In child custody and child support administration, stereotype-based beliefs about the allocation of family responsibilities are both firmly rooted and largely unquestioned. Suppose some desirable job involved much out-of-town travel. Suppose, in hiring for that job, an employer discriminated in favor of fathers and against mothers, on the grounds that the best interests of the children favored mothers not doing extensive, out-of-town travel. The employer most likely would be in violation of sex discrimination laws and subject to a costly legal judgment. In contrast, “the best interests of the child” pretends to rationalize huge gender inequalities in state-awarded child custody and child support.
Sex inequalities in child custody and child support are about an order of magnitude larger than widely discussed sex inequalities in the labor force. From 1993 to 2007, about five mothers had child custody for every father with child custody. Across that same period, about eight mothers were awarded child support for every father awarded child support. Among parents under a child support agreement, fourteen times more mothers received physical custody than did fathers.
Gender inequalities in labor force participation, in contrast, are much smaller. Among parents ages 25 to 49 living with at least one own-child, three mothers worked full-time for every four fathers that did. Among parents of those ages living with at least one own-child under age five, one mother worked full-time for every two fathers that did. Motherhood matters much less in the workforce than in courtrooms making child-custody or child-support decisions.
Most persons value their children more than their jobs. Even if sex inequalities in child custody and child support were similar to sex inequalities in the labor force, the former sex inequalities would be more damaging than the latter.
Family-court substantive and procedural law should consider the actual sex bias in the administration of child custody and child support. Men lack reproductive rights comparable to those that women have in U.S. constitutional law and in statutory laws governing child-birth registration, giving up a child for adoption, and safe-havens that allow a mother to give up a newborn safely, legally, and anonymously. Sex inequalities in child-custody and child-support administration exacerbate sex inequalities in reproductive rights.
Child-support enforcement keeps roughly 50,000 persons in jail or in prison in the U.S. on any given day. Almost surely among those prisoners men outnumber women by eight to one or more. Sex inequalities in child custody and child support are closely related to that sex inequality in punishment.[*]
Nothing is more important to most persons than their freedom and their children. State action deprives men of their freedom and their children with gross anti-men sex bias. Imprisonment and child-custody awards are the most significant areas of gender inequality today. Those areas deserve priority in promoting gender equality.
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- motherhood and sexism in Turner v. Rogers
- differences between having sex and fathering a child
- child support provides arbitrary, unequal financial support for children
[*] In Turner v. Rogers, the U.S. Supreme Court considered whether an indigent child-support obligor is entitled to a state-provided lawyer in a proceeding that will determine whether the obligor will be imprisoned. Turner v. Rogers is directly about the right to counsel. However, sex inequalities in reproductive rights and in child-custody and child-support administration place Turner v. Rogers within an extraordinary but unquestioned field of unequal protection under law.