July 28, 2011 Articles

Gender and Custody: Is the Weekend Dad Still the Norm?

By Coleen M. Penacho

When I met my husband in 1994, his teenage daughter was living with him. When he and his ex-wife divorced, they agreed that their daughter, who was 14 at the time, could decide whether to live with her mother or father. The court determined that she was mature enough to make that choice, and she chose to live with her father. As my husband’s ex-wife moved back to her home state, this meant that his daughter was a four-hour drive away from her mother and, therefore, saw her mother infrequently—less than every other weekend.

I was not a lawyer at the time, and I was surprised that a child, especially a girl, was living with her father rather than her mother. The norm among the divorced couples I knew was that the children lived with their mother and saw their father every other weekend.

Seventeen years later, one would expect that norm to have altered. Anecdotal evidence from family-law attorneys throughout the country support the idea that this paradigm is shifting. From Washington and California to Massachusetts, North Carolina, and Florida, attorneys report that many fathers are no longer satisfied with being an every-other-weekend father. They want, and are getting, increased parenting time and physical custody of their children in more cases. A lawyer in Washington reports that the trend there is definitely toward more fathers having physical custody of their children. According to a family-law attorney in Missouri, the new pattern there is for children to spend Monday and Tuesday with one parent, Wednesday and Thursday with the other parent, and weekends alternating between the two parents.

Putting anecdotal evidence aside, however, the actual statistics tell a different story. According to the U.S. Census Bureau, in 2008, approximately 13.7 million parents had custody of almost 22 million children with the other parent living elsewhere. Mothers accounted for 82.6 percent of these custodial parents and fathers only 17.4 percent. See Timothy S. Grall, Custodial Mothers and Fathers and Their Child Support: 2007, Current Population Reports, U.S. Census Bureau, (November 2009). Further, these proportions are statistically the same as they were in 1994. Id. My husband was in the minority in 1994 and would still be in the minority today.

What is the explanation for this? Fathers’ rights groups blame the matriarchal bias of the legal system and of judges in particular. Fathers’ rights groups also blame feminist groups, such as the National Organization for Women, which the fathers’ groups claim lobby to prevent fathers from ever gaining custody of their children. See Gender Bias Still Exists, Separated Parenting Access and Resource Center (SPARC); See also About CPF–The Fatherhood Coalition, CPF–The Fatherhood Coalition (“We work to promote shared parenting and to end the discrimination and persecution faced by divorced and unwed fathers.”).

Courts and legislatures, however, have made great efforts to promote shared parenting. Although child-custody laws vary among states, laws in all states require that gender not be considered in child-custody decisions and give each parent an equal right to the custody of the parties’ children when they divorce. Child Custody, Legal Information Institute, Cornell University Law School, (August 19, 2010).

Further, many states now have laws that promote joint physical custody. A proposed bill in Minnesota, H.F. No. 69, goes so far as to amend the state’s custody laws to create a rebuttable presumption of joint legal and physical custody. The bill changes the definition of “joint physical custody” so that it means “the parents shall share time with the child as equally as possible.” The bill encourages the divorcing parties to agree on a parenting plan that fits their specific needs and circumstances. Where the parents cannot agree, the bill states that it is the intent of Minnesota law “that parents have a rebuttable presumption of equal time with their children.” Further, in contested custody proceedings, the judiciary is instructed that it should “demonstrate consistent application of the presumption in favor of joint custody.”

Many states encourage, if not require, divorcing parties to attempt to mediate the terms of their divorce, including a plan for parenting their children, before engaging in litigation. Such mediation should be free of any alleged judicial bias in favor of the mother and, therefore, would be expected to result in more fathers having physical custody of their children. Further, one would expect the combination of these factors to result in a change in the proportion of fathers acting as custodial parents. Despite these legislative and judicial efforts, however, the proportions have not changed.

Why have these efforts been ineffective? In determining custody and visitation, courts must look to the “best interests” of the child. Under this standard, the court is to consider the wishes of the child’s parents; the wishes of the child; the child’s relationship with each of the parents; siblings; other persons who may substantially impact the child’s best interests; the child’s comfort in his or her home, school, and community; and the mental and physical health of the involved individuals. See id.

In reviewing these factors, the child’s relationship with the parents is especially important, and courts often award custody to the parent who has acted as the child’s primary caregiver during the marriage. As it is most often mothers who act as their children’s primary caregivers in our society, mothers are more likely to be awarded physical custody. The large percentage of women acting as custodial parents, therefore, appears to be based on the structure of our society, not in the adoption and implementation of our child-custody laws.

There are multiple reasons that mothers act as their child’s primary caregivers. First, in families where only one parent works outside the home, that parent is likely to be the father. In 2009, there were 5.1 million stay-at-home moms compared with 158,000 stay-at-home dads. See Katherine Reynolds Lewis, “Why Do Dads Lie on Surveys About Fatherhood?”, Slate, June 17, 2010. In the mid-1990s, the growth of the number of women working outside the home, which had been growing for four decades, began to slow and, in some years, even declined, exacerbating this imbalance. See Eduardo Porter, “Women in Workplace—Trend is Reversing,” New York Times (March 2, 2006). The number of women in the workforce reached its peak in 2000, when 77 percent of women between the ages of 25 and 54 were employed outside the home. See id. This slowdown continued in the early 2000s. Catherine Rampell, “As Layoffs Surge, Women May Pass Men in Job Force,” New York Times (February 5, 2009). Not surprisingly, as fewer women enter the workforce, they are more likely to act as primary caregivers for children.

Even when both parents work, mothers are often still responsible for the majority of child care. Child care has historically been a woman’s role, and that has been fairly resistant to change, according to Heidi Hartmann, president and chief economist at the Institute for Women’s Policy Research. See id.

Several recent studies on time use found that mothers spend significantly more time on child care than do fathers. According to a 2004 survey conducted by the Department of Labor, the average working woman spends roughly twice as much time caring for children and performing household chores than the average working man. Financial Express (September 22, 2004). The American Time Use Survey, as analyzed by Alan B. Krueger and Andreas Mueller, found similar results. See Rampell, supra; See also Lewis, supra (citing Census Bureau time-use surveys finding that married men spend about 1.2 hours per weekday caring for children under age 6, while married women spend 2.6 hours on the same activity).

One reason that women are responsible for the majority of child care is a practical one: They have more time for child care because they have jobs that provide that time. Women are more likely to be employed in education and health care, which are fields that allow for more time to care for children. See Rampell, supra. They are also more likely than men to have part-time jobs and to work fewer hours outside the home. See Porter, supra. In fact, when women become parents, they seek out part-time schedules and/or flexible work arrangements. See Lewis, supra. It is likely that women seek out these arrangements because of the societal view that child care is a women’s responsibility.

Fathers, on the other hand, do not seek such arrangements because they are not expected to do so, and many feel that their employers will not understand if they do. See id. One bank manager in Virginia whose wife also works related that his colleagues “can't conceptualize” that he would take responsibility for handling some of the child-care emergencies that he and his wife inevitably face. His conclusion is that “the workplace doesn’t really accept the modern-day father.” Id.

Unless these societal norms change, it is unlikely that custodial norms will change. If the current economic recession continues, however, these norms could be affected. Men have borne the brunt of job losses during this recession, at one point accounting for 82 percent of all jobs lost. If this continues, women could surpass men in the workforce for the first time in American history. See Rampell, supra. Although women are still currently responsible for child care even where they are acting as the family’s sole breadwinner, a prolonged recession could change that, thereby challenging gender, and custody, roles.

Keywords: litigation, family law, gender, custody


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