Stuart Showalter Law Blog: Overcoming Bias Against Men to Win an Indiana Child Custody Proceeding

From the outset I am going to confess that the title to this posting may be somewhat misleading. Although I can formulate the individual strategies to help men get a favourable child custody decision this post we deliver more general advice. Rather than attack any presupposed bias that courts hold against men I intend to elucidate the basis by which child custody decisions are disproportionately favourable to women and why men perceive a bias.

Child custody decisions are not about the law, but are judgments based upon parenting skills and behaviours. In my practice I find a notable difference in the manners by which men and women generally communicate and perceive the custody decision arena. My study of gender based linguistics and argument generally follow with my observations based upon personal experience.

Both genders come to me seeking what they frame as getting the court to make a fair decision that is best for the children. The dichotomy that tends to befuddle the quest of men and favour that of women in this expressed universal motive is their methodology. While more favourable results usually occur for either gender that I am coaching they are the result of very different styles. Men tend to approach me demanding that the court honour their rights. They present a logical roadmap – usually obfuscating some necessary elements – as to why the court should grant his demands. My voice becomes strained by the vigorous repetitive attempts to drown out the incessant banter so that my thoughts expressed in words can be heard. With women however, a delivery of my thoughts is more akin to a gentle skimming of a lakeside in a small sailboat. The conveyance of ideas, wishes and proposed actions seems to flow as smoothly and gently as the tributaries feeding the serene body of water.

It is this subtle distinction that is more often unknown or unrecognized by parents, practitioners and the judicial officers hearing the cases that may be perceived as a bias against men. Identical circumstances, evidence and requests can be presented by men and women and yet the results will be different. The differences will be expressed in males requests being honoured less often than that of the females. This I attribute not to a cognitive bias but, instead, an intuitive bias.

Acknowledgment and conditioning toward ameliorating this intuitive bias is a reality that cannot be undone through legislation, logical argument or review by a higher court. It is based upon a simple predisposition; when overtaxed the brain will resort to laziness. That is our problem solving mechanism first deduces a solution based upon feeling or intuition. The logical or formulation response requires a conscious effort to analyze the various inputs and then emit a response based upon a predefined structure. In short, a child custody decision is more apt to be made upon the higher weight attributed to feeling and less so on the structural argument based upon statutory law.

So this is where most men are disadvantaged. They tend to stand fervently in favour of their reasoning ability and carefully constructed outline of the matters to be presented. It is the sense of pride and “correctness” that often provides the greatest barrier to attaining the child custody decision they desire and to which they may rightfully be entitled.

Unfortunately for many litigants law schools have not provided the necessary training to ensure that the counselors churned out now how to recognize these intuitive demands and nuances of the child custody spectrum. But no amount of training or research will likely mitigate these shortcomings of the system. It's the difference between what you may commonly know as 'street smart' and 'book smart'. One without the other may leave you exposed to the dangers and trappings of navigating the custody hearing.

In Indiana there is no presumption favouring either parent. Some judges have expressed to me that they go out of their way to ensure that men are being afforded their "rights". Men may have the upper hand when it comes to the law, the evidence, and the assertion of their rights. Yet, the winds seem to effortlessly propel the decisions of the family law courts in favour of those whose demeanor and assertions most reflect that of the general female population. Until such time as the court officers are provided with ample hearing time and then a masseuse to facilitate a relaxed state while they ruminate about the appropriate decision then we can expect to see this “bias” continue.

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