What are little girls made of? Sugar and spice and everything nice! What are little boys made of? Snips and snails and puppy dogs tails!
Hey, we've come a long way, baby! But have we? While 16 states now guarantee equality of the sexes in their state constitutions, the nation has yet to ratify the Equal Rights Amendment, even though its idea was conceived in 1916. The formation of groups such as Fathers for Equal Rights and the conservative National Fatherhood Initiative are other indicators that, while some traditional roles of men and women in society have changed, society's conventional expectations of the sexes have not.
The American Heritage Concise Dictionary defines "gender" as a "a sexual category; males or females as a group," and "bias" as "a preference or inclination that inhibits impartiality; prejudice." Thus, the term "gender bias" refers to a prejudice based on one's sex; the stereotyping of the male/female role in society.
Is gender bias playing a role in the outcome of our family law cases? Are decisions being made, or actions being taken, because of weight given to preconceived ideas of sexual roles, rather than upon a fair appraisal of merit as to each person or situation?
Perhaps those questions can be answered by accompanying a "typical" family through their divorce "war." The "typical" family is none other than the ultimate American family, the Cleavers: Ward, June, Wally, and Theodore (as "the Beaver").
Profile of Ward Cleaver
Ward is, of course, the breadwinner in the Cleaver family. He is hard working, has control over the family's finances and is the major decision maker when it comes to financial matters. He is a well educated, successful business man, proud of his family and his ability to provide them with a comfortable life style.
Profile of June Cleaver
June, attired eternally in dresses and pearls, has been the happy homemaker for the 20 years of her marriage to Ward. While she has a high school education, she has no working history outside the home. In fact, Ward discouraged her working outside the home, saying that it would only place them in a higher income tax bracket. She has been responsible for the bulk of the household work and the nurturing and raising of Wally and the Beaver. She has virtually no knowledge of the family's financial picture.
The Children
The Cleavers have two sons, Wally, a tenacious teenager, with some less-than-desireable friends (Eddie Haskell, for instance), and Theodore (the Beaver), a rambunctious eight year old. Both June and Ward deeply love their children and are genuinely concerned about the impact their divorce will have on them.
Retaining Counsel
The decision to divorce was Ward's, and being the "take charge" kind of guy that he is, he began looking for a divorce attorney even before he broke the news to June. He wants to be in control of all aspects of the divorce proceeding and feels he needs an attorney who will strictly comply with his wishes. Also, he is uncertain if he wants to seek custody of Wally and the Beaver, but thinks that if he chooses that option, he will need all the help he can get. Ward decides that a female attorney is the right choice for him! She will let him run the case the way he wants, and if custody is an issue, it will "look good" that he has a female on his side.
On the other hand, June waits several months after Ward announces his intentions to divorce her before obtaining an attorney. Finally realizing that Ward was not just going through the "middle age crazies" and that all hopes of reconciliation had vanished, she begins looking for someone to represent her best interests. Aware of Ward's financial power over her, June feels threatened and vulnerable. She believes she needs an attorney who will "stand up" to Ward and protect her, someone like a "father figure." Not surprisingly, June hires a male attorney.
The Litigation Begins
The first issue that must be dealt with is support for June and the children during the pendency of the divorce litigation. June's attorney announces he has good news and bad news. The good news is, that due to the length of the marriage, June is eligible for spousal support; the bad news is that it will be limited in its duration. June's attorney informs her the Court assumes that she will find a job and will not order spousal support for an unlimited period. June's argument that her job opportunities are severely limited and she lacks the ability to reach the economic status that Ward enjoys, is not taken into consideration.
Ward objects to the compulsory nature of court-ordered child support. He has always provided for Wally and the Beaver and states that he is more than willing to continue providing for them on a voluntary basis. Resentful of the prospect of paying the child support directly to June, and suspicious that little or none of the money would actually be spent on the children, Ward wants to pay the support directly to the boys in the form of an allowance.
An Attempt at Mediation
Ward wants the marriage to end as quickly as possible; June wants to avoid conflict, and thus the parties agree to try mediation. To keep the costs of their rising attorney's fees down, they agree to attend mediation without their respective attorneys being present. June's lack of negotiation skills and lack of knowledge of the family's finances make her feel powerless. She is dependent upon the mediator to tell her what offers she should or should not accept. Ward clearly has the upper hand during the mediation session. His years of experience as a business man have trained him for negotiation. The mediator, who feels that both parties should be satisfied with the procedure and the results, is unable to even out this imbalance of power, and the attempt at mediation fails.
Ward and June Argue for Division of Property
Ward feels that June has made no financial contributions to the family during the marriage and thus, he should be awarded a greater share of the parties' assets. Ward states that June is attractive and pleasant, and should have no problem finding employment. Feeling generous, he is agreeable to letting her have the house, so long as she assumes the mortgage payment. He is willing to take the liquid assets of the marriage, which have a combined lower value than the house.
June believes that Ward prevented her from developing her own career by expecting her to be a full time wife and mother. She argues that she should be awarded more than half the property to compensate for Ward's significantly greater earning power and the small likelihood that she will be awarded permanent alimony. June states that she needs an award of assets which will produce income, not one like the house, which will require maintenance.
Custody/Visitation/Support
Although Ward would like full custody of Wally and the Beaver, his attorney advises him he faces a tremendous burden in pursuing custody. It is presumed awarding June primary custody will be in the best interest of the children and Ward has no "bad" facts which would justify removal of the children from June's care. The fact that the boys have expressed a desire to live with their father does not outweigh the court's predisposition to place children with the parent who it believes is the natural care giver. Ward argues that, since June will work and not be at home full-time, he should have equal access to the children. He also argues that boys need the parental guidance of their father more than their mother.
June's position is the children belong with her. June states she has always been the boys' primary caretaker and she should not be penalized because she will work outside the home. June assesses Ward's involvement with the boys as one of entertainment, not actually child rearing. Before the divorce proceedings began, and especially during the pendency of the litigation, Ward has had limited involvement in direct parental responsibility and June does not feel he is prepared to parent independently. He has always participated in the boys' activities, and during his scheduled visitation he has embarked on a myriad of new adventures for him and the boys. However, June feels that the day-to-day parental responsibilities and duties have been left to her, and on her limited budget, she has not been able to compete with Ward's entertaining escapades.
The Final Act
So, how does it end? Will Ward get custody of Wally and the Beaver? Will June get a disproportionate share of the parties' estate? You be the judge. What factors will motivate your decisions? Will gender have an impact on those decisions?
Gender Bias Task Forces, Independent Studies
Unlike the Cleaver family, gender bias is not fiction in our judicial system. In fact, a National Task Force on Gender Bias in Courts has been formed to better determine the nature and extent of gender bias in our court system, and to recommend and implement reforms. Task forces have been established in more than 40 states and twenty-one of those states have issued reports. These task forces consistently report that, while gender bias is prevalent in family law and has a detrimental affect on both men and women, women are more adversely affected economically than men. Additionally, independent studies (reflecting the grip that gender bias has on divorce cases) have been conducted in Alaska, California, Connecticut, Hawaii, Maryland, Minnesota, New York, Ohio, Oregon, Rhode Island, Utah, and Vermont. Those studies also show women suffer far more economically from divorce than men. Both the independent studies and the task forces report gender bias is a factor in postdivorce economic disparity between men and women and this disparity is due to the inequitable awarding of marital property and alimony. One study shows that women's income falls about thirty percent after divorce, while men generally experience an increase in their standard of living, due in part because they no longer share as much of their financial resources with their children. Lacking the funds necessary to retain an attorney or financial experts to champion their cause, wives frequently face greater obstacles than husbands in the divorce court.
These studies also indicate that bias continues to taint custody decisions by the courts. Although numerous appellate decisions throughout the nation have instructed that gender based presumptions in custody awards are unacceptable, the reality is more than 85 percent of children end up living with their mothers after divorce. In 1979 California passed the first joint custody legislation. Since then, 43 states have enacted laws specifically authorizing some form of joint custody. However, while joint custody promises much on paper, physical custody of children to their mother is still the most frequent award across the country. Studies also revealed nonresidental parents frequently fail to support their children on a regular basis.
Recognizing the impact of gender bias on jury decisions, in 1994, the United States Supreme Court severely limited an attorney's control over the makeup of a jury panel by limiting the use of preemptory strikes based on gender. J.E.B. v. Alabama, 114 S. Ct. 1419 (1994). Thus, attorneys are prevented from controlling the make-up of a jury panel by striking all members of one gender.
The damages resulting from gender biased decisions in family law cases are still being assessed. However, studies being conducted indicate inequality in property division places women in a secondary financial status and contributes to the perception of women as second- class citizens. There are also indications that the choosing of one parent over the other robs children of their right to be parented by both their mother and their father and can lead to a feeling of alienation on the part of the nonresidential parent. This feeling of alienation on the part of the nonresidential parent, leads to a decline in that parent's physical contact with and economic support of the children.
Both men and women complain our legal system is biased against them. Women feel intimidated and disadvantaged during economic negotiations. Women also fear their lower earning ability will be used against them in the test of "best interest of the children." On the other hand, men feel that "nurturing" is still considered a female attribute. As a result, men feel they are not as involved as their spouses in the raising of their children.
If our court system promises equality, then it must recognize and address gender bias. Recommendations of the various task forces and independent studies stress the importance of educating our judges and attorneys about the negative effects of gender bias and gender stereotyping on family law proceedings. This includes educating them on the economic and emotional effects on the parties and their children.
Sally Andressis currently serving as President of the Legal Assistants Division. She is a legal assistant with the firm of Koons, Fuller & Vanden Eykel, whose practice is limited to matrimonial law and she is Board Certified in Family Law through TBLS. She is a member of the Legal Assistant Advisory Board of both El Centro College and Southeastern Paralegal Institute and is also Contributing Editor to the Family Law Column of Legal Assistant Today.