Shattering Gender Norms In The Court Room

gender norms in custody

In Worthy’s podcast episode featuring our favorite DC girl crush, Kelly Collis, Kelly talked about her perceptions of how custody would get split up when she and her husband divorced. “I had two little kids. They were three and five…I had always had been taking care of the kids, the traditional motherly role, and I thought I would get custody of the kids, he would see them maybe for dinner on Wednesday, because I saw it in a Hallmark movie, and that’s how divorce is supposed to go.”

As Kelly quickly learned, Hollywood and Hallmark have little overlap with the reality of what happens in Court. While there is a lingering cultural perception that moms— especially stay-at-home-moms— will walk away with the majority share of physical custody, in most jurisdictions maternal preference has jumped the shark.

“But I’m the Mom” is no longer a valid argument in a custody battle. If this is the line you’re planning to trot out in front of a judge, we predict that your ex will be fighting against it with examples of his parenting wins. It’s not about who’s the mom. It’s about your actions; how your choices and behaviors as a parent reflect on your ability to manage physical and legal custody. It’s about each parent’s actions, not their gender.

If this news is ringing alarm bells for you, let’s take a big step back. This change in Court treatment is a good thing. It means that our society now expects both parents, regardless of gender, to be each heavily participating in the ins and outs of parenting. It means Courts are evolving to meet the demands of our more equal society, where same-sex couples have access to legal protection. It means that our sons are growing up in a world that understands their value beyond their future breadwinning abilities.

It also means, however, that if you are determined to win primary custody of your children, you better be ready to roll into Court with a solid argument built on more than “I’m the Mom”.

If this is you, fear not mama. We’ve got your back and some solid suggestions, but before we start to outline some good rules of thumb for preparing for a custody battle, we ask you to consider this tidbit of tough love: If the reason you are set on pursuing primary custody is because you and your ex have set up your parenting responsibilities in a way that your child can’t emotionally handle being away from you, you may have done your child a disservice. Most school age (and many time much younger) children spend all day away from their parents. Assuming your ex is not an actual danger to the child, if a “stranger” can take care of Junior for eight hours, there is no reason your co-parent can’t do the same.

Just because the presumed “the kids go with mom” norm (also known as the maternal preference) is no longer prevalent doesn’t mean you can’t put together a good case if you’re in a situation where abuse, neglect, drug use, heavy drinking, or other risky behaviour is at play. If this describes you, read on and take heart. Consider these options to move past the stereotype arguments and score points beyond playing the “I’m the Mom” card:

  1. Carefully and methodically document your ex’s behavior as it relates to the children
  2. Pull the pediatrician records– they should show which parent has taken the children to the doctor
  3. Get info from teachers and school about who was present at the parent-teacher conferences, who corresponded with the school and the teachers, etc.
  4. Provide witnesses and any documentation you have showing that you have been the primary caregiver for your child. Consider who fed, bathed, played with, put to bed, arranged for childcare, dressed, and educated the child.

At the end of the day, remember that it is our children who benefit most from the shattered gender norms. Conventional wisdom says that the more competent, stable adults who provide love and support in a child’s life, the better off the child will be. One of the best silver linings of divorce is that you are not bound by how you did things in the past when you create your family’s New Normal. This means that with healthy co-parenting, divorce can be a wonderful opportunity for both parents to both step up their parenting game and to have additional, new-found time to take care of themselves for the enrichment of their children.


Christy A. Zlatkus, Esquire & Dr. Elizabeth Degi Dubois

Christy A. Zlatkus, Esquire & Dr. Elizabeth Degi Dubois


Christy A. Zlatkus, Esquire and Dr. Elizabeth Degi DuBois, MA, PhD, are a former attorney/client duo who work together at Z Family Law, LLC.

 
 
 
 
 
 
 
 

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