It used to be that the law presumed mothers were the better, more natural caregivers, especially for young children. This legal presumption, known as “the tender years doctrine”, resulted in mothers becoming the de-facto presumptive custodial parent in cases of divorce. That was the case regardless if the mother worked outside the home or not.
The doctrine was abolished in most states in 1994 as lawyers argued it was an antiquated approach to modern parenting. Fathers, the argument went, were just as critical to the nurturing and development of their children so both parents should start from the same place, so to speak, in making custodial decisions. Since the abolition of the doctrine women’s presence in the workforce, and in particular their status as primary breadwinners, continued to rise. And in family law courts, the landscape began to change. Radically.
You could call it an unintended consequence, a leveling of the playing field, or a disturbing trend in the law, but whatever the conclusion there is no denying that working mothers are losing custody of their children at an increasingly steady clip. According to the December/January issue of Working Mother magazine 2.2 million mothers in America don’t have primary physical custody of their children, and in contested cases where fathers seeks sole custody they win at least 50% of the time.
In custody situations there are two kinds of custody that can be awarded–physical custody and legal custody. When a parent has physical custody the child or children live with that parent on a day-to-day basis. Legal custody, on the other hand, simply grants the parent the ability to make decisions for the benefit of their child–it is no guarantee that the parent will actually see their child. If joint custody is awarded it means the parents split legal and physical custody. If a parent is awarded visitation rights, it means they do not have physical custody–just judicial permission to see their child. So the numbers above mean that, from a legal perspective, women and men are equally likely to lose parenting privileges if they work a lot.
The irony here is thick. On average women work more hours both inside and outside the home then men. More often than not women are working those extra hours not because they want to, but because they have to–when earning an average .78 cents to the dollar as men, getting by is twice as hard for many working women. Rather than reap any benefits from ostensibly entering into the “equalizing” arena of the marketplace though working mothers find themselves literally and figuratively judged and held accountable for the very situations they battle against themselves.
The reality is the law is biased against any working parent, regardless of gender. Combine that bias with the eradication of the tenders years doctrine and working women find that now the very accomplishments that went to propel women up the job ranks and supporting families became used as measures of their “unworthiness” as primary custodial parent.
And the fact that working women now find themselves hoisted with their own petard in custody decisions highlights a chronic failing of feminism–that is, to create fundamental change into the systems of power. Simply trading places with working men does nothing to eradicate misogyny or culturally oppressive structures that institutionalize that misogyny.
So while the article may highlight a change in the law, what it really shows is just how little has changed culturally. Working women remain suspect and punished, even when they work because they have no other choice.
photo courtesy of kevindooly via Flickr
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