150 Children’s Legal Rights Journal [Vol. 37: 1 2017]
to award mothers custody. 161 Though many would like to argue that such a bias no longer occurs
within the courts, studies estimate that mothers still obtain custody in as many as 88% of cases;
meanwhile, fathers are granted custody as little as 8% of the time.162Studies revealing such a
gross disparity based on gender undoubtedly further spread the commonly held belief that this
gender-bias exists within the family courts. 163 To fathers, the grossly disparate statistic sends the
message that fighting for custody of their children is too great a risk to take; the emotional and
financial expenses associated with an almost guaranteed failure would be too great to bear for
most. 164 Consequently, the notion that mothers will almost certainly prevail no matter the
circumstances ultimately controls the outcome of custody at various stages – whether it is before
proceedings begin by alleged “agreement” or settlement agreements. 165 Most fathers – through
uncertainty, recommendation of friends or family, advice of counsel, or research – often have
little choice but to surrender custody to the mothers; 166 only 4% of divorced fathers ultimately
take the risk and seek custody with the help of the family courts. 167
Though sole custody does not directly address the gender bias and inherent preference for
the mother that still exists, 168 it would be the best arrangement for the children once the societal
and legal bias dissipates. For the construct of the mother being the superior parent to breakdown
161 Id.; See Erin N. Birt & Elizabeth J. Chacko, The Changing Role of the Tender Years Doctrine: Gender Bias,
Parenthood and Illinois Law, 26 DCBA Brief 26, 28 (2013); See Scott & Derdeyn, supra note 110, at 476; Hughes,
supra note 19.
162 See Birth & Chacko, supra note 161, at 28. See Soloman-Fears, supra note 157, at [pincite]; Hughes, supra note
19, at [pincite]; Angelina Chapin, Dads’ Rights: The Rise of Firms for Fathers Going Through Divorce, THE
GUARDIAN (Oct. 15, 2016), https://www.theguardian.com/lifeandstyle/2016/oct/15/fathers-rights-divorce-lawyers.
163 Hughes, supra note 19, at [pincite]; see Scott & Derdeyn, supra note 110, at 462.
164 See Scott & Derdeyn, supra note 110, at 469-70, 477-80; see Weitzman & Dixon, supra note 91, at 271-273
166 See id.; See Cathy Meyer, Dispelling The Myth of Gender Bias in the Family Court System, HUFFINGTON POST
(July 10, 2012), http://www.huffingtonpost.com/cathy-meyer/dispelling-the-myth-of-ge_b_1617115.html; See
Chapin, supra note 161, at [pincite].
167 Meyer, supra note 166.
168 See Scott & Derdeyn, supra note 110, at 476; See ELROD, supra note 12, at § 1: 9; see Hardcastle, supra note 107,