Does Gender Bias Exist in NY Child Custody Battles?

Divorcing dads have the same rights as moms to seek custody of their children. The child custody laws in New York have been gender-neutral for decades. What’s on paper, however, does not always translate into the law’s application.

Fathers sometimes face an uphill battle that’s not necessarily against the other parent. Some battles are against the unconscious bias that moms are better parents.

Our attorneys at Jason M. Barbara & Associates, P.C. have experience in fighting for fathers’ rights and in neutralizing potential bias.

Tender Years Doctrine in Custody Cases

The Tenders Years Doctrine dates to the 1800s. The doctrine presumes that mothers should be awarded custody of children younger than 13 in divorce cases. Like many things in the U.S., the Tender Years Doctrine was a concept borrowed from England.

In the 19th century and earlier, women had few individual rights. In divorce cases, women had no right to raise their children. That changed when Caroline Norton campaigned for the right of women to have custody of their children. Norton, a prominent London hostess, had been denied access to her children in her divorce. Her successful lobbying led the British Parliament to pass the Custody of Infants Act of 1839, which gave mothers presumed custody of children younger than 7. Parliament expanded that presumption in 1873 to children younger than 17.

Custody Bias Violates the 14th Amendment

The Tender Years Doctrine crossed the Atlantic and served as the basis of most custody decisions in the U.S. for many decades. The practice theoretically ended in New York in 1973 when Judge Sybil Hart Kooper of the Family Court of New York reversed a custody decision based on the Tender Years Doctrine. This philosophy stated that mothers are better equipped than fathers to care for minor children.

Judge Kooper ruled that the presumption that mothers should have custody violated the father’s right to equal protection under the Fourteenth Amendment of the U.S. Constitution. Today, all states have shifted away from using the doctrine in child custody disputes.

Since that ruling in the early 1970s, New York has used the bests interests of the child in determining child custody awards. Despite this change, about 90% of all court-decided custody decisions go to the mother. One reason for that high percentage is that some parents amicably decide for the children to live with their mother. Another reason is that some fathers believe the courts are stacked against them and choose not to fight for custody. Those dads who take their custody fight to the courts might also be the victim of unconscious bias.

Bias for Maternal Custody Still Exists

Tender Years Doctrine has been removed from child custody laws, but the concept might remain in the subconscious of those given the authority to determine custody.

In the last 50 years, much has changed in the American family dynamic. More women work outside of the home. They travel for work. They have late meetings. Their income provides a significant source of funds for the family. Fathers have become more active participants in raising children. Yet the father is more routinely penalized for their work schedule and is viewed as a breadwinner and not a nurturer.

Fighting for the Rights of New York Fathers

At Jason M. Barbara & Associates, P.C., we believe that no gender is an inherently better parent. Each family situation is unique and deserves equal consideration. When we represent a father seeking custody of their children, we recognize that favoritism still exists. Our court strategy is designed with this bias in mind. We take measures to help counteract possible gender discrimination in the courtroom.

If you are a father wanting custody, schedule a free consultation by calling (516) 406-8381 or completing our online form. We serve the residents of Nassau County, Suffolk County, and all five boroughs.