Career vs. children: Women face difficult choice Custody Wars

THE BALTIMORE SUN

The tabloid headline said it all, summing up in just four words the child custody case that has grabbed the attention of working mothers everywhere: "BAD MOM, GOOD PROSECUTOR."

It seems that Marcia Clark, the O. J. Simpson prosecutor, has been put on trial by her soon-to-be-ex-husband, Gordon Clark, for spending too much time working and not enough time with the kids. The custody battle has struck a nerve in working mothers everywhere, prompting responses ranging from fear to rage. Along with several other recent court rulings, the Marcia Clark case has alarmed working mothers who are beginning to fear they may have to choose between their child and their job.

And such fears may have some foundation, say those who study gender and child custody. They cite an increasing number of cases in which judges appear more willing to rule against women based on the demands of their career:

* In Washington, a Superior Court judge decided Sharon Prost, an aide to Utah Sen. Orrin Hatch, worked too many hours. The judge ruled last year that her two children should live with their father.

* In New York, a woman known only as Renee B. lost custody of her daughter last year when an appellate court decided that the unemployed father -- who repeatedly refused to pay child support -- was better able to care for the child because he was at home while his employed wife was at the office. The decision reversed two lower court rulings in the mother's favor.

* In Mississippi, Leasa Hackett, a flight attendant whose work took her away two nights a week, had to let her daughter live with her ex-husband two months ago when a judge ruled that his job as FedEx courier gave him a more regular work schedule.

* In Annapolis, a judge ruled last year that Christine Christner's son should live with his father, after her work required her to move out of state.

Some legal scholars contend that in custody cases that pit working mothers against working fathers, the courts may be applying a double standard.

"The reality is that nobody asks fathers whether they have careers, and their careers are in no way held against them in their custody fights," says Joan Zorza, senior attorney at the National Center on Women and Family Law. "But there is no question that judges see women who have a career as unmotherly and selfish, and they punish women for their employment."

Baltimore criminal defense lawyer M. Cristina Gutierrez empathizes with the plight of working mothers such as Marcia Clark. The single parent of two young children, she recently left a high-powered law firm to practice on her own, saying it would allow her to spend more time with her children. But she thinks the focus on the number of hours Marcia Clark works, or any mother works, should not be at the center of a custody case.

"If we are beginning an era where professional women are going to be judged as a parent by the number of hours they spend working . . . well, I think that's a terrible message to send," Ms. Gutierrez says. "What I hear from women, professional women like me, is real concern that somebody is going to watch them and evaluate the quality of mothering based on their work. Dads don't have to deal with the question of how his choice of career affects the quality of his fathering. Only women have to face these things."

But Phillip Dantes, a Baltimore attorney specializing in divorce and custody cases, says it's an issue that cuts both ways.

"The number of hours a parent works comes up with men, too, in custody cases," he says.

He now represents a successful dentist who is seeking custody of his children. "But because of the long hours my client puts in, his wife is now raising issues about whether he's got the time to spend with the children," Mr. Dantes says.

Sheila Sachs, a prominent Baltimore attorney who specializes in divorce and custody cases, says she has not yet handled a case in which the mother's employment was a major issue.

"But it's very easy to visualize," she says. "With the increase in two-career families, you can see the likelihood becoming greater and greater."

What she has seen, however, is the effect of cases such as those of Marcia Clark and Sharon Prost. "I see many more women looking over their shoulders. Women do not make career moves because of this."

The 'tender years'

Until the late 19th century, children were essentially considered the property of their fathers and, in the case of a divorce, fathers were generally awarded custody. About the turn of the century, this began to change with the "tender years doctrine," judicial decisions and state laws that held that it was in the best interests of children under 7 or 8 to be with their mothers.

Gradually, however, with the advent of the women's movement and gender-neutral laws, the courts began to abandon the tender years approach as unfairly gender-biased.

Although custody figures are hard to come by, law professor Jana Singer at the University of Maryland School of Law says that in 90 percent of divorces the issue of custody is not litigated and children stay with their mothers.

However, when custody is litigated, the figures show that fathers are successful more than 50 percent of the time. "This may be because these fathers have particularly good cases," says Ms. Singer.

Since the gradual phasing out of the tender years in the 1980s, courts have decided custody based on many factors, including the age and sex of the child, which parent does most of the day-to-day caring for the child, financial resources, health and the employment obligations of parents.

Not long, just wrong

Two recent custody cases, one in Mississippi and another in Maryland, illustrate how a mother's employment can weigh heavily against her in a court custody decision.

In the 1995 Mississippi case, a mother lost custody of her 3-year-old daughter not because she worked long hours but because she worked the wrong hours.

Leasa Hackett, a flight attendant out of Memphis for Northwest Airlines, has 16 years' seniority and is able to choose her schedule each month. Usually, she flew three-day trips, leaving Memphis on a Friday and returning Saturday afternoon, leaving again on Sunday and returning Monday afternoon. This allowed her to see her daughter, Alaina, part of each day and spend Tuesday, Wednesday and Thursday with her.

Alaina's father, Chris Hackett, is a FedEx courier who works Monday through Friday. Mr. Hackett wanted Alaina to live with him; Mrs. Hackett wanted her daughter to live with her.

The judge deemed both parents equally fit and decided that they should share custody. But he also ruled that Alaina should live with her father, saying his job made him "more readily available" for the child.

" . . . I am of the opinion that a flight attendant can be and is, until proven otherwise, just as good a mother as anyone," the judge wrote in his ruling. "But the hours and the requirements of being away from home are a factor to be considered. Much the way this court would have to consider an over the road truck driver who is gone for two or three days."

"I was totally devastated," says Leasa Hackett. "I had so much quality time to spend with Alaina and the judge still penalized me. He said her father would be the better parent because he would be here every night and I would have to be away some nights."

She says she talked to her supervisor about taking a management position but was told she'd have even less time to spend with her daughter in such a job. She thought about quitting her job. "It's so unfair that if I quit my job I could have my daughter. What would I do? Get some minimum-wage job in a convenience store? What kind of quality life can you provide with a minimum-wage job?

Chris Hackett would not comment on the case. His attorney, John T. Lamar Jr., said the judge based his decision "on the facts and testimony and evidence presented. It all boiled down to what he thought was best for this child."

But Ms. Hackett's attorney, William B. Seale, disputes the judgment.

"Employment was the only factor that determined the custody," says Mr. Seale. The decision is being appealed. "What I'm going to argue is that my client has a better, more flexible job than the father. But let's just say it's equal and if that's true she should have won the case -- on the age and gender of the child as determining factors."

Moving and losing

One of the realities of two-career, postmodern divorced parents is the professional necessity to occasionally make TC geographical move. In the case of psychologist Christine Christner, who now practices in Austin, Texas, her decision to move from Annapolis caused her ex-husband to seek physical custody of their 8-year-old son.

Dr. Christner, who is from Texas and has family there, says she was a stay-at-home mother during her marriage.

"I had basically raised my son. My husband had a very difficult job and was gone a lot on trips." After the divorce she needed to go to work. But she found it difficult to establish the necessary professional connections in Annapolis, where she had never worked as a psychologist before.

"It was one of the primary reasons for my move," says Dr. Christner, who says she had such professional support back in Austin.

The judge awarded physical custody to the father, who is from the Annapolis area, saying that while both parents were fit, the fact that the boy had more relatives in Annapolis than Austin and was enrolled in "a very good school" weighed in the father's favor.

"I found that very difficult to accept," says Dr. Christner. "I felt I lost custody because I moved. I did something unusual for a woman. I'm positive if I had stayed in Annapolis and starved with my son, I would not have lost custody.

"My son actually went in and talked with the judge, and he was very clear he wanted to live with me. And while the judge listened he didn't honor the bond between my son and me."

Dr. Christner's husband would not comment on the case and asked that his name and his son's name not be used.

His lawyer, Barry J. Dalnekoff, describes the case as a "difficult" one to try in a courtroom. "The difficulty in this type of case is that you have two fit and good parents who both want custody," he says.

He described the judge's decision as being based on the boy's "ties here with the community, with the family and the lack of ties in Texas." He also said he "was not persuaded that she [Dr. Christner] was not able to make a go of it here."

But Dr. Christner's lawyer, Paula Peters, says that an expert witness at the trial testified how difficult it would be for Dr. Christner to build a practice in Annapolis.

"The judge actually found that my client was a more fit parent but gave him custody," says Ms. Peters. She is convinced that Dr. Christner's decision to move for professional reasons went against her.

"And the sad thing," says Ms. Peters, "is that the judge in this case [H. Chester Goudy Jr.] is a very sensitive judge. He tries to understand the issues. But that's the depth of the problem, that even the very sensitive judges don't understand."

Judge Goudy did not return phone calls.

'Best interest' is subjective

Since the phasing out of the tender years doctrine as a guideline in custody decisions, the governing standard for judges in most states is the best interest of the child. "But this is very difficult," says law professor Jana Singer, "because there's a lot of disagreement about how to figure out what the child's best interest is."

Because there is a wide variance in how judges arrive at their decisions, some legal scholars say a judge's bias can determine the outcome of a custody dispute.

In 1994, a Michigan judge's decision to take a child away from Jennifer Ireland, a mother who placed her 3-year-old daughter, Maranda, in day care while she attended university classes, caused an uproar. Women's advocates charged that the courts are biased against mothers who work or go to school.

"By and large, judges assume women who have a career have made a choice that sees their career as important and their children as not important," says attorney Joan Zorza. "I think most judges, whether elected or appointed, are chosen because they come from rather traditional settings and have the 'norm' as their view."

But advocates for men and some lawyers disagree. They argue that most judges still favor women over men in custody disputes.

"For so long, fathers have not been deemed as being responsible parents, but now judges are starting to see the light," says Derrick Hicks, acting executive director of the Children's Rights Council, a 7,500 member group that lobbies for laws that would help fathers win joint custody. "Most of the time, courts would rather see children with baby sitters than their fathers. Now they're starting to look at men as actually being loving caretakers."

But some scholars and lawyers believe that the answer to resolving custody disputes does not lie in the courtroom.

"In a situation like Marcia Clark's, the courtroom is the wrong place to decide where the children should be living while she's working on the O. J. Simpson case," says Andrew Cherlin, a sociologist at the Johns Hopkins University. "It's wrong thinking to ask a judge to do that.

"Why couldn't this woman say to her husband, 'I'm working hard. Will you take care of the kids?' And why can't a man say, 'I know you're working hard right now. I'll take care of the kids.' Instead I see two parents, neither of whom is able to do what's in the best interests of the kids."

Others say the solution to the problem of parents who work too much, both men and women, lies in the restructuring of jobs to make them more compatible with the needs of children.

"If there is anything positive that can come out of this part of the O. J. Simpson-Marcia Clark saga," says law professor Jana Singer, "it would be to have us figure out how we can structure jobs like the one Marcia Clark has so that people can do them and still have the time and energy for children."

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