Thus, the reports cite the Massachusetts Supreme Judicial Court’s Gender Bias Study of 1989 as proof that fathers who seek custody receive it at least 70 percent of the time … even though this study does not distinguish custody disputes from cases in which the father got custody by mutual agreement. […] No mention is made of much larger, representative studies of divorcing couples (such as the one reported by Stanford University psychologist Eleanor Maccoby and Harvard law professor Robert Mnookin in the 1992 book ”Dividing the Child”) showing that far fewer fathers than mothers get the custodial arrangements they want.
I haven’t seen the PBS special, nor all the evidence Cathy reviews, so I can’t comment on Cathy’s larger points. But I can safely say that Cathy displays a double-standard in the quoted paragraph. It’s true that Dividing the Child found that “far fewer fathers than mothers get the custodial arrangements they want,” but by putting it that way, Cathy fails to distinguish between custody disputes which reached an out-of-court settlement – what you might call “custody by mutual agreement” – and custody disputes in which the Court made the decision. (Also, scroll down to the update – Cathy’s description of the Massachusetts Study is dubious as well).
Here’s a quote from Dividing the Child (it’s a bit long – but if you don’t want to read the whole thing, make sure you at least read the first and final paragraphs):
We have found that although mothers receive sole physical custody in the vast majority of cases, the proportion of joint or father custody outcomes approaches 50 percent for high-conflict families. At first blush, this finding would appear to disprove allegations that the California divorce process reflects and perpetuates gender bias. Why, after all, shouldn’t a 50-50 distribution of outcomes suggest gender neutrality?
Both advocates for women’s rights and advocates for fathers’ rights would probably reject this reading of our findings, and in fact the presence or absence of gender bias in the legal process is not so simple to establish. A fathers’ rights group might well argue that since the overall gender ratio in cases where there are conflicting requests is 2 to 1, the law in action still reflects a maternal presumption. Why, after all, would fathers who conceded custody at lower levels of the conflict pyramid have settled for less than they wanted if they believed they had a 50 percent chance? Advocates for women, on the other hand, would counter that our findings demonstrate that escalation of legal conflict over custody clearly operates to the benefit of fathers. As we demonstrated in Chapter 3 before divorce mothers are the primary caretakers of children far more often than men. Thus, a 50-50 distribution of outcomes should be considered neither fair nor neutral. Rather, a “fair” distribution of outcomes should reflect differences in the care-taking base rate for mothers and fathers.
Alternatively, suppose that, on the merits, custody claims of mothers were, on the average, no stronger than the claims of fathers. (Imagine a judge going into her chambers and flipping a coin in all contested cases.) The outcome ratios might still vary by conflict level if most mothers simply cared more about the custodial outcomes than most fathers, and were therefore more prepared to escalate the conflict to a higher level rather than settle for less than their preferred custodial alternative. Because it takes time and energy to work one’s way up the conflict pyramid, this would imply that only in a small minority of families would the father be prepared to pay the price, even though those who did so might have a 50 percent chance of prevailing.
But one thing does seem reasonably clear: our finding that the gender ratio of custody decrees at the top approaches 50-50 even though the overall ratio among conflicted cases is closer to 2 to 1 in favor of mothers demonstrates neither the presence nor the absence of gender bias.
So when the Massachusetts Supreme Court study fails to distinguish between “custody by mutual agreement” and “custody disputes,” (or did it? see the update below) Cathy says that’s bad and wrong. But when Cathy herself cites a study to prove overwhelming male disadvantage, but lumps in “custody by mutual agreement” with cases decided by Judges – even though the Judges’ decisions were 50/50 between mothers and fathers – is that any better?
[UPDATE (posted 5:30pm Tuesday): It appears I may have misunderstood the Maccoby and Mnookin quote I posted – how embarrassing! When they say “fathers who conceded custody at lower levels of the conflict pyramid,” they are referring to fathers who choose not to appeal after losing custody in a lower court. Counting all cases, mothers win twice as often as fathers; counting only those cases in which neither party settled for the lower court decision, fathers had about a 50/50 chance of winning.. Unfortunately, I can’t find my darned copy of the book, so I can’t settle this for sure today.
So Cathy’s citation of the Maccoby and Mnookin study may not be as bad as I thought. Nonetheless, the caveat that fathers who don’t give up early in the process get what they want 50% of the time is still a rather important thing for Cathy to have left out. And the following paragraph that I wrote is still good:]
Maccoby and Mnookin explicitly say that their study doesn’t prove or disprove bias against fathers (or against mothers); if Cathy is going to quote their work to suggest Court bias against fathers, she should at least let her readers know that the researchers had a more nuanced view of their results.
Cathy also wrote:
In the same vein, Lasseur’s report is supplemented by a letter signed by ”98 professionals” who support the film’s conclusions … but a number of those ”professionals” are feminist activists, including National Organization for Women President Kim Gandy.
Cathy claims it’s not fair to call her an “anti-feminist,” and I don’t. But I find it odd that a self-identified feminist has so much contempt for feminism that if any feminist activists (many of whom have spent years or decades involved with abuse issues) sign a letter, that is in Cathy’s analysis ipso facto reason to dismiss the entire letter. Maybe next time Cathy should take a moment to examine her own idealogical biases.
(Curtsy: Family Scholars Blog.)
UPDATE: Cathy’s description of the Massachusetts Study’s methods appears to be misleading. Here’s what the Massachusetts Supreme Court’s Gender Bias Study reported (source).
We began our investigation of child custody aware of a common perception that there is a bias in favor of women in these decisions. Our research contradicted this perception. Although mothers more frequently get primary physical custody of children following divorce, this practice does not reflect bias but rather the agreement of the parties and the fact that, in most families, mothers have been the primary caretakers of children. Fathers who actively seek custody obtain either primary or joint physical custody over 70% of the time. Reports indicate, however, that in some cases perceptions of gender bias may discourage fathers from seeking custody and stereotypes about fathers may sometimes affect case outcomes. In general, our evidence suggests that the courts hold higher standards for mothers than fathers in custody determinations.
And then, from page 831 (this quote is the “long version” of the above summary quote):
Although perceptions of bias that discourage fathers from seeking custody are a concern, the outcome of cases in which custody is contested provides a more direct source of information about possible judicial gender bias. We heard testimony from George Kelly, a representative of Concerned Fathers, that in contested custody cases, mothers are awarded physical custody over 90% of the time. Mr. Kelly was unable to provide substantiation, however, and our own investigation revealed a very different picture.
The statewide sample of attorneys who responded to the family law survey had collectively represented fathers seeking custody in over 2,100 cases in the last 5 years. They reported that the fathers obtained primary physical custody in 29% of the cases, and joint physical custody in an additional 65% of the cases. Thus, when fathers actively sought physical custody, mothers obtained primary physical custody in only 7% of cases. The attorneys reported that the fathers had been primary caretakers in 29% of the cases in which they had sought custody.
The preliminary findings of the Middlesex Divorce Research Group relitigation study show a similarly high rate of paternal success, but fewer awards of joint physical custody. In their sample of 700 cases in Middlesex County between 1978 and 1984, fathers had sought custody in 57 cases (8.14% of the sample). In two-thirds of the cases in which fathers sought custody, they received primary physical custody (42% in which fathers were awarded sole legal and sole physical custody, plus 25% in which fathers were awarded joint legal and primary physical custody). Joint physical and joint legal custody was awarded in 3.5% of cases. In 11% of the cases, mothers received primary physical and joint legal custody; in 12%, mothers were awarded sole legal and physical custody; other custodial arrangements were ordered in the remaining cases. Thus, when fathers sought custody, mothers received primary physical custody in fewer than one-quarter of the cases in the Middlesex study. Information about which parent had been the primary caretaker was not available for the Middlesex cases.
These trends were apparent in an earlier study of a sample of 500 Middlesex County cases filed between 1978 and 1981. Fathers had sought sole custody in about 8% of the cases. They received sole custody in 41% of those cases, and joint custody in 38%. In 5% of the cases, custody went to someone other than a parent. In instances in which fathers sought sole custody, mothers received sole custody in only 15% of the cases (Phear et al., 1983).
These statistics may be a surprise to many. They are, however, consistent with findings in other states. A study of court records in Los Angeles County, California, in 1977 found that fathers who sought sole custody obtained it in 63% of the cases (up from a success rate of 37% in 1972) (Weitzman, 1985, p. 233). A nationwide survey of all reported appellate decisions in child custody cases in 1982 found that fathers obtained custody in 51% of the cases, up from an estimated 10% in 1980 (Atkinson, 1984).
The high success rate of fathers does not by itself establish gender bias against women. Additional evidence, however, indicates that women may be less able to afford the lawyers and experts needed in contested custody cases (see “Family Law Overview”) and that, in contested cases, different and stricter standards are applied to mothers.
The Massachusetts Study clearly distinguished between cases where there was “agreement of the parties” and cases in which “fathers… actively seek custody.” Cathy’s claim that “this study does not distinguish custody disputes from cases in which the father got custody by mutual agreement” is exactly the opposite of the truth.
As I said at the beginning of this post, I haven’t watched the documentary or researched every reference in Cathy’s column; I’ve basically just looked at one paragraph. However, in that single paragraph, there are important errors and omissions. My guess is that she trusted second-hand sources that she shouldn’t have, but whatever; the real point is, given the errors we know Cathy has made, none of this column’s claims should be trusted without independent verification.
UPDATE 2: Liznotes has some more comments.