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The Divorce Revolution and Mothers on Trial

The Divorce Revolution: The Unexpected Social and Economic Consequences (or Women and Children in America by Lenore J. Weitzman, 504 pp., New York, Free Press, 1985, $19.95

Mothers on Trial: The Battle for Children and Custody by Phyllis Chesler, 651 pp., New York, McGraw-Hill Book Co., $22.95

Lenore J. Weitzman’s The Divorce Revolution and Phyllis Chesler’s Mothers on Trial, two new books about new trends in legislation concerning divorce, child custody and support, present frightening pictures of new discrimination against women. While gender inequalities still abound, women have attained “equality” in matters of custody and support. More and more fathers are seeking custody, and both Weitzman and Chesler say fathers win the majority of contested cases. In many states, divorce, custody and support laws are now “gender neutral”, a new inequity sometimes blamed on the demands of the feminist movement.

Within our patriarchal and capitalist socio-economic system, women seem to have won the equal right to become unequal. With this “right” came two growing threats: Loss of custody and, consequently, the legal obligation to pay child support to custodial fathers.

Weitzman’s research began with the change to no-fault divorce law in 1970 in California, but her book has dire warnings for women in the 50 states. She says: “No-fault attempts to treat men and women equally—or as if they were equal—at the point of divorce. However, it ignores the structural inequality between men and women in the larger society.” According to Weitzman, a sociologist, women and minor children in their households experience a 73 percent decline in standard of living in the first year after divorce. In contrast, men experience a 42 percent rise in their standard of living one year after divorce.

The explanation is simple. A person cannot suddenly become equal, after years of inequality in marriage. During those years the woman’s career often stood still, while she enabled the man’s to advance. Coming from this “traditional” marriage, she now is an “equal” person who faces loss of custody and payment of child support to her ex-husband. But during their marriage, their genders were neither “neutral” nor equal.

Weitzman says: “Gender-neutral rules—rules designed to treat men and women ‘equally’—have in practice served to deprive divorced women (especially older homemakers and mothers of young children) of the legal and financial protections that the old law provided…When the legal system treats men and women ‘equally’ at divorce, it ignores the very real economic inequalities that marriage creates.”

Women for whom the “rules changed in the middle of the game” are pointed out by her as especially in need of legal consideration. Weitzman calls for legislative protection for such women, proposing a “grandmother clause” so that older women who married and lived under traditional rules are entitled to maintain the same standard of living as their former husbands.

She devotes several chapters to marital property, stating that pensions, professional degrees, and other career assets should be recognized as marital property and fairly divided upon divorce. The New York State Court of Appeals ruled unanimously on December 26, 1985 that Loretta O’Brien, who helped pay for her former husband’s medical education, was entitled to a share of the value of the license he subsequently received. (Unfortunately, there is no “grandmother clause”.) Weitzman cites six other states—Colorado, Kentucky, Massachusetts, Michigan, Washington and Wisconsin—as having case law precedents that recognize a property interest in professional degrees.

Chesler’s book focuses on her interviews with sixty women who were challenged for custody between 1960 and 1981. The overwhelming majority lost custody and Chesler, a psychologist, places major blame on economic considerations. Fathers have more money to pay attorneys to keep a legal battle going, and also have more material benefits to offer children. Although there had been “maternal preference” in custody for most of this century, by the 1970s there was a marked shift to gender-neutral language in custody law, Chesler says. “Best interest” of the child is usually the underlying principle now, but standards are in flux. The result has been a trend toward paternal preference over the past decade. (She does not provide a state-by-state breakdown.)

Both authors agree that with regard to custody, gender-neutral standards are not applied appropriately to whoever does the primary care taking. Instead, standards ignore primary parenting and discriminate on the basis of gender. As a result, women unfairly lose custody, and children lose the nurturing of their primary caretaker.

A related trend is modification of custody decrees in favor of the parent who has remarried and can offer a child a “nuclear family”—usually the father. A stepmother’s presence implies she is available and suitable as a caretaker; a stepfather’s presence does not.

One reason for the trend to more custody by fathers is the emergence of father’s rights groups, which have been lobbying for custody laws and divorce reforms that are “fair” to them. If a father wants the children (especially if he has a new wife), he seems to have an increasingly better chance of acquiring custody. If he does not want them—and most men still do not—he does not have to take them. More and more, it is becoming his choice. Even worse, there seems to be a trend toward giving women custody of young children. When they become less work and more enjoyable (and especially if the father has remarried), the mother’s children are subsequently taken away from her.

The trend toward more father-custody (with concurrent possibility of child support from non-custodial mothers) has grave economic implications for women. This is especially so if a “best interest” argument is made on the grounds of which parent has greater economic resources and social status.

The women’s movement is not yet sufficiently alarmed by these recent trends toward father-custody and mother-support to come forward and admit lack of foresight in calling for gender-neutral language in law, with resultant gender-neutral custody and enforcement of child support obligations. Unless this crucial issue is seriously addressed now, it will prove tragic for women in ever-increasing numbers.

The law and the courts need to recognize women’s history of economic deprivation, and should use an “affirmative action” approach to-compensate for “unneutral” gender inequalities. Without such a policy, on matters of custody and child support, there can be no real equality for women. The Weitzman and Chesler books are important, because they expose and detail the dangers some women are already facing today. Unless there is vigorous opposition from the women’s movement, more and more women will become victims of this gender-neutral “equality”.

Rochelle G. Saidel, a doctoral student on political science at CUNY, is the author of The Outreached Conscience: Seekers of Justice for Nazi War Criminals in America (SUNY Press).