For years, it was the norm that mothers would win primary child custody in the vast majority of divorce cases. This was partly because of a standard popular belief that women were the natural caretakers of children rather than men, and also because of the “tender-years doctrine”, a legal presumption in the U.S. that mothers were the better choice to parent children under the age of seven.
But the tide has been shifting. Most states abolished the tender-years doctrine in 1994, and women have become a much more substantial portion of the workforce over the last 40 years, while more men have become stay-at-home fathers. On Tuesday, Working Mother magazine published a story, “Custody Lost”, giving examples of cases in which available fathers have won child custody over mothers in the workforce.
“A mother’s career can be a liability in custody battles. There’s a huge influx of women who have full-time jobs,” Los Angeles divorce lawyer Laura Allison Wasser, whose past clients include Britney Spears and Kate Hudson, told the magazine. “Judges want to know who the hands-on parent is, who spends more time with the child. I have made that argument myself: ‘Mom’s not home — she’s out working.'”
Atlanta divorce lawyer Randy Kessler, who is also the vice chair of the Family Law Section of the American Bar Association, told Working Mother: “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.”
These days, fathers win sole child custody at least half the time in the United States; the number of fathers who get primary child custody has doubled since 1999. Statistics also show that more women are paying child support and spousal support than before and that about 25% of American wives earn more than their husbands.
“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,” New York-based divorce attorney Raoul Felder told Working Mother. “Men are now able to argue that they spend more time with the kids than their working wives do.”
One of DivorceMagazine.com’s current online polls asks both men and women (separately) whether they believe that 50-50 child custody should be the starting point in divorce law, with only special circumstances (such as abuse) as an adjustment factor. As of this writing, 96% of men so far have voted “yes”, while only 68% of women agree with the same notion.