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Are Custody Laws Standing In The Way Of Gender Equity?

Twenty five states are now considering laws that support shared parenting over sole custody—a move that advocates say ensures that men and women shoulder equal domestic responsibilities.

Are Custody Laws Standing In The Way Of Gender Equity?

The gender pay gap—women earn, on average, 79 cents for every dollar a typical man makes—will not be an easy issue to solve. Contrary to logic, the growth of women in managerial roles hasn’t done much to break down pay disparities between men and women, and diversity initiatives, while effective in boosting the percentage of female employees at a company, often don’t go far enough in ensuring they’re compensated equally.

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The pay gap is most pronounced among married women with children (it’s often referred to as “the motherhood penalty“). The total failure of federal and corporate policies to support working mothers means that the outmoded idea that a successful career and family life are mutually exclusive still often manifests itself in a woman’s salary. Introducing comprehensive paid-leave policies is a critical step forward, but to Ned Holstein, a physician and the founder of the National Parents Organization (NPO), it doesn’t fully account for everyone affected by unequal pay policies—specifically, mothers who are separated or divorced from their partners.

Sole custody—where one parent shoulders the majority of responsibility for the children—is the norm in the United States, and women are awarded sole custody in 80% of such cases. This, Holstein says, creates an outsized burden of care on the mother and alienates the father, who is essentially reduced to a financial resource with occasional visits thrown in. The NPO, instead, has been advocating for states to adopt legislation that supports shared parenting—a flexible arrangement in which children spend as close to equal time as possible with both parents, provided both are fit to provide care and neither has exhibited prohibitive behavior like domestic violence or substance abuse. To date, 25 states have introduced bills advocating for shared parenting over sole custody.

In 1970, the Uniform Marriage and Divorce Act directed states to decide custody based on the perceived “best interest” for the children involved. The fact that custody overwhelmingly went to the mother was “rooted in an idea of proper gender roles,” Holstein says. In the nearly 50 years since that law was passed, the culture in the U.S. has changed drastically. The share of children under 18 living with both parents fell from 85.2% in 1970 to 69.2% in 2015; in the same time frame, the labor-force participation of women has risen from 43.3% to 56.7%. But despite these shifts, “what goes on in family courts has barely changed at all,” Holstein says. Prior to the 1970s, family court decisions were governed by the “tender years doctrine,” a holdover from 19th-century law that maintained that children under the age of four belonged in the care of the mother. Though the “best interest” clause replaced the tender years doctrine after 1970, court decisions still tend to be swayed by the earlier law.

With the image of mother as primary caregiver changing as more fathers take on active roles in child-raising, Holstein believes that shared parenting laws more accurately reflect the cultural shift toward gender equality. “I don’t believe that the pay gap can be closed unless we have shared parenting widely after parents separate or divorce,” he says. One study found that men’s ability to work longer hours because they have less responsibility at home accounts for around 10% of the gender pay gap; advocating for a more even split of domestic duties could chip away at that margin.

Research also supports that shared parenting results in better outcomes for children. In a 2016 study from Sweden where, along with Australia, shared parenting has been the norm for several years, researchers found that children who spent close to equal time with both parents after separation had the same level psychological complaints as those in nuclear families; both had lower levels than those living with only one parent. A 2014 paper that aggregated the input of 110 professionals and experts in the field came to the consensus that it’s beneficial for children under the age of four to spend equal time living with both parents. Plus a recent poll in Maryland found that 63% of adults favored shifting to shared parenting, as opposed to sole custody, as the starting point in court proceedings.

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However, because shared parenting comes with the hefty qualifier that in order for it to work both parents must be willing and able to cooperate and provide care, it cannot be mandated universally. While Holstein emphasizes that shared parenting legislation cedes a substantial amount of discretion to judges to determine whether a joint custody agreement is viable and in the actual best interest of the children involved, many feminist and domestic violence groups, including the National Organization of Women, oppose joint custody as the starting point in divorce proceedings, saying that it could force a couple that may want nothing to do with each other into a cooperative arrangement not of their choosing.

Advocates like Holstein are sensitive to those concerns, and add that they hope a joint-custody arrangement could, in the long term, lessen some of the bitterness that arises in court battles for sole custody. “If both parents are fit and there has not been previous violence, I think it’s a protective measure for the future of the relationship and the child that things are fair,” Holstein says. “You don’t have all the bitterness and hatred.”

Other opponents include family lawyers and bar associations, who are trying preserve sole custody because the lengthy and lucrative court battles are—along with real estate closings and DUI cases—”bread and butter” for smaller practices, Holstein says. “It’s become increasingly impossible to hold a benign explanation for this opposition, especially as the research that shared parenting is better for children mounts up more and more,” Holstein says.

Given the sensitive and highly personal nature of parenting decisions in the wake of divorce or separation, many of the bills working their way through various state legislatures shy away from outright mandates; two bills introduced in Maine, for example, clarify the “best interest of the child” clause to mean that judges should consider the value of having both parents involved in the children’s life. All of the bills contain exceptions in the cases of abuse, drug use, and neglect on the part of one parent.

From Holstein’s perspective, the transition to shared parenting is bound up in a swath of gender norms and expectations that, especially in family courts, has been slow to change, though he’s hopeful that with 50% of the states considering shifts away from joint custody, it soon will. “This is one of the last remaining bastions of institutional gender expectations,” he says.

About the author

Eillie Anzilotti is an assistant editor for Fast Company's Ideas section, covering sustainability, social good, and alternative economies. Previously, she wrote for CityLab.

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