This isn't new information - point of fact, it's old if anything - but similar to the debunked claim that men often leave their wives when they fall ill, this is another fallacy that persists and I felt it was worth posting about, if nothing else so that it's easily searchable on the sub. I saw someone mention this old nugget in a comment on another sub not long ago which is what prompted me to create this thread.

I don't know if this particular paper is the source of the initial refutation, or if it was simply one of many, but when I searched for it this was what I came across first. If there are other sources challenging the claim by all means post them in the thread. The paper itself contains tables which I don't know how to copy/paste so the following text is an abridged version of the full thing which you can find via the URL link.

 

Misrepresentation of Gender Bias in the 1989 Report of the Gender Bias Committee of the Massachusetts Supreme Judicial Court

 

By Mark B. Rosenthal

November 23, 2005

 

On June 23, 1989, an article on the front-page of the Boston Globe announced that the Massachusetts Supreme Judicial Court had just released their report on a study they had commissioned on gender bias in the court system. In that same day's edition, columnist Bella English wrote, "In fact, the study found that when fathers seek custody, they obtain either primary or joint physical custody over 70 percent of the time." The obvious implication here is that if fathers seldom get custody, it's their own fault for not caring enough about their kids to fight for them.

The day after I read that the report had been released, I called the SJC's offices to request a copy of the report. Oddly, they told me that all copies of this brand new report had already been distributed, and it was no longer available. I called back every six months or so, hoping it had been reprinted. Four years later they finally told me it had been reprinted, and mailed me a copy. I've since heard speculation that someone else may have pried it loose under threat of a Freedom of Information Act lawsuit.

With the report finally in hand, I quickly located the section where the Mass. Supreme Judicial Court's Gender Bias Committee wrote, "Refuting complaints that the bias in favor of mothers was pervasive, we found that fathers who actively seek custody obtain either primary or joint physical custody over 70% of the time." And I was finally able to start tracking the basis on which they made that claim.

It took a number of phone calls for me to locate the researcher whose study the SJC cited in support of their 70% claim. But I was eventually able to speak with her, and she told me that her data do not demonstrate court bias, and her research was never even designed to address the question. She also was kind enough to mail me a copy of her own published article on her study.

Based on that, I did my own analysis and found that the very same data cited by the SJC as evidence of court bias against mothers also shows that when mothers sought sole custody, the court granted the request at a rate 65% higher than it did when fathers made the same request...

The SJC's claim regarding court bias in custody cases appears less like objective research than like an exercise in manipulating numbers to sound like they prove anti-woman bias. But it has been effective nonetheless. For the last decade and an half, it has been repeated in newspapers all across the U.S. and Canada, cited in Ann Landers' column, stated as fact in the National Center on Poverty Law's manual for lawyers. And it gets trotted out whenever anyone proposes that any state adopt a presumption in favor of joint custody.

 

 

A common misperception is that fathers are granted sole or joint physical custody 70% of the time when they request it. The Ann Landers column responded to one father, "you are wrong when you say fathers have difficulty gaining custody. Recent studies have found that fathers who fight for custody win sole or at least joint custody in 70 percent of the cases." The statistic is regularly cited in newspapers all across the country, from Washington State to Massachusetts, and even up in Canada. It has been cited by law professors at prestigious universities. It is even cited in a manual for lawyers published by the National Center on Poverty Law. It appears on numerous websites, including that of N.O.W. This misleading statistic appears to be one of the standard arguments against joint custody.

This statistic would seem to imply that the reason fathers don't get custody is that they're not interested. In this paper, I will demonstrate that the statistic means nothing of the sort. I will further demonstrate that the very same data from which this 70% claim was derived also supports the following statement:

The rate at which mothers' requests for sole custody were honored is 65% higher than the comparable rate for fathers' requests.

There is a legitimate argument that in the prevailing legal climate, the deck is so stacked against fathers that the only ones who do seek sole custody are those who have extraordinarily good cases, and therefore constitute a self-selected non-representative sample. This would be subject matter for an entire study by itself, and is unfortunately beyond the scope of this paper. The focus of this paper is the Massachusetts Judiciary's use of statistics in a fashion consistent with Mark Twain's quip, "There are three kinds of lies: lies, damned lies, and statistics!"

Where exactly did the 70% factoid come from? In 1989, the Massachusetts Supreme Judicial Court's Gender Bias Committee (SJC-GBC), co-chaired by Justice Ruth Abrams of the Mass. SJC, released their report which included the statement, "Refuting complaints that the bias in favor of mothers was pervasive, we found that fathers who actively seek custody obtain either primary or joint physical custody over 70% of the time." In support of this claim, they cite the Middlesex Divorce Research Group (MDRG) Relitigation Study. Note that this study was particularly difficult to locate, since the SJC-GBC's report contained no information on where the study was published. However their omission proved beneficial in the long run, since in tracking down the MDRG study, I located and had the opportunity to speak with one of the study's authors.

In the MDRG study, the only data even remotely relevant to the SJC-GBC's claims is in a single table in the study, Table 4.4, "Legal Custody Arrangements Requested and Granted". The study's author has told me that the data do not demonstrate the court's preference for one parent over the other in custody requests, and that the research was not designed to address the question of how frequently a parent's request was honored. So we start off with the author of the study essentially saying that the data cannot be used to support the SJC-GBC's claims.

To understand the data, it is important to keep in mind the distinction between legal custody and physical custody. Unfortunately in direct contradiction to the SJC's claims that the statistic applies to physical custody, the Middlesex Divorce Relitigation Study gave full data on legal custody only, not physical custody.

The SJC’s Gender Bias Committee reports, "In two-thirds of the cases in which fathers sought custody, they received primary physical custody (42% in which fathers were awarded sole legal and sole physical custody, plus 25% in which fathers were awarded joint legal and primary physical custody)." Even if we give the SJC-GBC the benefit of the doubt and assume that they were unaware that the study's author says the data was not collected for the purpose of analyzing gender bias in custody awards, and is not appropriate data for that use, it's still instructive to look at how they manipulated the numbers to come up with the kind of result they did. They asked the question:

In what percent of cases in which the father requests custody is he granted any form of physical custody?

But they neglected to ask the same question with respect to mothers, i.e.:

In what percent of cases in which the mother requests custody is she granted any form of physical custody?

Comparing those two numbers would be the obvious place to start analyzing court bias.

From [the data], the following statements can be made:

The rate at which mother's requests for sole custody were granted is 65% higher than the rate at which father's requests for sole custody were granted: (73.8% for mothers - 44.8% for fathers) / 44.8% for fathers = 64.7%

The rate at which primary physical custody was granted to mothers who sought sole custody is somewhere between (73.8% and 95%). The bottom end of that range is higher than the 69.8% rate for fathers!

Again, remember that we haven't dealt at all with requests for joint custody, custody requests which were filed later than the initial divorce filing, custody requests which were modified after the initial divorce filing, or the skewing effect of a self-selected sample of fathers willing to undertake a custody battle against overwhelming odds.

Even now, sixteen years after the Mass. SJC published this statistic, it continues to influence public policy, as shown by the fact that the National Center on Poverty Law trains its lawyers to believe this statistic, and Legal Services of New Jersey bases its arguments against a presumption of joint custody on this statistic, as does George Washington University law professor Naomi Cahn.

In this paper, I have demonstrated how the Massachusetts Supreme Judicial Court’s Gender Bias Committee constructed a true but highly misleading statistic whose sound-bite quality has quite predictably led the public to reach a grossly inaccurate conclusion, and to support legislation that exacerbates the problem rather than solving it.

 

Similar to the aforementioned claim of men leaving their sick wives and the still oft repeated '1 in 4' statistic, this is yet another example of widely spread, not properly vetted (or outright erroneous) claims of this nature coming from a single source, and persisting for decades.