Child Custody and Gender Bias: What Does the Law Say?

The law is clear in nearly every state, and ongoing efforts to enforce gender non-bias are proceeding in several states: the gender of the parent shouldn’t matter when determining the best interests of the child. Unfortunately, there are precious few guidelines for judges as to what “best interest” actually means — which opens up the courtroom to the opinions of a wide variety of expert witnesses who may or may not have their own agendas.

The precedent is an old case — Painter v. Bannister — in which an Iowa father had temporarily given custody of his child to his deceased spouse’s parents. When they refused to give the child back, he sued for custody and won…until the grandparents appealed to the Iowa Supreme Court. The Supreme Court reversed the decision in the most unbelievable fashion: first, they admitted that both the father and the grandparents were perfectly fit as parents, saying:

We are not confronted with a situation where one of the contesting parties is not a fit or proper person. There is no criticism of [the grandparents] or their home. There is no suggestion in the record that [the father] is morally unfit.

Furthermore, the man’s wife left behind a will specifying that she prefer her child say with her husband if she were to pass away. You’d think that would mean the child would be put with the father as the District Court held, but the Iowa Supreme Court went on to give custody to the grandparents by first noting that the grandparents’ home “provides [the child] with a stable, dependable, conventional, middle-class, middlewest background and an opportunity for a college education and profession, if he desires it.”

Then, the court relates a long string of facts about the father:

• He is a freelancer,
• He has changed jobs 7 times in 10 years,
• He is politically liberal,
• A psychiatrist classified him as “a romantic and somewhat of a dreamer,”
• He “has no concern for formal religious training” but “has read a lot of Zen Buddhism,” and
• He attended his wife’s funeral in “a sport shirt and sweater.”

They then make this completely stunning statement:

These matters are not related as a criticism of [the spouse’s] conduct, way of life or sense of values. An individual is free to choose his own values, within bounds, which are not exceeded here. They do serve however to support our conclusion as to the kind of life [the child] would be exposed to in the [spouse’s] household. We believe it would be unstable, unconventional, arty, Bohemian, and probably intellectually stimulating.

The fact that this case is essentially the significant precedent defining “best interest of the child” creates an obvious problem, because this case is nothing more than the Iowa Supreme Court blatantly exercising a value judgment. So if every judge is basically required to determine “best interest” based on their own conception of what that phrase means, and America has a long history of considering mothers as nurturing caretakers and fathers as distant breadwinners, well, there’s no question about what will happen.

Until the law evolves to the point that there are much clearer standards for what “best interest of the child” actually means, there will be anti-father bias in many family courtrooms across Michigan and across the country.