Is There a Gender Bias in the Courtroom?

One of the most popular statements I hear from clients is that “judges always award custody to the woman” or “judges prefer to give custody to women rather than men”.  I can tell you from a legal standpoint and from experience that this statement is not true. South Carolina has long since abolished the “Tender Years Doctrine” which showed a preference for mothers having custody of children of “tender years”.  The judges I appear in front of in South Carolina Family Court give more weight to the facts of a case rather than the sex of the person asking for custody.  Now, in some cases, this may mean that a woman who is breastfeeding an infant is more likely to get custody over a man.  Some men may say this is unfair.  However, I would have to disagree.  There is a long list of benefits of breastfeeding, and depriving a child of such benefits simply does not outweigh the desires of a man to have custody of an infant.  Now, if the mother is unfit, then I think the safety of the child outweighs the benefits of breastfeeding.  Again, the court is still faced with looking at the specific facts of the case rather than focusing on purely the sex of the litigants.

Now, after telling you that I think the statement that “women win custody over men most of the time” is false, here is an interesting statistic as concluded in the results of the 2014 U.S. Census. The 2014 U.S. Census reported that 5 in 6 women have custody of their children compared to one in six men. So, arguably women do win custody most of the time based on this statistic.  However, you have to remember that this is the statistic nationwide.   Every state has different custody laws and standards.  The statistic is also silent on how much time a father gets with their child.  The statistic simply does not differentiate between primary custody and secondary custody, joint custody, or shared.  I would bet that if the statistic were looked at a little more closely that the number would shift somewhat.  Despite the results of the 2014 Census, I am still confident that our Family Court judges in South Carolina do not usually put any extra weight on the sex of the parties involved.

Every case that comes before a Family Court judge in South Carolina has its own unique set of facts, so before the conclusion is made that a woman will win custody over a man most of the time, speak with an experienced attorney who can better dissect your case and give you a reasonable expectation of the outcome.

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