Abstract

LAGGING BEHIND THE TIMES: PARENTHOOD, CUSTODY, AND GENDER BIAS IN THE FAMILY COURT

CYNTHIA A. MCNEELY

Copyright 1998 Cynthia A. McNeely

Society's view of fathers has changed dramatically since the days when courts rarely intervened between the father-child relationship. The feminization of the homefront resulted in mothers replacing fathers as the "primary and irreplaceable caregivers" in both "law and custom," effectively leading to a "progressive loss of substance of the father's authority and a diminution of his power in the family and over the family." In no greater sphere do these outdated gender roles persist than in our nation's family court system. There, the state frequently not only denies the capability and desire of many men to participate actively and meaningfully in the care of their children, but also perpetuates the subjugation of women as mothers by deeming them weak and incapable of survival without the support of a man. Part II of this Comment traces the origin of gender stereotypes and their incorporation into family law. Part III disputes recent studies used to argue that courts do not favor mothers over fathers in deciding child custody. It also examines current gender-based cultural stereotypes and the state's continued overwhelming placement of children with mothers when awarding primary residential custody, often despite statutes specifically requiring equal consideration of both parents when making custody determinations. Part IV provides an overview of the Fourteenth Amendment, especially regarding parent-child relationships, and Part V reviews Florida's child custody statute. Part VI reviews cases brought by fathers claiming violations of the Fourteenth Amendment. Part VII discusses challenges to the practice of predominantly awarding mothers primary residential custody of children, and whether the practice violates a father's constitutional right to equal consideration as the primary residential custodian, his equally fundamental right to raise his children, and his protected right to a fundamentally fair hearing. Part VIII recommends solutions to genuinely provide for the best interests of children in the post-divorce state by rectifying the disparate treatment of fathers in family court, and of mothers in the workplace. This Comment concludes that in the best interests of children, courts must truly consider both parents equally when making custody determinations, and should seek to maximize the active and substantial involvement of both fits parents in the lives of their children.

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