MOTHERS AND CHILDREN: CAUGHT IN THE WARZONE

• Pages: 163-196
• Published date: 01 April 2004
• Date: 01 April 2004
• DOI: https://doi.org/10.1016/S1059-4337(03)32005-8
• Author: Jacqueline Goodman

MOTHERS AND CHILDREN:

CAUGHT IN THE WARZONE

Jacqueline Goodman

ABSTRACT

This paper investigates why mothers are losing to fathers in contested child

custody battles that have occurred between 1980 and 2003. It employs

quantitative, qualitative, and contextual strategiesto understand the complex

set of forces involved. The findings suggest that single mothers and children

are increasingly trapped in a war zone between cost conscious policymakers

ideologically opposed to the welfare state, angry fathers shouldering the

burden of a shift from public to private transfers of funding in the form of

child support, religious zealots intent on turning back the clock to a mythical

patriarchal Eden, and the legal doctrine of gender neutralityreflecting these

political forces.

INTRODUCTION

A trend toward paternal custody has been increasing at a dramatic rate overthe past

two decades. The U.S. Census Bureau reports that as of 1998, 15% of all custodial

parents were fathers (U.S. Census Bureau, 2000), with 50% more custodial fathers

in2000thanin1990,andtriplethenumbersince1980(U.S.CensusBureau,1998).

Statistics showing that women gain custody of their children 90% of the time

are deceptive, as fathers rarely asked for custody until the last quarter of the 20th

century. A study of Utah custody decisions between 1970 and 1993 illustrates

Studies in Law, Politics, and Society

Studies in Law, Politics, and Society,Volume 32, 163–196

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ISSN: 1059-4337/doi:10.1016/S1059-4337(03)32005-8

163

164 JACQUELINE GOODMAN

that only 13% of fathers requested custody (Mason & Quirk, 1997). When fathers

do contest custody, research shows theyare successful 50 to 75% of the time. The

Gender Bias Study of the Court System in Massachusetts found that fathers who

contest custody win either sole or joint physical custody more than 70% of the

time (Gender Bias Study of the Court System in Massachusetts, 1990, Section 2);

corroborated by Chessler’s research as well (Chessler, 1991). Another study in

Minneapolisfoundthatfatherswincustody in 45% of the contested cases (Polikoff,

1993). Of the small percent of divorce cases that went before a judge in California

during the 1980s, fathers won 50% of the time (Maccoby & Mnookin, 1992). A

nationwide study of all reported child custody appellate decisions in 1982 found

that fathers obtained custody in 51% of the cases, up from an estimated 10% in

1980 (Gender Bias Study of the Court System of Massachusetts, 1990, Discussion

of Findings, Section 2).

Several more recent high profile custody cases give shape to these earlier

findings, illustrating that a mother’s workplace status often supercedes her

“motherhood” status, calling into question her fitness as a potential custodial

parent. Custody of three-year old Maranda Ireland for example, was awarded to

her father (with whom she had no real prior relationship), because Maranda’s

mother had placed her in day care while attending college. Michigan Judge

Raymond Cashen reasoned that the child’s estranged paternal grandmother was

preferable to a non-related daycare provider as a caregiver (Kleinman, 1994).

This decision was ultimately overturned on appeal. Another high profile case

involved Marcia Clark, renowned prosecutor of OJ Simpson who was challenged

for custody by her ex-husband because of her “grueling workload” that “harmed

her two sons” (Wood, 1995). Similarly, chief deputy counsel to Senator Orin

Hatch, Sharon Prost, lost custody of her two children to her husband because

“Ms. Prost was more devoted to, and absorbed by,her professional goals than her

responsibilities at home,” according to the trial judge in her case. (Her ex-husband

had been unemployed for 30 months in the early 1990s and the judge stated, “The

best [parenting] may come from the parent who is less successful” (Hancock,

1995). In 1999, a Florida appellate court overturned a previous custody award to

corporate lawyer, Alice Hector,because she “worked long hours” (Peterson, 1998,

1999). This decision was overturned on appeal but has been appealed again by her

unemployed architect ex-husband.

While these high profile cases involve primarily well-paid professional women,

my research found that mothers from across the class spectrum are losing in

contested custody cases. Only 11.3% of the mothers in this study earned more

than $60,000 per year, while 42% reported incomes of $20,000 or less. Thirty

six percent earned between $21,000 and $40,000 per year, and 8% earned

between $41,000 and $59,000. These mothers include factory workers, lawyers,

Mothers and Children: Caught in the Warzone 165

financial analysts, health care workers, clerical workers, professors, disc jockeys,

students, sales persons, housewives, and unemployed, among many others (see

Table 2).

This paper seeks to understand the objective forces, as well as mothers’

subjective perceptions on why they lose child custody to fathers. My findings

suggest that single mothers and children are increasingly trapped in a war zone

between cost conscious policymakers ideologically opposed to the welfare state,

angry fathers shouldering the burden of a shift from public to private transfers of

funding in the form of child support, religious zealots intent on turning back the

clock to a mythical patriarchal Eden, and the legal doctrine of gender neutrality

reflecting these political forces.

HISTORICAL TRANSFORMATIONS IN

CHILD CUSTODY: A BRIEF DESCRIPTION

Paternal custody is not a new phenomenon in the West. Prior to the 19th century

in England, Canada, and the U.S. “absolute patriarchy was the rule of law. The

husband was considered...the master of his family,” (Alabama Supreme Court,

1981, quoted in Lindgren & Taub, 1988, p. 332), and children were considered

paternal property (linked to their economic value as laborers) (Boyd, 1989;

Fineman, 1991; Jacobs, 1997; Mason & Quirk, 1997; Polikoff, 1983).

Mothers lacked citizenship rights. They were unable to own property or wealth,

were denied higher education, the right to vote, to hold political office, or serve on

juries. They were legally obligated to perform domestic duties for their husbands,

and were “entitled to no power [over their children], only reverence and respect”;

according to W. Blackstone, writing in 1803 about mother’s custodial rights over

children (Lindgren & Taub, 1988, p. 333). In divorce (4–5% of marriages at the

time), legal custody of children (including nursing infants) automatically went to

the father. However, primary care of the children remained the responsibility of

mothers, older daughters, sisters, and servants (Mintz & Kellogg, 1988).

Such lack of 18th and 19th century female rights reflected Rousseau’s world

view on the sexes: women, so governed by their sensitivities, lacked the ability

for reasoned, self government. It was assumed that men on the other hand, were

governed by reason, and had the capacity to become rational, self-sufficient

citizens, fathers, and husbands (Rousseau, 1762). This concurred with the liberal

notion that family was a “natural” private association between husband and wife,

to be protected from intrusion by the state.

Women’s rights advocates, such as Mary Wollstonecraft challenged this

formulation of the sexes in the 18th century (Wollstonecraft, 1792), and by