Is Child Custody Gender Bias? Statistics Have Revealed

Contrary to popular belief, child custody according to statistics by gender indicate that fathers in Australia are not inherently disadvantaged when it comes to child custody decisions.

Instead, the courts focus on making decisions in the child’s best interests, regardless of the parent’s gender.

Remember, custody decisions are made on a case-by-case basis and there is no one-size-fits-all solution.

Child custody has been the subject of extensive debate over the years, particularly in terms of gender. This article will examine these child custody statistics as well as the Australian laws and regulations governing child custody.

What Is Child Custody Gender Bias?

Gender bias in child custody cases occurs when a judge is influenced by the parent’s gender rather than the child’s best interests.

In Australia, family law legislation mandates that the court consider the child’s best interests when determining parenting arrangements.

This indicates that the court should not consider the parent’s gender when determining which parent should have custody.

Many believe that, despite the legislation, there is still a maternal preference in child custody cases.

This belief is founded on the historical stereotype that women are superior caregivers and nurturers to men.

However, this bias is not supported by empirical evidence. Studies have shown that children benefit from having a positive relationship with both parents, regardless of gender.

In fact, the Family Law Act 1975 explicitly states that children have the right to have a meaningful relationship with both parents, and it is the responsibility of parents to facilitate this relationship.

The law also recognizes that both parents have equal shared parental responsibility for their children, which means that they are both responsible for making important decisions about their children’s upbringing.

Child Custody Statistics by Gender in Australia

According to the Australian Institute of Family Studies (AIFS), child custody statistics by gender are as follows:

Mothers and Child Custody

• Approximately 80% of custodial parents are mothers.
• More than 90% of the time, the mother is the primary custodial parent in cases where the court-approved joint custody arrangements. This means that the mother has the majority of day-to-day decision making with respect to the child or children.

Fathers and Child Custody

• Fathers gain sole custody in approximately 10% of all cases.
• In around 11% of cases, they are the primary custodial parent. 
• They share custody in about 7% of cases.

Other Statistics

• Only about 3% of separated parents use the court system as their primary method for determining custody arrangements; these families are primarily affected by family violence, child safety concerns, and other complex issues.
• Most separated parents, or approximately 97%, do not go to court to determine their child custody arrangements, while 16% utilise family dispute resolution services or lawyers. 
• In approximately 83% of cases, the mother provides at least 53% of the care for the children, whereas, in only 7% of cases, the father provides at least 53% of the care.
• Despite gender bias, 81.2% of sole custody cases are awarded to the mother. 53% of judge-decided cases involve orders for primary parental responsibility, while 93% of parent-resolved cases involve orders for shared parental responsibility.

The Explanation Behind Child Custody Statistics by Gender

In Australia, the rate of sole custody granted to mothers is higher for a variety of reasons.

One explanation for this is that, historically, mothers have been the primary caregivers for children, especially during their early years.

This may lead to the conclusion that mothers are better equipped to meet the physical, emotional, and developmental requirements of the child.

In the event of separation or divorce, mothers are also more likely to seek custody of their children.

This could be due to a variety of factors, including the need for financial support and the desire to maintain a close relationship with their child.

Note, however, that the Family Law Act of 1975 (Cth) mandates courts to consider the child’s best interests when making custody decisions.

This means that gender is irrelevant when determining custody arrangements. Depending on the specific circumstances of each instance, the court may grant sole custody to the mother or the father.

It is also important to note that joint custody arrangements permit both parents to share parental responsibilities, which can be advantageous for the child’s well-being and growth.

In Australia, joint custody arrangements are now the most prevalent form of custody arrangement.

How Can Gender Bias Affect Child Custody?

Gender bias in child custody cases can influence the decision-making process in a variety of ways.

Here are some examples:

• Presumptions of Parental Roles: Historically, there has been a presumption that mothers are better caregivers and that fathers are breadwinners. This can result in a bias towards mothers in child custody cases, with judges assuming that children are better off with their mothers.
• Stereotypes: Gender stereotypes can also influence child custody decisions. For instance, judges may assume that fathers are less nurturing or emotionally supportive than mothers. 
• Cultural and Religious Beliefs: Cultural and religious beliefs may also play a role in child custody decisions. In some cultures, for instance, it is expected that women will provide primary care, which may lead to a bias in favor of mothers.

Also read: Can You Withdraw from a Child Custody Case?

How to Avoid Gender Bias?

It is essential to avoid gender bias in child custody cases to ensure that decisions are made in the child’s best interests. Here are some ways to avoid gender bias in child custody:

• Education and Awareness: Legal professionals and judges can identify and avoid gender biases through education and awareness. They can become aware of their own biases and learn how to make decisions that are not influenced by gender stereotypes through training programs and workshops.
• Focus on the Best Interests of the Child: Legal practitioners and judges should focus on the best interests of the child when making custody decisions. This requires them to consider the child’s relationship with both parents, emotional and physical needs, and desires.
• Avoid Presumptions: Presumptions that one parent is more suitable for custody based on gender should be avoided. Each case should be evaluated on its own merits, taking into account the unique circumstances of each family.
• Use Objective Criteria: Legal professionals should use objective criteria when evaluating each parent’s fitness for custody. This may include the parent’s ability to meet the child’s physical, emotional, and psychological needs, as well as the parent’s involvement in the child’s life and relationship with the child.
• Monitor and Review Decisions: Finally, legal professionals should monitor and review custody decisions to ensure that they are not influenced by gender biases. This may entail examining the decision-making procedure, evaluating the factors considered, and modifying the decision as necessary.

Summary

Decisions regarding child custody are made with the child’s best interests in mind.

Despite the widespread belief that mothers are more likely to be awarded custody, statistics indicate that this is not the case.

Instead, the courts make decisions based on the child’s best interests, independent of the gender of the parents.

When making custody decisions, consideration is given to the child’s age and needs, each parent’s capacity to provide for the child, and the child’s relationship with each parent.

The ultimate goal is establishing a custody arrangement that allows the child to flourish and develop in a safe and nurturing environment.

If you find yourself in the midst of a custody disagreement, it’s advisable to seek the guidance of an experienced child custody lawyer to safeguard both your rights and your child’s well-being.

Hayder Shkara

Director of Melbourne Family Lawyers, Hayder manages the practice and oversees the running of all of the files in the practice. Hayder has an astute eye for case strategy and running particularly complex matters in the family law system.