Most court systems will agree that a joint custody situation is a best-case scenario for a child. It allows both sets of parents to raise the child, giving him or her a fuller home life. However, not every case allows for this, and some parents may find themselves fighting for primary custody of their child. Regardless of the circumstances surrounding the custody battle, gender is not supposed to be a factor. The Supreme Court has ruled that the judicial use of gender to justify one parent winning over the other during a child custody battle is sex discrimination as it directly violates the U.S. Constitution.
History of Gender Bias in Child Custody Battles
Before the 1980s, United States court systems followed a doctrine known as the “tender years doctrine.” This doctrine stated that young children were attached to their mothers. This doctrine directed judges to award custody to the mothers unless there was undeniable evidence that the mother was unfit to care for the child.
“The tender years” doctrine was abolished after 1980 due to the Supreme Court ruling that the doctrine went against the equal protection clause of the Fourteenth Amendment of the U.S. Constitution.
How Courts Overcome Gender Bias
Today, courts in Texas and across the United States no longer use the “tender years doctrine.” Instead, Texas follows the Texas Family Code, which calls for judges to use “the best interests of the child” as the determining standard. This usually means that custody is awarded to the child’s primary caregiver, which is the parent who meets the needs of the child daily. However, while the primary caregiver could be the parent that took their child to all of their doctor’s appointments, there are other factors involved. These factors are as follows:
- Which home life has the most stability for the child?
- Which parent can meet the child’s emotional and physical needs?
While many individuals feel that the mother traditionally fits the roles mentioned above, both parents can bring evidence of their resources to court. This can help show that the child would be better off with the father or vice-versa, depending on the circumstances.
Is Gender Bias Still Present?
Theoretically, the possibility of gender bias has been erased from the court system; however, this isn’t the case. There are still instances where judges follow the bias that a mother is more fit to oversee the primary care of the child. Many different states and institutions, such as Florida State University and St. John’s Law Review, have determined that gender bias is still present in middle and lower-income families. In these instances, a strong attorney will help you present your case and ensure that bias isn’t a deciding factor. Alison Grant, Attorney at Law is a knowledgeable attorney who can ensure that you are treated fairly during your child custody case. Contact Alison Grant today for more information and to schedule a consultation!