I can't tell you the number of times I've been asked this question. Actually, I'm not usually asked, so much as told, that a man has no chance of getting a fair shot at time with their children in family court.
There is a lot to unravel here, so let me start with something that should be obvious, but probably isn't - there is no single answer to this question that applies to every court in every county in every state. There are a lot of reasons for this: a) the laws in each State are different, sometimes dramatically so, b) each individual courthouse in each county has it's own ways of handling cases, c) every case is decided by an individual Judge, and every Judge has his or her own beliefs and values that they bring to their decision-making, and d) the most important determinant in any case are the specific facts of that case, which vary wildly. So any blanket statement that all family courts everywhere are biased against men simply can't be true.
That said, there is no question that, historically, this bias has existed throughout the country. It was created by our own traditional values and beliefs, and was then reflected in our written laws and the decisions of the Judges that interpret them. The question is, does this bias remain in the court system today?
Is the Law itself biased?
The short answer? No, or at least not on its face. I believe any bias in the law is more a matter of the law reflecting a bias in the culture, rather than creating an unfair bias on its own.
Take, for example, the laws regarding parenting time in Illinois: under the Illinois Marriage and Dissolution of Marriage Act (IMDMA), Judges are required to consider a number of factors when determining what type of parenting schedule is in a child's best interests. One of the factors is "the amount of time each parent spent performing caretaking functions with respect to the child in the 24 months preceding [the commencement of a case]... or, if the child is under 2 years of age, since the child's birth."
While this is only one of the factors, it is a factor that is often given great weight by Judges. To the extent, then, that our culture has historically placed a child's care-taking responsibilities in the hands of the Mother, the outcome of many custody disputes has directly reflected that culture. This is a bias of the culture, then, not of the law. As the culture changes, so should that bias.
The bottom line? The law today isn't so much biased in favor of mothers, as it is biased in favor of primary caretakers, which until quite recently have primarily been mothers.
Well, what about the Judges?
Aren't all Judges biased? Then again, if they are, why wouldn't they be biased towards men, since most Judges are, themselves, male?
Judges are not supposed to allow their own personal beliefs to affect their decisions, and I believe most Judges are truly doing their best to remain unbiased. However, we are all a product of the culture we are living in. There are some cultural beliefs and values that are so inextricably a part of who we are, that we aren't even aware of them at a conscious level.
For the majority of the history of our country, the belief that children are better off with their mothers, or that women are better caretakers of children, has been held as an almost absolute truism. And I think there is no question that this belief system was reflected in the decisions made by Judges for many, many years.
I don't believe, however, that this was always unfair. Traditionally, women were the primary caretakers for children, while men went out and earned money for the family. So for Judges to place children primarily with women was a fairly rational thing to do, at the time.
The problem has occurred as the attitudes of Judges and other decision-makers have not kept pace with the changing circumstances and attitudes of the culture. Men are primary caretakers of children now, just as women are also breadwinners for families. Judges that were elected or appointed decades ago simply may not be able to change their internal value-system fast enough to reflect the changed circumstances of the culture around them. And when that happens, there will definitely be unfair biases and injustices against fathers carried out in the Court system, with potentially tragic consequences for children.
There is good news, however: Judges retire. The law adapts.
I have seen this in my own practice. A decade or so ago, I knew several Judges who very clearly favored women. Even in situations where the mother was very obviously negligent, at worst she would be awarded a minimum of 50% of the parenting time. Most fathers in the same situation would have had to fight just to retain rights to weekends.
Now, as it stands in Ogle County, there isn't a Judge on the bench that I think inherently favors women or men. This is mostly true in the surrounding counties, as well.
The law itself has also changed. A recent overhaul of the IMDMA has made it clear that the legislature expects both parents to be on equal footing coming out of the gate. The law still has factors that will favor the primary caretaker, but there is less and less of a presumption that women are always the primary caretaker. And 50/50 parenting schedules are being awarded more and more regularly.
So all you wonderful Fathers out there, take heart. The law is beginning to lose the last vestiges of its bias against men, and is turning that bias against poor parenting by any gender, as well it should.
This is just my view at this time, in the place where I practice. Agree? Disagree? I'd love to hear from you in the comments, but keep it kind and civil. I reserve the right to delete any comments that aren't.