In aug00 the British Government's Office of National Statistics (ONS) asked the Lord Chancellor's Department (LCD) for information on outcome from disputed child custody cases in the family courts. The LCD replied that they had no information on the matter. Thus, the British government has no idea as to how often custody is granted to mother or to father.

Ivor Catt 7aug00

Data on Bias in Child Custody Determinations.

Compiled by F.M. Christensen, Ph.D.

1. "Judicial child custody decisions as a function of social and emotional deviation of the mother", Ph.D. thesis of Gisele Kehl, Hofstra University, 1983. A survey containing various hypothetical child custody cases was circulated to 162 judges across the US. It was found that when both parents were emotionally, socially and morally fit, the mother received custody l00% of the time. A career woman was not less likely to become the custodian than a traditional mother. It was also found that emotional instability was more detrimental to a litigating mother.

2. "Judges’ decision-making in child custody: An analogue study", Ph.D. thesis of Martin Goldstein, University of Arizona, 1983. In a survey of judges given various hypothetical child-custody cases, a significant bias favoring the mothers was found. Mothers were more likely than fathers to receive sole custody awards by a ratio of 3:2.

3. "An empirical study of the attitudes of the Supreme Court of Ontario regarding the workings of the present child custody adjudication laws", Adrian Bradbrook, 1971, 49 Can. Bar Rev. 557. Fifteen judges were given various hypothetical cases involving a custody dispute over a nine-year-old boy. Of the 12 judges who chose between the parents, 6 would have awarded custody to the mother under all circumstances, 4 appeared to lean toward the mother and only two showed a preference for the father. The study showed less maternal preference when the mother worked outside the home or had committed adultery. (This study pre-dates the sex-role revolution; but custody statistics had changed little by the 1990’s.)

4. Solomon’s Children, Glynnis Walker, New York, 1986. In a survey of adults who had been children when their parents divorced, only l0% of fathers had received custody. 39% said they had felt closer to their father than to their mother, but were never given the right to choose which parent would keep them.

5. Information from the Joint Custody Association, Los Angeles, Mar. 6, 1985. In a survey sample of 882 children in 527 families, 48% of the mothers and 6.5% of the fathers were granted sole custody. 37% of the cases resulted in joint legal custody, but in all of those, primary physical custody went to the mother. Five percent, or 30 of the cases, were decided in a contested custody trial. 17 of these cases resulted in sole custody to the mother and 7 resulted in joint legal custody with primary physical custody to the mother.

6. "The myth of maternal preference in child custody cases", Jean McBean in Equality and Judicial Neutrality, S.L. Martin and K.E. Mahoney (eds.), Carswell, 1987. In an unpublished study by the Alberta Attorney General’s Department, a review was conducted of l500 Alberta court files between 1979 and 1985 where an amicus curiae was appointed. It was found that the amicus curiae recommended in favor of the father in 31% of the cases, the mother in 51%, divided custody in 3%, placement with a guardian in 8% and joint custody in 8% of the cases. Thirteen percent of these cases went to trial, where the recommendation of the amicus curiae was accepted in 92 % of them. Of the 13 cases where the court ignored the recommendations, the father received custody in seven, the mother in six. (In spite of this article’s title, its data still suggest the reality of mother-preference. Given the statistics elsewhere, however, having court officials assess disputed custody cases--back when that was being done in Alberta--appears to have reduced the bias considerably.)

7. Evaluation of the Divorce Act, Department of Justice for Canada, 1990. In a sampling of divorce cases from various Canadian jurisdictions in the late 1980’s, government researchers used both court records and interviews with those divorced to ascertain custody statistics. According to both sources, in those cases where sole custody was awarded to one parent by a trial court, mothers were the ones receiving it 90% of the time (Tables 4.21 and 4.23). In a small percentage of contested cases, joint custody was awarded. (In the huge majority of contested cases resulting in joint custody in Canada, the sort of joint custody awarded is very little different from sole custody: one parent still gets "primary care and control" and the other parent gets little time with the children. Unfortunately, this source did not provide a gender breakdown on receipt of such "joint custody". From common observation, however, the percentages by gender could not differ much from those for sole custody.) The large majority of custody decisions are decided outside of court, generally with the advice of lawyers or other negotiators. The authors summarise this overall situation thus: "Where sole custody was to the mother, this was usually the result of taken for granted notions ‘that children need their mothers’. In turn, where fathers were granted sole custody, this was almost invariably because the mother did not want or could not cope with custody of the children rather than the outcome of a contested custody issue."

N.B.: US and Canadian statistics showing equal or greater percentages of father custody in contested cases are sometimes claimed. In every such case to date, examination of the original source has found the claim to result from distorting data.