Custody Cases Test Attitudes of Judges

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FOR Debbie Langford, it seemed like a no-win choice: her job or her son.

Three years ago, the New York mother had lost custody of two-year-old Steven because, she says, she worked and left the child with a nanny all day. Her ex-husband, in his bid for sole custody, said he would keep Steven with his grandmother while he worked. Mrs. Langford's nanny was a Salvadoran who spoke little English.

Upon hearing the ruling, Langford quit her job and promised to stay home with Steven. The judge let her keep her son. "He said he was basing his decision on my promises that I would not work until my son was in school fulltime," she says.

A judicial bias against working mothers? That's what womens' groups say about cases like this one and other recent, higher-profile custody disputes.

The latest cases include those of Marcia Clark, the lead prosecutor in the O.J. Simpson trial, Senate aide Sharon Prost, and Michigan college student Jennifer Ireland. In Ms. Clark's case, her husband has filed for custody of their two children, though no decision has been reached. In the other two cases, the mothers lost custody.

But the picture is far more complicated. Working mothers do lose custody sometimes when they divorce, but it's often hard to prove that the mother's work status was the deciding factor for the judge. Custody decisions, which go to a judge in only about 10 percent of divorces involving children, are case-by-case matters. It is also an exaggeration to say that mothers losing custody is a "trend," as some activists have claimed.

"Mothers have been losing custody for at least 20 years," says Nancy Polikoff, a law professor at the American University and expert on child custody.

By the mid-'70s, says Professor Polikoff, state courts had stopped following the "tender-years doctrine" -- in part, due to feminist pressures -- which held that young children should be with their mothers. Judges now aim for solutions that are in the best interests of the child and are gender-neutral, at least in theory, regarding the proper roles of the parents.

In Langford's custody battle, the judge denies that he awarded custody to Steven's father because his mother worked. "I award custody to working mothers all the time," Judge John Sweeny said in an interview.

This case, he added, was "a very, very close call," though he would not discuss the specifics. In the judge's written decision initially awarding custody to the father, his ruling appeared to hinge on the babysitter. He wrote that a "major factor in this court's decision was the day-care arrangements."

So was it an anti-babysitter case rather than an anti-working mother case? Judge Sweeny would not speculate on how he would have ruled if Langford had found a nanny who spoke better English or arranged for a relative to babysit. And Langford didn't want to find out. She quit her job to make sure she got Steven.

Even if recent high-profile cases do not represent "typical" custody disputes, they do provide an opportunity for public consciousness-raising in the area of family law, several women's-rights advocates say.

Roberta Ikemi, staff attorney at the California Women's Law Center, says that in many of her cases, fathers and mothers are judged by different standards. Often, men are judged by the availability of other child care, from a second wife to a girlfriend, while women are evaluated based on their own, personal ability to be with a child, ignoring the presence of a grandmother or a babysitter. …