THE BLOG

Child Custody and the Working Mom

06/01/2013 06:10 pm ET | Updated Aug 01, 2013
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According to the latest U.S. Bureau of Labor Statistics, approximately 70.5 percent of mothers are now in the workforce. Not only are the number of working moms at near record levels, but also nearly 30 percent of working wives now outearn their working husbands, making them the primary breadwinners while dad is more frequently at home with the kids. These statistics have led to dramatic reversals in who gets primary custody and spousal support (aka alimony) when couples divorce.

Not so long ago, moms (working or not) almost always got the kids, while dads paid child support and alimony. It comes as a shock to many divorcing working moms that the tide is turning and dads whether or not they are the primary caretakers are being awarded at a minimum 50 percent because they don't work.

While assuming the breadwinner role was a comfortable arrangement during the marriage, this situation can have consequences for a mother contemplating divorce. More often than not, the working mom is doing double duty in the family. In addition to her job outside the home, she is likely performing substantial childcare duties. She gets the kids up and ready for school, arranges playdates with friends, helps with homework, and organizes kids' sports and other extra-curricular activities. This mom manages her kids' schedule with the same precision that she brings to her professional life. Yet pursuing her professional dreams and financial success can put her at a distinct disadvantage in divorce if she has not physically been at home during the day. The hard reality is that while mom may be "doing it all" at home and in the workplace, it is dad who is being rewarded because he is physically at home during the day -- even if he is not performing the majority of caretaking responsibilities.

Parental roles and responsibilities were once very traditional and the court's decisions reflected those roles. Mom got the house and kids; dad got the business, paid support and spent Saturdays at Disneyland. In the 1980s, in recognition of the growing number of women in the workplace and fathers assuming more parental responsibility, a trend towards 50/50 custody became more the norm.

Today in some camps, the pendulum has swung with some psychologists and family law courts favoring children having one primary caregiver, especially when a child is very young. Judges want to know who is the hands-on parent and who spends more time with the kids. If the father is seen to have assumed this role during the marriage, it's likely that the court will maintain the status quo when awarding custody, giving the father 50 percent of the time or in some instances the majority of the time. However other mental health professionals and courts believe that children are resilient and even if a father did not assume parenting duties during marriage, that a divorce can make better parents, and the court will award him 50 percent.

When the courts award primary or even 50 percent custody to the father, it's often devastating for the mother. She feels like she is being penalized for working and having her children "taken away from her." Even women who have reached the pinnacles of success in business get their identity through children and family, whereas men, for the most part, still get their identity from work. Unfortunately, society often stigmatizes the woman denied primary custody of her children. We wonder, what did a woman do "to lose" custody of her children.

While the courts can't discriminate against a working parent and must be gender neutral, try telling that to the working mom who feels like the court has bent over backwards to favor the non-working father. In a practical sense courts do just that in an effort to appear "gender neutral."

In my practice, I counsel many successful professional women on what they need to know and to do to achieve a custody arrangement that will be in the best interest of their children and be comfortable for them.

Avoid Going to Court
Nine times out of ten, it's better to reach a custody agreement outside of the courtroom rather than having a judge decide your fate. Judges are pressed for time. Rather than examining subtle family dynamics, they may determine the best interests of the child by simply calculating work hours, school involvement and other factors that put the mom spending long hours at work at a disadvantage. If dad can devote more time to childcare and the present arrangement is working, the judge is unlikely to make a change in mom's favor. Look for an attorney who has handled cases similar to yours and one with a track record in reaching successful custody settlements before going to trial.

Adjust Your Priorities
If you're a working mom heading towards to divorce and want to pursue primary custody, I recommend adjusting your priorities to take on the role of custodial parent before the divorce. Instead of working 50 hours, consider cutting back on time in the office to devote more time to the kids. Strategies may include getting up a little earlier in the morning, bringing work home that can be done after hours, or investigating flex time arrangements with your employer. A word of caution, these changes have to be for real. Making them a month or two before filing for divorce will be seen as a ploy by the court.

Be Visible as a Caregiver
Are you a working mom who spends long hours in the office or on the road? Then it's likely you aren't as visible to teachers, the pediatrician and others who may end up testifying in court. It's important to have your contributions recognized and documented. Using email and Skype to stay in touch with the school and teachers can help, but it's also critical to have in-person face-time with the people involved with your child's life. Again, you have to make it a priority to be present at parent/teacher conferences, doctor's appointments, soccer practice, music lessons, etc. Document your lives by keeping a journal of important facts including the amount of time spent with children, activities you engage in, communications with teachers, concerns regarding the other parent, etc.

Don't Be So Hard on Yourself
It's impossible to give 100 percent to your career and 100 percent to your kids, so don't beat yourself up if you aren't able to give 100 percent to each facet of your life 100 percent of the time. You can still be a great mom. When you are traveling for work, communicate with your children daily by Skype or phone. If you are traveling during one week, try to spend more time with your childen the following week or plan a special weekend outing or vacation.

See Your Ex as an Asset and not an Adversary
While your marriage may have ended in divorce, you and your ex can still be successful co-parents. As the other person who loves your kids as much as you do, your ex can be an asset and your best ally in raising your children. Divorce often makes dads better parents. Use the time your kids are with their dad to recharge your batteries and take care of yourself. This will enable you to be revitalized when your kids are with you and make the most of your time together.

As family law and the courts struggle to catch up with the changing needs of the American family, working mothers will have to rise to the custody challenges that working fathers have faced for decades.