The myth of gender neutrality in family court: A clinician's perspective on determinations of “the best interest of the child”

Abstract

Misogyny is a universal prejudice against women manifest in all areas of society. To interrogate the nature of this prejudice, the author uses the family court system as her focus. The myth of gender neutrality in family court is pervasive. Current laws are framed around the assumption that both parents are on a level playing field. The reality is that our legal system is biased against mothers. This often reveals itself in the way courts make determinations of “the best interests of the child”. Family court is a microcosm of societal attitudes about parents, especially mothers, and related beliefs about what protects children. A brief review of family law and the “best interest” standard follows as well as a review of what we know and do not know about what is protective for children. The author reviews the problems inherent in family law and mental health training and practice—forensic and clinical. Although mandated to protect children, family court decisions sometimes have the opposite impact, and at times, even endangering the most protective parent and the child. This occurs mainly by devaluing the caretaking role while requiring the more responsible parent to facilitate the other parent's relationship with the child—regardless of the impact on her and the child. There are many reasons for this, but the basic one is the misogyny built into this system. This essay describes how social science research, psychological theory, and developmental principles are misused by both the legal and mental health professions to that end.