There is often a presumption that black fathers have little involvement with their children, and that presumption directly affects the outcome of many divorces, child custody, and child support cases. As family lawyers, our job is to ensure that all of our clients are getting the legal rights and protections they deserve – and to ensure the family court system does not fail black fathers and black families.
By Joleena Louis, Family Lawyer
While technically the law shows no bias against fathers, the individual bias of judges, referees, attorneys, and litigants play a part in skewing most custody cases in favor of the mother. In my experience, this has been especially true if the father is a person of color.
In the vast majority of divorce and family law cases I handle in New York City, I find the judges to be relatively fair and they don’t seem to have overt biases against fathers – but it is very clear at times that there are implicit biases, particularly the assumption that the majority of African American fathers are not at home nor involved in the lives of their children.
How the Family Court System Fails Black Fathers
The assumption that black fathers have little involvement with their children has a major impact on the way judges, attorneys, and the general public view them. This biased assumption directly affects the outcome of many divorces, child custody, and child support cases involving black fathers. [Ed. See “I Do for My Kids”: Negotiating Race and Racial Inequality in Family Court (Fordham Law Review, Volume 83, Issue 6, 2015) by Tonya L. Brito, David J. Pate Jr., and Jia-Hui Stefanie Wong.]
There are several ways this bias against black fathers manifests.
Mothers are Presumed to be the Primary Caretaker
In most cases, the mother is assumed to be the primary caretaker by all parties involved. Especially for young children, it is assumed that Mom takes care of the children’s day-to-day needs. And even though that is not always the case, Dads have to jump through hoops to prove otherwise – especially when he’s a person of color.
Another issue is typically when a couple breaks up or a child is born outside of a relationship, the child primarily resides with the mother. Again, due to presumptions and biases ingrained in the parties, children typically live with Mom and visit dad – even if Dad cared for the children just as much as Mom and when they were together.
This situation is even worse for black fathers of infants and toddlers. They are often prohibited from overnights with their children without court intervention and even when the court is involved the burden is on them to prove it’s safe for the child to stay overnight at their home.
Determining the primary caretaker is an important consideration in determining the best interest of the child because the court prefers to maintain the status quo whenever possible. Though many fathers equally care for their children, the mother is often still considered “primary caretaker,” which is unfair to involved fathers.
I find this assumption to be especially true when the father is a black man. There is often a presumption or even outright assumption that black fathers have little or no involvement with their children.
Many Lawyers are (Consciously or Unconsciously) Biased Against Black Fathers
Another problem I frequently see is biased lawyers. Lawyers who tell their clients that moms automatically get custody and dad should only get a few days. I’ve seen lawyers on both sides with this mindset.
Again, there is the presumption that black fathers are less involved so attorneys often don’t even consider the history of the father’s involvement. I have had discussions with opposing counsel who were shocked to learn that my client took the kids to school every day, or did homework, or handled the day-to-day care of the children before the parents’ relationship ended.
This personal bias against fathers is not only inaccurate but dangerous. So much litigation could be avoided if attorneys representing mothers advised them that the fathers are also parents and have rights. And many fathers hire lawyers mistakenly thinking their interests are being represented when the lawyer tells them to just accept the limited time.
Lack of Information about Black Fathers Successfully Co-Parenting their Children
As black fathers hear these family court horror stories from family and friends, they hesitate to go forward with their own cases. What’s the point of spending the time and money to go to family court when you know you are not going to win?
There are a lot of misconceptions about fathers’ rights in general, and it can be especially difficult for black men to find resources and advisors they can trust. If a black father’s lawyer tells him to accept that he’s only going to see his child a couple of days a month, it can be hard for that father to listen to anything else the lawyer has to say.
Some Judges and Police Officers Have Biases that Can Prove Deadly
The most dangerous biases come from family court judges and police as they can have the greatest impact on the black family.
Sit in on any family court calendar call and watch the pro se fathers, especially men of color. Often then don’t even get to speak, let alone explain their side of the situation to the judge. This is why representation is so important. The family court system often won’t allow them to speak out, so as family law attorneys it is our job to do it for them.
In my experience, men are more likely to be falsely accused of family offenses and this can be especially true of black men – particularly if the accusor is not black. Add to that the potentially life-threatening danger for the black man if the police are called.
The implicit biases of the police officers and judges involved in the case make them assume that the black man is probably guilty of the offense; black men are more likely than Caucasians to get arrested and temporary orders of protection granted based on little or no evidence.
This is a huge fear that deters black men from filing for custody: they fear the retaliation of a false allegation and the many ways such an allegation could destroy their life.
How You Can Give Black Fathers a Better Chance in Family Court
As a family law attorney, the best thing you can do to help change this system is to work every day to change these stereotypes and overcome these biases by showing the court, the police, and the public that black fathers are just as invested in their children as any other parent.
It’s important to encourage black fathers to fight – even if they don’t think they will win – so that they can show their children and society that they did everything in their power to remain an equal parent – despite having the cards stacked against them from the start.
It’s also important for fathers to be educated about their parental rights. Many fathers just accept the notion that they are only entitled to four overnights a month (every other weekend) with their children, and they don’t realize they can get more time if they fight for it with the assistance of the right attorney.
A key piece to all of this is for all family law practitioners to check their own personal biases. Ask yourself if you are making a presumption about a black father without any facts or evidence to back it up. Ask yourself if you’d make the same presumption if the father were white. Why? Keep challenging your bias until it becomes automatic. And if you see someone else making a biased presumption, speak up!
When it is safe and in their best interest, all children should have their fathers in their lives. Black children and other children of color should not be disadvantaged because of the biases of others. As family lawyers, part of our job is to ensure that skin color does not present a barrier to justice for our clients. We must fight to ensure that all of our clients are getting the legal rights and protections they deserve – and this includes black families and black fathers.
Joleena Louis is a matrimonial and family law attorney at Joleena Louis Law, a firm she founded after leaving a boutique matrimonial firm in Brooklyn in 2013. The author of The Entrepreneur’s Guide To Divorce: A Quick Guide To Protecting Your Business (2017), she has exclusively practiced family law since 2010. In addition to assisting New Yorkers with their family law issues, Joleena advises a large community of other entrepreneurial attorneys on starting and growing their law practices. www.joleenalouislaw.com
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