Working Mothers Sometimes Frowned Upon In Custody Battles

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Working Mother magazine reports 2.2 million mothers in the U.S. do not have primary custody of their children. And the magazine reports that, over the past decade, the number of fathers awarded custody of their children has doubled. But some wonder whether the statistics suggest that women who work as breadwinners for their families are now being punished for it. Working Mother Editor-in-Chief Suzanne Riss is joined by regular parenting contributor and author Leslie Morgan Steiner and Shauntese Curry Trye, a Baltimore-based family attorney.

MICHEL MARTIN, host:

I'm Michel Martin, and you're listening to TELL ME MORE from NPR News. Tomorrow, R&B musician Mayer Hawthorne is with us to share some songs from his new soul album. Today, he tells us what's playing in his ear.

But first, they say it takes a village to raise a child, but maybe you just need a few moms in your corner. We visit with a diverse group of parents each week for their common sense and savvy parenting advice.

Today, we want to talk about what may be a surprising new twist in the ongoing national conversation about gender roles. Working Mother magazine reports that some 2.2 million mothers in the U.S. do not have primary custody of their children. The magazine says that over the past decade, the number of fathers awarded custody of their children has doubled, and when fathers do seek sole custody in a contested case, fathers prevail at least half of the time.

Now, the magazine says this is in part because many men have stepped up their commitment to care-giving, and they don't want to hand off that role if the marriage goes sour. But the magazine also asks: Is this in part because the courts are looking askance at the other side of the coin, that women who are working hard to be breadwinners are being punished for it.

We wanted to know more about this, so we called Working Mother editor-in-Chief Suzanne Riss. We also called Leslie Morgan Steiner. She's a regular contributor to our parenting conversations and the editor of "Mommy Wars." That's a book of essays about the tensions between stay-at-home mothers and those who are in the workforce. Sometimes those intentions are internal, as the book makes clear. Also with us is family attorney Shauntese Curry Trye. Welcome to you all. Thank you for joining us.

Ms.�SUZANNE RISS (Editor-in-Chief, Working Mother): Thank you.

Ms. LESLIE MORGAN STEINER (Author): Thanks, Michel.

Ms.�SHAUNTESE CURRY TRYE (Attorney): Thank you.

MARTIN: Suzanne, if you'd start by I wanted to ask: How did you get on to this story? What made you want to dig into this question?

Ms.�RISS: Well, we'd been hearing anecdotally from our readers, from working moms, that they were involved in custody cases and finding very surprising results. Our readers were telling us that they presumed that, of course, as the mommy, they wouldn't have any trouble fighting for their kids in court, especially since they were in many cases the breadwinner, they were devoted moms. Then they were arriving in court and finding that a lot of the things that they thought were advantages, were being seen as disadvantages and in fact evidence that they were neglecting their kids.

So we wanted to look into this and see if it was really a bigger trend. And in fact, we found that it was.

MARTIN: But how do you know that I mean, I think the article is very fair. For those who want to read it, we'll have a link on our Web site. But how do you know that the issue is not that the men were equally effective caregivers, but rather that the moms were being punished for stepping up in the breadwinner role? What makes you say that?

Ms.�RISS: Well, I think what's interesting is that there are more dads that are now seeking custody of their kids. That's a big change. Thirty years ago, 40 years ago, we didn't see as many hands-on, stay-at-home dads. So that's a brand new trend. And at the same time, we're seeing more and more moms who are out of the house for longer hours. And if they are the primary breadwinner - and increasingly, working moms are, since more dads have been impacted by layoffs in the recession than moms - we're facing very new circumstances: more dads who are hands-on, more moms who are out of the home for longer hours. And the impact on the kids is being viewed by the courts in a different way, we believe.

MARTIN: And Shauntese, talk more about that, if you would. The magazine points out that this notion, a presumption that mothers are the more-suitable parent for children under seven was abolished in most states in the 1990s. Do you think it's true that women who work long hours are being punished for it in custody cases?

Ms.�TRYE: I'd have to say yes. We've abolished the Tender Years Doctrine, which basically says that there is a motherly preference in the courts. In practice, you know, I dont see this as being 100 percent true in that when a mother decides to step outside her box - which is the cooking and cleaning and taking care of the kids - and actually decide to do something outside of the home, she is held to a higher standard of scrutiny when it comes to custody cases.

MARTIN: And how do you see this? And, I presume, you have both male and female clients, correct?

Ms. TRYE: Yes.

MARTIN: You represent both men and women.

Ms. TRYE: And girls and boys(ph).

MARTIN: And so when you see this in court, that you say, on the whole, theres sort of a cultural bias. The mom is generally perceived to be the preferred sort of parent. But when a mom is working long hours, you say shes held to a higher standard. How does this play out?

Ms. TRYE: Well, and I have seen it with judges and in custody cases. I think there is an inquiry thats done by a judge. And Im not saying that its fair. But theres an inquiry on what motivates the mother when she decides to step outside of her traditional motherly role. And then were getting into scrutinizing, you know, whether its - she loves to work and wants to be in this job or does she want to be a mother to her children. And these things are constantly coming up in the custody cases that Ive done.

MARTIN: And what about the motivation of the father for not pursuing more vigorous employment in the cases that Working Mother magazine reported on? In some of these cases - it surely cannot be all - but in some of these cases, the women report that the husbands didnt want to work. Or that they said, look, I had to work, because he was underemployed. So does that - do you find judges asking the men why they are lightly employed?

Ms. TRYE: Not as much.

(Soundbite of laughter)

Ms. TRYE: Ive seen it where that circumstance has actually worked to the favor of dads, when they are taking on something that traditionally theyre not doing, when they are working in the homes and theyre being Mr. Moms. And I think a lot of judges look at that as saying, you know, theres really got to be a sincerity on the part of the dad to even do that. Because why would he want to do that? Why would he want to be a Mr. Mom? And hes given much deference in the courts because of that.

MARTIN: Leslie, what do you have to say about this? As a person whos reported very deeply on issues of the choices that women make around work and why theyre working and how they work that out with their parenting responsibilities, what do you think about that? In the course of your reporting, have you heard this, as well?

Ms. STEINER: Well, Im overjoyed that men are much more involved in their kids lives. And I think its really important for the men and kids and moms. I found this article to be so disturbing on an emotional and visceral level because I think its every moms - one of her worst nightmares is losing custody of her kids. And I think that women who are the primary breadwinners or, you know, single moms are unsung heroes in our country.

And the idea that you can't be a good mom and work full time, its just - its pretty horrifying to me. And, you know, I hear a lot of people say, well, you know, shes not a full-time mom if shes working outside the home. And thats not true. Even somebody who is working 10 or 12 hours a day is still a full-time mom. And I think that - I think this is a really disturbing trend.

MARTIN: Suzanne, I wanted to ask you, though, what Shauntese is saying is interesting to me. Shes saying that women who work outside the home, their motives for working are questioned in a way that a mans are not. But one of the things I was curious about is in your reporting, part of it is if a woman said I want to limit my work hours so that I can be more available to my children, we would not call her a deadbeat.

So I wanted to ask - I wouldnt. I dont think anybody in this conversation would. So in your reporting, when some of these women who were obviously very traumatized by losing custody because they felt that they were doing the right thing by their families by working as hard as they were and did not expect it to be held against them, did you get to ask them the question, is, well, what about - was it that your husband refused to work, or that he really felt that it was important for one parent to be more flexible, available and to work fewer hours?

Ms. RISS: I think that there are a lot of answers to that question. What we were learning is that for both parents, for both the men and the women, a divorce and a custody case, a custody battle, can be a chance to really reexamine priorities and rethink how theyre doing things. So, you know, for a lot of dads, maybe they were forced into the role because they were laid off. And in some cases, they would like to go back to work and still be very hands on but have more of a balance.

And for a lot of working moms, they in some cases got swept up by the pressures of being the sole breadwinner and werent spending the amount of time that they wanted with their kids. So in a lot of cases, both parents were looking for more balance as a result of the custody case. But I think what is the case for a lot of women is even though theyre working, they still are very involved with their kids.

So there are very few working moms out there who are putting in their, you know, 12-hour day and then not also making time to make her kids dinner and give them a bath and do all the things, because being a mom is really their first priority. So I think what is so disturbing for a lot of working moms, even if they feel like theyre working too hard, is that they never gave up their mommy role. And the courts, in some cases, are asking or questioning whether they, in fact, have. And they feel that they have not.

MARTIN: If youre just joining us, this is TELL ME MORE from NPR News. Im Michel Martin, and were having our weekly parenting conversation. Were talking about an article in Working Mother magazine that examines whether working mothers are held to a higher standard in contested-custody cases.

So, Shauntese, what is your sense of what is to be done here? I mean, if youre in a situation where youre working because you feel that this is what your family needs you to do and then the marriage becomes, you know, vulnerable, what can you do? I mean, that seems to me a situation where you feel even more pressure to shore up your, you know, your financial well being. Do you have any sort of advice for people who are in this sort of tricky territory?

Ms. TRYE: Well, I think the first piece of advice which I give all of my clients is to really think about your priorities. And sometimes it means rethinking your priorities in a matter and understanding that in courts, when it comes to children, the best interests of the child is the prevailing standard. So it really doesnt matter, you know, what you want and your priorities as a mom and what dad wants and his priorities. It matters what the court sees and understands is the childrens best interests.

So if youre going to have a case where the two of you cannot get along and youre going to go in front of a judge, you have to remember, you know, what are your priorities? Its protecting your children. And that should really put in mind for a lot of people what their priorities are. Does it mean, you know, doing the overtime or working late evenings? Or does it mean getting off early and planning activities for your children, making sure that the homework is done, that youre there to do it, because in a custody case, these are the types of things that the judge is going to be looking at.

How visible are you? How involved are you? Do you know the names of the pediatricians? Did you take them to the doctors appointments? Or are these things that are handed off to the other parent?

MARTIN: Leslie, you had a thought.

Ms. STEINER: Yeah, this is Leslie. In working on Mommy Wars, what I saw is absolutely that theres a - we live in a cultural - with a cultural bias that stay-at-home moms are somehow better for kids. I hear women and men say that all the time, that women who are willing to sacrifice themselves and their careers and their work for children are somehow more loving. And I think that its something that we need to get past as a society, that there are many, many ways to be a good mom.

And lots of moms need to work to provide for their kids and to provide for themselves. And I think one of the most important things that I learned from this article is just the concept that divorce has never been fair. Its not fair to men or women or children, especially. And weve got to get out of our minds that a family court or a divorce judge can somehow make it right for you. And I havent been through a divorce with children, but I did get divorced from the man who was physically abusing me. And it was a pretty terrifying process, because even in a case as severely as where, you know, a man had held a gun to my head, the judge didnt have time to hear it.

And, you hear a lot about, even domestic violence cases, where the men are awarded custody even when it has been proven that they have been physically abusing their wives. And we just can't expect courts - courts that are set up to divide property - to understand whats best for kids. And the article pretty strongly says the best advice is to stay out of court if you at all can.

MARTIN: Suzanne, do you have any sort of words of wisdom as a result of the reporting that the magazine did in this case?

Ms. RISS: I think one of the things that we learned that was most shocking to us was how little time the courts have to hear these cases. A lot of women called us because they felt that they had, you know, reams and reams of paper work and it was very involved and very heated arguments and evidence and emails and all of this material, and then the judge would have three minutes to hear the summary from each side.

So what we heard from a lot of families who have gone through this - both men and women - is if there is any way that you can resolve this outside of the courts, thats what you want to do. Judges and lawyers were the first ones to tell us that they think the families are best served by using mediation or finding a way to resolve this outside the courts.

MARTIN: Even lawyers feel that way.

Ms. RISS: Lawyers and judges told us that.

MARTIN: Suzanne Riss is the editor-in-chief of Working Mother magazine. If you want to read the piece that weve been talking about, well have a link on our Web site. Just go to npr.org. Go to Programs and click on TELL ME MORE. Suzanne Riss joined at our New York bureau. We were also pleased to be joined by our regular parenting contributor, Leslie Morgan Steiner. Shes the editor of Mommy Wars. Her latest book is Crazy Love. She was here with us from our studios in Washington. And Shauntese Curry Trye is a family law attorney. Her practice is based in Baltimore. She joined us from that office. Ladies, I want to thank you all so much for speaking with us.

Ms. RISS: Thank so much.

Ms. TRYE: Thank you.

Ms. STEINER: Thanks, Michel.

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