Do Maryland Courts Have a Bias in Favor of Women in Custody Cases?

Virtually every day my office is asked whether there is a gender bias in Maryland custody cases.  There is a direct answer, a legal answer and a real world answer.  All three are my opinion and not legal advice.

The direct answer.  It’s hard to say or determine if a judge or judges anywhere have a gender bias in custody decisions.  You do not have to be a Maryland custody lawyer to know the answer why. It’s because judges would never tell you if they did.

Law is an art not a science. The vagaries and variables of human issues avoid empirical analysis. Put another way, lawyers don’t tend to be very good at math.  That’s why they could not get into medical school.  Oh sure, they will tell you it’s the sight of blood or something, but trust me, it’s the math.

It seems to me that if you knew all of a particular judge’s decisions in custody and then plugged in an obscene number of variables, you might be able to predict that judge’s direction of thinking or bias.  That’s just not going to happen.

Any decision maker in a custody case, even one who may have an unspoken bias, is not going to tell everyone involved that the decision is based upon that bias.  He/She is going to cite another reason.  I once heard a sales manager tell his salespeople that “people buy for the reasons they tell you, but don’t buy for the reasons they don’t tell you. “

If you desire a quasi-empirical analysis of this issue, I would direct you to “National Attitudes Regarding Gender Bias In Custody Cases” Sage Publications 2000 also available on Lexus/Nexus which is a legal research website.

The legal answer.  It is a settled matter of Maryland law that a judge cannot make a custody decision based upon gender bias.  The short tour is as follows:

In the 18th century of American (English) common law, and prior, the children of a marriage belonged to the father, like an Ox. In the 19th century and into the early 20th century there was a bias in favor of women for children under age 5 it was called the “tender years doctrine.”  It was first cited in Maryland as Helms v. Franciscus, 2 Md. 544 (1830).  That’s the year, not the page number!

In the later part of the 20th century up through the present, the “tender years doctrine” has been subsequently overruled so frequently as to be boring.  The state and federal courts have consistently ruled that the 14th Amendment (equal protection) makes any gender bias in custody cases unconstitutional.  The preeminent case regarding custody is Taylor v. Taylor, 306 Md. 290 (1986).

The real world answer.  Statistics reflect that in the vast majority of divorces, mothers get primary custody both by agreement and by court order. It is suggested that this is because, in a custody decision, the court looks backward at the status quo established by the parents.  Thus, for so long as society makes women the primary caregiver of children, the court’s decisions will reflect that.

In my experience there is a rationale related to the above.  It’s the parent’s respective work schedules.  Even in households where both parents are employed full time outside of the home, the wife’s schedule is tailored a little (sometimes a lot) toward the child’s needs or schedules.

It’s a sad but true tale that bosses can often look strangely at a man when he says: “I need to get off at 4pm so I can pick up the kids after school…can you cover me?”  Whatever your reaction, it is a fact that women’s schedules are organized around the children more frequently than men.

Yet another explanation for the statistics favoring women in child custody cases is a “men are from Mars…women are from Venus” sort of thing.  In my experience, women are more prone to keeping notes and diaries and they are better organized to be witnesses in court.

Calendars and diaries can be very persuasive to the custody court.  Women tend to be better at keeping on top of this.  I don’t why.  The only explanation I have for the female advantage here is that boys almost never keep diaries.  Boys become men etc…

Organization in a custody case context means corroboration.  Corroboration is that little umph that makes one version of the truth a little more persuasive.  Women tend to be a little better at it.

Take for example, a man comes to court and says his ex has not shown up for the designated visitation exchanges.   He is adamant about the issue and carries with him the force of righteous conviction.  In contrast, the woman says “yes I have” and carries with her ATM receipts from across the street showing dates and times.  Guess who wins??

In short, don’t discount the merits of any Maryland custody case based upon the gender of the parents alone.  Things rise and fall upon the proof and the facts.  Sometimes, they are even the same thing.

Tim Conlon, Esquire for The Custody Place