beginning of a maternal bias in the courts which has persisted to this day.

In the case of Clark v. Bayer the Supreme Court of Ohio states that:

"As a general rule the parents are entitled to the custody of their minor children. When they are living apart, the father is, prima facie, entitled to that custody, and, when he is a suitable person, able and willing to support and care for them, his right is paramount to that of all other persons, except that of the mother in cases where the infant child is of such tender years as to require her personal care; but in all cases of controverted right to custody the welfare of the minor child is first to be considered. Clark v. Bayer, 1877 WL 120 (Ohio).

It is of interest to note that what started out as a move to recognize the rights of the mother became cast and crystallized as something which must be done in the best interest of the child. Lines such as "The mother is the softest and safest nurse of infancy" (Helms, supra) cast this maternal preference in a most humanitarian light: this is for the good and nurturing of the child. Thus for the child's sake he must be left in his mother's custody.

In Watts v. Watts, a New York case which castigates the tender years doctrine, the court describes it thusly: "The 'tender years presumption' is actually a blanket judicial finding of fact, a statement by a court that, until proven otherwise by the weight of substantial evidence, mothers are always better suited to care for young children than fathers." Watts v. Watts, 350 N.Y.S.2d 285 (1973).

While some states eventually abandoned the tender years doctrine, it was alive in one form or another in 30 states as recently as 10 years ago. Ex Parte Devine, Footnotes 3-6.

In Ex Parte Devine the Alabama Supreme Court addressed the issue of whether such a maternally-slanted bias could withstand a 14th Amendment challenge, and found that it could not. The court held:

"...we conclude that the tender years presumption represents an unconstitutional gender-based classification which discriminates between fathers and mothers in child custody proceedings solely on the basis of sex." Ex Parte Devine, 398 So.2d 686, 688.

Despite some courts' recognition that the tender years doctrine, or other maternal biases, are inherently unfair, the vast majority of disputed custody cases are resolved with custody going to the mother. The court in Watts v. Watts cites "The Right of Children in Modern American Family Law"by Drinan, saying "[a]lthough in theory, a father has an equal right with the mother to the custody of his children, in well over ninety percent of the cases adjudicated, the mother is awarded custody. Watts v. Watts, 350 N.Y.S.2d 285, 286.

The Watts court railed against the residual maternal bias which exists in courts even in the face of legislation demanding equal consideration of both parents:

"Until recently...there has been a pattern of at least cursory invocation by the courts in New York and elsewhere, of the presumption that children of tender years, all other things being equal, should be given into the custody of their mother... As Foster and Freed, authors of the comprehensive treatise Law and the Family, New York, Vol. 2 (1967) stated: 'The statutory mandate in practice is ignored and instead of equality as between the parents, the mother's claim to the child is paramount." Watts, p.287.

Even in courts which have found the tender years doctrine to be repugnant, there is still a judicial bias towards giving custody to the mother. Indeed, some courts have explicitly stated that the rights and interests of a mother and father must be considered equally under the 14th Amendment, and have then gone on to hold, nevertheless, that all other things being equal, custody should go to the mother. Consider the case of Cox v. Cox, 532 P.2d 994 (1975), in which the Utah Supreme Court states:

"We agree with the defendant's argument that under the modern and realistic trend of law, the mother has no absolute or invariable right to be awarded the custody of the children; and that the father's rights and interests are entitled to equal and just consideration... But this does not mean that the law must pretend to be unaware of and blindly ignore obvious and essential biological differences. In addition and quite beyond the rights of parents, there is the important principle that the paramount consideration is the long-term welfare and adjustment of the child. That being so, we think there is wisdom in the traditional patterns of thought that the roles of the mother and father in the family are such that, all other things being comparatively equal, the children should be in the care of their mother, especially so children of younger years; and that this may be true even where the divorce is granted to the father." Cox v. Cox, p.996.

Unfortunately, it is quite difficult to track current trends in judicial custody-dispute resolution because very few custody cases make it to the appellate level. Thus one would have to procure access to the trial court records, and compile the information on a jurisdiction-by-jurisdiction basis. There is no reason, however, to disbelieve Drinan's estimate that over 90% of all adjudicated custody cases are decided in favour of the mother.

The maternal bias in this system is not limited to the men in the robes, either. Mediators, social workers, and custody-evaluating psychologists (often appointed by either the court or the Department of Social Services) for the most part all seem to operate on the basic premise that children, especially young ones, belong with their mother. A recommendation from one of these family "professionals" is often enough to influence a court to award custody to the recommended parent.

B. California

In California the codes governing custody are California Civil Codes ["Civil Codes"] 4600, et seq. 4600 states that custody shall be awarded in the following order of preference: "(1) To both parents jointly pursuant to Section 4600.5 or to either parent. In making an order for custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child or children frequent and continuing contact with the noncustodial parent, and shall not prefer a parent as custodian because of that parent's sex. Civil Code 4600(b) (1); and

4600(d) This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan which is in the best interests of the child or children." Civil Code 4600(d) And then we come across Civil Code 4600.5, entitled "Joint Custody", which tells us this: "(a) There shall be a presumption, affecting the burden of proof, that joint custody is in the best interests of a minor child, subject to Section 4608, where the parents have agreed to an award of joint custody or so agree in open court at a hearing for the purpose of determining the custody of a minor child of the marriage.

(b) Upon the application of either parent, joint custody may be awarded in the discretion of the court in other cases, subject to Section 4608...."

Even while 4600 states on its face that it establishes no preference for joint custody, it is worded in such a way that such a preference can easily be read into it.

Legal custody, however, is a different animal from physical custody, and both parents can be awarded joint legal custody, with one parent retaining sole physical custody:

  • "'Joint legal custody' means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child." Civil Code 4600.5(d)(5)
  • "'Sole physical custody' means that a child shall reside with and under the supervision of one parent, subject to the power of the court to order visitation." 4600.5(d)(2)

Some experts, including Ed Nichols, MSW, director of FAIR (Father's Advocacy and Information Referral), assert that the primary effect of legal joint custody is to create an illusion which gives the father a sense that he has retained some control over what happens in his child's life, while de facto giving sole custody to the mother. Common sense, and open eyes, will tell one that operationally, very few parents with sole physical custody give much heed to the non-custodial parents' input regarding decisions having to do with the child.

Thus, in case after California case, one finds that joint legal custody is awarded to both parents, with sole physical custody to the mother. The following illustrate the typical situation:

  • "Jane Kirk and Von Kirk were married in 1970. They separated in 1982; dissolution proceedings were begun in May 1982; and an interlocutory judgment of dissolution was entered on June 20, 1983. The marriage produced four children, whose legal custody is shared by Von and Jane, with sole physical custody in Jane." In re the Marriage of Von D. and Jane A. Kirk, 217 Cal.App.3d 597, 266 Cal.Rptr. 76 (1990)
  • "In January 1983 Pamela and Michael executed a marital settlement agreement in which they agreed to joint legal custody, with actual physical custody to Pamela, and reasonable visitation rights to Michael." J. Fingert v. Pamela M. Fingert, 221 Cal.App.3d 1575, 271 Cal.Rptr. 389 (1990)
  • "At the bifurcated hearing in May 1988, the parties stipulated to joint legal custody of the two minor sons, with physical custody to Vicki and a reasonable schedule of visitation to Clyde." In re the Marriage of Victoria J. Smith and Clyde W. Ostler, Jr., 223 Cal.App.3d 33, 272 Cal.Rptr 560 (1990)

Note that in some cases the father agrees to this arrangement before it even reaches court. True, there are certainly a number of fathers who genuinely do not want physical custody of their children. But it is equally true that there are fathers who do want physical custody, but who are told by their lawyers that they stand no real chance in court (which is not unsound advice), and who may even have had the panacea of joint custody offered to them as a consolation prize ("Look, Joe, I don't want to go into court to fight a losing battle. You can't prove she's unfit, there's no way you're going to get custody. But I'm pretty sure that the court will agree to joint legal custody.")

As previously noted, few custody cases are appealed. As of the time of this writing, there were no appellate level decisions in California touching on initial determination of custody for the entire calendar year of 1991, and there was only one in 1990.

The case of Catherine D. v. Dennis B., 269 Cal.Rptr. 547 (1990), involved an unmarried couple, Catherine and Dennis. Some preliminary support and visitation orders were made, reserving the question of custody, but leaving the infant, Zachary, in Catherine's physical custody. Catherine became increasingly hostile. Some of the 'highlights' of the court's findings in this regard include:

"...numerous examples of her ill-motivated conduct, such as telling the boy his father denied them adequate financial support, implying that his visitation prevented special activities...and attempting to persuade Zachary that his visitations were an obligation rather than a benefit. On one occasion, Catherine disrupted an agreed, planned summer-month visit by causing a commotion at Dennis' office and later arriving with a police escort to take Zachary home with her.... Catherine's constant unilateral modification of established visitation schedules, necessitating frequent telephone calls, changes of time and place of pick-up and return, as well as verbal harassment of Dennis's [sic] employees involved in making necessary arrangements in Dennis's behalf ....Catherine's anger-fueled campaign seemingly knew no limit. In addition to attempting to instill in Zachary a negative attitude towards his father, (the court finding she had actually "brainwashed" Zachary against his father), she consistently interfered with school authorities (even threatening to sue) for the singular purpose of frustrating Dennis's planned visits and vacation trips, and to such a degree that school officials decided against Zachary's further attendance. And there was no indication that Catherine had any intention or inclination to alter her behaviour or conduct insofar as it directly impacted Zachary's best interests. Indeed, as previously noted, the court was moved to comment on the Jekyll-Hyde persona manifested by Catherine during cross-examination." Catherine D. v. Dennis B., p.553-4.

The trial court awarded Dennis primary physical custody, and the appellate court affirmed.

This case, with physical custody going to the father, is the exception that proves the rule, in that it nonetheless illustrates the underlying maternal biases. This is demonstrated by the pains the appellate court goes through to justify its affirmation of the trial court's decision, even going to the extent of quasi-reviewing the factual evidence below. There is also reference to Ms. O'Neill, an expert psychological evaluator, who stated unequivocally that custody should go to the mother. This in spite of the fact that she had never even bothered to interview the father about conflicting stories concerning major incidents, and in the face of overwhelming evidence of the mother's malicious and psychologically injurious acts aimed at and in front of the child. "Cross-examination of O'Neill revealed that her opinion was essentially based on her interviews with Catherine alone; additionally, she failed to ask Dennis about conflicting accounts of major incidents." Catherine B., p.554. As stated previously, these professionals are not immune to the "children belong with their mothers" bias.

Finally, the mother's vicious and injuring acts themselves speak to the degree of "unfitness" which must be met in order for a father to successfully fight for custody. As did the appellate court, the trial court evidently had felt it necessary to justify by the mother's unfitness an award of custody to the father. The finding that the father was better suited on his own merits simply wasn't enough to justify such an outcome. As the appellate court says of the trial court below:

"Clearly mindful of the sensitive policy considerations and relevant factors bearing upon custody decisions, the court felt constrained to comment on Catherine's palpable anger and hostility directed to Dennis--characterized by her repeated efforts to frustrate his visitation rights and to denigrate his parental role--and the potentially detrimental impact on Zachary's development and well-being if physical custody were to remain with Catherine. The court noted that while no showing of a change of circumstances was required in view of the absence of a preexisting custody order, material circumstances relevant to custody had in fact changed over the years and that the best interests of Zachary, assuring his "intellectual, social and moral growth" would be served by awarding physical custody to Dennis." Catherine D., p.549.

As has been observed, "...instead of the 'best interests of the child' serving as a test, the 'unfitness' rule which was designed to serve in all custody contests between parents and non-parents is being applied..." Law and the Family, New York; Foster & Freed; Lawyers Cooperative Publishing Co., Rochester, NY (1967). What is being alluded to here is that while both parents are theoretically to be considered on equal footing in their attempt to demonstrate to the court that they would be better suited for custody of their children, the general de facto rule is that in order for a father to receive custody in an initial custody suit he must prove that the mother is "unfit". The formal standard of proving "unfitness" is traditionally reserved for contests in which one is attempting to a) have custody changed from one parent or another, or b) prevail as a non-parent seeking custody against a parent. The trial court in Catherine B. seems nonetheless happy to be able to meet this standard. While it is true that the above Foster & Freed quote is in reference to New York, the New York State Supreme Court in Watts (supra) is quick to point out that the maternal bias and the leaning towards a tender years doctrine-like process of decision making occurs elsewhere too.

The case of Catherine B. raises the question "Why does a mother's behaviour have to be so extreme before a father (who in his own right is better suited) can get custody?" The answer is maternal bias.

The laws may require equal treatment, but "best suited to have custody of the child" is a subjective call, and the caller remains an individual. As long as so many individuals, both in the family law field, and in society in general, believe that children belong with their mothers in preference to their fathers, men will not be given a fair shake, no matter what the laws say to the contrary.

III. Maternal bias in child-support matters

"The State of California has no single standard to promote equitable, adequate child support awards." California Civil Code 4820, "The Agnos Child Support Standard Act of 1984". At the time, truer words had never been placed in print.

And not all that long ago one could have easily substituted the name of any state in the place of "California". However, with the move to child-support formulas, such as that put forth by the Agnos Act, many states now have something which they can point to and say "there is our standard." Whether or not these formulas promote "equitable, adequate child support awards" is quite another story.

Why such variances between what is needed to provide for a child, and what is awarded as the result of judicial discretion? Why did the Legislature enact a child support standard act which sets a minimum amount which must go to the mother, but sets no maximum limit for that which may be taken from the father?

This is 2nd half of the maternal bias: the first half was "the mother gets custody", the second half is "the father gets to pay."

IV. Two personal stories

Below are the personal accounts of two fathers who have been through the California courts, and experienced the working maternal bias, in an effort to obtain custody of their children. In the interest of fairness and responsible reporting, there is a story from a father who prevailed, and one from a father who did not. Even "David", the father who prevailed, remarks on the strong bias against fathers he encountered throughout the system.

While these stories have different endings, they have one alarming similarity: the mother's use of false allegations of the father's sexual abuse of the child in an attempt to thwart the father.

This is a particularly difficult problem because in the interests of the child, the court must act on the assumption that the allegations are quite possibly true, to the extreme detriment of the father.


V. Conclusion

Much of the inequities that exist in our family court system are the result of the ingrained, personal biases of the people who work within the system, and who apply the rules. Judges and other legal professionals carry with them a bias which serves to undermine the (sometimes) equitable intent of the laws and rules under which they operate. They may not even be consciously aware of the bias which influences their decisions and recommendations, although in some cases it is clear that they are not only aware of their bias, but they seem to wave it as a banner.

Once recognizing the bias, we can start to work at correcting the imbalance which it has perpetuated, just as is done with any other discriminatory bias which has wronged the peoples of our society. Perhaps the most important factor in this case will be the educating of those who make the decisions: the judges, the lawyers, the psychologists and social workers. Harder will be the task of educating society in general, as for so many years we have been intently trying to rectify the inequities in how women are treated. Any move towards swinging the pendulum of preference back towards an equitable middle-stance will be perceived as a step backwards for the cause of women.

Be that as it may, work at it we must, until the answer to both of these questions is a resounding YES:

  • Are men who land in our nation's family courts entitled to be judged by the same standards as the women who sit opposite them?
  • Are those men in fact afforded such equal treatment?