In the mid-1990s, a few high profile mothers who faced the prospect of losing custody of their children captured the attention of the media and led to cries of judicial bias. One of these mothers was O. J. Simpson prosecutor, assistant DA Marcia Clark.
Dr. Warshak was asked to address the issue of gender bias at a 1995 international conference in Montreal, Quebec, Canada.
He begins by discussing the manner in which gender stereotypes have shaped custody decisions throughout history. Next he takes up the question of whether, and in what form, gender bias is part of the current custody scene. Avoiding simplistic approaches to the topic, this presentation examines a range of criticisms leveled at the best-interests-of-the-child standard, from both women’s and men’s advocacy groups.
Dr. Warshak explains why allegations of systematic discrimination are difficult to evaluate and he gives examples of how advocacy groups and the media misrepresent the state of research in order to support their preconceived opinions.
Conceding that the absence of reliable data on the question of gender bias in court decisions invites rhetoric in place of reason, Dr. Warshak next addresses the wider issue of whether gender bias rules the ninety percent of cases decided outside of court. Dr. Warshak shows why the question “Which parent should get custody?” lies at the heart of gender bias claims. He then examines four explanations that have been offered to defend the mother’s preferential claim to custody, and concludes that the best scientific evidence proves that neither nature nor experience gives women a monopoly on parental competence either before or after divorce. This section offers a more detailed analysis and criticism of the primary parent standard than in Dr. Warshak’s previous work.
The presentation concludes with a brief discussion of research findings demonstrating the need for a new approach to custody decisions that guarantees children their birthright to both parents. Dr. Warshak makes a simple suggestion to ensure that custody reform reflects the needs of children rather than the demands of adults.
Approximately 30 minutes
The Approximation Rule Survey: The American Law Institute’s Proposed Reform Misses the Target
The American Law Institute (ALI) proposed that in contested physical custody cases, the court should allocate to each parent a proportion of the child’s time that approximates the proportion of time each spent performing caretaking functions in the past. The rule is intended to function as a default presumption in disputes decided by a court and as a backdrop for pre-trial negotiations. Proponents of the approximation rule assume that the adoption of the rule, by Continue reading →
Obstacles and Controversies in the Pursuit of Children’s Best Interests
This pamphlet is an expanded version of an enthusiastically received keynote address delivered by Dr. Warshak in Arizona in 2000. It proposes the types of reforms necessary for parents, professionals, and courts to better define the best interests of children.
Dr. Warshak calls for more diligence in custody evaluations and in reviews of the literature. He criticizes policies which automatically discourage joint custody when divorcing parents are in Continue reading →
Relocation Litigation And Children’s Best Interests: Revisiting Burgess 1
This article appeared in a 1999 State Bar of Texas Family Law Section Report. It was adapted from the relocation monograph described as Social Science and Relocation Litigation. Readers interested in an abbreviated overview of the monograph will find this article helpful, but it lacks the documentation of the more complete publication (e.g., 20 versus 199 endnotes).
The article discusses the relevance and utility of social science in relocation disputes, and it Continue reading →
Overnight Access for Young Children
In 1994 the Texas Supreme Court Committee on Child Custody was considering a recommendation of no overnight access between children under the age of three and their non custodial parents. In this written commentary to the Committee, Dr. Warshak argues that
such a proposal is inconsistent with child developmental theory, research, and common sense. He points out the significant benefits Continue reading →
Child Custody: Reform, Research, and Common Sense: Testimony to U.S. Commission
In April 1995, Dr. Warshak was invited to testify before a hearing on custody and visitation conducted by the U.S. Commission on Child and Family Welfare. His remarks offer a detailed, but concise and clear review of the major conclusions reached by divorce researchers and seven specific recommendations to maximize the well-being of children after divorce.
Among the topics covered are the harm caused by conventional approaches to custody and Continue reading →
Keeping Fathers Involved
This essay, based on remarks to the American Orthopsychiatry Association in 1994, focuses on the role mental health professionals play in perpetuating gender stereotypes that interfere with healthy father-child relationships after divorce.
Dr. Warshak analyzes the biases that support such practices as Continue reading →
Joint Custody Is Feasible
This 1993 essay, based on remarks delivered to the Association of Family & Conciliation Courts, defends joint custody as realistic and beneficial. It discusses the facts that are often ignored by joint custody’s detractors, and describes why some social scientists are reluctant to support joint custody.
Dr. Warshak illustrates conventional custody’s harmful impact on children by analyzing a parody Continue reading →
The Custody Revolution: Beyond Fathers’ Rights and Mothers’ Rights (transcript of speech)
This speech inspired a standing ovation from the audience at the 1993 national conference of the Children’s Rights Council. It begins by describing the context in which the Texas Custody Research Project originated, and then recaps the project’s main findings, including “the gender connection.”
Dr. Warshak discusses the type of fundamental changes he advocates and, in a more personal Continue reading →
Father Custody and Child Development: A Review and Analysis of Psychological Research
This 1986 journal article begins with a discussion of three different strategies used by social scientists to study father-custody families, and analyzes the benefits and drawbacks of each approach.
The next section reviews the results of research comparing children’s functioning in father-custody and mother custody homes. Children’s reactions to the separation are examined as Continue reading →
