Working Moms Losing More Custody Battles

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


Lisa B.
Lisa B9 years ago

Annie, I am a good mother. I have always done all I can for my children. But I am slowly loosing my children because their father is buying their affections. Maybe the laws are different there, but here, the children's wishes come first and not your competency as a parent. And if you are good at manipulating your children, then that works in your favour.

And yes I agree, a non-custodial should support their children. In my case, I wasn't paid for years, still haven't been, but I am now paying for my kids. Not sure how that is fair, but there you go.

Annie Flanders
annie Flanders9 years ago

having worked in family law for over 13 years i can safely state that GOOD mothers do not have their children taken away from them to be raised by fathers. women can be just as bad parents as men.

and why SHOULDN'T the non-custodial parent be required to pay child support?

of course they should!

Mari M.
Mari M.9 years ago

On November 19, 2009 Sarah D. wrote: "It takes two to tango, and the man is not always responsible when a family goes bad. Women can destroy families just as well as men can."

Well, Sarah, that's true. Statistics don't lie, though.
99% of pedophile assaults, rapes and family murder/suicides are perpetrated by males. Do you really believe that the whole world is split fairly down the middle 50-50?

Blaming women for the actions of men ( "she should have known he was a {fill in the blank} before she got involved with him" ) is very ignorant. Please study the facts, dear, and GROW UP!

It would be very convenient for the men who commit crimes against women and kids to count on your kind of "sucking up" to them at all times, but it would not be productive for you to be kept brainwashed and on your knees all your life. Get up, get educated and then tell me I'm a "man-hater" to my face.

Best of luck. I don't see you winning much respect from either men or women with the kind of attitude you display in your post on the 19th.

Ian MacLeod
Ian MacLeod9 years ago

This is a holdover from all the Repub appointments and rigged elections. We've got a LONG way to go to recover from the Bush regime - halfway back to the damned Stone Age!


Manon G.
Gilles E9 years ago

Très dur d'ètres mêre au travaille et mêre a plein temps a la maison ... Comment peut on gèrer tous ça et que les enfants ne manque jamais de rien ... J'ai eu la chance d'être femme au foyer justement pour que mes enfant ne manque de rien ... Maman au travaille je vous dit un gros BRAVO ...

Lisa B.
Lisa B9 years ago

My children are currently being raised not by either of their parents, but by their step mother. Why? Because my ex-husband apparently can afford for his new wife to be a stay at home mother, but was never been able to afford to pay child support to his ex-wife, me. I had no choice but to go to work. He currently owes me 10s of thousands of dollars for past child support payments he never made while he was living in another country, taking no responsibility. So I now have a shabbier house, can’t afford all the gizmos, and guess what, the children want to spend more time in the wealthier person’s house, so that is what the courts granted. And as icing on the cake, because they are with him more now, I have to pay him child support.

I think both parents should play a large role in their children’s lives whenever possible. But when finances rear their ugly head, things get messy.

Cheri L.
Cheri L9 years ago

There is no doubt that mothers and fathers can both be good parents. One thing that strikes me is that there is no consideration of responsibility for inane choices made on both sides. Speaking of people who leave abusive relationships, they should have left before they decided to allow the jerk to throw their genes into the pool. I thought that when my ex-husband had custody that his wife must have been horrible. She gave up custody to save her life as she was young and he threatened her. When he got violent with me I was a big girl and did not let him and his parents intimidate me. When one makes the decision to bring life into the world that decision includes both parents and a commitment to raising said child. If you don't both agree on this, you should take your genes elsewhere. There are no winners in these situations and every child deserves two loving parents. We spay our pets to avoid a population of unwanted animals. We should take the responsibility to prevent neglected children. Responsibility for our choices will make a better world for everyone. Men and women who lie about sterility cause problems and use children to manipulate others. There are horror stories everywhere and you don't need to hear mine. There is no one answer but the best one is to be aware of the personality traits of your potential mate and realize that there is responsibility in every choice.

Danielle G.
Past Member 9 years ago

I think it depends on situtation on both sides. As well as whom child is closer to. I have always close to my mom she was hard working women. My sister was close to my blood father it damaged her when he left and never came back. I believe any side man or women could be good parent that is on whom they put first. Yet my mother worked my whole life she spent all her extra time with me and my sis instead of most women I meet put there self , sex and things they want . An same with men.

Jessica Pieklo
Jessica Pieklo9 years ago

Wait. Was I just called a man-hater, or am I reading the comments wrong? I'm certainly no man-hater. My point is that the same characteristics that have been used to champion the successes women have made in the private sector are now being used to pin them down in custody hearings. That said, I was raised by a single working father with and had an absentee mother, so my bias is always against the parent who puts the kids first. But I understand that sometimes putting the kids first means working two jobs and not being at home.

Sophie G.
Sophie R9 years ago

Yes, alas, you may be right : Asking a mother to be both available at home and working out of home is just both cruel, stupid AND very dangerous for the children's welfare.
Do you have strong mother NGO's ? Can you protest to the Senator, to the Gov, etc... ? Any of you that would make friends with a video maker, or a film maker even ? NGO work can prove so surprising at times : You think it is worth just nuts, and suddenly you make THE right contacts and change your little world around : It is so rewarding, after years of fight.
Of course, if you keep working to earn enough to survive, it is not possible. But wit the net, sometimes, now... Hey ?
I feel very sorry for the mothers and kids who are separated in early years of childhood. In France, it takes a truly alcoholic or crazy mother for a man to get custody/guard of the kids before six years old. And I would never want this to change, it is SO unfair for the kids and the Mom.
To the one that says horrors about kids being better at Dads, I am very sorry to state that it is one case in a million, and really, kids suffer much more with Dads than with Moms after a divorce, except, in very dark situations.
Look : Who gives life to the childk, all the way risking hers in the process, child ?
Please, think before writing terrible nonsense, or one day YOU will be the betrayed mother, and cry.
Shakespeare was not the man to let a child without a mom.
Be it a shrew.
Tons of love to the Mothers, and their kids.