Custody Cases Test Attitudes Of Judges

FOR Debbie Langford, it seemed like a no-win choice: her job or her son.

Three years ago, the New York mother had lost custody of two-year-old Steven because, she says, she worked and left the child with a nanny all day. Her ex-husband, in his bid for sole custody, said he would keep Steven with his grandmother while he worked. Mrs. Langford's nanny was a Salvadoran who spoke little English.

Upon hearing the ruling, Langford quit her job and promised to stay home with Steven. The judge let her keep her son. ''He said he was basing his decision on my promises that I would not work until my son was in school fulltime,'' she says.

A judicial bias against working mothers? That's what womens' groups say about cases like this one and other recent, higher-profile custody disputes.

The latest cases include those of Marcia Clark, the lead prosecutor in the O.J. Simpson trial, Senate aide Sharon Prost, and Michigan college student Jennifer Ireland. In Ms. Clark's case, her husband has filed for custody of their two children, though no decision has been reached. In the other two cases, the mothers lost custody.

But the picture is far more complicated. Working mothers do lose custody sometimes when they divorce, but it's often hard to prove that the mother's work status was the deciding factor for the judge. Custody decisions, which go to a judge in only about 10 percent of divorces involving children, are case-by-case matters. It is also an exaggeration to say that mothers losing custody is a ''trend,'' as some activists have claimed.

''Mothers have been losing custody for at least 20 years,'' says Nancy Polikoff, a law professor at the American University and expert on child custody.

By the mid-'70s, says Professor Polikoff, state courts had stopped following the ''tender-years doctrine'' -- in part, due to feminist pressures -- which held that young children should be with their mothers. Judges now aim for solutions that are in the best interests of the child and are gender-neutral, at least in theory, regarding the proper roles of the parents.

In Langford's custody battle, the judge denies that he awarded custody to Steven's father because his mother worked. ''I award custody to working mothers all the time,'' Judge John Sweeny said in an interview.

This case, he added, was ''a very, very close call,'' though he would not discuss the specifics. In the judge's written decision initially awarding custody to the father, his ruling appeared to hinge on the babysitter. He wrote that a ''major factor in this court's decision was the day-care arrangements.''

So was it an anti-babysitter case rather than an anti-working mother case? Judge Sweeny would not speculate on how he would have ruled if Langford had found a nanny who spoke better English or arranged for a relative to babysit. And Langford didn't want to find out. She quit her job to make sure she got Steven.

Even if recent high-profile cases do not represent ''typical'' custody disputes, they do provide an opportunity for public consciousness-raising in the area of family law, several women's-rights advocates say.

Roberta Ikemi, staff attorney at the California Women's Law Center, says that in many of her cases, fathers and mothers are judged by different standards. Often, men are judged by the availability of other child care, from a second wife to a girlfriend, while women are evaluated based on their own, personal ability to be with a child, ignoring the presence of a grandmother or a babysitter.

''Family law often reflects an old societal structure,'' Ms. Ikemi points out, ''and it needs to keep pace with the changes in society.''

Indeed, family law courts are often the battleground in which old and new societal views meet head-on, and judges are faced with decisions that would try the wisdom of Solomon, says Los Angeles Judge Dana Senit Henry.

Compounding the problem, other observers say, is the fact that many states have older, predominantly male judiciaries that don't have experience with working mothers. Julie Kunce Field, director of the University of Michigan Women and the Law Clinic, says these judges have no real-life context for their decisions, ''so their personal history influences their decisions.''

But other observers see judges' biases on parenthood cutting against fathers as well as mothers. Jeff Atkinson, former head of the Child Custody Committee of the American Bar Association, says his ballpark estimate is that mothers and fathers are discriminated against ''close to equally.''

Some judges may not like working mothers, he says, but ''I also hear judges say it's still kind of nature's way that moms should have the kids.''

In recent years, most states have commissioned task forces to investigate gender bias in state judiciaries -- looking at everything from how women are treated in the courtroom to, in some cases, how custody decisions are reached. Some states, like California, have incorporated gender bias training into the regular court-training process.

On the custody question, Minnesota found that gender stereotypes hurt both fathers and mothers. Fathers were often deemed incapable of caring for young children, while mothers were sometimes penalized for ''nontraditional behavior,'' such as working outside the home. Some Minnesota lawyers also reported that women were being held to higher standards of ethics and morality when being judged for child custody.

The bottom line is that divorcing mothers still get the kids most of the time. According to the Census Bureau, 86 percent of children under age 18 living with a divorced parent are with their mother, versus 14 percent with the father.

In two or three states, judges follow a presumption that children should go to the ''primary caretaker'' -- the parent with whom a child has formed the closest bond -- a policy that favors mothers, says David L. Levy, president of the Children's Rights Council. His organization opposes this presumption and promotes ''shared parenting'' -- strong roles for fathers in intact families and, in the event of divorce, joint custody.

But in some cases, such as Debbie Langford's, joint custody proves unworkable and a courtroom battle ensues. Langford is now remarried and looking forward to returning to work this fall when Steven starts kindergarten.

She has no regrets over staying home with him -- ''we did the proverbial baking of cookies'' -- though she says relying on family for financial support was tough. She says she has ''desperately missed'' her work as an executive secretary, which paid more than $40,000 a year.

But initial job inquiries have brought a rude awakening. One Manhattan agency told her her gap in employment makes her ''an antique,'' and that she could expect to earn in the mid-$20s.

''In that case,'' she says ruefully, ''it wouldn't be worth going back to work.''