The passing of Ruth Bader Ginsburg has left a hole in our justice system and many people wondering, “What can I do now?” Throughout her career in the legal realm, Ginsburg fought fiercely for gender equality and against gender bias and discrimination. In honor of this legacy, we need to continue to fight gender discrimination everywhere it lives; including the Massachusetts court systems.
Gender bias issues in the Massachusetts courts were well documented more than 30 years ago in the commonwealth’s 1989 Gender Bias Study of the Court System in Massachusetts; however, many of these issues have still yet to be addressed and resolved. For example, this report found that “in determining custody and visitation, many judges and family service officers do not consider violence toward women relevant,” which continues to plague domestic violence survivors today.
After more than a decade of physical, mental, emotional and financial abuse, I finally found the courage to leave my abuser two years ago. The cost of my freedom? I lost 50 percent legal custody of my two small children, who now spend half their time with the man who physically attacked and strangled me throughout the course of our marriage, once when I was pregnant with our second child.
Like so many other domestic violence survivors in Massachusetts, my abuser was awarded joint custody by the Massachusetts Probate and Family Court. In the year since this crushing verdict, I have come to learn that my experience reflects systemic gender biases, such as friendly-parent and co-parent biases, that have pervaded the courts for decades.
Massachusetts currently has many laws and guidelines to help protect survivors and children, such as the Presumption of Custody law (M.G. L. Ch. 208 §31A), which asserts that “past or present abuse toward a parent or child (i)s a factor contrary to the best interest of the child.” However, due to gender biases in the family courts, these laws are not being followed and histories of abuse are routinely ignored or discounted.
Studies have shown that the Massachusetts family courts have a friendly-parent bias and a co-parenting bias. Friendly-parent bias presumes that the parent who is most willing to share the child with the other parent must have a greater understanding of the child and their needs. According to a 2016 study by Daniel Saunders, “The ‘friendly parent’ standard works against battered women because any concerns they voice about father-child contact or safety for themselves are usually interpreted as a lack of cooperation.” In my case, my abuser leveraged this bias against me to paint me as someone who was difficult to work with and didn’t want what was “best” for my children; a subjective idea indeed.
According to a 2017 study by Emmaline Campbell, “A general belief exists in some courts that joint custody is in the best interest of children, despite the fact that no studies have shown that joint custody leads to better outcomes for children in families with a history of domestic violence” and contradicts Massachusetts custody laws. This bias was so strong in my case that the judge refused to accept documentation of years of abuse that my lawyer tried to submit as evidence, and instead shifted the focus on the need for me to better communicate with my abuser even though direct communication would have been in violation of my restraining order and his bail order.
So, what can be done? Courts should engage in careful investigation of domestic violence allegations instead of relying on instinct or biases. If domestic violence is mentioned at any point in a case, we should have judges investigate and apply all applicable domestic violence laws and guidelines. Campbell also recommends that “family court judges and mediators should attend trainings on the psychological profiles of batterers and victims, so they are more capable of identifying domestic violence histories in court or in mediation sessions.”
Our state is overdue for gender equality in the courts. To honor Ruth Bader Ginsburg’s legacy, we need to change the Massachusetts family court system and hold it accountable for following state domestic violence laws and guidelines in custody cases. Consideration of these laws should never be optional or left to a single judge’s discretion.
Cindy Vincent Millett, Ph.D., is an associate professor of media and communication at Salem State University.