Are more women facing the impossible choice between keeping a career that pays the bills and living with their children? When it comes to heartbreaking custody wars, people inside and outside the courts say that the growing number of stay-at-home dads and breadwinner moms means more working mothers are fighting an unprecedented uphill battle.

Getting ready for court that raw, overcast Monday morning two years ago, Julie Michaud dressed carefully. She chose a warm pink sweater and tailored black skirt, before slipping on her good luck charm, a necklace engraved with her kids’ names. She helped Daniel, 7, and Sophia, 5, get dressed, packed their school snacks and kissed them goodbye. An hour later, the petite brunette walked into a family probate courtroom. A judge was deciding whether Julie, then 40, the owner of a beauty business in Boston, would get what she’d requested: joint custody of her children. Her husband, Mark, who’d been unemployed for five years, sought primary custody—a shock to Julie. Still, she was feeling confident. She’d worked hard to support her kids and was deeply devoted to them. Her lawyer assured her there was nothing to worry about, and Julie believed her case was strong.

As she surveyed the crowded courtroom, Julie fought to remain steady against a sudden riptide of emotion: The heartbreak of a ten-year marriage in shambles. The fear of not being the one to tuck her kids into bed each night. The anger at her husband for failing to help support them. “I couldn’t work any harder,” Julie says. “I begged him to get a job.” In court papers, Mark, a graphic artist by training, said he had agreed to stay home with the kids so Julie could build her business. It took hours for the case to be called. Then a female judge flipped through the stacks of paperwork and announced, “There are so many motions here, it would take three hours to get through them all. I’ll give each lawyer three minutes.” Julie was stunned. “I’ll never forget it,” she remembers. “Three minutes!” Mark’s lawyer argued that because Mark had not worked since their youngest child was 1, his “marketable skills have decreased,” limiting his opportunities to find work. Julie’s successful career was portrayed as so demanding that she neglected the children. But she felt some relief when the judge admonished Mark for pulling Sophia out of her arms when she’d gone to console their sobbing daughter about their upcoming divorce. “You won’t do that again,” the judge warned.

At that moment, Julie felt the case sway in her favor. Julie was at work two days later when she saw her lawyer’s number flash on the caller ID. This is it, she thought as she picked up the phone. “I have very bad news,” her lawyer began. Julie felt the blood leave her body. “The judge gave Mark temporary primary custody. You get Wednesdays, Fridays and every other Saturday.” There was more: Julie had to pay $850 a week in child support and $450 a week in spousal support. She stopped listening. All she could think was I’m being punished for supporting my kids, while there’s this guy who refused to work.

Custody cases like Julie’s are increasingly being played out in family courtrooms across the country. A shift in the courts’ focus, a limping economy and dramatic male/female role reversals in many nuclear families are leading to nontraditional outcomes. Not long ago, men usually paid the child support and doled out the alimony. Moms (working or not) almost always got the kids in messy divorce wars. Years of changing diapers, wiping noses and kissing boo-boos gave them the edge. But now the tide is turning.

The “tender years doctrine,” a court presumption that mothers are the more suitable parent for children under 7, was abolished in most states in 1994. And, due in large part to the recession, women are poised to outnumber men in the workforce for the first time in American history. Job layoffs affecting more men than women have yielded a burgeoning crop of Mr. Moms. “Men are now able to argue that they spend more time with the kids than their working wives do,” says veteran New York City divorce attorney Raoul Felder. “This is one of the dark sides of women’s accomplishments in the workplace—they’re getting a raw deal in custody cases, while men are being viewed more favorably.”

Indeed, Julie sat helpless as Mark’s lawyer argued that he was the one who arranged the playdates, took the kids to the pediatrician and volunteered at their schools. Affidavits from teachers and neighbors attested to his hands-on involvement in their daily lives. Meanwhile, Julie’s long hours at work meant that people in the community didn’t witness just how much parenting she did out of view. No one saw the lunches she packed every morning, the all-nighters she pulled when the kids were sick. “If I could have done things differently,” Julie says today, “I would have made myself super-visible.”

The Shifting Landscape

There are about 2.2 million moms in this country like Julie, moms who don’t have primary physical custody of their children. And the number of working moms who lose primary custody has been rising steadily. “A mother’s career can be a liability in custody battles,” says Laura Allison Wasser, a Los Angeles–based lawyer who has represented Britney Spears and Kate Hudson in high-profile divorces. “There’s a huge influx of women who have full-time jobs. Judges want to know who the hands-on parent is, who spends more time with the child. I have made that argument myself: ‘Mom’s not home—she’s out working.’”

Today, it’s not uncommon for fathers seeking sole custody in a contested case to prevail at least 50 percent of the time. And Dad is asking for joint or primary custody more and more: Over the past decade, the number of fathers awarded custody of their children has doubled, according to the latest data. In the current generation of dads, gender doesn’t dictate who changes a diaper or consoles an infant. And as fathers become more entrenched in their roles as cocaregiver, they’re less willing to hand off that role when a marriage breaks down. Women are now also shelling out more child support and sometimes paying alimony.

Today, one in every four wives earns more than her husband, compared to one in five 20 years ago. “It’s become a whole different ball game,” observes Rhode Island Family Court Judge Howard I. Lipsey. Faced with time constraints that make it virtually impossible to get to know the families who appear before them, judges rely on certain assumptions. “When a judge sees a mother who’s working longer hours to support her family, the judge will have a harder time awarding her primary custody,” says Randy Kessler, a prominent divorce lawyer in Atlanta and vice chair of the American Bar Association’s Family Law Section. “If she’s working that hard, the presumption will be that she’s largely absent from her kids’ lives.”

The current climate in family courts is surely worrisome if you’re a working mom weighing the possibility of divorce. Some would argue, however, that it’s fair. After years of favorable bias toward mothers, the custody battlefield has been leveled. A demanding career “is a potential liability for whichever parent is working more outside of the house,” asserts Jeff Atkinson, a professor of law at DePaul University College of Law in Chicago. But if the custody status for working moms is code yellow today, it may soon ratchet up to code red. There are some 30 million mothers working now, yet economists expect that number to rise as the recession continues to roil unemployment rates. Female-dominated sectors such as education and health care are growing even as male-dominated fields such as finance and construction are being hit hard by layoffs. By mid-2009, men had lost 74 percent of the 6.4 million jobs that disappeared since the recession started. Forced out of the workforce, more dads are enjoying their role as primary caregiver. Forced into the workforce—or into the primary breadwinner role—more moms are spending increased hours outside the home to pay the bills. Now collateral damage of the recession, will these women ultimately be penalized if it comes to a custody battle?

Kim Voichescu believes the answer is yes. The 35-year-old former civil engineer turned law student has spent tens of thousands of dollars trying to get physical custody of her two teenage sons. “My ex’s attorney questioned my ability to care for my children based on my extensive work schedule,” she says. “During the trial, he called into question my mothering abilities and asked, ‘How could someone who is so career-oriented be a nurturing mother?’ ” After the lawyer raised these doubts about her devotion to her kids, Kim had to ask the court for a break to compose herself. “We supposedly live in a modern age, and yet I had to justify my nurturing abilities because I have a job?”

What we’re seeing is more than a simple role reversal, notes Charlotte Goldberg, a family law professor at Loyola Law School in Los Angeles. As progressive as we think we are, the courts haven’t fully grasped the many roles of working mothers. “Culturally embedded attitudes and roles are hard to change,” maintains Diana Dale, founder of the Houston-based WorkLife Institute. “Sometimes it takes three or four generations to make the attitude and behavior shifts.” Today’s working women still face pressure to function in the traditional mother mode—even after a day at the office, says Ken Neumann, PhD, a New York City psychologist and divorce mediator. “Working mothers have a really bad deal because they have to do everything,” he says. “We don’t put that kind of pressure on men except in unusual circumstances.”  

What’s a Working Mom to Do?

Struggling to find their footing on this new custody battleground, many women are at a loss. Heartbreaking stories of moms who’ve lost primary physical custody of their kids flood the Internet. Support groups and blogs such as Mothers Without Custody, Mothers Apart from Their Children and the National Association of Non-Custodial Moms have sprouted up to console and enlighten. Although the process of deciding where a child will live is inherently agonizing, experts agree that there are concrete steps a working mother can take to protect her rights even before a custody battle begins.

Stay out of Court

Though the U.S. divorce rate tends to dip during economic downturns, it continues to hover at 50 percent. Experts estimate that each year, more than a million children experience their parents’ divorce. How to minimize the damage? Family court judges and divorce lawyers say that the smartest move is to avoid the courtroom. “Hash it out on your own,” advises attorney Felder, who’s witnessed the turmoil these cases can cause during his 40 years in practice. Don’t presume that because you couldn’t find a middle ground to save your marriage, you won’t be able to compromise in divorce for the sake of your kids. “Couples often fight over the children because they’re so angry at each other,” says Goldberg, the family law professor. “That’s a huge mistake. They should opt for mediation to work out the custody issues.”

Indeed, the American custody process has spawned a large number of cottage industries—not only mediators but forensic accountants, appraisers, evaluators, psychologists, child custody coaches and law guardians. “They all feed off the carcasses of people fighting over the kids,” says Felder. Many of us are looking at custody the wrong way, maintains Barbara Glesner Fines, a noted law professor at the University of Missouri–Kansas City School of Law. “The question shouldn’t be ‘How can I get or win custody?’ but rather ‘How can I make sure this re-formed family will function in a way that is good for the kids?’ Divorce is just the beginning of a lifetime of parenting your children with this other person. You’ve got to make that work.”

That’s what Portland, OR, life coach Lori Chance, 33, did—via mediation and parenting classes that showed her and her now ex-husband how to keep the kids out of the fray. Things got easier when they followed advice to keep the emotion out of the process. “We were told to look at the other parent as our business partner,” she says. “We hammered out an agreement without a judge making the decisions for us.”  

Work Together

What Lori was eventually able to see is what many divorcing parents forget, says L.A. attorney Wasser: that your ex can still be your best ally in raising your children. “This is the one other person in the world who cares most about your kids,” she says. “If you can find a way to cooperate, you’ll be able to serve as backup child care for each other, and this will be better for everyone.” Mental health experts reinforce the importance of two loving parents in a child’s life. New research from Arizona State University (ASU) in Tempe shows that kids  rought up with shared custody or spending equal time with both divorced parents are physically healthier as adults than those living primarily with one. Other ASU studies find that the more time a child lives with a parent, the better the child’s long-term relationship is with that parent. “Even in high-conflict families, research shows it’s still better for the children to have a relationship with both parents,” asserts William Fabricius, PhD, a psychology professor at ASU who worked on the studies.

Rethink Your Priorities

Most divorcing couples manage to avoid sparring in court, thereby sidestepping a battle that can cost upwards of $100,000 (say so long to the college fund). But for some, mediation or other forms of dispute resolution aren’t an option, leaving about 10 percent of divorcing couples fighting for custody in the courtroom. If a working mom does find herself involved in an ugly custody fight, there are measures she can take. “A mother who wants to be the custodial parent after the divorce should make sure she truly is before the divorce,” says Atlanta lawyer Kessler. “Become the best parent you can be, now. Make them breakfast. Drop them off at school. Get involved in their activities.” Also take a hard look at how you allocate your time. “If a working mother realizes she’s heading for divorce, she needs to cut back on her work and make sure there are specific documented activities she’s doing with her children,” says Carole Lieberman, MD, a psychiatrist in Beverly Hills, CA. “Judges aren’t stupid; if a mother all of a sudden, three months before filing for divorce, starts documenting this, it’s obvious she just became the perfect mother for the purposes of divorce.” You need to shift your priorities for real, she says. To an extent, you have to think ahead. “You don’t want the pediatrician to take the stand and say, ‘I’ve never met Maya’s mom,’” says Wasser. “You don’t want the teacher to say, ‘I always dealt with Jackson’s dad.’ You don’t want the rug pulled out from under you.”  

Understand the “Temporary” Ruling

Most parents don’t know what a “temporary” ruling means in the real world, say divorce attorneys. They don’t anticipate that after a judge makes an initial temporary ruling, it can be months—even years—before a permanent ruling is made. It’s a lesson that Holly Tautz, 42, an office manager in Detroit, wishes she had learned before stepping in front of a judge. To spare her sons, then 5 and 3, from the constant bickering, Holly moved out of her house, assuming she would take the kids. But her husband, Michael, wouldn’t allow it and filed immediately for sole physical and legal custody. The court awarded the couple joint physical and legal custody, but the kids were ordered to stay with their dad during the workweek and with Holly every Wednesday night and three weekends a month. “Every time I tell that story, I’m sitting in that courtroom and I can feel the sadness wash over me again,” says Holly. “I thought I was going to throw up. I sobbed for hours. Our case dragged on for eighteen months. I wish I’d known that temporary orders can last a long time.”

Focus on Better Parenting

The image of Kathleen Turner and Michael Douglas swinging from that chandelier in The War of the Roses captures just how ugly things can get when two people untangle their married life. “I think too many working moms underestimate how far their ex will go to win,” says Zelda Sanchez*, who works in sales and was 40 when she decided to divorce her husband of 14 years to spare their 6-year-old son and 4-year-old daughter further exposure to their screaming matches. “I didn’t want them to grow up thinking that was the way relationships work,” she says. “But I felt he’d stop at nothing when it came to torturing me. He even volunteered to coach soccer so that I have to see him on the weekends I’m with the kids. Before the divorce, he’d never coached a thing.”

Zelda, too, agreed to a “temporary” custody arrangement that she thought wouldn’t last. “I figured that my ex, a man who worked twelve-hour days, couldn’t handle custody. I was sure that after a few months, he’d come to me saying, ‘Here, take them back.’” But he surprised her. He got support from family, altered his work schedule and became a better dad. That’s the silver lining of divorce, experts say: the opportunity to become a better parent. “It’s not uncommon for mothers and fathers to rediscover parenting during a divorce because priorities are examined and shifted,” says Bernard Clair, a prominent New York City divorce lawyer. “I hear women complain that the child’s father suddenly became Super Dad. And I’ve seen mothers who decide to scale back on their work hours to be more available to their kids. Divorce can be a wake-up call for both parents.”

Know What the Judge Is Thinking

More than a dozen judges and lawyers interviewed spoke of the limitations of our court system when it comes to addressing matters as personal and complex as who is best suited to raise a child. “Every judge will tell you that they’d rather hear a death penalty or a murder case than a custody case,” says Kessler. “Anything is preferable to having to make a decision that will impact the lives of innocent children.”

Debra Lehrmann, a Texas family law judge, says it’s no longer about trying to prove you’re the better parent and the other is the worse parent. “Forget the win/lose mentality,” she says. “Today, in most custody cases, both parents are adequate. Determining which one is better isn’t useful.” Instead, judges today aim to determine the so-called best interests of the child. Some calculate work hours and involvement in the child’s school, among other factors. In general, judges believe it’s in the child’s best interests to maintain the status quo, and this is why working moms who spend long hours in the office can suffer in custody disputes. If Dad is the more flexible and accessible parent and the arrangement seems to be working, a judge or custody evaluator will not rock the boat.

Judges say their prevailing point of view in these cases is “If it ain’t broke, don’t fix it.” Barring unusual circumstances, they tend to keep the situation as it is at the custody hearing. “Parents view judges as sources of wisdom who will fix things,” says Kessler. “That’s not the case.” Rather than provide solutions, judges say, they try to minimize the negative impact on the kids. “There’s enough disruption with the divorce,” Kessler adds. “Judges want to change the kids’ lives as little as possible. They can be getting C’s in school. Things don’t have to be perfect, as long as the police aren’t being called in.”  

A System that Needs Fixing

When you get right down to it, the courts are simply ill equipped to handle custody cases, says attorney Clair, echoing the sentiment of many attorneys and judges. “The dirty little secret of our profession is that custody decisions and the subtle and textured levels of parental relationships were never meant to be part of our legal system,” he says. “Our laws are based on land deals, arguing over property lines, how to transfer wealth. Our system is at a real loss when dealing with the subtleties of families—what goes on in the bedroom, how people raise their children.” Making matters even more challenging, the parties involved in this critical decision-making process have limitations. “Judges are pressed for time, while mental health professionals can’t agree on what the ‘best interests of the child’ even are,” adds Clair. “Lawyers are hardwired to be adversarial. And we’re asking these opposing forces to decide the all-important elements of custody.”

So where does this leave women like Julie Michaud, who lost temporary physical custody of Daniel and Sophia? The custody process took a toll on her health. She dropped 25 pounds, went on antianxiety medication and watched her hair fall out. She couldn’t keep up with child and spousal support payments and ended up closing her store. “My guts had been ripped out,” she says. “I’d cry myself to sleep.” But unlike many working moms on the losing side of a custody battle, Julie’s story has a happier ending. Unable to accept the judge’s initial ruling, she found a new attorney, who agreed to work pro bono. David Cherny, a founding partner of a prominent Boston firm, believed the initial rulings were unfair. He was able to convince the judge to give him a shot at presenting Julie’s case and to get a court-ordered guardian ad litem (GAL) appointed to investigate what was best for Daniel and Sophia. The GAL recommended that Julie spend more time with her kids. Since Mark had filed for contempt when Julie was unable to keep up with support payments, Cherny brought her accountant into court to explain her cash flow. Cherny also had a forensic economist write a report on Mark’s earning potential. Between the report and the fact that Mark couldn’t prove his wife’s income to be what he claimed, Cherny managed to get her spousal support payments waived.

Bernard Clair and Julie Michaud aren’t the only ones to realize that the family court system is in desperate need of a tune-up. At the American Bar Association’s meeting in June, family law practitioners, among others, will discuss how to handle divorce and custody cases “in a different way, a way that focuses on the process being less destructive” to parents and children, says Mitchell Karpf, Family Law Section chair. Their goal is to develop new approaches that “minimize the destructive consequences,” he says. “We are all too familiar with how a family law matter can be devastating to a family.” Today, Julie sees a lot more of her kids. She has Daniel and Sophia on Mondays and Tuesdays; Mark is with them Wednesdays and Thursdays. They alternate Fridays and weekends. Julie pays $1,625 a month in child support—less than half of her first support order. “After the ruling, I was bitter, feeling that working doomed my custody battle,” Julie muses. “Now, I’m just so deeply relieved that I got my kids back. I learned that the legal system doesn’t have a big, warm, fuzzy heart. There are formulas. I would tell people not to let their situation end up in court if they can help it. Don’t leave your children’s fate in the hands of a judge who doesn’t have the time to find out what’s really going on. The family court system is no place for a family.”

—Sally Abrahms has written for Time, Newsweek and The New York Times. She is the coauthor of What Every Woman Should Know About Divorce and Custody. —Additional reporting by Suzanne Riss, Teresa Palagano and Barbara Turvett  

Good to know:

Legal Custody refers to being able to make decisions for the child, such as medical, educational and living-arrangement decisions. Physical Custody refers to where the child lives, eats and sleeps.