So Who Gets the Kids? Divorce in the Age of Equal Parenting

The Alice Hector–Robert Young divorce case epitomizes the impact of gendered parenting stereotypes held in custody cases. Is there a side feminists should take?

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From the Vault: ‘So Who Gets the Kids? Divorce in the Age of Equal Parenting’ (June/July 1999)

It’s 3:47 a.m. Hour of the Wolf. That deep pocket in the night when anxieties and self-doubts gnaw at already ragged psyches. I get up and go to my daughter’s room. I got home from work too late to put her to bed. I brush the hair off her face and kiss her warm, sweet-smelling forehead.

And I wonder if Robert Young is doing the same, only with a much more desperate sense of urgency and impending loss. And is his ex-wife, Alice Hector, also up in the night staring into her daughters’ empty rooms, her stomach in a knot?

This piece was originally published in the June/July 1999 issue of Ms.

I am up because I hate this story. It’s too upsetting. But that pales beside Young’s and Hector’s battle: For both of them, their daily relationship to their daughters, ages 10 and 13, is on the line. In a highly publicized case, Alice Hector, once a partner in a prominent Miami law firm and now head of her own, lost custody of her two daughters in June 1998 because a panel of three male judges ruled that her work schedule was too demanding for her to remain their primary caretaker. They overturned a trial judge’s decision to keep the girls with their mother, and awarded custody to Young, the girls’ father, who until two years ago was a stay-at-home dad and who now has a job with flexible work hours. Hector appealed the ruling in December and, as of this writing, awaits a decision.

Editor’s note: In July 1999, an appeals court ruled that Alice Hector should regain primary custody from their stay-at-home dad.

Young had done things like start a Brownie troop for their younger daughter when none existed, organized a soccer team for the elder daughter when that didn’t exist either, and then coach the team as well. He also volunteered at school.

Hector couldn’t do these kinds of things. But she did get up at the crack of dawn so she would have time with the girls in the morning, she devoted her weekends to them and she claimed in court that in the middle of the night, when either one of them was sick, they came to her.

If my husband and I ever found ourselves in divorce court, would I, too, face losing custody of my daughter because there have been nights, like this one, when I wasn’t home for dinner and didn’t tuck her in?

Young and his attorneys have been very careful not to label Hector a bad mother; on the contrary, they have praised her efforts to juggle her work as a litigator with the demands of motherhood. Young’s point is simple: We’re both devoted parents, we both love our kids, but I’m home much more than she is and have much more time to take care of the kids, so they should live with me.

The June/July 1999 issue of Ms. magazine.

Florida does not favor joint custody, as many other states do. Florida law assumes that moving back and forth between parents’ homes is bad for kids. Instead, the law promotes “shared parental responsibility,” meaning that both parents are supposed to remain active in the children’s lives, but the kids maintain a primary residence with only one of the parents.

This is, in part, where the battle started. Both sides say they agreed to share the house while they worked out the divorce settlement—an arrangement that kept the parents in daily touch with the kids but might have exacerbated their intense competition over who deserves custody.

Deep resentments and intransigent stereotypes snarl through the case. Hector claims she never wanted Young to be a stay-at-home dad, but instead encouraged him to try to find work. She increasingly resented having the burden of supporting the family entirely on her shoulders and clearly felt it was unfair for her to have to put in 60-hour weeks while her husband did no work outside the home.

It is very difficult for most women, however liberated, to overcome our culture’s easy equation of bringing home the bacon and true manhood. It is difficult for the courts, too: During the initial hearing, when Hector won custody, the judge said to Young, “Maybe I’m missing something. Why don’t you get a job?”

Young found himself dismissed elsewhere as well for staying home with the kids. He recalled a partner in his wife’s law firm greeting him with, “It’s nice to meet you, Mr. Alice.” 

In a comment feminists should find poignant, he told a reporter, “I was only perceived as Alice’s husband.”

Hector, of course, has been stereotyped, too, as a selfish, uncaring mother who brought legal briefs with her to a child’s recital. “There is this idea that I wanted this life and this was the life I chose,” Hector said in an interview. “The opposite is true. I’m not saying I don’t enjoy my work I do—but it is not my first choice.

Which one of them should I be rooting for? Why is this a contest, a war? 

Does being a feminist mean that I automatically root for her, no matter what? If my husband and I ever found ourselves in divorce court, would I, too, face losing custody of my daughter because there have been nights, like this one, when I wasn’t home for dinner and didn’t tuck her in? Or could he be suddenly ripped out of the daily routine of her life–even though he takes her back and forth to school almost every day, helps her with her homework, and wouldn’t be able to stand not seeing her for days on end—simply because I’m the mother?

We should admit to the other truth that we know: Many fathers are deeply connected to their children and then, after a divorce, are relegated to every-other-weekend cameo appearances.

According to David Chambers, a professor of law at the University of Michigan, in most custody cases the courts prefer to place a child with the parent who is the primary caretaker, and in the overwhelming majority of cases this is the mother. The primary caretaker presumption was designed, in part, to thwart the potential threat by fathers to sue for custody so their ex-wives would give in on other aspects of a divorce settlement, like money.

But what if you’re both the primary caretakers?

I guess that one of the reasons I hate this story is that this case, more than many other custody battles that have received media attention, does, in fact, require us to confront our contradictory stances about what we want and expect from fathers now that we are 30 years into the women’s movement.

Three decades ago, we argued that our treatment before the law should be gender-blind—because when it wasn’t, we lost. We’ve also been insisting, with some limited success, that fathers become more involved in child-rearing. Those of us who work outside the home are tired of the utter unfairness of the second shift, when both parents come home from work but Dad gets to read the paper while Mom makes dinner, helps with geometry homework, fends off telemarketers and does ten loads of laundry.

And many of our husbands have responded.

So if some men have become equal, or even more than equal, partners in child rearing, as we’d hoped, then shouldn’t those men have the same rights that women would in court?

But if we grant this, are we opening the floodgates to thousands of frivolous and even unjust custody challenges by fathers who work but won’t face the same prejudices in court about their commitment to their children as a working mother automatically does?

In a custody battle, if Dad knows the name of the kids’ dentist and went to one PTA meeting, he’s the Albert Schweitzer of parenting; if Mom gets up at 5:00 a.m. to do the laundry and read files from work so she can have more time with her kids, she’s still suspect if she isn’t standing in the doorway at 3:30 p.m. offering baked goods to the kids as they come home from school.

A 1989 report commissioned by the Michigan Supreme Court found that stereotypes bias judges against working mothers: They granted custody to fathers showing the most minimal interest in parenting, and they viewed mothers who placed emphasis on their careers to be less fit as parents than fathers who did exactly the same thing.

If some men have become equal partners in child rearing, as we’d hoped, then shouldn’t those men have the same rights that women would in court?

Many feminists, women lawyers and women’s organizations have expressed outrage over the ruling against Hector. After all, this case has not occurred in a vacuum: It comes on the heels of quite a few well-publicized and outrageous cases in which mothers lost custody of their children simply because they worked outside the home or worked “too many hours.”

Some studies claim that when custody disputes end up in court, fathers win more than 60 percent of the time, and women lose custody for behavior that is utterly acceptable for men, such as having ambitious career goals. The list is long and infuriating.

There seems to be a real bloodlust—not just in the courts, but in much of the culture—to take working women down a peg, especially it they are more successful than their ex-husbands.

In 1994, Sharon Prost, deputy chief counsel of the Senate Judiciary Committee, lost custody of her two sons because a female judge determined that she devoted too much time to her job. It didn’t matter that Prost got up at 5:30 a.m. to fix breakfast and drive her older son to school, or that she brought her younger son with her to the Senate daycare center every day, usually had lunch with him and often left for home before 6:00 p.m. It didn’t matter that a court-appointed psychologist affirmed that Prost’s children were primarily attached to their mother. Nor did it matter that her ex-husband, Kenneth Greene, insisted that the couple retain an au pair, even when he was unemployed and at home for over a year, or that when he was employed, he put in extremely long workdays himself.

Meanwhile, shortly after Hector lost custody of her daughters, Sports Illustrated reported that Pamela McGee, who plays for the WNBA’s Los Angeles Sparks, lost custody of her 4-year-old daughter while the court investigated whether McGee’s work prevented her from being a good mother. In his motion for temporary sole custody, McGee’s ex-husband, the Reverend Kevin E. Stafford, asserted that a career and motherhood are mutually exclusive. McGee’s “level of achievement,” he argued, “impairs her ability to parent her daughter.”

At issue, according to Sports Illustrated, was whether McGee’s travel schedule—she’s on the road about four weeks a year—took her away from her daughter too much. The court was not investigating whether Stafford’s travel schedule—he’s on the road seven to eight weeks a year—made him an unfit father.

In 1982, a father who had refused to acknowledge paternity, wouldn’t pay child support, and didn’t visit his son until he was 15 months old sued for custody after the mother tried to get child support. He won, because the mother had worked two jobs to support her son, while his new wife didn’t have a job and could be home with the child. This mother has had to watch her child be raised by another woman.

When sexist judges with outdated and inaccurate biases against daycare apply the “best interests of the child” standard, working mothers can easily lose. And childcare providers, whether housekeepers, babysitters or daycare centers, are routinely dismissed as inferior, second-rate caretakers.

So it’s no surprise that we feminists have our hackles up. We see a vengeful backlash against mothers who work outside the home in which we detect a barely disguised glee in meting our the most painful punishment there can be: separating us from our children. There seems to be a real bloodlust—not just in the courts, but in much of the culture—to take working women down a peg, especially it they are more successful than their ex-husbands.

At its core, this trend of taking children away from their working mothers is about punishing women for having what is perceived to be too much power. This has occurred within the broader backlash against feminism that continues unabated, where we see an assault on women’s reproductive rights, punitive policies toward poor mothers, ridicule of women’s studies programs, trivialization of date rape, and calls by a bevy of anti-feminist women for us to get back into the kitchen.

Yet too many feminists, in our outrage over this punitive trend, have been dismissive of Young. He has had to pay for every sexist judges decision, every mother wronged in court. His feminist attorney, Barbara Green, who saw this as a case about gender equality, has been stung by reactions from other women attorneys who treat her like a traitor.

We should admit to the other truth that we know: Many fathers are deeply connected to their children and then, after a divorce, are relegated to every-other-weekend cameo appearances. I think we’ve let this case be too easy for us, and we’ve used Hector and Young as caricatures onto whom we can project a host of fears, rages and anxieties about work and the family.

The case also dramatizes how very far we still have to go as a culture to devise family-friendly work environments. For most professional people, being overworked means you’re important and productive. It also means you have less time for your family. While women rightly want the same opportunities as men, feminists once had a dream that we could humanize the workplace; many of us didn’t want to have to become just like workaholic, absentee men. Cases like Hector-Young allow us to focus on particular individuals—the classic way the news media cover major trends—instead of on the deep systemic problems of overwork.

It is impossible for me not to feel torn by this case. If one is committed to gender equity, and to granting custody to the primary caretaker, Robert Young should retain custody. In my head, I am with him.

But in my heart, I am with Hector. Because I know that if I ever found myself in a courtroom, it wouldn’t matter that I know the names of all my daughter’s dolls, or that I lie in bed with her at night to talk about friendship, or decimals, or God, or that I know which kinds of socks she loves and which ones she absolutely refuses to wear. It would only matter that I work longer hours than my husband, and so, as a working mother, I am a bad mother.

Until the courts banish this stereotype, it is going to be impossible for many feminists, however deeply committed they are to gender equity, to support the sorts of role reversals we once celebrated in our dreams.

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Susan J. Douglas is a prize-winning author, columnist, and cultural critic, and the Catherine Neafie Kellogg Professor of Communication Studies at The University of Michigan. Her work focuses on the representation of women in the media and the history of broadcasting, especially radio.