When father's come to see me about changing custody, one of the first questions they ask is whether or not they have a fighting chance of winning. Frankly, it's a sad state of affairs that men who are great dads, still have to ask this question, but the reality is there is a gender bias in our society that often plays out in the courtroom in the form of "mother's bias."
So what is mother's bias? To me, mother's bias is the simple belief that a child primarily needs his or her mother, to the exclusion of the father or other caregivers - even in the absence of evidence to the contrary. Basically, it's the idea that mother is best. Oftentimes, a father or other relative is a better caregiver, but mother's bias creates a blind-spot to this reality.
So how does mother's bias affect a custody or visitation case?
In my opinion, it comes out in subtle ways. I don't believe judges purposefully prefer one sex over the other, but I think it does affect many decisions that take place in a custody trial. In court, a father often has more of an uphill battle establishing that he has the right to have a greater visitation schedule with a small baby, for example. Setting aside breast-feeding issues, if a baby under one year is bottle-fed and capable of spending time with dad, I think there are some judges who have reservations about a father's ability to handle things like changing diapers, hourly feedings, and even soothing a baby. (Sometimes this is called ofr, and sometimes it is not). This is especially tricky for new fathers. It can be hard for new dads to prove themselves to the court until they're given the chance to prove themselves, which in itself is a catch-22. The only way they can show that they are capable is by having more time with their child, but they cannot get more time with their child, because they have not shown they are capable yet.
For new dads, my strategy is to take a step-by-step approach, often times called a "stair-step schedule." A stair-step schedule works like a step ladder, where only after completing the first step of limited visitation, they move up a step, to more visitation, and so on, with the goal being greater overall visitation. Initially, I try to get dad visitation with the child via a temporary order, by agreement if possible, and see how things play out. If things go well then we try to step it up from there. Once there is a set schedule and a relative status quo is built, then we can move on to further temporary orders, or even greater visitation at a final hearing.
For dads, who have older children and who are looking to change custody altogether, I take a more fact-specific, fact-intensive approach. I meet with my client to determine what his concerns are, why he believes it is in the best interest of the child for custody to change - and we go from there. In some cases, if the child is old enough to confer with the judge this is a valid option and something to consider. In other cases, it takes some time to gather supporting evidence (other than dad's testimony), to show to the court that it is time for a change of custody. Oftentimes, the mere fact that dad has not acted as the primary caregiver and now wants to change custody, can be difficult to overcome. Although changing the status quo is something to overcome in any custody battle, for dads there is often the stigma that they are not as equipped to handle children emotionally, or even logistically - when it comes to managing their own work schedules, kids' activities, and school. Additionally, there is a gender bias that comes into play, when the judge knows that mom will have to pay child support to dad if custody changes. This is especially true if dad out-earns mom. In any custody case, a serious sit-down and strategy session with the client is needed. Many dads win custody everyday, but tailoring specific facts for a dad in order to create a winning-strategy is key.