May 3, 2017

Does the Mother Always Get Custody?

Does the Mother Always Get Custody?

I sometimes think back on a particular divorce case from the early 1990s in which I represented the husband, Ben.  Custody of the two elementary school aged children was a major issue.  The strategy of the wife, Jane, was to prove she had the judgment and temperament to have sole custody while Ben had neither good judgment nor temperament.

Evidence in the trial of Jane’s good judgment was that she was involved in an ongoing affair with a married subordinate co-worker.

Jane’s lawyer and I were standing outside the court room at a recess when suddenly, without warning, Jane, with fire and fury in her eyes, lunged at me reaching with both hands to wring my neck.  Good news for me, her lawyer was quick enough to hold her back.  I guess that was evidence of Jane’s good temperament!

The judge found that Ben was a good husband and a loving and dedicated father.

Yet, the judge awarded Jane sole custody with limited visitation to Ben.  No kidding.    The judge, a good one, overlooked all Jane’s negatives.  The only reasonable explanation at the time seemed to be the built-in, almost automatic, bias of the courts to prefer moms over dads except in the most exceptional cases.

These days the courts give more and more fathers custody or, at least, shared custody.  Parenting plans have taken the place of visitation orders.  Does that mean there is no more maternal bias?  Perhaps.

But another way to explain the change in custody arrangements is to look at changes in family arrangements from the 1980s and 1990s when Ben and Jane divorced to today.   Custody decisions over the years can be understood and explained by applying a principle of consistency – what worked for raising the children before the divorce should be kept as much as possible after the divorce.

Ben and Jane, like many couples divorcing in the 1980s and 1990s, decided that Jane would work a part time job and she would take the kids to day care, put them on the school bus in the morning, cover after school pick up and stay home on snow days or child sick days.  Ben had the traditional breadwinner role working a full work week with a job that provided little schedule flexibility.  Analyzed in that context, the judge’s decision in Ben’s case makes sense and maybe even could justify overlooking Jane’s negatives.

That principle of consistency produces a different result in a family situation where, to a much greater degree now than 25 years ago, married parents share child care responsibilities and rely on the earnings and career development of both parents.  So that a judge’s custody order, for the sake of consistency for the children, will often include joint legal custody and sharing of parental rights and responsibility.

Whatever the reason or reasons– lessening of maternal bias, my consistency explanation and/or some other explanations – custody decisions have changed over the course of my legal career.  In my view, the change is for the better. The roles and rights for fathers are more often acknowledged.  And because fathers are subject to greater day to day parenting responsibilities, the burden on mothers of juggling career and children is somewhat reduced.

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