Kids Needs First In Custody Cases
Guest Author, Anne Kass, - a retired District Judge of Albuquerque, New Mexico

The headline of a recent Newsweek Magazine read:

"Custody Wars: Marcia Clark fights for her kids. Are single mothers penalized for working?"

The answer to that question is: Yes. If not being awarded primary custody of children is viewed as being penalized, working mothers are now being penalized in custody disputes the same way working fathers have been penalized in custody disputes for decades.

The explanation is simple. Divorce courts focus on what the children need, and children need their parents' time. Parents who spend great amounts of their time at work have less time to be parents. All other things being equal, courts are inclined to award custody to parents who are willing and able to devote time to parenting, without regard to gender.

Of course, time is not the only thing that counts. When divorce occurs, courts try to determine, from the children's point of view, whether one of the parents has been more involved in the children's lives than the other. It is generally true that the children will feel more secure in the custody of the more-involved-parent, the one who prepared their meals and drove them to gym classes, and stayed home with them when they were sick. Divorce courts basically reaffirm the parenting arrangements that parents themselves followed before divorce. Therefore, in the majority of cases, mothers continue to be the primary parent because fathers continue to be the primary wage-earner, but times are changing.

In families where both parents work outside the home, it becomes more difficult to determine who the primary parent is. Sometimes neither is the primary parent; a daycare provider is. Sometimes the primary parenting duties shift back and forth between the mother and father depending on which of them is more available at any given time. When both parents have demanding jobs, courts try to persuade them to be flexible and to continue to share parenting as they did before divorce.

In Marcia Clark's case, the father now seems to have the most available time for parenting. What we don't know is which of these parents had spent the most time with these children in the past, which is what really counts, regardless of whether it was mom or dad.

While the law disregards gender in custody cases, human beings often do not. Friends, family, neighbors, children's teachers, etc. typically speculate that there must be something seriously wrong with a mother who has not been awarded custody of her children. That speculation is not accurate, but it is common and it causes mothers to experience an additional emotional burden in these matters.

The question on the cover of Newsweek is the wrong question. A better question would be: What will it take to educate the public that custody cases are about what children need, not about mothers and fathers? Another, better question would be: What will it take to stop stigmatizing mothers who do not have primary custody of their children? An even better question would be: How can we convince employers that parenting is an important part of their employees lives so they become family-friendly?



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