Governing Parenting in Child Custody Litigation

• In Event: Drivers of Families and Households

Abstract

On paper, child custody laws in the United States are gender-neutral, drawing on the best interest of the child standard. We might expect child custody trials to become more egalitarian as a result. But because the best interest standard is so broad, judges have wide latitude to interpret what it means in practice. This discretion invites gender bias. Both attorneys and their clients are therefore incentivized to strategically leverage this presumed bias in their efforts to win desired custody outcomes, centralizing narratives about gender in what is supposed to be a gender-neutral process. Using trial transcripts and courtroom observations during child custody hearings, we examine how gendered narratives about women and men are deployed in the context of litigious child custody cases. As we show, despite a gender-neutral policy aimed at less gendered outcomes, gendered cultural narratives about men and women are deployed in ways that allow the state to reproduce understandings of good and bad motherhood and fatherhood in ways that reproduce family inequality, demonstrating how family arrangements and dynamics are shaped by the legal system.

Authors

• Ellen Lamont, Appalachian State University

• Lauren Perrone