Bias in the Child Custody System

Bias in child custody Fathers are always seen as less important than mothers when it comes to children, and this is true both inside and outside of the courtroom. Let’s start with an honest argument without considering anything else. After the court orders you to negotiate a settlement, all that is left to do is to enforce the terms you and your ex have agreed upon. That is the ideal scenario, provided both parents are reasonable and in agreement.

If you aren’t, the court will decide what “it believes,” which might vary from judge to judge, is in the child’s best interest. If you aren’t, the court will decide what it deems reasonable. And in this custody battle, fathers or the male parent are frequently on the losing end. While the mother receives alimony, child custody, and monthly child support payments, the father is frequently left with unpaid bills and may only get to see his children once or twice per week for a short period of time. Courts have a great deal of discretion when making custody decisions, despite recent trends in verdicts.

They may impose any order they deem suitable and reasonable. Real change must therefore originate from the ground up and necessitate a shift in the judges’ perspectives. This essay will examine how and why male parents—particularly fathers—are treated differently when it comes to child custody.

Introduction Bias in the Child Custody System

“When by birth a child is subject to a father, it is for the general interest of children and really for the interest of the particular infant that the Court should not, except in extreme cases, interfere with the discretion of the father but leave to him the responsibility by exercising that power which nature has given by the birth of the child.”

Children born into a marriage suffer the most when it breaks down or when the couple split. So, even though parents have the legal right to custody of their kids, Indian law puts the kid’s welfare first when deciding who receives custody of a young kid. Custodial dads had to restrict their parental rights to weekends or some other arrangement for a very long period. But the way custody issues are handled has significantly changed due to the new family structure.

Inconsistent societal stereotypes from previous generations can frequently conflict with the realities of today. When it comes to child custody, most people instinctively assume that a woman would be given preference. Dads have the legal right to play a part in what happens to their kids, but they regularly receive advice to give up fighting for more rights.

divorce fault and no- fault theory , bias in child custody

In the event that the father attends court, he will likely be questioned about how close he is to his child and will need to prove that he is involved in every aspect of the child’s life by being aware of the child’s interests, hobbies, and other specifics. However, in most cases, the mother is not subject to the same interrogation.

Mothers took over from fathers as the “primary and irreplaceable caregivers” as a result of the “feminization of the Homefront”, in accordance with “law and custom,” resulting in a “progressive loss of substance of the father’s authority and a diminution of his power in the family and over the family” and the stereotypes of moms as domestic caregivers and primary childrearing and men as the family’s principal provider were developed.

Attempts to draw conclusions from observable data are hampered by the clear dearth of statistics pertaining to family court decisions. One of the ostensible explanations, like with other low-level courts, is that family court decisions are not included in various legal databases. Another aspect of family courts’ distinction is the secrecy of the proceedings. The facts of the case are frequently ambiguous as a result. It is often not possible to access Family Court decisions online, which makes it more challenging to build databases and make decisions more widely available.

Also read Child Custody In India 2023

Historical Evidence Of Gender-Biased Child Custody

In the past, dads supported their families while moms cared for the kids. These traditional gender standards seeped into the legal system towards the middle of the 20th century as divorce rates rose. It was widely believed that because they were too busy working and weren’t naturally nurturing, men were better equipped to pay child support than they were to have custody of the children.

The history of child custody following divorce reflects both the evolution of husband-wife partnerships and the changing attitudes regarding children. In the colonial era and the early Republic, children were viewed as valuable resources whose labor was beneficial to their parents and other adults. The father, who was the family’s primary caregiver at the time, had free access to his children both during the marriage and in the unlikely event of a divorce. Throughout the nineteenth century, the value of the child as a worker diminished as a result of a greater emphasis on child care and education.

The “tender years doctrine” was a legal notion that benefited the mother during the courtroom proceedings. Because young children have a natural affinity for their mothers, it is forbidden for youngsters to be with them, according to this rule. As a result, the father’s power to affect child custody became virtually impossible.

Even though this law is no longer in force, discrimination based on gender and issues related to child custody continue to exist. Whether this is due to society’s own categorization of women as housewives and childcare providers or the predisposition of particular judges, mothers seem to profit the most from child custody fights.

Children’s legal and social status changed during the first century of the United States. Children were no longer seen as being analogous to servants under the complete control of their fathers or masters, but rather as having their own interests, replacing the colonial idea of children as labor-scarce helping hands. This romantic, emotional image of children came into being. These pastimes were coming to represent the protecting mother more and more.

The reasons for this transformation are complex and reflect the emergence of a middle-class culture, where parental emotional and intellectual investment has taken the place of the prior children’s economic utility to the parents. Around the middle of the 20th century, the newly organized women’s movement placed a high priority on the right to child custody. The following sentence from the Seneca Falls Convention Declaration of Rights and Sentiments, which served as the founding document for the women’s rights movement, shows this priority:

“He [the legislative and judicial patriarchy] has framed the laws of divorce as to what shall be the proper grounds, and in the case of separation, to whom the guardianship of the children shall be given as to be wholly regardless of the happiness of women, the law in all cases going upon the false supposition of man’s supremacy and giving all power into his hands.”

Judges were still unsure of whether to use the more recent criterion of the child’s best interests or the father’s common law rights. Kids eventually profited from the propensity, though. The mother of the child was increasingly seen to have the best interests of the child in mind, particularly for very young or feminine children. The idea of the tender years discusses this tendency of courts to grant babies and young children to their mothers. During People ex rel. In order to give a four-year-old child to his mother in Sinclair v. Sinclair, the court made the following ruling:

“At such times of life courts do not hesitate to award the care and custody of young infants to the wife as against the paramount right of the husband where the wife has shown herself to be a proper person and is able to fully discharge the duties of parenthood,” says the Supreme Court.

The growing practice of giving young children to their mother was almost always rejected when it was determined that the mother was unsuitable. In the nineteenth century, mothers were held to very high moral standards by the courts, which made them more attractive to them in custody disputes but also led judges to punish them severely when they departed from acceptable morals. The two offenses that resulted in mothers losing custody of their children the most frequently, according to the court, were infidelity and leaving their husbands without sufficient reason.

In essence, the guardianship and custody principles stated in the Hindu Guardianship and Minority statute, which is based on the Guardians and Wards statute of 1890[6], may be traced back to English law. With the Matrimonial Causes Act of 1857, which made divorce in England necessary rather than giving mothers the same legal status as their husbands upon marriage, mothers obtained independent legal recognition for the first time.

The notion of divorced wives challenging their husbands’ natural guardianship subsequently gained popularity. The idea that divorce proceedings serve only to protect the child’s well-being and not to punish the guilty has been accepted by English courts. This led to the concept that “the welfare of the child is paramount consideration in custodial matters” emerging. In-depth analysis of what is meant by “welfare” and the gender biases that permeate its interpretation will be covered in this essay.

the cause of bias
The unfair treatment of fathers by family courts is one of the most commonly discussed issues when it comes to child custody. Although it is occasionally implied that a father’s legal rights will always be violated in court, the child’s best interests always come first and ultimately determine custody arrangements. As long as it’s safe, custody decisions frequently reflect the importance of both parents being active in their children’s lives. However, those involved in family court, such as the judges, attorneys, and others, may harbor personal prejudices.

“Neither the father nor the mother of a minor can, as of a right, claim to be appointed by the court as the guardian unless such an appointment is for the welfare of the minor,” Although custody decisions are made in the child’s best interests, the term “best interest” is fairly ambiguous and leaves room for the judges’ discretion.

All parties presume that the mother is the only caregiver in the majority of situations. Particularly for young children, it is assumed that the mother will take care of their everyday needs. Fathers have to go through a lot of trouble to prove that this isn’t the case, even if it’s rare. Another issue is that when a couple gets divorced or a child is born unmarried, they typically live mostly with the mother.

In spite of the fact that father gave the same degree of care for the children as mother did while the two of them were together, children frequently live with their mother and visit their father due to preconceptions that have been ingrained in both sides.

For fathers of young children and new-borns, this is particularly challenging. Without the help of a court, they are frequently prohibited from spending the night with their children, and even then, they are still need to prove that it is safe for the child to spend the night at their home.

Finding the primary caregiver is a crucial factor in assessing the best interests of the kid since the court wants to keep things as they are whenever it is possible. The mother is commonly perceived as the “primary caretaker,” which is unfair to loving fathers, despite the fact that many men provide for their children on an equal basis. Men and women “are not the same, and they never will be, but that doesn’t mean they can’t be treated fairly”

The Indian System
In a child custody case, the High Court of New Delhi set aside three court orders in 2016 on the grounds of “reasonable apprehension of bias,” while limiting fathers’ rights to visitation to “every Wednesday and Friday, and overnight custody of the minor on every second and fourth Saturday”.

Are fathers subject to bias in the courts? No. The custody laws in India and other developed and developing countries do not clearly forbid custody decisions that are solely based on gender. Legally, regardless of a parent’s gender, the standard of what is in the child’s best interests must be followed.

Those who work for the courts are the source of any bias. A judge who adopts a more traditional viewpoint might be more harsh on dads than on mothers. They will be more judgmental of your parenting style and desire to spend time with the kids if you have a female. Furthermore, these judges are more likely to award dads limited parental leave, such as simply the weekends.

The Guardians and Wards Act of 1890 stipulates that both parents or guardians are entitled to equal child custody. The decision as to who gets to parent a child, however, ultimately rests with the court. To understand how the court views preconceived stereotyped gender roles in a family structure, it is necessary to first understand how the court recognizes gender discrimination.

Numerous gendered prejudices that parents frequently encounter. One prevalent misconception is that women are supposed to be more attentive than men. Another misconception stems from the idea that the courts are usually prejudiced in favor of women when it comes to custody. Moms are frequently able to administer to the youngsters because they seem to be designed to encourage greatness, which naturally applies to them as well.

These are normal duties for women, like providing for others, taking care of children on a daily basis, focusing on schoolwork, or going to doctoral meetings for children. But it’s just incorrect that fathers are less qualified to raise their own children than moms.

The idea behind joint legal custody, also known as joint parenting, is that both parents should continue to be involved in their children’s upbringing even after their divorce. Both parents are equally responsible for providing for their children’s needs and share joint legal guardianship of the children.

However, as of right now, India’s custody laws mostly disregard parental shares, and disagreements between parents over who will have sole custody of their children often degenerate into bitter fights that go against the best interests and wellbeing of the child. Most cases are resolved when the court identifies one of the parties as the primary guardian and lets the other, typically the father, to visit once a week or once every three months, according to statistics.

In order to change the negative perception of dads, The Law Committee Report suggests repealing the Wards and Guardians Act of 1890 and the Hindu Minorities and Guardians Act of 1956 in two legislative components. These parts, which are frequently employed in complex instances, are urged to be changed, “amending to eliminate the supremacy of one father over the other mother and to equally treat both father and mother as the natural guardians”.

Hindu personal law is not the only personal law that contains gender discrimination; other personal laws do too. For instance, the Muslim Personal Law (Shariat) of 1937, which permits the application of Shariat law to custody disputes, provides as a potent example of how pervasive gender discrimination is in Islam. It declares that the mother’s primary right to custody of small children is acknowledged as the right to “hizanat” as long as she is found to be innocent of any crime.

Even though it appears that India is striving to have more gender-neutral legislation regarding child custody, the numerous rulings tend to diverge while simultaneously granting the mother the role of custodian.

The issue is that in India, following a divorce, a divorced wife’s financial situation depends significantly on the alimony she is ostensibly entitled to receive from her ex-husband. The Law Commission advises the government on custody that “Financial resources of parents, and the standard of living of the child must be considered when fixing such amounts (child support)”. In this situation, the man is responsible for paying both alimony and child support, including the portion that is meant to be paid by the mother (indirectly), as the law presumes that it is the man’s responsibility to provide for food, clothes, and housing.

Fathers who work long hours may find themselves at a disadvantage since Best Interests-based courts may be reluctant to wake up kids too early or permit other annoyances. “Running two homes costs more than running one, and work obligations may conflict with child custody.”

Further, the Supreme Court made it clear for the first time in the case of Ms. Githa Hariharan v. Reserve Bank of India & Anr that gender equality is one of the fundamental principles of the constitution. However, the Karnataka High Court misinterpreted this position, concluding that growing up with one’s mother is the most crucial and natural stage in a child’s life, when “a child gets the best education and protection.”

The Supreme Court did, however, find in Dr. Ashish Ranjan v. Dr. Anupama Tandon (2010) that a mother is also permitted to use the child as a pawn. In the aforementioned instance, it was established that the minor child had been mentally moulded in such a way that he had no regard for or affection for the father. Similar to this, in the case of Chethana Ramatheertha v. Kumar V. Jahgirdar (2002), the Karnataka High Court determined that a child obtains the best upbringing and protection from their mother. In an appeal (AIR 2004 SC 1525), the Supreme Court rejected this overarching assumption. The Apex Court specifically disagreed with the Supreme Court’s claim that a mother would always be granted custody over a father.

According to the landmark decision on child custody in Roxann Sharma v. Arun Sharma[16], the father should be granted custody if the mother cannot prove her suitability for the child and the father can prove that the mother is unfit for the child and that he is the best person to raise the child. The father must prove that delivering the child to the mother would not be in the child’s best interests in order to win custody of the child, the court said. If the conditions are right, the father may also be granted custody of his child, according to this judgement.

The aforementioned cases make it abundantly evident that the mother is always the court’s top option for custody while the father is always required to demonstrate his devotion to the child’s upbringing. This violates the father’s equality rights and demonstrates the judiciary’s ignorance of the reality that the majority of moms who seek custody of their children are more interested in the alimony and child support payments that come along with it. This is a reasonable assumption.

Family Courts in particular operate within a larger social framework, as do other judicial institutions in India. Traditional gender norms favor families with two parents, both of whom are female, and biological children. They view the mother as nurturing the child and the father as financially supporting them. Fathers aren’t expected to be with the kids as much as mothers are. Their primary obligation is to provide money so that they can live comfortably. In contrast, the mother is expected to actively participate in every aspect of her children’s lives.

The sheer volume of evidence forces us to reevaluate whether traditional custody is indeed necessary. A custody arrangement that routinely and inexorably shatters the link between a divorced father and his children is difficult to defend, unless you believe that fathers are less important to their children after a divorce. Because it is inaccurate, it is time for custody rules to be changed to reflect the reality that men and women are equally important to their children.

These preconceived notions may even be accurate in many circumstances. Social expectations of a father’s duty usually deter men from being unduly involved in the lives of their children. When developing a law, the majority of the people it will affect are taken into account. This legal theory is well-established.

So it makes sense to claim that laws in India simply reflect the reality that it is a traditional society where stereotypes are regularly used. However, legislation’s main objective is to encourage social change. Where does the relationship between laws that represent prejudice and laws that reflect bigotry in society end?

The legislation must trigger this shift rather than merely sustaining the status quo. In this way, the cycle might be broken. prejudice shouldn’t be used as an excuse to engage in more prejudice. By making such stereotypical judgments, the same gender prejudice that leads to this is upheld. Fathers are not second-class parents, so we must stop these gendered expectations regarding domestic duties from skewing judicial decisions.

“I don’t have kids that I lost in a nasty custody battle, but I see an enormous wound in kids because they don’t have dads,” said Warren Farrell.

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