Prosecutor Experiences Dilemma of Child Custody, Working Mothers

By Michael Dougan

San Francisco Examiner

SAN FRANCISCO _ While the O.J. Simpson double-murder trial has beamed a national spotlight on issues of spousal abuse, a sideline spat involving prosecutor Marcia Clark concerns yet another aspect of marriages gone wrong _ the thorny problem of child custody and working mothers.

According to local experts, a challenge to Clark's custody of her two small sons, lodged by her estranged husband, illustrates how the legal convention that mothers almost automatically get custody of their children is being changed by the increasing prominence of women in the workplace.

"The same set of gender stereotypes that made women preferred custodians of small children come to haunt them" when they want to keep their children and work at the same time, said Frank Zimring, a professor of family law at UC-Berkeley's Boalt Hall School of Law.

Clark's estranged husband, 36-year-old Gordon Clark, has asked the courts to grant him custody of their children on the grounds that she is so busy prosecuting the ex-football star that she doesn't have time to care for the kids.

In a highly publicized case last year, a Michigan woman lost custody of her young daughter because she placed the child in day care while attending college classes. The judge ruled in the father's favor because he offered to have his mother care for the girl while he worked.

"Mothers who do things other than mothering are at somewhat more substantial risk of being challenged as custodians," Zimring said. "And on occasion those challenges are successful."

Sonia Melara, executive director of the San Francisco Women's Commission, noted that "men were complaining that it was reverse discrimination" when judges automatically granted custody to the mothers, in part because fathers were absent from the home while working.

"Now I think many men are using that as a way out," she said. "I think women in many ways are going to be punished for wanting to work; it's something that's going to happen more and more."

Zimring acknowledged that Clark may have set herself up when, in a legal demand for increased child support from her estranged husband, she emphasized the amount of time she must spend away from her children during the Simpson proceedings.

"I have been working a six- or seven-day week for as many as 16 hours per day," Clark declared in court papers filed in December. "I need baby-sitters for the weekends while I work and someone to spend the evenings with my two children."

Whether that was a tactical error "depends on how she does in the contest," Zimring said. "It's always better not to have tried to kick a field goal if you miss it."

After reading about the Clark case, Melara said, "I wonder how many women are going to question whether going to work is the best thing to do because they don't want to lose custody of their children."

But Nicolette Toussaint, a board member of the San Francisco chapter of the National Organization for Women, said, "Women don't have a choice about this. You've got to earn money to take care of those kids."

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