Sexism in Divorce Court: A Comparative Understanding of the Case of Sakineh Ashtiani in Iran and Child Custody Statistics in the USA

Discrimination and sexism is rampant in divorce courts and child custody matters even in the most progressive states of our nation, including California, New York, Massachusetts, Washington State, and the District of Columbia, where I practice family law. A comparison with the discrimination and sexism found in Iran's divorce and family law courts allows us to understand the flip side of the anti-father American child custody court system.

In Iran's sexist and corrupt legal system, when a person is convicted of adultery, the punishment is stoning until death.  To convict a woman of adultery in Iran, a man must make the allegation and bear witness against her.  To convict a man of adultery in Iran, two women must testify against him, because in Iran's sexist legal system, a woman's testimony is considered half as trustworthy as a man's. A man's word is all that is required, therefore, to charge and convict a woman of adultery - and essentially, to kill her by the legal punishment of stoning.

This was the exact fate of Sakineh Ashtiani, who was charged with adultery and sentenced to death by stoning. She awaited execution in a torturous Iranian prison for years. To ensure that she received no support in her battle for her life, the oppressive Iranian government deported her criminal defense attorney and imprisoned the German journalist and civil rights activists who were covering her case. Several civil rights and humanitarian non-profit organizations, including Avaaz.org, headed grassroots efforts to stop the stoning of Sakineh. They finally succeeded in stopping her execution, and after 9 years on death row she was freed in 2014!

Beyond the life and policy at stake here, this divorce law matter holds a certain relevance to our American legal system. In Iran, when a couple divorces, the father is automatically awarded sole legal custody of the children. In the USA, in contested custody cases, according to statistics published by the federal government and the State of California for example, mothers are awarded primary custody of the children the overwhelming majority of the time, fathers get primary custody a slim minority of the time, and when shared custody does happen parents split custody in a time-share structure that strongly weighs in favor of mothers. A true 50-50 split in child custody is the proverbial white rhinoceros of US divorce courts. California, for all its sensitivity to gender issues and progressive politics, is on par with this gendered custody paradigm.

“Nationwide, in 2010, 82.2% of custodial parents were women, and 17.8% were men (roughly 1 in 6), proportions that had not changed since 1994.”

- “Child Custody Law Needs a Course Correction: Thoughts from California”, Carol S. Bruch, https://law.ucdavis.edu/faculty/bruch/files/Child-Custody-Law-Needs-a-Course-Correction-full.pdf, page 20, note 44.

The problem of sexism in our understanding of parenthood is beyond a simple legal problem. In our culture, to "mother" a child has the connotation of "coddling" or "nurturing" a child; whereas to "father" a child means to "procreate", "spawn" or "sire" a child. The mainstream cultural vision of the typical breadwinner is male in our culture, and the mainstream cultural vision of a homemaker is female in our culture. We too suffer from a sexist family law system here in the United States.

“The number of divorced men who fight for child custody is significant. Yet, there remain glaring discrepancies between the number of divorced mothers and fathers awarded custody. Over the past twenty-five years, the women's movement has been successful in eliminating many staunch sex-role stereotypes and in widening the sphere of behavior deemed appropriate for both women and men. Unfortunately, such progress has lagged in the realm of parenting, especially with regard to child-rearing after divorce. Fathers normally play significant roles in children's lives, yet, in nine out of ten divorced families, the mother retains sole custody of the children. The belief that children belong with their mothers is firmly ingrained within this country's social and legal tenets.”

- “The Disparity Between Men and Women in Custody Disputes: Is Joint Custody the Answer to Everyone 's Problems”, Jo-Ellen Paradise, https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=1522&context=lawreview, page 518.

Part of my work is to challenge and subvert these sexist stereotypes, to ensure that gender equity and justice is very much a part of the legal system in divorce court. But what we cannot control at all is people's perceptions. I urge you to do just that kind of work - the very real work of analyzing your own way of thinking and acting, especially in times of great conflict.