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Marcia Clark is not everymother. She's a tough, well-paid winner in a highly competitive line of work who is also trying, as a single mother in the midst of a divorce, to raise two young boys. But for the past fortnight, she's lived through every working mother's bad dream. First she had to beg off staying late for a Friday-afternoon session of the O. J. Simpson murder trial. Her reason: she had child-care troubles. When she returned to court last Monday, she had to defend herself from suggestions that she was using her kids as a ruse to buy more preparation time. On that same day came the nastiest wound: a filing by Marcia's estranged husband, Gordon, seeking temporary primary custody of their two sons, claiming that their famous mother ""is never home and never has any time to spend with them.''
It was enough to make a mother cry -- at least in frustration. Marcia Clark kept her own counsel, promising to hold her public fire until she meets Gordon in family court, probably this week. But millions of other women -- and men, too -- rushed to speak up in a cacophony of opinions that indicates our great experiment with remaking the nuclear family is anything but over. At a time when the Department of Labor reports that 23 million mothers are working, including 80 percent of all divorced mothers, Clark's predicament casts the nation's jumbled concept of good mom/bad mom under klieg lights. Mothers, especially those with high-octane jobs, were particularly set on edge. ""It's a crazy double standard,'' says Roberta Cooper Ramo, president-elect of the American Bar Association and the mother of two grown kids. ""If a father works hard, that's considered an enormous plus. The other bizarre thing is that while we're telling welfare mothers to work, we're also telling professional women not to. I haven't figured this out.''
Marcia Clark is obviously banking on keeping her sons. Her friends describe her as ""a conscientious, doting mother'' who is outraged by her ex's filing. And perhaps a bit nervous, too. Even though the courts, in general, still award custody of children to women more often than men, the landscape is slowly shifting. Men are contesting the custody rulings in small but growing numbers, requesting joint or primary custody, say family-law experts. And when men do, surveys show, they don't always lose as they once did. One recent study of California custody suits found that when both parents wanted sole custody, mothers won in 45 percent of the cases, fathers in 11 percent, and joint custody was ordered in the rest.
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The reasons for these decisions can be as complex as human relationships themselves. Certainly in some instances, the father is truly the better parent. But how is that to be decided? Judges are now allowed wide latitude to determine the so-called ""best interests of children.'' Some calculate work hours, time spent at Little League and willingness to stay in one community, among other things. Many experts believe that despite years of weaning gender bias from custody cases, the judges' standards are still colored by different expectations of mothers and fathers. Men's rights advocates think their time is long overdue, in a court system that has historically overlooked fatherhood as a serious occupation. ""We've encouraged this ideal of dual parenting,'' says Judith Sheindlin, a New York City family-court judge. ""Now you can't say dual parenting'' -- until divorce -- ""and then Mama has to get the kids.''
Each custody case has its obtuse and uniquely painful truths, and if Clark's kids are lucky we won't learn too much about their parents' foibles. From the public record already made, there is a sad, all too familiar refrain to their story. Marcia Clark filed for divorce citing irreconcilable differences last June, after more than 13 years of marriage, and just days before Nicole Brown Simpson and Ronald Goldman were slain. Gordon, 36, has joint custody, with Marcia as the primary physical caregiver. The strange twist is that joint custody is often the plum sought by contesting dads. Gordon has it, and he wants more -- at least for now. A computer engineer who works steady hours, Gordon visits the boys twice a week and has full custody every other weekend. At first he paid $1,100 a month in support, a sum he reduced to $650 after moving to a bigger house. When Gordon asked for more visiting time before Christmas, he says, Marcia told him that she ""would have my ass'' if he tried.
The turning point came when Marcia, who makes $97,000, filed for his original payment to be formally reinstated. Incredibly, she cited her extra expenses as a prime-time TV presence for regular hair grooming, shoes and ""five new suits.'' Child care, she added, had increased to more than $1,000 a month, due to her 16-hour workdays, including weekends. Gordon, whose salary is half of Marcia's, shot back with a petition to gain temporary custody, saying he needn't pay for a ""Hollywood'' makeover. He added that there is ""absolutely no reason why the children shouldn't be with me instead of continually being with babysitters.''
Perhaps to further stoke the fire, the next day Gordon filed another declaration with the court. Newsweek has obtained the document, which refers to the ""Petitioner's Lies to a Judicial Officer.'' In it, he claims Marcia misled the court when she said she had ""child care problems'' and was thus unable to remain in court for the evening testimony of alibi witness Rosa Lopez. Gordon said he was scheduled for his usual 6 p.m. pickup for the kids' weekend visit. Marcia unexpectedly called him in the afternoon, telling him she would drop the children off later at his house. ""Clearly, the Petitioner [Marcia Clark] does not have any child care problems,'' Gordon wrote.
Marcia's friends say her story will be far different. They say that Clark always prefers to drop off the children personally. Partly because Gordon often neglects to pick them up on time; partly because she wants to say goodbye and explain what's happening to the children. ""Every good mother with joint custody would want the same thing,'' says Clark's friend.
Joint custody was advanced as the great idea of the late 1970s. Faced with a surging divorce rate and ugly custody battles, more than half the states adopted laws permitting divorced couples to share legal or physical custody. Despite the high hopes, these schemes have often proven disappointing. It turns out that couples who couldn't live together often can't manage children together, either. Over the years, the law has tried a variety of plans. Until 1839, children automatically went to their fathers as a form of preindustrial property. Then the courts discovered that children of ""tender years'' needed their mothers, and women almost always kept the kids. In this century, judges began to seek out the ""best interests of the child.'' None of these standards has proven satisfactory. The only good news is that they are invoked in a fraction of cases; in an estimated four out of five divorces with children, custody issues are settled out of court.
When they aren't, however, there's a risk that the cases will spill onto the front page. One infamous case that sent shock waves through the ranks of working moms on Capitol Hill was last year's custody decision in the divorce of Sharon Prost and Kenneth Greene. Prost, 43, is chief deputy counsel to Sen. Orrin Hatch, chairman of the Senate Judiciary Committee. With a salary of about $88,000, she is also her family's top breadwinner. Greene, 48, a labor-union administrator, was unemployed in the early '90s for 30 months. He eventually found another post at half his wife's earnings, but with more flexible hours. His wife had sole custody of the children then.
When the couple decided to split up, Prost never dreamed she could lose her boys, then 3 and 7. But District of Columbia Superior Court Judge Harriet Taylor decided otherwise. Prost, she determined, was ""more devoted to and absorbed by'' her professional goals than responsibilities at home. (D.C. courts do not award joint custody if either side objects, and Prost did.) Prost appealed, and lost again. The judge decided that ""for the children,'' says Sandra G. Wilkof, the husband's attorney, ""the best [parenting] may come from the parent who is less successful.''
No one really wins in these cases. Linda Christopher-Vander Hart, now 49, was planning to attend law school at the University of Iowa 16 years ago, when her marriage fell apart. Her husband, Jim Tresnak, was afraid her long hours of hitting the books would leave inadequate time for their two sons. An Iowa court judge agreed. The boys were ordered to live with Jim, a high-school teacher, someone who the judge said could participate in ""athletic events, fishing, and hunting, and other activities that boys are interested in.'' One year later, the Iowa Supreme Court overturned that decision, saying the judge had injected stereotypical ""sexual roles'' improperly into a case of custody. Ryan and Rick grew up in Mom's house. She finished law school, went on to become a psychiatric social worker and eventually remarried.
The boys, now 26- and 24-year-old men, look back on those days with bewilderment. ""It was a lot of emotional strain, Mom and Dad fighting over us,'' says Rick, 26, a paramedic. The court battle, which actually took one year to resolve, seemed like three or four to young Rick. The experience left him with a rare resolve. Should he and his wife ever split, he says, he would not put his daughter through a court battle. And though it was hard on him, he bears no grudges. ""Mom was studying all the time, and I understood that,'' says Rick. ""Her motives were to obtain a law degree so she could take better care of us. I'm proud of my mom now.''
The double standard has not disappeared in custody cases, experts say. In the D.C. case, Judge Taylor praised the father for assisting in his child's kindergarten, but made no mention that the same teacher testified that Prost was the class's ""surrogate mom.'' Lynne Z. Gold-Bikin, chair of the American Bar Association Family Law section, says, ""When a father works and changes diapers [things mothers are expected to do], he is perceived as amazing.'' That's not to say all judges are influenced by the values of another era, but many are. A 1990 Massachusetts survey found that half the responding probate judges thought mothers should be at home when children return from school.
Fathers' rights groups view these trends differently. Unlike their fathers and grandfathers, baby-boomer men have been groomed to participate in childbirth, to be involved in school functions, to make lunches and tie the shoelaces. When divorce occurs, these men wonder why their fathering skills shouldn't be valued, too. ""At the moment of divorce you have women feeling economically scared and men feeling emotionally scared,'' argues Warren Farrell, author of ""The Myth of Male Power.'' ""Then we take the children away from the man, and that hurts them even more.''
Custody fights aren't always about children -- they're often about money. Spouses sometimes file petitions as bargaining wedges to pare down child-care payments, according to family-law experts. The parent with custody -- usually the mother -- often settles for less rather than risk losing a child. ""There is a documented phenomenon of women bargaining away financial benefits for custody,'' says Nancy Polikoff, a law professor at American University, in Washington, D.C.
The risk is real. Jennifer Ireland is a Michigan teenager who lost custody of Maranda, now almost 4, to her boyfriend and his mother. Ireland, a cheerleader in Ann Arbor, was just 15 when she discovered she was pregnant. With the help of her mother, Jennifer raised Maranda and still graduated from a Marine City, Mich., Roman Catholic high school with a 4.3 grade-point average. When she decided to attend the University of Michigan on scholarship, Ireland put Maranda in day care. Steven Smith, the father, was not much involved in Maranda's upbringing until January 1994, when Jennifer asked for child support. Smith fought to reduce the payments from $62 to $12, then countersued for custody. Even though Steve works part time as a landscaper and attends community college, Macomb County Circuit Court Judge Raymond Cashen, 69, awarded him custody, because his mother could watch the child at home. Cashen decided Maranda was better off raised by ""blood relatives . . . than by strangers.''
Marcia and Gordon Clark are expected to meet in court this week to begin their own private, likely acrimonious, tug of war over the boys. It's Marcia's first pre-emptive move to ask the court to seal their most private family moments from public scrutiny. The next step is a hearing on custody and support issues. If they're wise, the Clarks will settle their differences like adults before it comes to a hearing. The truth is custody battles are so messy, so primal, even divorce attorneys would rather not deal with them. ""These kinds of cases just shouldn't happen,'' says Wilkof, attorney for Greene. That may sound odd coming from a divorce attorney. But she's a working mother herself, and knows the cost of war. ""The best lesson is that you should never go to court if you love your children and can help it.'' Avoiding the battle -- rather than winning it -- could be the most convincing act of love.
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