The History of Child Custody

Posted by John June 6, 2013
Filed Under: child custody

Today, many people are still under the presumption that when it comes to child custody, that the mother is usually preferred and thereby has the upper hand before the case even begins. This is simply NOT true. Thus, it is important to look at the historical changes involving child custody in order to gain an understanding of how far our society has come in the past several hundred years.

Historically, English family law gave custody of the children to the father in the case of divorce. In the 1800’s (and before the 1800’s) children were viewed as property and women had very little rights. However, in 1839 The Custody of Infants Act was enacted in England. This act enabled the Judge to use his own discretion in a custody dispute as to whether the child should go to the father or mother. Also, this act shifted custody from men and established a presumption that mothers would get custody of children who were under the age of seven. By the late 1800’s, 1873 to be exact, this presumption of mother’s gaining custody of their young children extended to the age of 16. This doctrine became known as the “tender years doctrine” and spread to the majority of states in the United States. This doctrine reigned supreme for hundreds of years and the basic premise of the doctrine was that in a child’s early years, the child was best cared for by the mother.

In 1977, the tender years doctrine was amended and any presumption in favor of the mother ceased. The standard has now changed to the best interest of the child. There is no longer a presumption that the mother will have custody. Now the Judge looks at what is in the best interest of the child and nowadays, we are seeing a nearly 50/50 split whereby mothers and fathers are both gaining custody. In fact, Judges have worked very diligently to erase the belief that they prefer moms over dads, sometimes going out of their way to show lack of bias.

So, before you start thinking that you have either gained or lost custody based on whether you are a mother or father, you need to understand and comprehend that your sex and your title (as mother or father) will no longer sway a Judge one way or the other (or at least it shouldn’t). All the Judge is interested in is if custody with the mother or father is in the best interest of the child.

A brief history of custody law
Posted on 08/07/2013


“You must always know the past, for there is no real Was, there is only Is.”
–William Faulkner

For the past fifty years or so, the history of custody law has almost universally been presented as a linear progression from a primitive system that viewed children as the property of their fathers, forcing them to endure a harsh and cruel existence, to an enlightened approach that treats the best interests of the child as the paramount consideration, and for that reason places them in the loving, nurturing care of their mothers.1

Typically, the account begins with the patria potestas system of ancient Rome, under which fathers had an absolute right to custody of their children; asserts that this system carried forward, unchanged, into eighteenth and nineteenth century England two thousand years later; that colonists brought it to America; and that it remained the rule of decision in custody cases until the Great Enlightenment, i.e., modern-day America.

It was only because American women mobilized to overthrow patriarchal rule, the story goes, that courts finally started caring more about children’s interests than fathers’ rights. The traditional account typically concludes with an observation that it is only relatively recently that courts have begun to acknowledge the superiority of maternal care over patriarchal control as the right and proper means of promoting the best interests of children.2

In truth, the history of custody law is neither a linear progression nor an opus on the triumph of motherly care over harsh male control. The historical record supports a theory that the maternal preference in custody law stems at least as much — and probably considerably more — from a desire to confine women and men to rigidly defined sex roles as it does from any quest for recognition of women’s supposed natural superiority as parents.

Even the notion that custody of children should be decided on the basis of what is in their best interests rather than parental rights is not a recent invention. It was part of the Roman law codified by Justinian more than a thousand years ago, and there is evidence that the idea was around long before then.

Contrary to the popular view of the history of children as one of deliverance from the cruel tyranny of fathers into the loving arms of mothers, it appears that from earliest recorded times, parents of both sexes have cared about their children. And judges, to varying degrees at different times in history, sometimes have shared that concern — sometimes using it as a justification for favoring fathers, sometimes for favoring mothers, and sometimes for favoring one sex while purporting to favor the other.

It is said that you can’t know where you are or where you should go unless you know where you have been. This blog will attempt to facilitate that journey by tracing the history of custody law (to the extent there are records of it) from ancient times to the modern day.

See, e.g., Mary Ann Mason, From Father’s Property to Children’s Rights: The History of Child Custody in the United States (2d ed. 1994). Professor Hartog summarizes the current state of legal scholarship in the area of family law as follows:

“Nearly all recent scholarship on the legal history of American marriage … begins with a demonstration that traditional legal rules…were bad, like slavery. The narrative tells of a titanic struggle against coverture, one in which good (egalitarian law reform) is always pitted against bad (the patriarchal common law)….” Hendrik Hartog, Man and Wife in America: A History 3 (2000).

See also Danaya C. Wright, De Manneville v. De Manneville: Rethinking the Birth of Custody Law under Patriarchy, 17 Law & Hist. Rev. 247 (Summer, 1999) (describing the argument that “a linear progression from patriarchy to egalitarianism in family relations occurred in the early nineteenth century and that once mothers were accorded a presumption in custody disputes, all was right in the family” as “too simplistic.”)

See, e.g., 1 Jeff Atkinson, Modern Child Custody Practice § 4-4 (2nd ed. 2004) (asserting the ancient Roman paternal right to custody continued throughout Europe until the middle of the nineteenth century, and that:

“The common law rule that a father was entitled to custody was carried over to the United States”); Harry D. Krause & David D. Meyer, Family Law in a Nutshell (5th ed. 2007) (“At common law, the father…’owned’ his children and had the primary custodial claim….

Paternal preference gave way in the late 1800s”); Mason, supra note 1 at x (“For most of our history, well into the twentieth century,…(f)athers…were granted paramount rights to custody and control of their children. Mothers…had no right to custody as long as the father was alive…”);Webster Watnik, Child Custody Made Simple: Understanding the Laws of Child Custody and Child Support 42 (2000)

(“Up until the mid-1800’s, children were considered the property of the father, who was usually awarded custody following a divorce….Today, the laws in all states require judges to consider what is in the best interests of the child when making a custody decision”); Ralph J. Podell et al., Custody-To Which Parent?, 56 Marq. L. Rev. 51, 51-52 (1972) (crediting Justices David Brewer and Benjamin Cardozo, while sitting as state court judges in 1888 and 1925, respectively, with establishing the “best interests of the child” as the rule of decision in custody cases); Allan Roth, The tender years presumption in child custody disputes, 15 J. Fam. L. 423-61 (1976-77). Sarah Pinkerton’s account of the development of early American custody law is fairly representative of the modern canon:

Until well into the nineteenth century, the English law on child custody treated the child as the father’s chattel. Before the English, the Romans in custody matters had followed patria potestas, a doctrine that originally gave complete power over children to the father….

The American Colonies inherited and implemented the English common law on the subject of child custody, meaning that children belong to their fathers…and mothers were legally irrelevant.

Sarah Pinkerton, Custodial Rights of California Mothers and Fathers: A Brief History, 16 J. Contemp. Legal Issues 155 (Spring 2005)


About arnash

“When you find yourself on the side of the majority, it’s time to pause and reflect.” - Mark Twain - Politicians and diapers - change 'em often, for the same reason. "Government is like a baby. An alimentary canal with a big appetite at one end and no sense of responsibility at the other." Ronald Reagan "Liberals claim to want to give a hearing to other views, but then are shocked and offended to discover that there are other views." William F. Buckley, Jr. “The trouble with the world is that the stupid are cocksure and the intelligent are full of doubt.” - Bertrand Russell The people are the masters of both Congress and the courts, not to overthrow the Constitution, but to overthrow the men who pervert it. Abraham Lincoln “Good people sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf.” - George Orwell “Satan will use a lake of truth to hide a pint of poison”.
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