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Are Family Courts Biased Against Men?
Are Family Courts Biased Against Men?

Family law issues are some of the most difficult to navigate. That’s because family is so personal; it’s probably the most personal area of law there is. It’s not just legal documents and terms at stake, but all of the aspects of your family’s lives – your finances, your relationships, your stability, your emotional well-being.

For men in particular, navigating situations like divorce, alimony, custody, child support, and paternity can be extremely challenging. That’s because while family courts aren’t supposed to be biased towards men, they often exhibit implicit bias when evaluating decisions (particularly in contested cases). However, this bias is becoming less and less of a factor.

So the short answer to the question “Are family courts biased against men?” is yes…and no.

The longer answer explains why bias exists and what factors are causing it to go away! If you are a man who is currently trying to navigate the family court system, or if the prospect of divorce or another family conflict seems to be looming, here are a few things you need to know in order to advocate for your legal rights and make sure you get a fair outcome.

The Tender Years Doctrine

In 1839, a law was passed in Great Britain known as the Custody of Infants Act. It formalized a presumption that for young children (4 and under, in their “tender years”), mothers are the best caretakers of the children and therefore should be awarded custody in most scenarios. In 1873, Britain expanded this law to include children under the age of 16. Because of the influence of the British empire, this legal precedent, commonly known as the “Tender Years Doctrine”, spread to the United States (and to most of Europe and other countries). Most states in the U.S formally recognized this doctrine as legislation well into the 20th century. In custody cases, particularly those involving younger kids, mothers had a huge advantage.

Recently, though, the tender years doctrine has come under criticism (and rightfully so) for violating the Equal Protection Clause of the 14th Amendment because it technically discriminates based on gender. Modern courts and legislatures have reversed decisions, repealed laws, and stopped using this doctrine as precedent in favor of the best interests of the child, which sees – all things being equal – both mothers and fathers having an equal right to be a part of a child’s life.

Florida 2008 Law Updates

Florida took additional measures (as many states have) towards leveling the playing field. In October of 2008, Florida removed the words “custody”, “visitation”, “primary custodial parent”, and “secondary custodial parent” from the laws. Prior to this change, family cours would often resolve a custody case by designating one parent as the primary custodial parent and the other as the secondary custodial parent. This gave one parent more authority, more influence, and more time with the child. The other parent was often relegated to the sidelines, and that parent was often the father. The secondary parent would be given “standard visitation”, which was usually every other weekend and dinner once a week, and wouldn’t be able to contribute much to decision making about the child’s life.

The 2008 changes helped fix that! Now, there is no primary or secondary – there is just “parent”. Instead of one parent having more control, now both parents are required to develop a highly detailed parenting plan (or the courts will assign one) that gives both parents a meaningful role in their kids’ lives. Custody cases start with assuming equal time and rights for both parents, which is a big step forward! Obviously this will not be possible in every case, but it is starting to be the norm.

How Unconscious Bias Can Present Against Fathers

Replacing the tender years doctrine with the best interests of the child doctrine, together with the recent changes to Florida laws, give dads more even footing in a custody case. There aren’t as many situations now where men have to fear becoming “every other weekend” fathers. However, as with any legal change, it’s going to take time to sink in and it’s going to take time for the legal system to fully adjust.

Attorneys are going to argue over the correct interpretation of the laws, and judges are going to deliberate. Even though courts are no longer supposed to favor moms, you need to remember that courts are made up of people. It may be tough for a judge to let go of preconceived notions that females are more nurturing, are less tied to their careers, are warmer and friendlier, etc., or that men should primarily be the financial providers of the children. Especially if you and your spouse can’t get along and if the custody battle turns nasty, women and their attorneys sometimes use dishonest tactics and behaviors to attempt to sway the judge in their favor by trying to get you to show anger or playing on that bias.

How Men’s Divorce Law Firm Can Help

At the Men’s Divorce Law Firm, we refuse to accept the idea that fathers facing separation or divorce should just give up and consent to limited contact with their children. We are passionate about helping dads stay in their kids’ lives because we know this is ultimately best for the children and for the dads! For over 18 years, our firm has aggressively represented husbands and fathers who live in the Orlando area in a variety of difficult family law situations. Our experience and familiarity with the most recent laws and legal standards in Florida can give our clients peace of mind.

If you’re wondering whether you have a chance at custody – no matter what your life circumstances are like – give our attorneys a call to request a consultation. We focus on advocating for the male point of view, and we can listen to your story and explain your options so you know what you can expect! Our firm will do everything in our power to lay the best foundation for you and your children’s futures, including fighting against bias and protecting your rights.