Working Mothers at Risk in Custody Disputes : Divorce: Scholars say courts often hold women to higher parenting standards than their ex-spouses.

By LISA GENASCI

March 5, 1995 12 AM PT

ASSOCIATED PRESS

NEW YORK —

Renee B. was married for five unhappy years. She finally separated from her husband when her daughter was 2 years old and thought her ordeal was over.

But it was only just beginning. Last year, after protracted court battles and shortly after daughter Rebecca turned 11, an appellate court awarded the child’s father sole custody.

The decision reversed two lower court rulings in the mother’s favor. It came even though the father repeatedly refused to pay child support and was described by a court-appointed psychologist as abrasive, antagonistic and “indifferent to the human race.”

The unemployed father was deemed better able to care for Rebecca than his employed former wife--while she was in the office, he could be home with his daughter.

This custody battle was played out in the New York City courts, but there are other, similar disputes around the country--O.J. Simpson prosecutor Marcia Clark being the latest. Clark’s estranged husband is seeking custody of their two young sons, contending that her long hours mean she doesn’t spend enough time with them. That case has yet to be decided.

But working mothers, legal experts say, are increasingly losing their children when husbands sue.

One widely publicized case was that of Jennifer Ireland. The Michigan mother lost her 3-year-old daughter to the child’s father in part because she placed the girl in day care while she attended university classes.

The father, Steve Smith, won custody not because he promised to stay home with the child, but because his mother said she would look after her during the day. Ireland has temporary custody while she appeals.

Legal scholars say courts often hold mothers to higher parenting standards and penalize them for working.

Advocates for men and some lawyers disagree, arguing there is actually a bias toward granting mothers custody except when they are deemed seriously abusive or neglectful. Anyway, they say, women who work long hours should be prepared for the same treatment men have received for years.

“Men have continually been excluded from custody decisions because they work outside the home,” said Michael Pitts, executive director of the Children’s Rights Council, which advocates joint custody and mediation. “Is it surprising that now women are being held to the same standard?”

In most divorces, the custody issue is worked out amicably. “Where it is litigated, the father hates the mother, or perceives there is a problem,” said Ellen Effron of the American Bar Assn.’s family law section.

Statistics show that in 90% of divorces the issue is not litigated and children stay with their mothers, often because the fathers have no interest in custody.

Still, in many cases, fathers who might want custody don’t fight for it because lawyers tell them they won’t win, said Lynn Hecht Schafran, director of the National Organization for Women’s judicial education program.

That may no longer be true. Fathers who do go to court are increasingly rewarded.

In Massachusetts, a committee appointed in 1989 to study gender bias in the courts thought it would find mothers winning most custody disputes but found the opposite, said committee member Joan Entmacher, now senior policy counsel for the Women’s Legal Defense Fund.

When fathers sued for their children, they were successful in getting sole or shared custody 70% of the time, she said.

Using the surveys, public testimony and focus groups, the committee looked at why women were losing. They found women were held to higher and different standards than men:

* Women who worked were judged more harshly.

* Women temporarily separated from their children for whatever reason ran a substantial risk of losing them, although men could disappear for years without paying child support, then return and win custody.

* If a father was dating or remarried it was seen as a sign of stability, but a dating mother was viewed critically.

Nancy D. Polikoff, a professor at American University Law School, cites other studies, including a Los Angeles County finding that 63% of fathers requesting custody in court were successful.

Until the late 19th Century, children were essentially considered property of their fathers, who were automatically granted custody in a divorce. That began to change around the turn of the century with the “Tender Years Doctrine,” which held that it was in the best interests of children under 7 or 8 to be with their mothers.

With the advent of the women’s movement in the 1960s and the desire for gender-neutral laws, the tender years doctrine was gradually phased out, said Martha Fineman, a Columbia University law professor.

Now, she said, courts are supposed to judge parents equally. But there are few guidelines and legal scholars say a judge’s bias can determine the outcome of a custody dispute.

That can work against men as much as women. Schafran tells of a case in New York in which a female judge refused to grant overnight visitation to a father whom she believed would not know how to care for his infant child.

More often, however, mothers with full-time jobs are penalized for what some judges view as neglectful behavior.

“There is a double standard as to what constitutes a good mother and father,” Schafran said. “Mothers must be perfect in the traditional sense--at home full time caring for their children. For fathers, any involvement . . . is rewarded.”

A father who makes his children breakfast in the morning but works long hours is often praised, while a mother who works but still does most of the child care is penalized for time spent away from her family, said Brooklyn Law School professor Elizabeth Schneider.

In Washington, D.C., Sharon Prost, an attorney for the Senate Judiciary Committee, lost custody of her two sons after the judge ruled, among other issues, that she spent too little time with them.

A court-appointed psychologist found both mother and father able parents but the judge said Prost was too devoted to her job. The father was praised for having what the judge thought was a more nurturing demeanor, although for a year during which he was unemployed the children were mostly cared for by others.

The boys are with their father while Prost appeals.

In Renee B.’s case, her job was an issue. One psychiatric expert testified that the father was unemployed and thus more available to Rebecca. Renee supported the family throughout her marriage.

Renee “is not herself available each day after school so Rebecca gets ‘farmed out’ to a variety of places with people who are neither her mother nor her father,” Dr. Richard Gardner stated in his testimony.

Renee estimates the court battles cost her $340,000. And the time spent in court and stress took their toll, costing her her job as a lawyer shortly before she lost custody of Rebecca.

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

Resources for Parents

National Organization for Women

(202) 331-0066

1000 16th St. NW, Suite 700

Washington, D.C. 20036

Women’s Legal Defense Fund

(202) 986-2600

1875 Connecticut Ave. NW, Suite 710

Washington, D.C. 20009

National Center on Women and Family Law

(212) 674-8200