The Prevalence of Discrimination in Determining Child Custody

Surprising facts and statistics about discrimination and bias in family court

How prevalent is bias and discrimination in family courts on child custody decisions?

Law professor Kimberlé Crenshaw coined the term intersectionality in 1989.

This term refers to how individuals may experience several types of overlapping discrimination based on their social identities.

Intersectionality helps explain why some people experience different legal outcomes due to gender, race, or both.

For instance, approximately 52% of custodial mothers have child support agreements; meanwhile, only 31% of custodial fathers do.

Many adults believe gender bias exists in American family courts and fear how it will affect their ability to see their children.

A judge with explicit bias consciously acts discriminatory against a specific person or group based on their attitudes and beliefs.

In contrast, a judge with implicit bias unknowingly discriminates due to their unconscious thoughts.

Implicit and explicit biases impact child custody results for a parent.

An experienced family law attorney could focus the judge on the facts and law and try to overcome the bias. It is possible, but overcoming any bias comes with challenges.

This article separates facts from opinions regarding biases and discrimination in family court, so you don't have to.

Ageism refers to the stereotyping and discrimination of someone due to their age.

The U.S. Equal Employment Opportunity Commission reviewed 15,573 age discrimination charges in 2019 alone.

Everyday examples of ageism include name-calling, assuming older people cannot use technology, and not hiring someone due to their younger age.

Approximately 72% of women and 57% of men between the ages of 45 and 74 have experienced age discrimination.

Many people care about their age. The global anti-aging market is worth an estimated 58.5 billion dollars.

Sometimes, a family law judge will care about your age, too. Consider these situations.

An older male family law judge does not take the concerns of a young mother about the father seriously. He is instead dismissive of her abuse or neglect claims as he places her into the category of a young and immature parent who needs to learn better co-parenting.

An older, female family law judge with old-fashioned (and outdated) values believes a child's place is with their mother and may not take the requests by a young father for equal parenting time seriously. This is both an age and gender discrimination issue.

This author once heard a family law judge refer to the child's place in her mother's primary care as the "natural order of things." Although this was many years ago and arguably is less prevalent, it is naïve to believe it is eradicated.

A family law judge sees a significant age gap between the parents and questions the motivations of the older or younger parents who just had a child together. That type of implicit bias may influence the judge's rulings.

Those are three hypotheticals where express or implied bias works into a judge's rulings.

The United States Supreme Court ruled in Palmore v. Sidoti that a court cannot consider racial biases and prejudices in child custody cases.

A judge's implicit racial bias may still influence their discretionary decision-making despite case precedent and statutory law.

Racism refers to a system that favors white people while discriminating against or harming people of color.

Racism in America may be interpersonal, institutional, and/or structural. Consequently, people of color experience obstacles in employment, housing, legal protection, and other opportunities.

Implicit racial biases are automatic associations and stereotypes towards specific demographics that influence someone's behavior, even if the person consciously rejects racism.

In other words, these subconscious thoughts may cause someone to act in a discriminatory way without them having the intent to discriminate.

For example, the judge in a child custody case may automatically perceive the Black mother as less emotionally stable than the white father while determining the child's best interests and denying her sole custody, even if there is evidence of abuse at a trial against the white father.

Over the years, courts considered social stigma surrounding the parent's sexual identity, a child's likelihood of "becoming" gay, and a child's anxiety over having a gay parent when deciding custody cases.

In 2002, Alabama Supreme Court Chief Justice Roy Moore discussed how exposure to an "abhorrent, immoral, detestable" same-sex relationship could traumatize a child because it was a "violation of the laws of nature."

Science and research dispelled many myths courts relied upon in past court cases. For instance, some studies indicate that children of same-sex parents are psychologically healthier and better adjusted than children raised by heterosexual parents.

California stands out for its efforts to protect the legal rights of all parents, regardless of sexual orientation, in custody disputes. California was at the forefront of the gay marriage debate, legislation, and court battles.

California Courts have held a parent's sexual orientation is irrelevant to a child's best interests and cannot be used to determine child custody.

A judge can make an exception if the parent's sexual conduct harms the child, but that is focused on a parent's actual conduct, not orientation.

In 2005, the California Supreme Court extended child custody, child support, and visitation rights to same-sex couples.

In 2019, SB 495 passed and amended Section 3040 of the California Family Code to include "(c) The court shall not consider the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interest of the child…"

Despite increasing legal protections, sexual orientation discrimination can still occur in custody cases, especially among older, white, and "conservative" judges.

Dr. Jennifer Arnold, a neonatologist, and Bill Klein, a businessman, manage a busy schedule while raising two children.

They are also under four feet tall and live with skeletal dysplasia, which affects their mobility and stature.

They are part of the approximately 6.1 million parents of minors who live with a documented disability.

A physical disability alone cannot be a legal basis for barring a parent from having child custody.

The court can consider a physical handicap if there is compelling evidence that a parent's handicap interferes with their ability to provide for the child.

A parent whose handicap affects their ability to meet the child's needs should still have the opportunity for joint custody.

Yet, children of parents living with intellectual or psychiatric disabilities face removal rates as high as 80%.

Additionally, 67% of parent-child evaluations involving parents living with disabilities included attitudinal biases such as assumptions, prejudice, and speculation.

America has come a long way from the excessive institutionalization and forced sterilization of people with disabilities in previous decades.

Nonetheless, adults with disabilities continue to face discrimination.

A parent living with a disability is still vulnerable to the judge's bias and speculation.

Thus, they remain vulnerable to losing custody of their child after a divorce and to the court bypassing family reunification efforts to terminate their parental rights.

In 1999, fishermen found a five-year-old Elián Gonzalez floating a few miles off Florida's coast.

Gonzalez and his mother had fled Cuba to America with twelve other refugees. Unfortunately, his mother and ten others passed away when the boat capsized.

What followed was an international custody war involving his Cuban father, Cuban-American relatives, Fidel Castro, and U.S. Attorney General Janet Reno.

Ultimately, the U.S. government decided that Gonzalez belonged in his father's custody.

Twenty years later, the U.S. is still figuring out a humane immigration policy but has made progress in family court.

Under California law, a parent's immigration status or nationality cannot disqualify them from receiving child custody.

However, a parent's nationality could impact a court's decision in a custody battle. An immigrant parent who must return to their country may face difficulty demonstrating they can uphold a child's best interests abroad. An American parent could argue that the child is better off living with them than an undocumented parent due to potential legal issues.

A judge may weigh the parent's educational attainment to determine his or her employability and financial means to provide for the child's welfare. A lack of employability or failure to earn what a judge considers enough to provide for a child may cause the judge (no matter how improper) to make adverse rulings to provide a "better home" for the child.

The National Center for Children in Poverty found that approximately 86 percent of children with parents who completed less than a high school diploma live in low-income households.

On average, parents with doctoral and professional degrees earn more than triple that of parents with less than a high school diploma.

Multi-millionaire Alec Baldwin made headlines in 2007 when a voicemail he left his 11-year-old daughter Ireland surfaced during a custody battle with his ex-wife.

In the voicemail, Baldwin said Ireland was a "rude, thoughtless little pig" and that she did not "have the brain or the decency as a human being…."

To the proverb "Money can't buy happiness," Baldwin's behavior adds "or good parenting."

Courts agree.

In California, a judge cannot award child custody based on comparative income or economic advantage.

Courts should award child support instead of removing custody when the custodial parent's income is inadequate to care for a child properly.

The court's decision to not consider comparative income in child custody cases helps domestic violence victims, especially victims of financial abuse.

Between 21 and 60 percent of domestic violence victims become unemployed due to their abuser's control tactics.

Every person in America has a First Amendment right to religious freedom.

Absent compelling evidence of child abuse, family law judges cannot deny a parent custody or visitation based on that parent's religious observance.

Religious discrimination in a custody dispute could still happen.

For instance, a judge could associate religious polyamory with perversion and believe it is against the children's best interest.

An openly atheist parent who opposes any religious teaching for the child may face the wrath of a deeply pious family law judge.

Discrimination, whether the actor behaves with implicit or explicit bias, can have devastating consequences for a parent who is otherwise capable of caring for their child.

How can parents overcome discrimination?

Overcoming discrimination requires knowing the law, the facts that matter, the judge assigned to the case, and being able to put on a persuasive case based on the facts, law, and evidence - and nothing more.

With rare exceptions, that requires an experienced attorney, which comes with some cost. Your child is worth it.