Meg: Dylan, because you have been doing so much custody trial work lately, I was wondering if you are still seeing any lingering prejudices about fathers' ability to parent half-time, or take care of young children?

Dylan: I definitely see a greater expectation on the part of dads for more parenting time, if not 50/50 time. It used to be that dads got "visitation" with the child every other weekend and for a mid-week dinner, but that's no longer the norm. Even calling dad's time "visitation" is now viewed as demeaning. I also think courts are more receptive than they have been in the past to shared custody arrangements with older children, assuming that you have an involved and capable dad, attuned to the needs of the child. With younger children—especially those not yet of school age—I see less willingness to consider a true 50/50 shared time arrangement. I think that there is still an additional hurdle for fathers of young children.

Whether there is an actual gender bias in our system, there is clearly a perceived bias on the part of mothers and fathers. I have often been asked in conversation with a fellow commuter on the LIRR whether a guy can really "get custody." That concern reflects how lay people view our system but also how that suspected bias informs their own life decisions. If dad perceives that he cannot get as fair a shake as mom in a litigated custody battle, he may be unwilling to risk that battle and he may not leave the marriage if that means seeing his children less.

On the other hand, many women think that we've not come far enough since the New York Taskforce on Women in the Courts issued its report in 1986, which found that overall gender bias against women in the courts is pervasive and denies women equal justice, treatment and opportunity.1

Meg: Certainly there is a long history of women not getting equal treatment under the law. I think we can credit our practice area as being in the forefront of rectifying that situation. But as we know from the recent U.S. Supreme Court decision on affirmative action, the fight against discrimination is complex, multifaceted and requires careful thought and attention to outcomes so that no class of participants (in this case mothers and fathers) is made secondary to the other on the basis of broad assumptions not based in fact. In the end I think it's better and not diminishing for women, as a group, and for families, whether nuclear or two-household, to bolster the participation and skill level of fathers. But that doesn't mean we stop pushing for women to be fairly treated in all aspects of the law.

Your example from your commute highlights a common problem that arises just in framing the issue as "getting" custody, which conceptually commoditizes the time, parenting and relationship with the kids. This damaging perspective can pervade the thinking of both mothers and fathers (i.e., who "has" it, who "gets" it and who "loses" it).2 One change that I'm hoping to see the courts be open to and even encourage is that the division of labor involving kids that were in place during the marriage shouldn't necessarily dictate what happens upon the divorce. We have the hard social science data and comparative studies3 that confirm that the stronger the kids' relationship with and role played by both parents, the better the outcome for the kids; and that kids grieve over lost time with a noncustodial parent. Equal time may not be a practical reality for many families due to employment commitments and ability, but if parents can play to their respective strengths while still giving each parent the opportunity for growth where it's needed, that seems to be the recipe for the strongest outcomes for kids, not to mention greatest peace of mind for the parents.

For the most part, I think that dads who seek more hands-on parenting time should not be disqualified from getting it. But we don't presently have a working presumption that evenly (or nearly evenly) split time is the default, and should be ordered unless there is a specific reason not to do so (such as lots of international business travel, serious psychological issues, or worse, the inability to compartmentalize feelings over the broken marriage and respect and work cooperatively with the other parent). I was speaking with a psychologist from Los Angeles recently who works with fathers going through court mandated parenting therapy which is a requirement in California custody cases. She lamented the lack of resources in terms of support groups, or even literature for divorcing fathers who want to parent and improve as parents, as opposed to simply coaching dads on "winning" custody through more adversarial means. I certainly agreed with her.

Dylan: Commoditizing access sometimes leads to day counting wars. We can lose sight of the effect of separations and transitions on a child. Also, quantity and quality of time are not the same but are often viewed that way.

This is a difficult issue to assess because everyone involved, from judges to researchers to the lawyers have all had their views shaped by life experiences, romantic relationships, their own fathers and mothers, and experiences as parents (or not as parents). This colors the way people view legal issues. The trick is to be aware of it, which is not always acknowledged. And then there are the self-described father's/mother's rights lawyers, who wear bias on their sleeves. Identifying instances of bias is important because the advice we give helps shape our client's expectations on custody issues.

Meg: We know that advocates argue for the stereotype when it helps the particular client and against it when it hurts the particular client. In that sense, one side may be arguing from a 1950's sensibility of one primary parent and one career oriented parent, while the other side is arguing from the perspective of the new century by saying that each parent can and should do both. New York is not generally a lifetime or long-term spousal support state, except in unusual circumstances. So unless the family has great wealth, the division of labor is going to have to change prospectively in any event. Those changes can be parallel to evolutions in custodial arrangements. We do sometimes see the interesting circumstance of a female lawyer arguing for "old fashioned" family values and against shared custody. I haven't yet seen that traditional arrangement pushed prospectively when the genders are reversed (i.e., when the father has been staying at home while the mother worked long hours). We are not yet so gender blind that such a working mother is blocked from a chance to be the custodial parent based solely upon the "history" of that agreed upon division of labor during the marriage. Merely following what happened before the end of the marriage isn't necessarily the just response.

Dylan: There's definitely a cultural shift. According to a 2011 Pew report, the amount of time that married fathers spend with their children has more than doubled between 1985 to 2000.4 The point here is that many people are highly skilled parents, some less so, and we have to sort out the bona fides of actual skill levels early on in the case so that achievable goals and effective strategies can be determined. With moms, the assumption still seems to be that they usually know what they are doing, so that assumption from the past is still with us. I think most of us assume that a mom is going to get 50 percent time at a minimum when that is not at all certain for dads.

Meg: Ideas about hands-on parenting have changed for everyone. The Pew Research Foundation is a treasure trove of information on these changes. A study from March 2013 found that working mothers in 2011 spent three times as many hours per week working for pay than did women on average in 1965, but they also increased the amount of time spent with their children by 35 percent over the average in 1965.5 Fathers have tripled their parenting time over the same period though it still lags behind mothers in total hours on average. When put together, those increases doubled the amount of time kids are spending with their parents. Overall the trend is more and more time with the kids for each parent.

But there is also gender stereotyping in determining financial issues. A recent Pew study based upon data from 2011, found that in 23 percent of married households with children, the moms are bringing in the most family income.6 As more of the families in those circumstances arrive in divorce courts, those mothers with stay-at-home or partially employed husbands may face requests by dads for spousal support after a separation. I think the notion that a working mother should be compelled to support an ex-husband who would stay home with the kids is going to be a brick wall for even the most ardent feminists, in part because of the real world struggle for women to get those economic opportunities in the first place. The gender stereotyping seen with regard to financial issues is farther behind than on custodial issues. There seems to be a greater willingness to see parties as presumptively equal parents than presumptively equal economic partners. It used to be just the opposite.

Dylan: Well Meg, do you think that our formalistic temporary maintenance law is, in practical application, an example of gender bias in favor of women?

Meg: I have defended against it on behalf of a number of women where their husbands have sought spousal support during the litigation. I have problems with the statute regardless of who is applying for the temporary support because of the use of a formula to reach an inordinately high temporary support result unless one of a great many cumbersome factors says that you shouldn't do so. It's an unwieldy statute and doesn't do what was intended, which was to make the determination simpler and more just. It hasn't made outcomes more predictable or cases easier for our overburdened, underfunded courts.

That being said, I think when husbands try to get interim maintenance, they are potentially likely to be judged as less in need of it than a wife. Although traditionally male jobs were hit hard by the economic downturn, men still typically earn more than women and have longer upwardly mobile work lives in the long run. But that general reality does not necessarily apply in each particular case. So we are seeing a "gender neutral" statute playing out against a non-gender neutral workplace reality that is also subject to broad economic upheaval as job markets and industries change. So it's a thorny analysis even when there aren't 19 deviation factors to consider.

Do you think there are differences between how the "contributions" of men are treated versus the "contributions" of women, when it comes to the overall division of the marital assets?

Dylan: I do, indirectly. I think our courts are putting more weight on "sweat equity" in equitable distribution. In a one income household, the party who leaves the home to go to work is getting more credit as to assets related to that work, such as business interests and enhanced earning capacity. Since I still see more one-income households with men as the primary wage earners (and stay-at-home moms vs. stay-at-home dads), I think men and women are, in effect, treated differently.

Meg: Yes, instead of automatically viewing everything as part of the 50/50 economic partnership of marriage, there seems to be a pendulum swing back from the long trend of crediting the contributions of the non-titled spouse, even contributions that were quite indirect, to warrant giving non-titled spouses half of the value of a business, for example. Perhaps as more women are dividing up the value of their careers and businesses, indirect contributions are falling out of favor.

Dylan: I think so too. New York is moving firmly away from being a 50/50 state across all categories of assets that may have been created during the marriage.

Regarding prenups, I think that there is a real gender prejudice against men in cases where the bride is the monied party. In our society, I think it is seen as heresy for a man to ask to be supported in the context of a happy couple heading to the altar. I cannot recall a single non-monied groom asking for a spousal support provision to be included in a prenuptial agreement. Reverse the genders of the parties, and nobody would blink at the non-monied bride asking for a support provision. But the request by men gets easier, apparently, on the angry battleground of divorce where, so often, anything goes and stereotypes (and/or ego) are thrown out the window.

Meg: I have the impression that gender stereotyping abounds in the prenup situation, in part because there is so much projection involved and the group doing the projecting (the lawyers, the couple and often one or both of the couple's family members or parents) tend to project the future from the "typical" past. For example, I think when the bride comes from wealth it is assumed that she may stop working when they have children, but the husband will continue to work and needs to use that working income to support the family expenses. I just don't see that expectation placed upon women. There is never the thought that the husband might actually want to raise the kids while the wife worked or supported them from her family wealth. One consequence of the increasing recognition of the right of same-sex couples to marry will be that we get same-sex prenups and divorces, which will inevitably challenge gender based assumptions.

Dylan: Same-sex divorces clearly illustrate the gender bias and prejudice (in the literal sense of pre-judging a situation) that lingers, to some degree, in our matrimonial cases. For example, saying that moms are better with children of a certain age—the old tender years doctrine bias—has no application at all to a same-sex parent family. The research shows that the children of same-sex parents are just as well adjusted as children of heterosexual couples,7 so what does that say about how children raised by opposite gender parents should fare in the hands of one parent versus the other?

Meg: I'm expecting these same-sex situations to be the death knell for gender biases, but perhaps the last vestiges might be if male couples are treated differently than female couples. You and I have discussed before whether or not being the biological or birth mother might generally trump all other factors. It will certainly be interesting to see how it all plays out. Can't wait to revisit this topic with you then.

Dylan: It will certainly continue to be interesting.

Meg Canby is of counsel and Dylan Mitchell is a partner at Blank Rome in New York, where both practice matrimonial law.

Endnotes:

1. Amy Barasch, "Gender Bias Analysis Version 2.0: Shifting the Focus to Outcomesand Legitimacy," 36 N.Y.U. Rev. L. & Soc. Change 529 (2012).

2. For more on framing and other issues reflecting gender stereotyping, see Deborah L. Forman, The Symposium on Fathers and Family Law, "Fathers, Gender Conflict, and Family Law: A Multidisciplinary Perspective," 40 Fam. L.Q. 149 (Summer 2006).

3. Richard Warshak, "Social Science and Children's Best Interests in Relocation Cases: Burgess Revisted," 34 Fam. L. Q. 38 (Spring 2000).

4. Gretchen Livingston and Kim Parker, Pew Research Social & Demographic Change, "A Tale of Two Fathers, More Are Active, but More Are Absent," June 15, 2011, available at http://www.pewsocialtrends.org/files/2011/06/fathers-FINAL-report.pdf.

5. Kim Parker and Wendy Wang, Pew Research Social & Demographic Change, "Modern Parenthood, Roles of Moms and Dads Converge as They Balance Work and Family," March 14, 2013, available at http://www.pewsocialtrends.org/2013/03/14/modern-parenthood-roles-of-moms-and-dads-converge-as-they-balance-work-and-family/.

6. Wendy Wang, Kim Parker and Paul Taylor, Pew Research Social & Demographic Change, "Breadwinner Moms," May 29, 2013, available at http://www.pewsocialtrends.org/2013/05/29/breadwinner-moms/.

7. See Executive Summary, Evan B. Donaldson Adoption Institute, "Expanding Resources for Children: Is Adoption by Gays and Lesbians Part of the Answer for Boys and Girls Who Need Homes?" (March 2006).