Mom versus Dad: Bias in a Broken System

Hi, my name’s Melenni. I am a divorce attorney who has been practicing for nearly five years, and one thing I’ve seen litigating across multiple counties in North Carolina is the bias in the family law courtroom. But it’s not what you think.

As attorneys, we all know how a certain judge is likely to rule on a case, and we can often tell you just based on your initial consult what the outcome will likely be. That doesn’t mean it’s what you want to hear, or that you’ll listen. And you’d be right when you say, “But that isn’t fair.”

You’re probably thinking you know what biases exist in a family law courtroom: that moms are always favored for custody and dads get the short end of the stick, or that the wife always screws the husband in the divorce, taking all his money. I’d be lying if I said that wasn’t sometimes the case. The reality is that North Carolina does have some mom-friendly judges, and I’ve seen men get raked over the coals. That can happen. Courtroom horror stories do exist.

The other side is also true. Abuse allegations run rampant in nearly all courtroom pleadings, and the word has essentially turned meaningless. I can’t tell you how many false abuse stories are used in an effort to gain leverage in custody actions. I mean that wholeheartedly. I honestly couldn’t tell you, because it is so common that no-one can tell filter out the truth. It’s part of the reason women’s abuse allegations aren’t taken as seriously today.

Which leads to the other biases that exist: that women are crazy, controlling, and vindictive, while men remain stoic, calm, and collected. She doesn’t think he can handle being alone with the kids? It’s not because she’s had to take on 100% of the childcare responsibilities. No, it’s because she’s “crazy.”

These biases tend to lead to what I’ve personally categorized as three types of judges.

The first are the mom-friendly judges I mentioned earlier. They are what most people assume all judges are like. They defer and operate on default to what the mother alleges. Everything mom says is right, and everything dad says is wrong. These judges usually come from a religious background or from families with stay at home moms. Sometimes these judges get it right, and sometimes they get it really, really wrong.

On the other end of the spectrum are the dad-friendly judges. People like to pretend these judges don’t actually exist, but I’ve seen it firsthand. In their courtroom, the woman is always “crazy,” and no amount of proof will change their mind. They’ll order all types of psychological evaluations with little to no evidence. These judges often come from families where men were wronged in some way. Sometimes these judges get it right, and sometimes they get it really, really wrong.

Then there are the default judges. They assume both sides are just mudslinging and nearly always default to 50/50. They don’t believe that mom is crazy, and they also don’t believe that dad is abusive. It’s rare that these judges stray from equal time with both parents. Sometimes they get it right, and sometimes they get it really, really wrong.

Judges can and do change. Sometimes they’ll start out in one category, and after long enough, their biases and opinions on what’s right and wrong shift. Not all judges fit neatly into a box, these are just the trends I’ve seen.

Biases are biases for a reason. Sometimes families fall directly into a category the judge is already predisposed to see. If you read this article and think the point is that all judges suck, you’re clearly missing the point. Judges are not bad; they are simply human. Humans who come from different religious, ethnic, and socio-economic backgrounds. Nearly every judge I’ve interacted with is a good human with a good heart, who is trying to do the right thing. But at the end of the day, they are strangers who have no choice but to make a decision about what is best for your family and your children with the evidence before them. They haven’t lived your life, and even if they had, they would still see it through the same lens they use for their own. The judges think they made the right decisions, and you think they made the wrong one.

Let me let you in on a little secret: there is no “right” and there is no “wrong” when it comes to raising a family. There is only doing your best, which means loving your children in the best way you know how. And this looks different for everyone.

Here’s one thing I know for certain: parents who are able to work out custody and decisions regarding their children between themselves are happier than parents who put their family on trial in front of a judge. Sometimes, judges and court are necessary. They’re there to keep children safe. But more often than not, they are an expensive and devastating tool parents use to punish one another.

And no one feels that pain more than the child.