Do fathers have the edge in divorce?
It is a common perception that while women may face bias in some areas, men
are on the receiving end of discrimination when it comes to child custody -
which goes to fathers, recent data show, only 16 percent of the time. Some
feminists like former National Organization for Women President Karen
DeCrow embrace equal rights for divorced dads. Yet many others have been
loath to acknowledge that there is bias favoring women in anything.
Mostly, these feminists argue, fathers don't want custody - and when
they do, they have the edge: Judges frown on working women who spend less
time with the kids than did traditional moms, while working men who spend
more time with the kids than did traditional fathers are hailed as great
dads; non-working women may be denied custody because they can't support
In the 1986 book Mothers on Trial, radical feminist psychologist Phyllis
Chesler claimed that 70 percent of mothers in custody battles lost. This
was based on a very non-random sample of 60 women, mostly referred by
feminist lawyers or women's centers. While even sympathetic reviewers
commented on the sloppiness of Chesler's research, her "finding" that
fathers are likely to win contested custody cases was often presented as
Similar numbers have cropped up again, most recently in Karen Winner's
Divorced From Justice: "Contrary to public belief, 70 percent of all
litigated custody trials rule in favor of the fathers," shouts the jacket
(italics in the original). A national alert on father's rights groups
issued by the National Organization for Women - urging members to combat
proposed laws encouraging joint custody and mediation - also states that
"many judges and attorneys are still biased against women. ..."
Where do these figures come from? One respectable source is the 1989
Gender Bias Study of the Massachusetts Supreme Judicial Court, which
reported that when fathers seek custody, they win primary or joint physical
custody 70 percent of the time. In The Divorce Revolution, Lenore Weitzman
reported two-thirds of fathers asking for custody in California succeeded.
Maybe, some fathers' advocates say, men only seek custody when they have
a chance because there's something wrong with mom. Explaining why few
non-custodial mothers pay child support, the Gender Bias Study notes "women
who lose custody often [have] mental, physical, or emotional handicaps"
that impair their earning ability.
That aside, the high success rate of men in custody battles is yet
another contender for the Phony Statistics Hall of Fame. The figures do not
refer to contested cases. Weitzman acknowledged that when fathers got sole
custody, it was typically by mutual agreement; of cases that went to trial,
two-thirds were won by women. The work from which the Gender Bias Study
gathered its numbers did not separate contested and uncontested custody
bids, but showed that mothers filing for sole custody received it 75
percent of the time (the rest usually received joint legal/primary physical
custody), while the "success rate" for fathers was 44 percent.
A Stanford study of more than 1,000 California couples divorced in the
1980s suggests conventional wisdom is right. If both parents requested sole
custody when filing for divorce, it was awarded to mom in 45 percent and to
dad in 11 percent of the cases, with joint physical custody for the rest.
(When she asked for sole custody and he for joint custody, the odds were
2-1 in her favor.)
Most of the disputes were negotiated. Just five couples went to trial
vying for sole custody - and one of these cases resulted in a victory for
The answer is not to help fathers win more custody fights but to have
fewer fights. In Michigan, the Legislature is considering a "shared
parenting" or joint custody bill - the Senate substitution bill for House
Bill 5636 - opposed by the state's NOW chapter. There's ample room for
discussions of the best way to ensure children of divorce still have two
parents. But disinformation shouldn't be part of the debate.