International Men's Day:
Sexism in child custody

Exploring the current inequalities men face in family courts

Janis McMath
Editor-in-Chief

 

hild custody is a hotly contested topic further complicated by the gender politics revolving around the

issue. Should presumed equal shared parenting exist within the law? Is the law unfair to fathers looking
for relationships with their children? Do children primarily need their mothers at certain ages? Countries all
over the globe are still looking for the answers—and BC’s and Canada’s newest amendments to the law offer
some of the best (and newest!) solutions to these controversial issues.

FAMILY COURT’S PERSISTENT ISSUES WITH BIAS
The history of family court actually begins with a bias in favour of men. Originally, in early English Common
Law, the majority of cases rewarded men with sole physical and legal custody of children. In response, the
“tender years” doctrine was created in order to create a bias for women in child custody cases. The
ideology stated that women were significantly better caretakers of young children and that there

should be a “presumption of maternal custody” in child custody cases. The system shifted
from misogynist to misandrist quickly.

This bias of women’s traditional gender role as caretaker has unfortunately been
observed in judges. A 2018 US study of more than 300 judges called “Expertise
Fails to Attenuate Gendered Biases in Judicial Decision-Making” found an obvious
favouring. In the study, it was observed that judges who believed in traditional gender
roles for women and child raising were significantly biased —favouring the mother—in
their verdicts on mock child custody cases. Yet these mock cases included an equally
qualified mother and father. Of all the judges in the sample, only three percent allocated
more time to the father than the mother.

The data shows that those presumptions of maternal custody were taken seriously for
many years. In looking at physical custody statistics prior to 2006 in Canada, 68.7 percent
of sole physical custody cases were awarded to mothers—while only 9.7 percent of men
received such a ruling. During this time, only 10.2 percent of physical custody cases were
shared. Important to note is that in those cases where physical custody was awarded to
one parent, the Government of Canada’s page states that the majority of parents without
physical custody often had “reasonable” access to the child; the definition of “reasonable”
access is along the lines of “one night during the school week, every second weekend,
and half of the summer holidays, with unlimited telephone access.” The definition of
reasonable has been contested—and clearly with good reason. Such “reasonable”
access inspired the derogatory term “weekend dad,” referencing how stereotypically
uninvolved divorced dads are.

cc

In looking at physical custody statistics
prior to 2006 in Canada, 68.7 percent
of sole physical custody cases were
awarded to mothers—while only 9.7
percent of men received such a ruling.
During this time, only 10.2 percent of
physical custody cases were shared.

 

ARGUMENTS FOR AND AGAINST THE
PRESUMPTION OF EQUAL SHARED PARENTING
Some lawyers and activists have supported the proposal for
legal presumption that both parents should be equally involved
in an effort to make the law fair for both guardians. The idea is
predicated on both parents always being essential to a child’s

lite—and many cite studies that have shown that children fare o” ASL,

better with two-parent relationships instead of one. They also cite