Gender Bias in Divorce and Custody Cases

Do statutes and case law favor one gender over another? Do judges presiding over divorce and custody cases base their rulings on gender? In this episode of Divorce Team Radio Todd Orston, Partner at the Divorce and Family law firm of Meriwether &Tharp, LLC, considers these questions and more as he analyzes the true impact of gender in divorce and family law cases.

Todd Orston:

Welcome everyone to Divorce Team Radio, sponsored by the divorce and family law firm of Meriwether and Tharp. I'm your host, Todd Orston, and here you're going to learn about divorce, family law, and from time to time even tips on how to save your marriage if it's in the middle of a crisis. If you want to read more about us, you can check us out online at atlantadivorceteam.com.

All right, let's get started. I'm going to go through a lot today and I want to talk about a topic that is on a lot of people's minds and it is gender bias. What do I mean by that? Well, in the context of family law, obviously gender is an issue. You have moms, you have dads, you have different parties vying for certain rights and obligations and things like that. And so basically gender bias. There are a lot of people, usually men who will say, "I was treated differently. I was treated unfairly because of my gender." And so I want to do a deeper dive on that.

And so generally, generally, generally, I will say this, if you just turned on the show and you're listening and you're like, "All right, Todd, give me the answer. Tell me, does it exist?" I'm going to give you a definitive answer right now, kind of, but not really. In the show, we're going to explore that. So gender bias, does it exist? You need to think of it in terms of first of all, what does it look like? What are you even talking about? And there's really two different types of bias that you're going to be thinking about. It's either systemic bias, meaning terms of laws that are either intentionally or unintentionally in favor of one gender over another. So basically you're saying the law itself, whether it was intended to be or not, it favors women or it favors men.

And then there is unconscious bias which focuses more on the judges who are issuing the rulings and the stereotypes that influence them in a way that might favor one group over another. Well, I'd love to say that our system is perfect, but it's not. We practice in the State of Georgia, and I think if you talk to any attorney anywhere who practices family law, they're going to say something similar. Is it a perfect system? No. Do we still need to fix? Yes, but is it at least trending heavily towards more equality and less bias? I can only tell you my opinion is yes.

So do I think, as some people have said, and as I hear unfortunately quite often, do I think that the system is rigged? No. In fact, changes in the law have set aside many systemically adopted biases. And that's not to say that more change isn't appropriate, but we're far better than we were just a few decades ago. Unconscious biases is a completely different matter. Based on my experience, I will tell you most judges, and by most I don't mean 60%, I mean most of the people who put on that robe are looking to do the right thing. But do I think every judge has gotten it right in every case I presented? Well, if the ruling didn't favor my client, then of course not. No, I'm kidding.

Even some of those times where it didn't favor my client, I had an inkling. I had an idea that the facts may not support what my client was trying to accomplish. And are there other situations where I think the judge just whiffed, just got it wrong? That's my opinion, of course. And have I even seen situations where maybe there truly was a bias? It may not even have been unconscious, but yes, I have seen things where I believe that's the case. But they are few and far between, situations where a judge just simply ignores facts and the case it would scream for a particular result or ruling, but they still rule in favor of the other party. They're very, very, very rare.

So systemic bias, going back to that, do I think that the law itself is written in a way where it has some level of bias, one party over the other? No. In Georgia here, as in every state, we have laws relating to custody. Those laws are on their face, gender-neutral. And you know what? Sometimes the people screaming the loudest about bias are the people who are clearly not focusing on the facts and evidence that would lead any person to rule in that same way.

So what we're going to talk about today is I'm going to focus mostly on custody and parenting time. Though a similar analysis can be used when dealing with any of the core issues. For instance, systemic bias. Very quickly, I'm not going to get up on my soapbox on this one, but... Well, maybe for a minute I will. Alimony. Alimony, there's a law on the books in Georgia. If you can show that the other party who is asking for alimony engaged in adultery and that adulterous relationship resulted in the breakup of the marriage, it can act as an absolute bar to alimony, meaning the judge could still love you, could still want to help, could still have feelings of, "Yes, you made a mistake, but I'm still going to make sure you are supported," and they are not allowed to. There is a bar.

Well, think about that. And this is not a judgment about any gender. This is simply saying, "Here's the reality. The reality is the vast majority of people in a relationship who are seeking alimony are women usually." And this is just based on just I would say traditionally when the family planning occurs, a lot of the decisions are, I'm not saying every time, okay? I come from a family where both parties work. So I'm not saying every time, I'm saying in many of the situations it is, mom will stay at home, we'll take care of the family, take care of the kids.

So now what do we have? We have a vast majority of the time where that's the case. The women, the mothers are giving up on careers, not working, not doing anything other than focusing on the family, taking care of the family. And if they slip up, and I'm not defending adultery, but if they slip up, it could bar them from getting support. I can tell you right now, the vast, vast majority of times it applies to a woman, a stay-at-home mother or wife. I'm not saying it hasn't happened, I'm not saying we haven't represented men seeking alimony, but it's not nearly as common. So is that evidence of systemic bias?

I can't speak to that. In practice, I can tell you it affects one gender far more than another. In this show, we're going to talk mostly and really from this point forward, we're going to talk about custody. We're going to talk about parenting time, and we're going to talk about the bias, the systemic bias and the unconscious bias of judges who are tasked with making decisions relating to custody and parenting time. Because again, I hear it again and again and again and again, people saying basically, "I got a raw deal. I didn't get a ruling that favored me or my rights were limited. And clearly, it is because the judge had it out for me or had something against basically giving certain rights to a man."

And I'll tell you, very often, most of the time, I'm not saying the judges always get it right, but most of the time, if you do some analysis of what the judge did and why they did it, it's something other than gender. We're going to go into all of that when we come back.

Speaker 2:

I just wanted to let you know that if you ever wanted to listen to the show live, you can listen at 1:00 AM on Monday mornings, WSB. So you can always check us out there as well.

Todd Orston:

Better than counting sheep, I guess, right?

Speaker 2:

That's right.

Todd Orston:

You can turn on the show and we'll help you fall asleep.

Speaker 2:

There you go.

Todd Orston:

I'll talk very softly.

Welcome back everyone to Divorce Team Radio, a show sponsored by the divorce and family law firm of Meriwether and Tharp. If you want to read more about us, you can always check us out online at atlantadivorceteam.com. And if you want to read a transcript of this show or others or go back and listen to it again, you can find it at divorceteamradio.com. So we're talking today about gender bias, and by that I mean is the fact that you are a man or a woman, is that being used by the court in a way that is improper? Meaning is the judge making decisions simply because of your gender? When it comes to custody and parenting time, the concern has been there for a long time, right? I have heard many times, I have read many articles and posts of people, men who say, "I didn't get a fair shake simply because I'm a man."

So we're talking about two different ways that can happen. We have systemic bias where the laws themselves do not favor you. And then we have a look at the judges themselves. Is there some unconscious bias, something that each judge is coming into a case with that is somehow, some way influencing their decisions in favor of one gender over another? So let's start with a quick, and I mean this, quick history lesson, because I want to talk here about systemic bias. So in terms of people thinking that there might be systemic bias, well, let's talk about English law, common law. Our laws here in the United States, of course heavily influenced by British common law.

All right, so let's go back in time a little bit. Let's go back to the time when men controlled pretty much everything and they had the right to custody of children because it was important to make sure your three-year-olds could win a sword fight or a jousting match or whatever, but change happened and basically that change came in the form of... And again, this is where any historians out there, if I'm getting it wrong, I apologize. But generally speaking, I would tell you that in the early 19th century, a person by the name of Caroline Norton, my understanding and my reading is that she went through a divorce. She did not get custody of her kids. So she started pushing. She became a social reformer and pushed to try and have laws changed.

And against all odds, it worked, not for her, but generally speaking, she pushed for there to be legislation to protect mother's rights. And in 1839, the Custody of Infants Act gave some discretion to judges in child custody cases and created a presumption, a bias towards moms for kids under the age of seven. Well, that was in place until about 1873 when parliament there extended the presumption until a child reached 16.

Now, basically that change, that is what became known as the Tender Years Doctrine. So when we're talking about systemic bias, to be perfectly honest, the most recent example would be a bias clearly in favor of moms. But mid 1970s, things changed again. And in the mid 1970s, the UN basically convened and dealt with issues relating to the rights of a child. It was the birth of the best interest of the child's standard. And part of that included a review of... Or rather a creation of things that a court should look like when exercising discretion, that a court should look at and consider so that the judge always is thinking about what is going to be best for that child.

And there were a number of factors, best interest of the child, remember, that is the current standard here in Georgia. That is the current standard in, I believe at this point, every one of the United States, and it is a common standard throughout the world. And there may be nuances, there may be slight differences from one state to another or from the United States to other countries, but for the most part, there are a lot of similarities. And for the most part, the focus now is on what is going to be best for that child. And the laws, I'll now speak to Georgia law, and Georgia law, I can tell you right now the law itself is very gender-neutral.

So in my opinion, is there a systemic bias? The answer is no. The answer is in fact, we moved beyond this systemic bias of mothers maintaining primary custody and went to something very neutral that allows the court the discretion to look at everything, to consider a whole slew of factors in order to make sure that the child is going to land in a stable, healthy situation and environment.

Here in Georgia, and we've done shows on this, 19-9-3, that's the law here that relates to the best interest of the child factors. So again, at the most basic level, is there systemic bias? The answer is no. So then what or where should the focus be? If the system itself, and by system I'm simply talking about the laws, the system can also be more broadly defined as including the judges and just the operations of the legal system. I'm talking more about systemic bias in terms of there being specific rules that favor one gender over another.

And while I'm not going to sit here and say our system, and by that I mean Georgia, I mean the United States, I mean maybe the world, that the system is not perfect. I think that we have made great strides to make sure focus is where it needs to be, and that is on the health, welfare and safety of kids. So okay. So the law changed. No more mom must have custody during the tender years. Everything's right in the world. Well, not quite. The law may be gender-neutral, but we still need human judges to apply those laws.

Humans across the board are imperfect. I can tell you right now, I'm not going to sit here and say I'm perfect, but to assume that every judge is going to get it right every time is simply unreasonable. And keep in mind, I'm also not saying, well, that every judge will get it right every time is unreasonable, but also keep in mind that it's very subjective. Your definition of what would be right is probably 100% counter to what maybe the other party thinks would be right. I'm also not saying that every judge is immune from unconscious bias. It's in the definition we're talking about unconscious bias. We're talking about things that it's not like a judge would walk into the case and say, "All right, this is going to be a tough case. Just remember, I like women more. Okay? Just remember that. So when we're listening to the evidence, more weight will be given to the fact that I'm going to lean in favor of the moms." That's a conscious thought.

Unconscious bias is you just have a certain set of beliefs or just thoughts on issues, thoughts on the family, and what would be best for a child. And judges are going to listen to all the facts and circumstances, but at the end of the day, that unconscious bias can influence. So I'm going to keep talking about this when we come back. Unconscious bias, I think that's where the rubber meets the road. That's where most of the criticism lies. And I want to keep talking about that and explain and discuss how serious of a problem is it really? I'll be right back.

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Speaker 2:

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Todd Orston:

Welcome back everyone to Divorce Team Radio, a show sponsored by Meriwether and Tharp. If you want to read more about us, you can always check us out online at atlantadivorceteam.com, or if you want to read the transcript of this show or others or if you want to go back and listen to shows again, you can find them at divorceteamradio.com. And also, if you want to listen to the show live, you can listen at 1:00 AM on Monday mornings on WSB.

All right, so we're talking about bias, we're talking about gender bias and really, we're focused on custody actions. I have heard it again and again and again where somebody, typically a man will come out of a custody case and if things didn't go their way, there is a belief that it was due to gender. "I lost because I'm the man." So is that accurate? Well, we talked already about systemic bias and I think at least my opinion is that it's clear that if anything, the pendulum swung heavily in favor of moms being the primary custodial parent for years and years and years. And it wasn't until the 70s or so that the pendulum started to swing more towards the middle, where now we have laws, best interest of the child, that don't favor a parent at all. So it is very neutral.

So then the focus has to be on application of that neutral law. Now we have to talk about, all right, well, who's making the decisions? Judges, and if a judge makes a decision, are they burdened with any baggage that might influence decisions? Is some of that baggage related to gender? Is someone coming in with some belief and stereotypes relating to parenting? Any preconceived notions that, well, it's the mom. The mom should be the mom, the mom should be the primary. Or is it due to the facts and circumstances presented to the judge? Is the judge going into the hearing clean slate and after presentation of all the evidence making decisions based on that evidence? Look, I think there's a middle ground. We all go into interactions burdened by the weight of what we've experienced in the past, right?

My experiences have allowed me to grow, and I think growth includes learning lessons, taking things from the past and applying them in the future. Hopefully you apply the good stuff and change the bad stuff. So I'm not going to sit here and say, judges, don't come in with these biases or preconceived notions of right, wrong, good, bad, whatever.

The question is, are they disregarding facts and circumstances? Are they making decisions despite evidence that would lead other people, other judges maybe, to do the exact opposite? That's the issue. Now, I'd be lying if I said in my history, meaning my experience, that I haven't experienced situations where I really, really had to question the ruling and whether or not that ruling was somehow influenced by an unconscious or conscious bias. So do I know for sure? Of course not. I can't read minds, I don't know. But again, I would be lying if I didn't walk away from one or two experiences really strongly questioning the decision that was made.

But it is rare. I don't believe that it is as common as some people might say. A lot of the people writing about this stuff out there, clearly biased in favor of men's rights. Look, I'm a father. We represent tons of men, fight for them to make sure they're treated fairly, fighting for primary custody, sole custody. So this is not a situation where we cannot or will not fight for men's rights. We do it all the time. All I'm talking about is how do you present that case? Have you presented the right evidence? Have you done what needs to be done to convince the trier of fact the judge in your case that what you are presenting is reasonable? What you're requesting is reasonable? What you're requesting is in the best interest of a child? And many times unfortunately, it's less about a bias and more about you didn't prepare or didn't present the right case, the right evidence.

Remember, we're applying gender-neutral laws. And also remember, for every story you hear about somebody yelling that an adverse ruling was due to some bias is another party who presented a case and feels that the right thing happened. And so the problem is we hear and read all these things about bias, but what you don't have is all the background facts, all the evidence that the court relied on to make that determination. And maybe it was reasonable, maybe not, I don't know. I don't have the benefit of having reviewed every one of those cases.

So if a judge chooses the mother to be that primary custodial parent, are we just going to jump to the point where we're like, "Well, clearly it's bias." Well we can't do that. What about all those factors that the court is looking at in 19 dash nine dash three things? And again, I'm not going to go through all of them, there's a lot. But if you're going through or about to go through this kind of a case, the first thing you should do, well, the first thing you should do is probably contact an attorney. But even if you hire an attorney, it takes two seconds. Go online, find 19-9-3 and look at it. It is a roadmap of what the judge is looking for, what the court is looking at and considering. Don't just wait for the attorney to educate you and say, "Yeah, this is what we think is important." Educate yourself things like the love, affection, bond and ties between each parent and the child.

The love, affection, bonding, emotional ties between a child and siblings, capacity and disposition of each parent to give the child love, affection and guidance and to continue the education and rearing of the child. Each parent's knowledge and familiarity of the child and the child's needs. Each party's stability, financial stability, emotional stability. And that's just sort of a tip of the iceberg. There are a lot of factors that the court will look at.

And so I've seen people complain. I've seen men complain, "She got custody, she's the mom. I knew going in this court was going to give her custody because she's the mother." When only minutes before in that hearing, they failed to answer any questions regarding the children's medical needs, education, activities. They were unable to provide information or even show any level of significant involvement in taking care of the children's daily needs. So if a decision was then made in favor of the mom, who did have that knowledge, did present the better case, is it bias or is this one of those you got to look in the mirror kind of moments?

You may see yourself as a great parent, you may be a great parent, I get it. But how would others see you? Not friends and family, a stranger looking outside in, you love them, play with them. You go to activities, but have you been to doctor visits, school meetings, play dates? Can you identify people and professionals involved in your child's life? Do you go in with a plan ready to show the court that, "Hey judge, this is serious. This is how stable I am, this is how stable my house is, this is how stable my child will be. I am ready to do all these things and history shows, I've been doing it?" So it becomes less about bias and more about have you convinced the court that what you're asking for is reasonable? All right, when we come back, let's talk about some things you need to do. You got to stop just hyper-focusing on there may be bias and you need to present the best case. That's what we're going to talk about.

Speaker 2:

I just wanted to let you know that if you ever wanted to listen to the show live, you can listen at 1:00 AM on Monday mornings on WSB, so you can always check us out there as well.

Todd Orston:

Better than counting sheep, I guess, right?

Speaker 2:

That's right.

Todd Orston:

You can turn on the show and we'll help you fall asleep.

Speaker 2:

There you go.

Todd Orston:

I'll talk very softly.

Welcome back everyone to Divorce Team Radio, sponsored by Meriwether and Tharp. Remember, you can always find us and check us out, atlantadivorceteam.com. Read transcripts of the show, go back, listen to them again at divorceteamradio.com. So today we're talking about gender bias. Is it a real thing? My quick answer, kind of. Systemic bias, my opinion, I don't believe so. And by that I mean the laws on the books, are they gender-neutral? They are. In terms of that unconscious bias that judges bring into a case, does it exist? It does. I think a lot of judges, I would love to say most judges, but I can't. I don't like saying something if I can't at least stand behind the statement. I've practiced in Georgia, in a certain area of Georgia. I have not been in front of all the judges in Georgia, haven't been in front of any judges anywhere else. But I would like to believe that what I'm saying about my experience is going to be similar wherever you are. And that is, do judges bring their baggage with them into court?

Well, some of it, they can't do anything but. But does that mean that they're all coming in with these preconceived notions of right, wrong and reasonable in terms of custody and parenting time? No, because if you believe that, then you are basically saying that truly no one, no man will ever get a fair shot at winning custody. And I can tell you right now, as an attorney in a firm that is only focused on this, we win custody for a lot of men.

And so men do win custody, can win custody, and by that I'm talking even winning sole custody if it's appropriate, primary custody, joint custody, or depending on their work schedules and other issues, including but not limited to the needs of the children involved. We're talking about something that is more than just that standard every other weekend kind of situation.

So is there unconscious bias? Yeah, I believe there is. Have I seen it or have I experienced things where every part of my being is screaming that there was something more there, that the bias was so potent and that a judge basically just ignored certain facts and circumstances that were presented in evidence? But again, do I think that that should define the system as a whole? No. And I'm not saying that just because I'm an attorney and I'm protecting the system. If it's a broken system, it needs to be fixed. As Americans, we know there are a lot of broken systems, but doesn't mean you give up on the system and it doesn't mean that the entire system, meaning all parts of that system are broken.

And I said this before, that this really is a look in the mirror moment. There are people who go in with... And by in I mean into a case, into a hearing, and sometimes their expectations are just not set properly. What do I mean? I mean there are facts and there's evidence that unfortunately probably would to an outsider lead them to believe that maybe let's say the other party would be the best choice for a primary custodial parent.

When you go into a case, you need to think about a bunch of things. And again, I said this in the last segment, you need to look at 19-9-3. You need to look at the law. You need to make sure you understand what that roadmap looks like, that menu of items that a court is going to consider. So at some point you can sit and dwell on the fact that maybe there is bias and maybe that bias will bite you in the rump and not give you that fair shake that you deserve. Whether it's there or not, you still need to present the right case. You still need to do the things necessary to show that you would be a good choice.

So what are some things, and we've talked about this in shows before, you have to familiarize yourself with the children's daily needs. You have to go in ready to talk as if it is second nature. Talk about their activities, school, medical issues. Talk about the people who are involved in taking care of them, coaches, teachers, doctors, therapists. In identifying needs, you need to show that you have pushed to get them the help that they need. Are they struggling in a class? "Hey, I found a tutor." Are there medical issues beyond just going and getting them checkups at a pediatrician? "Hey, I found a specialist." Do they need therapy? "I've talked to my spouse, we've talked about the need. Maybe we agree, maybe we don't. But look, this is who I am and this is how involved I am."

You have to participate. You can't just identify and educate, sit there and read a script of this is what the activities are, this is who the people are that help participate in as many of those activities as possible. You need to focus on your child's needs and at the same time, you need to focus on your future. Don't dwell on the past. You have to be ready to show what a healthy future for you looks like.

Focus on your stability, financial stability, emotional stability. If you're not stable, financial or otherwise, why would a court feel that you should be a primary parent or joint parent even? Make sure that you're healthy. If there are concerns or could be concerns, don't wait until you're walking into the case. Definitely don't wait until you're walking into a trial to start fixing those problems. Addiction issues, abuse or anger issues, those are the kinds of things that a court will look at and hold against you, right? It could absolutely impact and influence the court when it comes to decisions of custody.

So all of that is make sure you're healthy, that you can provide a stable environment. Well, make sure that you can also be a good, not just parent, but co-parent, that is something that is so often overlooked and not given the priority, the focus that it needs. Courts want to see that you are going to be ready, willing, and able to work with the other party in daily decision-making, in everything. I have seen parties come in and say, I want joint custody. And then we pull out recordings and emails and other evidence that shows that having a civil conversation, a rational, calm, polite conversation, whether you agree on everything or not, might be an impossibility.

And if that's the story that gets presented and if the judge feels that's the case, why would a judge give you equal or more rights? You need to be present, you need to be healthy, you need to be ready to do the job, necessary to provide and give the child or children the stability that they need. And of course, be careful what you say. And by that I mean always assume everything you say can and will be used against you in a court of law.

I say that all the time because all the time people ignore it and their words get used against them. Emails they sent, texts, they sent calls that they made. Different states are going to have different rules about recording conversations. In Georgia, if you're having a conversation with somebody, you can record it. So we go into court all the time and unfortunately, the words get used against them.

These are things you need to be focused on, and if you do, you're going to get a fair shake in court, and hopefully any of that unconscious bias isn't going to impact you too much. That's all the time we have. Thanks for listening.