Conference quark::mennotes-v1

330.0. "Gender Bias In Judicial System" by HYEND::CANDERSON () Thu Mar 16 1989 15:38

    I recently received the Gender Bias Study Status Report issued by the 
    Massachusetts Supreme Judicial Court.  I have reproduced the section 
    entitled "Gender and Economics" which deals with divorce issues.  You 
    can get the full status report by calling Gladys Maged, 617-439-2801. 

    Please, comment.
    
    Craig

    OBJECTIVE
    
    This Subcommittee's objective is to determine whether or not gender 
    bias affects the treatment of certain types of civil cases.  Divorce 
    issues, including division of property, alimony, child custody, and 
    child support are the major subjects of the inquiry.  The Subcommittee 
    is also inquiring into the influence of gender on the size of monetary 
    awards in civil damages.
    
    
    PRELIMINARY INVESTIGATION AND RESEARCH DESIGN
    
    The Subcommittee concentrated first on recruiting a group of attorneys 
    and other experts with diverse interests and expertise in the area 
    under examination.  This group then conducted personal interviews with 
    court officials and experts, including the executive administrator of 
    the Probate and Family Court; Professor Lenore Weitzman, nationally 
    known author of "The Divorce Revolution" and expert on the economic 
    consequences of divorce; chief family service officers from Probate and 
    Family Court; members of the Middlesex Divorce Research Group, a 
    research organization analyzing the impact of divorce and custody 
    arrangements on children and frequency of relitigation under different 
    custody arrangements; representatives of mothers and fathers advocacy 
    groups; family law practitioners in private practice and with Legal 
    Services; and attorneys practicing in the area of personal injury who 
    are knowledgeable about trends in court awards and settlements.
    
    Also in the past year, the Subcommittee completed documentary legal 
    research on damages for homemakers in personal injury suits, use of 
    mediation in divorce, changing standards for child custody and division 
    of marital property under Massachusetts laws.  The Subcommittee 
    conferred with court records managers in order to understand the 
    organization and accessibility of legal records for domestic relations 
    cases.  The Subcommittee reviewed the work of the Special Legislative 
    Commission on Divorce, the Governor's Task Force on the Unmet Legal 
    Needs of Children, and the Committee on Child Support Guidelines.  The 
    information gleaned from the interviews and legal research was used to 
    formulate and design focused research projects.
    
    
    ISSUES RAISED IN PUBLIC HEARINGS AND INTERVIEWS
    
    The following is a summary of issues raised by individuals who were 
    interviewed by the Subcommittee or who spoke at the Committee's public 
    hearings.  The speakers are listed in the Appendix.  These issues are 
    being investigated further using the research methods described later 
    in this section.
    
    
    *	 EQUITABLE DIVISION OF PROPERTY UPON DIVORCE
    	 Several speakers cited statistics indicating that the economic 
         position of women after divorce usually deteriorates compared to 
         that of men.  Speakers remarked that in ordering the distribution 
         of marital property, some judges do not consistently recognize the 
         possibility of a disparate economic impact of divorce, 
         particularly in regard to future income and financial obligations, 
         even though the law allows them the flexibility to do so.
    
    *	 RESOURCES AVAILABLE FOR CONTESTING DIVORCE
    	 According to private and Legal Services family law attorneys, w-
         omen are often at a distinct disadvantage in contested divorce 
         proceedings because they often lack the means to hire counsel and 
         expert witnesses, and they do not have access to, or expertise in, 
         financial records.  This disadvantage is most pronounced in the 
         investigative and discovery phases, when access to records held by 
         men and assistance in interpreting these records are usually 
         limited.  Parties cannot depend solely on family service officers 
         to inform them about rights and rules governing the process.
    
    *	 AWARDS OF ATTORNEY'S FEES
    	 Attorney's representing clients in divorce cases stated that the 
         courts' reluctance to award attorney's fees tends to hurt women 
         far more than men.  They believe that fee requests are treated 
         less seriously in divorce proceedings than in other types of 
         litigation.
    
    *	 EVIDENCE IN DIVORCE CASES
    	 A family law attorney stated that many judges hesitate to delve 
         into financial documentation offered by divorcing spouses.  In 
         such cases, the wealthier partner may easily conceal assets.
    
    *	 CHILD SUPPORT FOR LOW INCOME WOMEN WHO ARE THE CUSTODIAL PARENT
    	 According to Legal Services attorneys, low income women have great 
         difficulty obtaining adequate child support orders.  The child 
         support guidelines are not always being used to establish support 
         orders;  when they are, they may be used as a ceiling.  Even after 
         enforcement proceedings, a low income woman may not have an income 
         above the poverty line.
    
    *	 GENDER BIAS IN THE CHILD SUPPORT GUIDELINES
    	 A representative of a Legal Services organization testified that a 
         number of factors included in the child support guidelines cause 
         the costs of child support to fall more heavily on mothers than on 
         fathers.  Among these factors are family size, second families, 
         and medical insurance costs.  A representative of a women's group, 
         although criticizing the substance of the guidelines, recommended 
         that they be generally applied to ensure uniform treatment of 
         cases across the state.
    
    *	 CUSTODY AND CHILD SUPPORT FOR FATHERS
    	 Representatives of fathers' organizations and the director of a 
         family service clinic testified that some judges' assumptions 
         about appropriate gender roles causes bias in favor of mothers in 
         custody proceedings and against providing and enforcing child 
         support to custodial fathers.  According to a private attorney, 
         men have more difficulty than women getting changes of orders on 
         account of changes in circumstances.
    
    *	 STANDARDS FOR MOTHERING
    	 According to Legal Services attorneys, some courts have higher 
         expectations of mothers than fathers and this bias may result in 
         fathers receiving custody instead of mothers.  In some cases in 
         which men have been granted custody and women make child support 
         payments, courts have been characterized as punishing the women 
         for not fulfilling their stereotypical role by forcing them to 
         make excessively high support payments.
    
    *	 EXPECTATIONS ABOUT WAGE EARNING CAPACITY
    	 the director of a family service clinic and family law 
         practitioners testified that courts often have unrealistic 
         expectations about a woman's capacity to become self sufficient 
         through employment.  This sometimes results in inadequate awards 
         for divorced women.
    
    *	 GRANTING OF CUSTODY OR VISITATION PRIVILEGES TO ABUSIVE MEN
    	 Advocates of battered women organizations stated that judges often 
         do not inquire into abuse during contested custody proceedings.  
         Many women are ordered to share legal custody with abusive men and 
         this may require them to open their homes without protection to an 
         abusive man.
    
    *	 ACCUSATIONS OF CHILD SEXUAL ABUSE
    	 Representatives of fathers' groups and a divorced parents' group 
         stated that courts permit mothers to deny fathers access to their 
         children by countenancing false accusations of sexual abuse.  A 
         Legal Services attorney, on the other hand, testified that in a 
         large majority of the cases some evidence of wrongful sexual 
         contact has been discovered.  A Legal Services attorney stated 
         that mothers are often unjustifiably disbelieved, blamed for 
         failing to prevent the abuse, or suspected of complicity.  A 
         doctor doing pediatrics research reported that a recent study had 
         shown that the overwhelming majority of child sexual abuse cases 
         substantiated.
    
    *	 DEPARTMENT OF REVENUE ENFORCEMENT OF CHILD SUPPORT
    	 According to the Deputy Commissioner of the Department of Revenue 
         (DOR), their highest priority for their new child support 
         enforcement program is to increase the support received by 
         children.  However, an advocate for lower income women and a 
         representative of a mothers' organization stated that DOR 
         proceedings thus far have resulted in little additional income for 
         mothers and children, but instead have resulted in financial gains 
         for the state.  This program is still being implemented.  The 
         subcommittee will continue to follow its development.
    
    *	 RAISING OF CUSTODY AND VISITATION ISSUES DURING CHILD SUPPORT 
         ENFORCEMENT PROCEEDINGS
    	 Attorneys representing low income women stated that fathers often 
         raise custody and visitation issues in retaliation for support 
         enforcement.  Fathers are permitted to precede with them without 
         notice in the course of child support enforcement proceedings.  If 
         DOR is representing a woman on the enforcement issue, she may be 
         left without representation on the custody issue, since that is 
         beyond DOR role.
    
    *	 COURT TREATMENT OF CHILD SUPPORT LITIGANTS
    	 Attorneys and litigants stated that court personnel often are 
         insensitive to persons seeking support and inefficient in their 
         processing of payments.  Women seeking to establish support pro se 
         are given little assistance and are in some courts greeted with 
         hostility.  Some courts set arbitrary limits on the number of 
         support cases they will hear in a given week.  Whether certain 
         enforcement actions are taken often depends on in which court the 
         case is brought or to which probation officer it is assigned.  
         Slow court initiated enforcement leads to large arrearage that 
         discourage later payment.
    
    *	 COURT ORDERED MEDIATION IN DOMESTIC VIOLENCE AND DIVORCE 
         PROCEEDINGS
    	 Legal Services attorneys stated that routine use of mediation is 
         inappropriate in cases involving domestic violence.  A woman who 
         fears  for her safety or that of her children is not in an equal 
         bargaining position.  THis is particularly true if she is 
         unrepresented in court proceedings.  Witnesses testified that 
         women in this position will accept child support orders below the 
         guidelines and custody arrangements that leave them vulnerable to 
         further harassment.

    Below I have summarized some organization, methods and process notes 
    based on my reading of the status report.
    
    1.	 The section reproduced above is one of four on gender bias in the 
         judicial system:
    	 a.   Court Personnel and Administration
    	 b.   Gender and Economics
    	 c.   Gender in the Courts
    	 d.   Gender, Violence and the Courts
    2.	 The committee and staff seemed to be composed equally of women and 
         men.
    3.	 The issues reported above are described as a qualitative and 
         representative summary of issues raised by witnesses testifying 
         and being interviewed.
    4.	 The status report did not provide any quantitative data.
    5.	 80% of the speakers/witnesses were women.
    
    

    Well, I am an ex-wife who pays child support to my ex-husband, who
    has physical custody.  AND he got the bulk of our joint assets,
    too.  IT DOES HAPPEN!
    
    K.

    
    Seems to me the results might be skewed simply because
    80% of the witnesses/speakers were women. I'd trust the
    findings more if that ratio was 50/50.
    
    							Hank

re: .0

And it (the summary) does not seem to mention the range of time the data covers.
A ten year period would show a great difference than would a one year period
(court attitudes etc may very well have changed over a period of time; from
various people I know, that certainly seems to be the case).

-Joe

    The same old song and dance.  
    
    I can't help but think that people accuse people of being bias as
    an excuse for their own incompetence.  It is a shame because it
    discredits the people who have a genuine grievance.  Their are
    inequities all through life for everyone.  The strong overcome,
    the weak sit there and whine.  I've seen many more men get screwed in
    divorce then women.                           
                                                   Mike