Law News

Custody Battle Fatigue

Children are being sacrificed on the altar of father’s rights

By Susan Estrich
Tuesday, June 1, 1999

The pickets from NOW showed up a couple of weeks ago at the marathon custody proceedings that pit one of the richest and most powerful men in the world, Ronald Perelman, against one of the most beautiful and well-connected women, his former wife Patricia Duff. (I am one of those connections; our paths have crossed many times, most recently at a White House dinner, after which she sent me some of the papers from these proceedings.)

Before feminist law reform changed the rules, it would have been a slam dunk for Duff. Mothers won custody battles, unless they were unfit, which no one is even suggesting here. But these days, thanks in large part to the efforts of the NOW Legal Defense Fund and other women's organizations, fathers have equal rights, and Perelman is asserting his, with the vigor that comes when money is no object and ego is involved. The proceedings are open to the press, at the request of Duff's former lawyers, and the transcript would be almost laughable, if a four year-old girl's future weren't at stake.

The irony is palpable. Justice Ruth Bader Ginsburg, who as a lawyer argued many of the biggest sex discrimination cases in the Supreme Court on behalf of women's organization, often says that Weinberger v. Weisenfeld was one of her favorite cases as a lawyer. In Weisenfeld, a widowed father challenged the Social Security survivors benefit rules that allowed mothers, but not fathers, to stay home, raise the minor children, and collect benefits after their spouse had died. Weisenfeld won; parenting could not be considered a gender-based activity. It was seen as a victory for women.

Weisenfeld fits squarely within the tradition of feminist law reform that attacked the rules that used women's supposed advantages as mothers to exclude them from participation in the public world, to limit their hours of work, or the jobs they could do, or their participation on juries. The liberal theory was that breaking the connection between gender and parenting would lead more men to take parenting responsibility, leave women with greater freedom to enter the public world, and result in greater value being attached to the job of raising a family. Consistent with that theory, advocates of women's rights were among those who lead the assault on the gendered rules of family law, which presumed that children of tender years were better off with their mothers and that only men should pay alimony.

Beware what you wish for.

The problem with the theory, for women in real life, is that achieving equality in the private sphere without achieving it in the public sphere at the same time leaves women at a decided disadvantage, even if they are as well-connected as Duff. She has already spent millions on lawyers, fighting about visitation, security guards (and where they sleep and how many there will be), and whether she is Jewish enough. In one particularly absurd exchange of motions, the issue was cookies which Candace Block, a friend of Duff's and of mine, had baked with three year-old Caleigh on the second day of Passover. Did the cookies contain flour? Did they prove that Duff, who converted to Judaism and has agreed to raise her daughter Jewish, was derelict in her religious upbringing?

But however much Duff spends on lawyers -- she told me it was $2 million already, and the heart of the proceeding, the custody hearing itself, was abruptly suspended in December and is now scheduled to begin again in August -- her ex-husband can, and apparently is willing, to spend more. However much she spends on experts, he can spend more. For him, it's chump change. He can fight endlessly.

Duff is not the only one confronting the limits of equality. Take away all the zeroes and you have my friend Soraya's case. She is a hairdresser. She is in court, again, with her former husband, fighting about custody of her daughter, about visitation and religious upbringing, in her case, the religion being Islam; she feels constantly watched, as if she is under surveillance. Her complaints echo Duff’s: harrassment, abuse, power differential. She is spending money she doesn't have to fight him, and she is terrified that he will win additional time, and control, of their daughter.

In the last analysis, recognizing father's rights was not supposed to create new opportunities for conflict among former spouses, which had previously been limited to fights about money. It was supposed to be better for the children. But the tragedy of these cases is that the interests of the children are the first thing to get lost in the battle. Whatever side you take in the Duff-Perelman mess, it can't be good for the four year old they are fighting about, and a full-blown public trial about custody can only make it worse. Add this case to Paula Jones and Katzenberg v. Eisner as cases that are crying out for settlement; cases where settlement is the only rational approach. Not settling the Jones case cost the President impeachment; not settling the Katzenberg case has caused public humiliation for the chairman of Disney. But at least in those cases, the person refusing to settle is the one who pays the price. The tragedy of custody disputes is that the person who pays the price is the child in the middle.

Susan Estrich teaches at USC Law School.