Gender Bias in Family Law
| Author | Gia M. Conti and Cora Gennerman |
| Pages | 11-13 |
WINTER 2022 11
makers.” How does one detect this bias? Perhaps the judge or
other decider of fact will be uninterested in providing for
childcare expenses as they attribute that “role” to a “mother’s
duty.” is type of gender bias leads to a litany of conse-
quences such as mothers not receiving adequate nancial
support for childcare expenses. Conversely, fathers who
performed greater care-taking functions may not be recog-
nized for their contribution to the marital estate in
child-rearing.
A good long-term rst step in eliminating bias is to
legislate against it. Some states, such as California, have
specic laws that prohibit taking gender into account when
weighing what is in the best interest of a child. However, not
all states have statutes that expressly prohibit gender discrimi-
nation. Creating more procedural requirements for the
court-appointed “neutrals” in a case, such as a guardian ad
litem (GAL) or parenting coordinator, will act to promote
accountability and transparency. For example, some jurisdic-
tions require a written report from their “neutrals,” and some
make the written report discretionary. Because courts often
place a lot of weight on recommendations of their “neutral,”
requiring written reports and monthly time-keeping records
can be a helpful check against bias as they promote transpar-
ency and accountability.
e actions one can take to mitigate or eliminate gender
bias depend on who is biased and in what context it occurs.
Gender bias can be implicit or explicit and occurs
in our daily lives whether we are privy to it or
not. We continue to see gender bias in our
day-to-day lives, and family law is no exception.
e question becomes, how do we identify
gender bias, and what can we do to mitigate or overcome it?
While this article is not exhaustive, it is intended to provide
fellow family law attorneys and litigants with tips to navigate
gender biases in divorce.
Gender bias occurs when we treat people dierently for
their perceived gender identity. A common gender bias is
that women are more “nurturing” and men are naturally
“better leaders” or “bread-winners.” ese biases are danger-
ous in the sense that they sometimes lead peers, judges,
neutrals, and attorneys to improperly believe that women
should have greater parenting time than men, especially with
younger children. Oftentimes, people, including judges, do
not realize that they have a bias, much less realize that their
biases often play a role in the decisions that they make. Even
the law is inherently biased. e Tender Years doctrine was a
presumption in common law that mothers should have
custody of children in their “tender” years. However, despite
the fact that the doctrine has been abolished, we continue to
encounter this bias in cases.
A common gender bias that impacts nancial matters is
that males are the “breadwinners” and females are “home-
Gender Bias in Family Law
BY GIA M. CONTI AND CORA GENNERMAN
Published in Family Advocate, Volume 44, Number 3, Winter 2022. © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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