Is the biased family court system a reason to stay in an abusive marriage? Feminist Advice Friday
A reader wonders what women should consider as they decide whether and when to leave
A reader asks…
I keep reading a statistic that 40% of primary caregiver mothers lose custody in child custody cases. The family court system is abusive, no matter what data you believe. Do you think this is a reason to not get divorced? What is your advice to women weighing the risks and benefits of divorce? Should women in abusive marriages stay because of the abuse of the family court system?
My answer
I want to talk about the data a little bit before I answer your question.
I absolutely agree that family courts are horrifically biased against women. This is undeniable, and the anecdotal experiences of some protective mothers in abusive relationships are objectively terrifying.
But two things can be simultaneously true. The family courts are biased and abusive, and most mothers do not lose custody.
Think of it this way: Workplaces are sexist, misogynistic, and often terrible. Some women are raped at work. It does not mean most are.
We do not have good, scientific, representative data on family court outcomes. The closest we have is a study of appeals court outcomes. That’s the study that the 40% figure comes from. It’s also the origin of most other scary outcomes. But this study is not representative, because it looks at divorce appeals. These are, by definition, the highest conflict cases with the most well-resourced men, because cases only make it to trial, and then to an appeal, if there is a lot of money.
It’s also a small sample, and the appeals record is incomplete. An appeals opinion does not contain all of the information presented in a case, so we cannot rely on appeals records as fully representative of the facts. At best—and I feel this is a stretch—we can conclude that 40% of women get less than joint custody in highly contested custody cases with men who have significant financial resources.
I polled lawyer friends on this issue. They’re the folks litigating these cases, or hearing these cases while they wait to try their own cases. They all agreed that we have no way of really knowing what’s happening in family courts, and that getting that data is really tough. Courts don’t publish reliable public data. And most child custody cases never make it to court anyway.
I did find this study, which used a neural network model to correctly predict outcomes in 85% of custody cases. Getting it wrong 15% of the time, though, is still a huge rate of error. That 15% could be the outliers in which the real abuse of mothers and children is occurring.
I also found this (unreliable, problematic) data, which suggests mothers get primary custody in about 5 out of 6 cases.
Ignoring the data for a moment, though, what happens to a mother in rural Florida has little bearing on what happens in urban New York, where laws, social norms, and judges are different. So even if we did have reliable national data, this wouldn’t tell you much about what is likely to happen in your own case.
All of this speaks to how little concern society has for children, and how arbitrary decisions are likely to be given that there is no meaningful oversight and no reliable scientific data. The family courts are absolutely in crisis, but we cannot say with any certainty that this crisis means most women lose custody. And the data we do have suggests they don’t.
This means divorcing women are presented with some really horrible tensions:
They may win their case, perhaps even probably will win their case, but they may have to go through an awful, sexist, biased process to do so.
Most women do not lose custody, but some do, and in the scenarios where this happens, the judge is often biased and arbitrary in his decisionmaking, which makes it very difficult to predict whether a woman is at risk of losing custody.
Even if a mother gets primary custody, a father can still pose a danger to the children and the family.
Almost all women report being significantly happier after their divorces, but the process they must go through to reach that end result is stressful, expensive, and sometimes dangerous.
If your partner wants to drain your financial resources, they can use the custody system to do so, even if they eventually lose.
Losing your child to an abuser is the worst case scenario, and mothers are right to do all they can to avoid it. The challenge is that there are other terrible scenarios children face in abusive relationships, and so every mother must weigh the risks of leaving against the benefits.
Moreover, I worry that the dangers of family court are inflated, and that this inflated danger keeps women in abusive relationships, forcing them and their children to endure far more abuse than they would in the family court system. Look around you. Most of the divorced women in your life have custody of their children, even if they had to go through Hell to get there.
We must admit to the danger women face in family court—just as we must acknowledge the danger they face in every other area in life. But we must not use that danger to keep women permanently trapped.
None of this at all diminishes the reality of the abuse so many women have endured, nor the very real risks of the family court system. But let’s not pretend that the risk of staying in an abusive marriage is zero, or that staying removes the risk to children. He could leave. And he could abuse your children with you there. Decisionmaking requires looking at the big picture, not some unreliable statistics that don’t take your life into account.
There is no one-size-fits-all guidance. But I can say with absolute certainty that you must talk to an attorney who specializes in family law and who is knowledgeable about and experienced with coercive control and abuse. No one else is qualified to give you legal advice. Your lawyer knows the judges in your area—how they act, how they think, what they are likely to do. They know what custody outcomes are most common, and which factors influence these outcomes.
If you are considering divorce, please start early by meeting with several lawyers. Contacting a domestic violence shelter can also be helpful if you are being abused, because DV advocates have a ton of insight into the process of divorce, and how women have successfully navigated it in your local court system.
Consider also the financial resources your spouse has. High-conflict divorces can only occur when a man has sufficient money to pay a lawyer, often to the tune of hundreds of thousands of dollars. If your spouse is broke, he’s not going to be able to hire 10 lawyers and five evaluators to intimidate you.
Please bear in mind that you are the expert on your life. You know your spouse and your kids. Trust your intuition. But remember also that abusive relationships function a lot like a cult, and can convince you that the pathetic loser in front of you is an all-powerful god.
Here are some questions to consider as you weigh the benefits and risks of divorcing:
Is your spouse likely to seek custody, and to have the means to do so? Do the two of you have a significant imbalance of resources?
If you do not get a certain amount of child support or alimony, would you be able to survive? Could the wrong divorce outcome mean homelessness? Or are you able to work a job and support your family?
Do you have access to financial resources? If not, is there anything you can do to begin building this access?
Can you begin building a record of abuse?
What can you do now to begin documenting your own high-quality parenting? Is there anything about your parenting you need to change to present as well as possible in court?
Does your ex pose a physical danger to your children? Is this danger such that him getting any custody at all will put them in danger? Or would spending less time with him mitigate the danger?
How is the current environment affecting your children? Is there a way to make this environment safe? If not, would being exposed to less abuse (assuming you get more custody than your ex) be better for your kids?
What are the rules in your area, and how might your unique circumstances be perceived in court?
Is it possible that your ex might not pursue custody at all? Would he give up on custody if he did not have to pay child support, and is that a deal you could make?
What rights do you have to the family home and property? Many women mistakenly assume they have no rights if the home is not in their name. This is why it’s so important to talk to a lawyer.
What barriers do you face to leaving now? How might those change, and what plan can you make to expedite the change process?
It’s also important to consider that the court system discounts many abuse claims, and values clear evidence, as well as people who present as calm, reasonable, and succinct in court. I highly recommend Kaitlyn Jorgensen’s page to learn about how to effectively present in family court. Emotions are unfortunately your enemy in court, and your ex will weaponize this if he can.
Ultimately, the solution is to leave. Whether that’s now, in a year, or when your children are independent, the long-term goal is to get out. Every woman deserves a good and full life, and I believe that with the right support, it is possible—even in a horrifically biased system.
Zawn, this information may help me save my children. Thank you so much
It's so frustrating. It really feels like there are no good options, only bad and worse.
I'm waiting for all my kids to get to age 5+, just in case dad does get custody. A 5yo can be mostly self-sufficient, especially with the help of a 15 yo sibling(I have a 10yr gap between my oldest and youngest). And I absolutely hate that I have to make those kind of calculations.