Divorce and Child Custody: Do Courts Treat Men and Women Differently?

According to the US Census Bureau, 44.5% of fathers with no visitation rights still financially support their children.

Meet attorney Jennifer Milne, of South Florida Legal Rescue, a name that is bringing fresh hope into the often-stale world of family law. She focuses on gender preferences in custody cases in a riveting discussion with Christy O’Connor for Legal Yogi.

Gender bias in courts during child custody case hearings has been a hot topic of discussion in the legal field for a long time now. In this discussion with Jennifer Milne, we hope to answer some of the questions that concerned parents might have about the topic.

The End of the Tender Years Doctrine

Family courts have traditionally operated under the “tender years doctrine,” which assumes that children of tender years are better placed with their mothers during their formative years.

Surely, as time moves on and there are societal-based role changes, so too in the legal system in relation to matters of custody determination.

Most states, said Attorney Milne, have moved away from the old doctrine, recognizing the changing dynamics in parental roles.

Best Interests of the Child vs. 50-50 Time-Sharing

Another major trend has been the move to focus on the “best interests of the child,” an ideal that seeks to prioritize the child’s welfare over and above anything else.

However, this standard often leaves judges with a huge amount of discretionary latitude that, in some cases, allows matters of cultural biases to filter into their decisions.

Milne is interested in the problems such discretion creates, most especially in those states where traditional views regarding gender color the interpretation of what is in the best interest of the child.

Florida, on the other hand, has an evenhanded presumption: 50-50 time-sharing between both parents. This policy, says Milne, is reasonable in that it shows fairness and objectivity through giving a presumption that is prone to being rebutted.

That both parents have equal shares of their children unless the contrary is proved. This also further reduces judicial discretion, hence the possibility of causing bias in custody decisions.

The Future of Family Law: A Hopeful Outlook

Attorney Milne said the trend should keep moving across the country toward equal time sharing for divorced parents, with rising awareness of fathers’ rights and equal parenting.

This direction in the model further represents broader recognition that both parents need to take an active, equal role in the lives of the children, free from traditional gender role divisions.

It will help get rid of the problems caused by this long-standing trend of a gender bias in legal child custody decisions. It signifies that this issue is now being acknowledged on a larger scale and steps are being taken to solve it.  

It is important that men and women be treated equally in courts to make sure that fathers and mothers both get equal rights over their children. Fathers’ rights have been a point that has been neglected by older doctrines like the “tender years doctrine” discussed above.

gender bias in child custody cases

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Legal Yogi, committed to “wisdom for all things legal,” will be happy to connect any searchers to the resources they need in order to assure the rights and best interests of children remain protected.

Our lawyers have a long-standing reputation of success in all legal domains. Schedule a consultation with Legal Yogi today to get expert legal help related to child custody, paternity, visitation, and other issues like divorce.


Remember, proactive is always better than reactive in matters of paternity and child welfare. For further help and legal assistance, contact Legal Yogi today. Wisdom is just a click away.

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