A Discussion of Lingering Gender Bias in Matrimonial and Family Law

, New York Law Journal

   |1 Comments

Blank Rome's Meg Canby and Dylan Mitchell discuss whether or not gender assumptions and biases remain in the practice of matrimonial and family law, from custody issues to the calculation of spousal support.

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What's being said

  • Catherine Wilson

    The only rights to be concerned about are those of the children. A 50/50 custody split is a logistical nightmare for school-aged children - there will be constant mad searches for books, sports equipment, and clothes left at the other parent's home, not to mention the frustration of trying to set up play dates, etc. Such a situation would test the mettle of the best parental relationships. Plus, one parent's home will quickly be favored over the other - whoever has the bigger television, more video games, or a pool will "win" - and that is not parenting. The only true solution for the children is to maintain one home. The other parent may have generous rights as to custody, but the children should never be expected to pack up their bags and move back and forth to another house simply because mommy and daddy got divorced. That's mommy and daddy's problem, not the children's. And it's only temporary - they won't stay children for long. The real issue is how to maintain a lifelong relationship with the children, not keeping a balance sheet of which parent had more time with what child. The parents I've seen who have fought over their visitation time are those who have zero relationships with their children later in life. Children see plenty of parents who are not around for their families - parents who run businesses, who take care of grandparents, who have health issues. Children know it's not the amount of time you spend that counts - it's respecting their needs and desires. When faced with a divorce, a child wants to know that the rest of their life is still secure. Expecting them to switch back and forth between homes, is not respecting what they want and need.

    As for the economic distributions, the biggest issue isn't gender, it's the people handling the matter. Far too many lawyers, including judges, are hopeless at math and no absolutely nothing about tax law, yet they are charged with making life-altering economic decisions. The financial issues in a divorce should only be handled by accountants, including in the court system - every matrimonial court should hire an accountant and have that individual calculate child support, maintenance, evaluate assets, and settle arguments over payments. I've seen judges who don't know the tax difference between a mortgage and an equity line and attorneys who prepare Net Worth statements that don't even add up (and yes, I'm a certified accountant).

    One gender bias does exist - the Viagra factor. I have heard judges admit at forums that they will reduce the child support for the first family when daddy produces a second family, because they feel "sorry" for his increased expenses, despite the fact that no law exists that says that siblings are responsible for the support of each other. Nor do the expenses of the first family decrease just because daddy continues to procreate. Thus the first mother is discriminated against in favor of the father.

    Lastly, the real imbalance is among those in power, mostly men. Women who are divorcing attorneys, judges, politicians, political party supporters, court employees, and even police officers, cannot hope to get a fair shake in the courts - the "good old boys" will, and do, rally around their own. The NYS Matrtimonial Commission referred to this as "system abuse" and described it as endemic.

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