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Why Buy the Milk Cow?

By Jennifer Jackson, JD (Family Law News, Judicial Survey, Vol. 16, No.4)

Judicial Participants:

Fourth District: California Courts of Appeal: The Hon. Sheila Prell Sonenshine
Alameda County: The Hon. Roderic Duncan*
Los Angeles County: The Hon. Richard E. Denner
San Diego County: The Hon. Thomas R. Murphy

"...I cannot accept the fact that, as she said, he was the one that proposed marriage to her. That would be the last thing that would be on his mind. And why in heaven's name, do you buy the cow when you get the milk free." The Hon. Ragnar R. Ingebretsen, quoted in In re Marriage of Iverson, (1992) ____________.

Complex and confused, gender bias is very much with us, regardless of no fault divorce. As to gender-laden issues, recent legislation and caselaw are all over the board.

On the one hand, the Iverson panel found that applying a stereotypical female sex role to a litigant precludes a fair trial: "It is the essence of our system of justice that individuals shall be judged on their own merits, not on some characteristic they happen to share with other people." Id.

One month later, the Borelli panel found that applying the stereotypical female sex role of wife as "nurse" to a litigant does not preclude a fair trial. It was the dissent in Borelli who noticed that the real world had changed since World War II. Borelli v. Brusseau (1993) 93 C.D.O.S. 398.

Support "Payors" [typically men] can now quit their second jobs and even become monks without penalty. "Noncustodial parents" [typically men] are gaining more control over access to their children [the "moveaway" cases]. On the other hand, "Payors" [typically men] can now be charged with earning capacity without a finding of deliberate income suppression, and the "deadbeat dad" phenomenon has resulted in unreasonable child support awards and remedies [typically against men].

Trends? Let's hear from the judges.

Is there gender bias in the courts?

District Four: Yes. There is gender bias in the world. It's no different in the courts, or in the law. It's no better than it ever was. Gender is a two-sex word and prejudice is a double-edged sword. A society that views mothers as better parents by definition has got to view fathers as worse parents. A society that views women as needy will necessarily view men as protectors at best; deserters at worst. Until we as people view parents as parents and people as people nothing is going to change.

Too often we think of gender bias as 1) attitudes about female lawyers, or 2) just about females in general. Particularly in family law, we should be aware that bias exists, that it affects both genders, and that the harm is not just to female lawyers, or female litigants, or male parents, but to the very process.

The days of women faring better in a divorce have long passed. Indeed, women in the past several decades have experienced a backlash. After no fault, the attitude was "Ok, ladies, you wanna be equal? Get out there and be equal". Support award were commensurate with that concept. Hopefully, this new attention to gender bias is a positive step: a realization that women and men are not economically equal

It is sometimes hard to recognize gender bias in published cases. It takes many shapes and forms, including ignorance of economic realities. I have always been very supportive of father's rights, and applaud the notion that a mother's move with the children seriously interferes with a father's visitation rights. However, making a mother give up a job opportunity can be grossly unfair because - statistically speaking - she has fewer economic options than men. In these situations, mothers are being triple-ended; 1) they're financially uncompetitive with men, 2) they're not getting the support they need to enable them to stay put, and 3) they're not permitted to change locale to better the situation for themselves and their children.
Sadly enough, it takes men to write something that's going to be recognized as valid on the subject. Iverson was decided by a three man panel from my district; everyone was glad I wasn't on the panel, because it meant that it would be taken seriously. The "Jewish Princess" case was also written by an all male panel.

Los Angeles

Certainly there is bias in the courts. This is the way the world is. Things are changing, but not all changes are taking place at the same rate. There is paternalism still going on in the courts.

You can bet that the Iverson judge learned about the milk cow at his mother's knee. To him it wasn't bias; it was just the way things are. And he isn't the only one who learned that at his mother's knee. I have overheard at least one mother say to her daughter: "Don't move in with him, honey; if you do, he'll never marry you."

I started doing family law in the mid-seventies. I've seen the advent of no fault effect some change; things are certainly not what they should be, but they are getting better. Displaced homemakers, for instance, are clearly from an era that is gone. You were told then as a man you were supposed to take care of your women; this paternalistic concept, I believe, is shifting. Globally, though, I'm not sure whether anything has really changed at all.

For instance, it doesn't strike me as odd that most mothers continue to end up with primary custody of the children. The courts, and separating parents themselves, simply mirror what society has done for years. My own standard when dealing with young kids is: who exhibits the most "mom"-like qualities, the nurturer, the softening influence, or whatever your concept of a "mom" is. This is the best person to raise the kids, but it is not always the woman.

Gender bias is only one kind of bias. For a judge, there are plenty of others. Biases permeate your personality. It's a constant struggle to recognize these prejudices, one of which is the temptation to be tyrannical. The longer you are on the bench, the more comfortable you are with the power you exercise, and the more arbitrary you get. You have to resist being just a mean capricious "so and so". As has been said: power corrupts and absolute power corrupts absolutely. One of the beauties of section 170.6 is putting limits on arbitrary power: the clerk may have stamped my number on your petition, you may be assigned to my department, but you still have a way to escape.

San Diego

Biases against men are greater than ever. I don't think there is much of a change from fault to no fault. The courts are biased generally against men; particularly in criminal court: no one wants to put women behind bars. For example, would society sympathize with a jealous man who murders his cheating wife - and let him out off as easily - as the woman who killed the diet doctor?

You see it in the escalating venom with which we are going after child support. This has its roots in ingrained societal attitudes: for example, men who get spousal support are written up as phenomena in People magazine. I don't think men can generally handle asking women for support.

It is difficult to come up with a consistent trend in the legislature - the politics of women's and men's groups are much stronger. It appears, though, the laws being passed are condescending to women.

In domestic courts, yes - there is bias in favor of women. There is still a propensity toward protecting them, especially in custody. This is also societally based: women end up with the children in the great majority of cases. Women themselves perceive - correctly - that when they do not end up with their children, the world wonders why: a societal black mark if you will. And men generally accept this as well.

What is your personal experience with bias, and how do you deal with that bias?

San Diego.

I freely admit that I have biases, or maybe it's really sympathy. I am inclined to protect women, especially the traditional woman/homemaker. I know they won't make it; especially in the middle classes. To survive, society forces them to live with someone or get married. They can't live on their own, especially with children. It must be like being plunged into a foreign country, not knowing the language and told to find work. I'd hate to try to do it.

When I'm trying to settle the really tough case, the twenty year marriage/homemaker spouse, I do reality testing: "You, Mrs. Smith, have never worked other than as a homemaker; I'm sending you out in the world to find a job today." "You, Mr. Smith, you're going to continue in your career and pay support." I ask them both "Who would you rather be right now?" The guys always admit they would rather be themselves, and the gals always say "I'd rather be in his shoes."

On the other hand, I am against long term support; it's bad for everybody. Long term support encourages longterm litigation, because no one knows what is really expected from the other side. I always try to jump start cases. If there is any possibility for women to find employment, I encourage it. But they have to give up something down the line if I front load the support to get them on their feet.

College support is also a gender-laden issue. I'm against requiring anyone to pay for a college education; I believe people should have the power to decide whether or not what the child is doing is appropriate. Most men don't want to be ordered to pay college expenses, even though they are perfectly willing to do it.

I sympathize too with the custodial parent who is trying to move. The current move-away approach is wrong. A custodial parent ought to be able to make the decision: "I'm moving". Then we should look to who is the better parent, after the move decision is made. The question should not be: Can I move? It should be: I'm moving, where should the child be? We should not be forcing a mother to stay behind if she is the better parent, or force her to stay for four or five months while the issue is being decided.

Los Angeles

Again, we all learned these things at our mother's knee.

My mother told me: Never hit a woman. To this day domestic violence sickens me. This training is part of my soul, and it is hard to shake.

My mother told me: If you marry a woman you should take care of her. It's a viewpoint that exists throughout the law - e.g., you can't limit or restrict spousal support; you owe a duty of support, and so on. I haven't heard any woman express the view that she's expected to take care of her husband financially. Again, this is a societal perspective, all learned attitudes and responses that are difficult to deflect. Avoiding gender bias is one of the great reasons for using computers. The computer produces a support recommendation that doesn't have a gender bias.

I have the same problem every judge seems to have about giving men spousal support, and have to deal with that on occasion. I personally order permanent spousal support if the marriage is the cause of a loss to the party who now needs support. The factors you must consider such as time spent advancing the other's career, job skills and training: these are directed toward some loss the marriage has occasioned. It's not that rehabilitation is an unreasonable or improper goal, but needing long term support is as if you had been injured "on the marriage", instead of "on the job."

Gender bias among attorneys? When I started, there were few women attorneys around; now they are all over the place. We have many top flight female attorneys in Los Angeles. They are not making any different moves than the men. I see attorneys as persuaders, not as men and women. When presiding, I am looking at trial technique, thoroughness, and reasoned argument, not men and women.

Sometimes women attorneys will recognize your biases - or ignorance. One female attorney gave me an education in one afternoon of the cost it took to put her client together; it was eye-opening and effective for someone who believes that if you pay over two bucks for a haircut, you're paying too much.

Fourth District

I don't feel I am gender-biased. My opinions are very even in terms of gender and result and issue and result.

But as inappropriate as it is to predetermine the results by gender, it is also inappropriate to perceive a litigant as a type and judge accordingly. On the trial court, I sometimes found myself biased against certain "types". For example: mothers with an attitude: "This is my child and I'll decide when her father sees her"; fathers with a gripe: "I pay $20 a month child support: I don't think she spends one penny of it on the kids."

The first step in dealing with biases is to be aware. A judge has a responsibility to run the courtroom in a fair and impartial manner and in a way that guarantees each litigant his or her day in court. Knowing how simple it is to see a type instead of a person, I genuinely attempted to make each decision based on the person in front of me, the evidence, and applicable law without any regard to stereotypes about that person. It is easier on the court of appeal because there are two other people on your panel. If you cross over the line, your colleagues will pull you back.

Bias also exists against women lawyers; any woman lawyer who tells me she hasn't seen and experienced it is just kidding herself. There finally came a point in time in my career that my reputation transcended my gender and clients came to me because I was Sheila Sonenshine and not because of or in spite of the fact I was a woman. Attorneys listened to my opinions for the same reason. Courts are full of women who have been accepted but they have had to try harder, do better, and survive a longer proving ground than their brethren.

Is bias a solid basis for an appeal? What is the number one thing that is supposed to happen in a trial? Justice - fairness - so yes, I think bias is a pretty good basis for an appeal.

*Even though Alameda County was "heard from" in the last issue, it seemed extremely appropriate to seek remarks from Judge Roderic Duncan, currently under seige by a group of fathers who have mounted a recall campaign, claiming he is based against men. Judge Duncan, a highly respected former Judge of the Year (selected by the State Bar Family Law Section) graciously agreed to participate again.The author of the appellate opinion in Marriage of Iverson, Justice Sills, has also agreed to comment on this topic in The Family Law News once the Iverson opinion becomes final.

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