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Bias in Child Custody Awards:
The Numbers Tell Us How Much and Where, But Not Why
By Lisa Kansas

Divorce is a sticky topic in the world of Men's Rights Activism, I've found. It can also be a very broad topic,
so for today’s article, I am going to restrict myself to one of the most contentious issues raised by the
specter of divorce: child custody. As no doubt everyone is aware, divorce laws vary from state to state,
sometimes quite wildly. I live in Maryland; actually, I’ve been divorced in Maryland not once but twice.
(Embarrassing to admit, but there you have it.) So, in an attempt to even further limit the scope of
discussion here to something manageable, I’m going to examine Maryland divorce law and how,
statistically, actual Maryland divorces work out in terms of child custody.

Maryland has no presumption of custody laws. The guidelines simply state that custody, whether joint or
sole, will be awarded to either the mother or the father or both with the best interest of the children in mind.
There are no specific factors stated which would be automatically considered by the court, but the typical
factors are, but not limited to; age, health, parents contributing roles, child's wishes, etc. So, how has it
actually worked out in practice? I stumbled across a really interesting study done by the Women’s Law
Center in Maryland. The study is described as the following: The Women’s Law Center embarked on this
intensive research project after receiving input from practitioners and litigants, including callers to its family
law hotlines, about perceived inequities and inconsistencies in the custody and divorce process in
Maryland. Despite the frequency of these comments, never before has anyone attempted to capture and
quantify these experiences on a statewide level. [This report] builds on previous reports that have explored
inequitable property distribution in divorce, gender bias in the courts and other critical family law issues.

Highlights:

The study analyzed an extensive dataset made up of a random ten percent sampling of all divorce and
custody cases filed in Maryland during fiscal year 1999. Data were collected from cases filed in all 24
Maryland jurisdictions for a total of 1867 cases in the sample. The study considered financial distribution in
Maryland families at the time of divorce. Several important characteristics of these families emerged:

• Women were plaintiffs in 61% of all cases analyzed;
• Half of the marriages in the sample were long term marriages, ending after ten or
more years of marriage;
• 55% of divorcing couples in the study had minor children; and
• 53% of divorces were granted as voluntary separation*
*Note: What this means is, Maryland doesn’t actually have “no-fault” divorce, not that you can immediately
file for. The closest you can come to that is voluntarily separating for a minimum of one year, and then you
file for divorce based on “voluntary separation.” So, the remaining 47% of divorces were fault-based. In
Maryland, the fault bases for divorce are: adultery, desertion lasting for a minimum of 12 months without
interruption, conviction of a crime if the defendant has been sentenced to serve at least 3 years, insanity,
and cruelty and excessively vicious conduct.

So, let’s look at those study results in terms of child custody:

38% of children ended up in the mother’s sole legal and physical custody and 7% ended up in the father’s
sole legal and physical custody. Another 36% ended up with joint legal custody, with one parent having
sole physical custody (29% mother’s physical custody, 7% father’s physical custody). Another 16% had
joint legal and physical custody. (The remainder had “no information.”) In terms of the children’s physical
living arrangements, then, we have 67% of them living with the mother, 14% living with the father and 16%
living with both equally after divorce. This correlates rather directly with who the children were living with
prior to the divorce date: 69% with mother, 11% with father and 7% with both (again, the remainder is “no
information”). It would be interesting to know how the fairly small percent shift redistributed itself and
exactly why that occurred, but unfortunately the report doesn’t have that information.
Of course, how the custody turns out doesn’t really speak much to what the parents actually wanted. What
did they want and how did that turn out?

The numbers for that are fascinating. Here they are:

1. If you don’t want your kids, you don’t have to have them. 16 women and 68 men requested that the
other parent be given both sole physical and legal custody, and 100% of the women and 94% of the men
got their requests granted. I’m with the judge on that one; clearly someone who doesn’t want their kids,
shouldn’t have ‘em. To put the number of men and women who respectively don’t want their kids into
perspective, that number is only about 12% of the total number of men, but it is noticeably more than the
number of women who don’t want theirs (about 2%)—but most men do want their kids in their lives. What
does all that say overall? I have no idea.

2. The position that you and you alone should have ALL the custody is the one that the judge is most likely
to disagree with, and that’s regardless of your gender—every other type of custody request for each
gender had better success. This also was the most popular custody request for both genders to make,
with 70% of the women and 35% of the men asking for it. 59% of the women asking for it had it granted (to
be clear, that is not 59% of the total women in the study; it is 59% of the 70%, or 41% of the total women in
the study) and 31% of the men who asked for it had it granted. Is this a response to the unfairness of such
a request? Is it ingrained sexism against men that allows women to be about twice as successful as men?
And why is it so on the q-t that men do get it over a third of the time and women get it less than two-thirds
of the time when they ask for it?

3. Bizarrely to my mind, the next most unsuccessful custody request was full joint custody, both legal and
physical. 71 women and 136 men asked for this; 68% of the women and 46% of the men that asked for it
received it. Is it because children are perceived as being happier in a single, stable home environment? I
personally got harassed about this more than once when enrolling my sons in school, so I suspect that has
to be at least part of it. One wonders what custody type was substituted in place of that request, especially
for the women—obviously, a chivalrous desire to please her, as is sometimes proposed for reasons that
women get more favorable custody outcomes than men, didn’t work here a third of the time.

4. About equal numbers of men and women wanted joint legal custody with physical custody going to one
parent or the other—117 women and 114 men requested the mother and 15 women and 36 men
requested the father, with success rates between 85-87% when the women made the request and 58-78%
when the men did. This seems to be the most reliable request all the way around. I really am strongly
suspecting the whole “one stable home” argument here.

More data would be nice, though. The results are nowhere as skewed as I’ve seen some claim---however,
there is a skewing factor, in favor of women—19%. Not ginormous, but definitely statistically significant.
(Breakdown: On average, women got the custody situation they requested 80% of the time; men got the
custody situation they requested 61% of the time. The reasons these numbers don’t add up to 100% is
that sometimes only one parent requests a specific custody situation and sometimes both do.)

How much of this is paternalistic judges and legal systems, assuming a woman is a better custodial parent
than a man? How much of it is the presumption that the child will do better in the home he or she already
occupies the most, given that physical custody results so closely mirror the residence of the child prior to
the divorce hearing? Unfortunately, the data is not linked in terms of why the couples are divorcing, nor in
terms of who is initiating it---is there a relationship to abuse or infidelity or anything other cause, since
nearly half the divorces were caused-based? And even knowing that data might not fully explain the
picture—you don’t have to divorce for cause, even if there is one; I know from personal experience. You
can just separate and then file after a year. I think it would be very interesting to find out.