Historically, children were regarded as the father's pre-industrial assets and custody was out of question. Consequently, the `tender years' doctrine dictated that young children be kept with their mothers (Newsweek, [Online], 1995). But as perceptions about parenthood changed, fathers have become just as much involved as mothers in nurturing their children. For this reason, today, many fathers are seeking primary or joint custody of their children when a marriage breaks down. However, it is questioned whether the court system is biased against men in matters involving custody and access to children when family breakdown occurs. It can be argued that, when deciding custody and visitation, a court gives the best interests of the child the highest priority and not gender (Levin ; Mills, [Online], 2003). Apparently, it is clear that in most custody cases; approximately 90% of the time, primary residential custody of children is awarded to mothers (McNeely, [Online], 1998), thus indicating the presence of gender bias in the family courts.
One of the things propelling prejudice against men in family courts is the basing of decisions on stereotypical attitudes and beliefs. Most judges in the family courts center their decisions on their own understandings and beliefs (Coleman, [Online], 1999). McNeely also writes that, `Many judges raised in traditional homes consisting of fathers as breadwinners and mothers as caretakers have resisted letting go of the `tender years' doctrine, (Online, 1998). That simply shows that some judges still believe that children below the age of five need their mothers to grow hence the reason why such judges award custody to women. In support to that, Henry further contends that, a West Virginia Supreme court justice was quoted saying; `We do the standard drill. She gets the children.
Men don't care, basically, about anything other than money' (Online, 1998). Other myths in courts systems are that men are not usually capable of being custodial parents as are mothers etc. Such hackneyed beliefs of most judges in family courts have been discriminating against men and damaging towards child-parent relationships as most men are separated from their children via unfair court decisions.
Regardless of constitutional pledges of equality, some people are less equal than others. This is the message passed on to men when custody is awarded to women after a custody evaluation. At many times, courts request forensic evaluators to do custody recommendations after doing an evaluation of both parents. Nevertheless, A. Cowling writes that, `in most cases, the `experts' who handle these assessments are not anymore competent in making noble custody decisions than a knowledgeable family court judge'. He further adds that even reputable evaluators find themselves favouring a particular parent in a custody dispute for reasons that have little to do with the quality of parenting offered (Online, 2003). Therefore, it can be noted that even in these evaluations to determine `the best interests of the child', there is the possibility of favouring the mothers by evaluators hence making the court decision biased. Hughson also argues that there is doubt on whether the evaluation process can be fair or lucid because it is constructed without a standardized testing or benchmarks. In addition, he says that `usually, "best interest of the child" is the shorthand for "kids go with mom and dad gets to see the kid over the weekend ." (Online, 2003). Bringing it to a close, it can be said albeit the use of custody evaluators in a custody case, there is still some existence of bias against men as some evaluators tend to favour mothers.