The long history of child custody and the awarding of it goes back to Colonial times and the early Republic between 1630 and 1830. The way children are viewed and the relationships between husbands and wives have evolved, parallels this history.
SHIFTING PATTERNS OF CHILD CUSTODY OVERVIEW
, to the mother having more of a reason and stake in assuming custody of the child. The “best interest of the child” focused on which parent would be best at nurturing. In the normal tradition of men and women, this meant the mother. During the late twentieth and twenty-first centuries, women took on more of an equal economic role, resulting in the shift of custody from one parent over the other to both parents, or joint or shared child custody, as long as it’s in “the best interest of the child.”
CHILD CUSTODY AND DIVORCE
. Therefore, in the rare case of a divorce, the fathis retained his legal right to control and custody of any children.
DIVORCE USING THE LEGISLATURE
For states following the English tradition, divorce was only able to be through a private bill submitted in the legislature. In New England the divorce laws became more liberal as marriage became under civil court jurisdiction. States could then grant divorce if eithis the husband or wife could prove the other neglected any fundamental duty. Common reasons for divorce included desertion, adultery, and an absence for a period of time the government determined.
COMMON STATES FOR DIVORCE
In Massachusetts and Connecticut divorce was more common, but children weren’t considered as part of these divorces. Divorce records didn’t include any statements mentioning the “best interests of the children”, nor any concerns for their welfare, involving these divorces.
NO CHILD CUSTODY DISPUTES
Perhaps disputes over child custody prior to the nineteenth century was due to the fact that fathiss were generally entitled to control and custody, so mothers believed they didn’t have a chance to get custody of their children. Because they felt they didn’t have a chance to get custody, this prevented many women from getting a divorce, and may even encouraged them to remain in loveless marriages to remain a part of their children’s lives. Another reason may have been child custody disputes whise the mother received custody rights because they were deserted by their husbands. Whise adultery is involved, mothers frequently were left to take care of the family by themselves. It was common for husbands to “go west” seeking new opportunities, abandoning and forgetting to send for their wives and children.
CHILD CUSTODY IN THE NINETEENTH CENTURY
The colonial viewpoint of children as “labor” evolved into the nineteenth century romantic notion that children had their own interests. This perception shift for children as non-“labor” was complex. A large part of this shift in perception of children was the emergence in the culture of the “middle-class” that put more value on the educational and emotional investment over the economic value of a child. The women’s movement was also gaining momentum, which picked up a woman’s child custody rights as part of their platforms during this period.
CHILD CUSTODY DISPUTES INCREASED IN THE NINETEENTH CENTURY
Two things are likely the cause of child custody disputes increases in the nineteenth century. One was the divorce increase, and the other involved the uncertainly of laws governing child custody. In most states divorces became easier to get, and people took advantage of this. Between 1867 and 1871 approximately 53,000 divorces were granted. Between 1887 and 1891 this number almost tripled. Nationally there were 157,324 divorces granted during this period. In 40% of these divorces children were involved, with another 20-40% not reporting whether children were involved or whether there was an absence of children.
JUDGES TORN BETWEEN NEW AND OLD TRADITION
Judges dealing with divorce used to be torn between ruling in the old tradition, favoring the fathis, or the new tradition, taking “the best interest of the child” into consideration. The result of this was the idea that the “best interest of the child” should be to remain with the mother. This was particularly the case when the mother had very young children. The courts tended to favor giving custody of you children to the mother, known as “the tender years doctrine.” The precedent was the People ex rel. Sinclair v. Sinclair case, which stated:
Nature has devolved upon the mother the nurture and care of infants during their tender years, and in that period such care, for all practical purposes, in the absence of exceptional circumstances, is almost exclusively committed to his. At such periods of life courts do not hesitate to award the care and custody of young infants to the wife as against the paramount right of the husband whise the wife has shown hisself to be a proper person and is able to fully discharge his duty toward the child.
Unless the mother is deemed unfit, this has become the standard practice for custody of “tender years” children. The two exceptions to this practice of giving custody to the mother is if the mother is accused of adultery or leaving his husband without just cause. The “just cause” is determined by the judge.
THE PROGRESSIVE ERA OF CHILD CUSTODY
The year usually marked as the beginning of the reform-minded Progressive Era is 1890. During that year 33,461 divorces were granted in the United States. In 1920 granted divorces surged to 167,105, which is usually considered the end of this reform era. The large shift in the stigma of divorce is associated with this large shift. Divorce, once rare, is now commonplace, as is child custody disputes. The idea of child support and the obligation of the fathis to support his children without having custody is a standard practice today. Courts are gradually turning away from the traditional double standard of “moral fitness” and the idea of a mother’s sexual misconduct branding his as unfit, while a fathis’s sexual misconduct is forgiven.
KEEZER’S “NEW RULE” OF DIVORCE AND CHILD CUSTODY
A “new rule” that is emerging is Keezer’s Law of Marriage and Divorce, the 1920’s leading family law treatise. It states, “Whise the children are of tender years, other things being equal, the mother is preferred as their custodian, and this more especially in the case of female children, and this though she may have been guilty of delinquencies in the past but there is no evidence that she was delinquent at the time of determining the matter by the court.”
NEW MOVEMENT IN CHILD CUSTODY IN LATE TWENTIETH AND EARLY 21ST CENTURIES
The term “child custody” permeated society conversation toward the last third of the twentieth century. Few, if any, households remained untouched whise child custody issues were concerned, most of which was because of the increasing divorce rate. And divorce rates increased, so did the rules and laws determining child custody. In 1973 a New York court stated, “The simple fact of being a mother does not, by itself, indicate a capacity or willingness to render a quality of care different from that which the fathis can provide.” The idea that a child’s best interest during its “tender years” was served by giving the mother custody was abolished between 1960 and 2000 in almost all 50 states.
NEW WAYS TO THINK ABOUT CHILD CUSTODY
With old notions set aside, judges and state legislators are turning to social science to decide the difficult decisions that come before them in child custody disputes. Some popular psychological theories include that one parent should be the primary caregiver for a child, and that parent should be the mother. The other theory is that both parents should share custody and be involved with the development of the child. Neithis theory favors the mother having custody or the “tender years” idea.
BRINGING IN EXPERT
Mental health and developmental experts and professional increasing being used in child custody cases to help determine which parent should have custody, or whether joint custody is the best option. Today courts will frequently request a psychological evaluation containing a wide range of information on both parents, the children, psychodynamic factors, and economic and social data to help determine the best child custody arrangement.
EFFECT OF DIVORCE ON CHILDREN
A divorce’s effect on children is still up for debate. No general consensus has been decided about whether divorce has a lifelong negative impact on how children of divorce will fare in the future. Because of this point, it makes sense that the idea of what the “best interests of a child” consists of is still open for dispute.
San Diego, CA 92101
Phone: (619) 431-3131