More Dads are Getting Custody in Divorce: Fair or Foul?

I read with interest a recent post on the New York Times’ Motherlode blog, “More Fathers Are Getting Custody in Divorce.”  In it, blogger Lisa Belkin discusses an article appearing in Working Mother magazine called “Custody Lost”.  Here’s an excerpt from the blog (which itself includes an excerpt from the Working Mother article):

The “tender-years doctrine,” a court presumption that mothers are the more suitable parents for children under 7, was abolished in most states in 1994. And, in large part because of the recession, women are poised to outnumber men in the work force for the first time in American history. Job layoffs affecting more men than women have yielded a burgeoning crop of Mr. Moms.

“Men are now able to argue that they spend more time with the kids than their working wives do,” says the veteran New York City divorce attorney Raoul Felder. “This is one of the dark sides of women’s accomplishments in the workplace – they’re getting a raw deal in custody cases, while men are being viewed more favorably.”

Or is it a raw deal? Is it not, in effect, the same presumption – the parent who works harder, parents less – that men have faced for years? You could make that argument, Abrahms says. You could also argue that working women are held to a higher parenting standard than working men, paying a price for not conforming to the cultural expectation that mothers be more hands-on than fathers.

Let me preface my comments by saying first that I believe joint custody should be granted except in situations where such an arrangement is detrimental to the kids (e.g., high-conflict parents who can’t even agree on the weather; physical and/or emotional abuse or neglect; substance abuse).  Also, I sympathize with any competent parent who does not have the parenting time they desire with their children.

All that said…

Dads aren’t moms; they’re dads. The term “Mr. Mom” reflects and reinforces the notion that men aren’t suppose to care for their own children, and that when they do so, they are acting like moms and not as active fathers.  “Mr. Mom” makes as much sense as referring to a dad being at home with his kids as “babysitting.” This kind of thinking is in part what created the “tender-years” doctrine.  “Mr. Mom” embraces the cultural expectation that fathers are less hands-on than mothers, so I find Abrahms’s use of it problematic in an article in which the central criticism is aimed at gender-based biases and expectations.

“…one of the dark sides of women’s accomplishments in the workplace” What about the dark side for the stay-at-home moms (and dads) who have lost earning potential and are re-entering the workforce for the first time in years with that big gap on their resumés to explain?  The ones who must negotiate childcare, perhaps for the first time, while watching their standard of living go into free-fall–in this economy.  What about those who are granted primary or joint custody but do not receive hefty child or spousal support payments? The moms who, unemployed or not, get a “raw deal” in the divorce simply because their ex had a better attorney, or some other reason that has nothing to do with fairness or children’s best interests.  Now I’m the last person to lob a volley in the Mommy Wars, so my intention is not to rank women’s choices and experiences.  But I do want to say what the article does not: that divorce can be a losing proposition for women, period, regardless of their employment status.

Another excerpt:

Faced with time constraints that make it virtually impossible to get to know the families who appear before them, judges rely on certain assumptions. “When a judge sees a mother who’s working longer hours to support her family, the judge will have a harder time awarding her primary custody,” says Randy Kessler, a prominent divorce lawyer in Atlanta and vice chair of the American Bar Association’s Family Law Section.

Historically, time-crunched or just plain old biased judges have made presumptions that did not favor fathers, i.e., that they are not important caregivers in their children’s lives or not as bonded to their kids as mothers are.  It’s not surprising then that  about 75% of sole physical custody awards are made to mothers, 11% to fathers, and joint custody awards account for the remainder of cases.

But two wrongs don’t make a right.  The larger problem, then, isn’t this new plight of divorced, working mothers.  Rather, it’s the same old failings of a flawed family court system.

Fred Campos, founder of Daddy Got Custody LLC, agrees:  “This is nothing new.  It is just brought to light more now that more people are out of work. Courts have always favored kid-centric parents that have more free time to be at home. Until about 10 years ago, this was usually always the moms. Now that more men are working at home, unemployed, or utilizing a home office, the pendulum is swinging the other way. Nothing has changed-courts still feel stay-at-home parents are always better than working ones. It was unfair then, and it is unfair today.”

The article does offer some advice that’s not new, but that never gets old:

Many of us are looking at custody the wrong way, maintains Barbara Glesner Fines, a noted law professor at the University of Missouri-Kansas City School of Law. “The question shouldn’t be ‘How can I get or win custody?’ but rather ‘How can I make sure this re-formed family will function in a way that is good for the kids?’ Divorce is just the beginning of a lifetime of parenting your children with this other person. You’ve got to make that work.”

Photo by hyperscholar

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