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CR12 - Gender Bias in Child Custody Decisions

A few high profile cases in which working mothers have lost custody have captured the attention of the media and led to cries of judicial bias. Dr. Warshak was asked to address this issue in a plenary session of the 1995 annual conference of the Association of Family and Conciliation Courts and his remarks were the basis for this journal article.

It begins by discussing the manner in which gender stereotypes have shaped custody decisions throughout history and then takes up the question of whether, and in what form, gender bias is part of the current custody scene. Avoiding simplistic approaches to the topic, this article examines a range of criticisms leveled at the best-interests-of-the-child standard, from both women's and men's advocacy groups.

Dr. Warshak explains why allegations of systematic discrimination are difficult to evaluate and he gives examples of how advocacy groups and the media misrepresent the state of research in order to support their preconceived opinions.

Conceding that the absence of reliable data on the question of gender bias in court decisions invites rhetoric in place of reason, the article next addresses the wider issue of whether gender bias rules the ninety percent of cases decided outside of court. Dr. Warshak shows why the question "Which parent should get custody?" lies at the heart of gender bias claims. He then examines four explanations which have been offered to defend the mother's preferential claim to custody, and concludes that the best scientific evidence proves that neither nature nor experience gives women a monopoly on parental competence either before or after divorce. This section offers a more detailed analysis and criticism of the primary parent standard than in Dr. Warshak's previous work.

The article ends with a brief discussion of research findings which demonstrate the need for a new approach to custody decisions that guarantee children their birthright to both parents. A suggestion is offered to ensure that custody reform reflects the needs of children rather than the demands of adults. An abstract and 39 reference citations are included.

CR11, audiotape (20 minutes)
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CR12, Included in bundle CR55

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