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Melissa L. Breger

Abstracted From:  Melissa L. Breger, The (In)visibility of Motherhood in Family Court Proceedings, 36 New York University Review of Law and Social Change 555 (2012) (135 Footnotes)

      Mothers in Family Court are so ubiquitous that they essentially become invisible. The concomitant visibility and invisibility of mothers often leads players in the Family Court system to rely upon gendered norms and roles in making critical and enduring decisions. In other words, because the role of mother is virtually universal to the main subjects of Family Court proceedings, and yet is invisible in its universality, it is much easier for the key players in the system to resort to heuristics, stereotypes, ideals, schemas, and biases about mothers than to perceive each litigant-mother as an individual person.

      Thus, the predominance of women as the persons charged with child abuse and neglect in Family Courts is often overlooked because we have become so accustomed to seeing the faces of women in our courtrooms. By failing to notice women's predominance, we conveniently essentialize the “bad mother” as the person who is brought into Family Court on child protection charges, and compare her to the mythical “ideal mother,” who would never be charged with any kind of child abuse or neglect.

      The data about Family Court child welfare proceedings across the United States demonstrates that the majority of parents charged with child abuse or neglect are indeed mothers. Although governmental agencies typically file child abuse or neglect cases against both of a child's parents, when the agency proceeds against one parent only, it is too often against the child's female caretaker.

      Scholars examining Family Court have long criticized the overrepresentation of low-income litigants of color, characterizing Family Court as “the poor person's court,” and have questioned whether the family law system itself is inherently discriminatory toward persons of color. We openly admit and find unacceptable the over-representation of impoverished people, and people of color in the criminal and family courts, as well we should. In the same spirit, we also need to be concerned about the over-representation, prevalence, and implicit blaming of women litigants, particularly mothers. While this bias against motherhood is not unique to any particular courtroom, the motherhood bias is acutely sharp in family law proceedings, particularly child welfare proceedings, because one's parenting is in fact the very issue being litigated before the courts.

      This Article will explore implicit expectations, ideals, and biases about mothers and how such stereotypes end up resulting in harm to mothers. One concrete way that such implicit biases harm mother-litigants is that courts too often base their decisions and judgments upon such biases, whether consciously or not. Thus, in order to eradicate detrimental influences and expectations, we first must identify and uncover them. With this Article, I hope to join others in sparking a dialogue in the next wave of feminist jurisprudence addressing the implicit bias against and stereotyping of mothers in the family law system.

      This Article proceeds in six parts. In the next section, I lay the groundwork for this discussion by defining the essential underlying terms for this conversation. Part II(A) defines and distinguishes between explicit and implicit bias, and then introduces the concepts of implicit gender and motherhood bias. Part II(B) describes how gender biases can operate in the courtroom and intersect with the legal system overall. Part II(C) explores implicit motherhood bias in more depth.

      In Part III, the Article turns its focus to the harms of implicit motherhood biases within the Family Court. Part III(A) provides an overview of the Family Court system in the United States. Part III(B) then addresses how implicit motherhood biases manifest in Family Court and how they can prove particularly detrimental in that setting.

      In Part IV, in order to flesh out the theory of implicit motherhood bias, the Article examines the highly publicized case of “T.C.,” which I was professionally involved with over a decade ago.

      Part V offers a set of modest proposals that may allow us to identify and address issues of implicit motherhood bias in our family justice system, specifically positing that we educate the players in the court system about the ubiquity of implicit biases. In order to eradicate the pernicious operation of this form of implicit bias, those within the system must learn to recognize and identify the implicit biases that society holds about what it means to be a mother. Rooting out the effects of implicit motherhood bias will positively impact both the mothers that appear before Family Court and the perceived legitimacy of the system as a whole.

* * *

      Tremendous progress has been made when addressing issues in the first wave of explicit gender bias in the courtroom. Task forces from various states and bar associations have spearheaded studies and investigations to uncover where such explicit biases exist.

      The second wave in examining gender bias in the court system should be, in part, to more deeply address the perspectives of the actual litigants in the courtroom and to acknowledge and examine the implicit biases that exist about motherhood. Implicit gender and motherhood bias has been a pervasive and invisible problem in Family Courts, and the legal profession must address it. Specifically, we need to educate Family Court players about the damaging effects that implicit biases about motherhood have on child welfare proceedings. To do so will hopefully move us away from a system in which mothers are held punitively accountable, and move us toward a system that prevents child maltreatment by supporting mothers.

      Some areas worthy of further exploration and research include:

             • Whether or not child welfare agencies and courts are also pursuing cases against fathers, including absentee fathers, keeping in mind safety issues for mothers and children. In other words, is the system (and the larger society) holding fathers to the same exacting standards that we hold mothers?

             • Is societal bias to blame for female and mother over-representation, or is there something specific within the court system that can be remedied? Is it just that biology makes the mothers easier to locate, or is this part of the underlying gender bias?

             • What data can we borrow from labor and gender literature and the increasingly growing body of implicit bias literature to help articulate and ultimately lessen the inherent cognitive biases we hold as a society about the role of mothers?

             • How can we look at the issue of (implicit) gender bias honestly and fully, while acknowledging the large role of class and race as inextricably intertwined with gender and motherhood?

      When we as a society require women to strive to be perfect mothers, we set the bar for respondent mothers unattainably high. It is time we critically examine why women are the predominant litigants in Family Court, specifically as respondent mothers in child protective proceedings. This Article purposefully poses more questions than it answers. It is an express urging to delve deeper into implicit gender bias and re-frame how we view our court system's treatment of women and mothers. The (in)visibility of gender in our courtrooms needs to be examined in the open, stared at front and center. To eradicate gender biases against mothers, we need to acknowledge and face the implicit bias in our gendered constructions of parenthood. The dialogue must continue from here.


Professor of Law, Albany Law School (J.D., The University of Michigan Law School