Gender Bias in Family Law

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Gender Bias in Family Law

By: Gia M. Conti and Cora Gennerman

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Gender bias can be implicit or explicit and occurs in our daily lives whether we are privy to it or not. We continue to see gender bias in our day-to-day lives, and family law is no exception.

The question becomes, how do we identify gender bias, and what can we do to mitigate or overcome it?

While this article is not exhaustive, it is intended to provide fellow family law attorneys and litigants with tips to navigate gender biases in divorce.

Gender bias occurs when we treat people differently for their perceived gender identity. A common gender bias is that women are more “nurturing” and men are naturally “better leaders” or “bread-winners.” These biases are dangerous in the sense that they sometimes lead peers, judges, neutrals, and attorneys to improperly believe that women should have greater parenting time than men, especially with younger children. Oftentimes, people, including judges, do not realize that they have a bias, much less realize that their biases often play a role in the decisions that they make. Even the law is inherently biased. The Tender Years doctrine was a presumption in common law that mothers should have custody of children in their “tender” years. However, despite the fact that the doctrine has been abolished, we continue to encounter this bias in cases.


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Published in Family Advocate, Volume 44, Number 3, Winter 2022. 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.