IS FAMILY COURT SEXIST?
Why do mothers always get custody?
Over the last few year’s father’s have advocated that family courts are gender biased and inherently favour mothers. According to a research brief prepared by Statistics Canada in conjunction with the Ministry of Attorney General published in the year 2000, 79.3 percent of mothers had sole custody versus 6.6 of men.[1] 80.6 percent of mothers who had sole custody did so of a child whose median age was between 0-5 versus fathers at 6.6 percent.[2] 86.8 percent of children lived primarily with their sole custodian mother versus 7.0 percent for fathers. [3] According, to this study more than a quarter of the children who had parents that separated for five years or more never saw their father.[4] Also, 39.5 percent of children reported seeing their father once a week.
This trend remained largely unchanged when Statistics Canada research and data for the year 2011 was published in 2014 in the General Social Survey regarding Canadian families. According to this survey, 11 years after the initial 2000 study the numbers largely remain the same with 70 percent of mothers reporting the child primarily resided with them.[5]
The numbers referenced above in regards to the 2000 research brief were court ordered arrangements. According to the 2011 survey, parents were “equally as likely to work with lawyers to draft the written arrangement, as they were to go to court for a judge-ordered arrangement.”[6] Also, “the majority of parents whose child lived primarily with their ex-partner spent either no time or less than three months in the last year with their child.”[7]
These numbers are nothing short of astonishing. Are we to presume that in the overwhelming number of cases fathers simply relinquished custody?
There are many, many factors at play as to why mother’s end up obtaining custody. Factors, that inherently by default place mothers in a strategically better position when it comes to ascertaining custody.
Interim Custody
Whether the father left the family residence by choice or not, generally the mother continues to reside in the family home with the children. Thereby, making her claim for interim custody substantially easier. Once, she is able to obtain by way of a court order interim custody. It becomes a formidable challenge for a father to seek custody.
Preliminary Family Court Proceedings.
Given the predicament of interim custody, many fathers may seek to abandon their claim in the infancy of the family court proceedings given that they have no hope.
Legal Fees
Given interim custody and the preliminary family court proceedings many men will face the possibility of a hefty legal bill with no real prospect of success. This may lead to the acceptance of a resolution that is unfavourable. In the alternative, it can also cause father’s to represent themselves which can often be very challenging. See my discussion about working with a lawyer.
Prior to Family Court
Many men, may relinquish custody even prior to family court. Even with legal representation, if the parties decide to settle their matters with a separation agreement. The father will likely be advised by his lawyer on the potential risks of pursuing a custody case in family court. The father will be left with a choice where he must decide on accepting a separation agreement that will avoid court where he is allotted a certain number of days with the child. Or make the difficult decision of pursing the matter in court. When a father review’s the statistics referenced in the 2000 and 2014 survey, he will likely feel he has no chance of being successful.
Domestic Violence and Parental Alienation
Things can become horrific if there is an allegation of domestic violence and or during the interim custody period the mother decides to withhold contact from the father. In this situation, the father is behind the eight ball and faces serious legal challenges.
CONCLUSION
We come back to the question then, is family court sexist? Are judges intentionally awarding custody to mothers. I think the data speaks for itself. Family court encourages an adversarial process pinning one parent against the other to fight it out until the bitter end. A crushing forum where mothers by default at the commencement of the proceeding may be in a strategically and legally stronger position.
[1] Selected Statistics on Canadian Families and Family Law: Second Edition, Research Unit. Family, Children and Youth Section, Department of Justice Canada, (2000) (Minister of Justice and Attorney General of Canada)
http://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/stat2000/index.html#a01
[2] Ibid
[3] Ibid
[4] Selected Statistics on Canadian Families and Family Law: Second Edition, Research Unit. Family, Children and Youth Section, Department of Justice Canada, (2000) (Minister of Justice and Attorney General of Canada)
http://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/stat2000/index.html#a01
[5] Spotlight on Canadians: Results from the General Social Survey Parenting and Child Support After Separation or Divorce, Marie Sinha
Spotlight on Canadians: Results from the General Social Survey Parenting and Child Support After Separation or Divorce, Marie Sinha
February 2014
http://www.statcan.gc.ca/pub/89-652-x/89-652-x2014001-eng.pdf
[6] potlight on Canadians: Results from the General Social Survey Parenting and Child Support After Separation or Divorce, Marie Sinha
February 2014
http://www.statcan.gc.ca/pub/89-652-x/89-652-x2014001-eng.pdf
[7] Spotlight on Canadians: Results from the General Social Survey Parenting and Child Support After Separation or Divorce, Marie Sinha
February 2014
http://www.statcan.gc.ca/pub/89-652-x/89-652-x2014001-eng.pdf
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