One of the hardest parts of the divorce process is, undoubtedly, figuring out child custody arrangements. When it comes down to making decisions, the court will always rule in the best interests of a child, even when those best wishes go against a parent’s wishes.
CHILD CUSTODY – THEN AND NOW
Over the years, “child custody” has had a number of meanings. In colonial times children were treated as economic factors – the more children you had, the more work could be done around the household. The view of children as economic resources has obviously changed in recent times. As a result, there are different laws in place governing child custody. For example, in California, the law provides judges with certain guidelines when it comes to child custody decisions. While a court will often favor joint custody, where both parents play a role in child-rearing, there are exceptions where shared parenting might not be possible. Therefore, there is an order of preference in place when it comes to child custody arrangements, as is demonstrated below:
- Joint custody
- Sole custody. In this instance, a judge will decide on the custodial parent.
- Non-parent custody. In this instance, a judge may rule it is best for a child to live with someone other than a parent.
- Suitable Persons
A judge will weigh all information provided regarding the parents and the child before awarding custody. Judges are also given broad discretion in cases, so that the child’s best interests are met. Additional Factors The California Family Code outlines what a judge will consider when deciding on disputes. These various factors include:
- Child’s health and welfare
- Physical abuse
- History of violent crimes
- Parental drug or alcohol abuse
The long history of 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. Back in colonial and early republic times, children were treated as economic assets based on the amount of labor they were able to do. In the nineteenth century, this changed and the emphasis was focused more on the child’s nurturing and education. As this viewpoint became the norm, the legal aspect of “the best interest of the child” was more of a consideration. As this view became more common, there was a shift away from the father always having control of the children (due to the fact children were considered labor assets), 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.”
CUSTODY AND DIVORCE
While custody is normally thought about as a result of divorce, this isn’t always the case. Divorce in the latter half of the twentieth century is more acceptable, as well as the idea that custody and divorce go hand-in-hand. Divorce wasn’t common in early America, and until 1753 English law mandated that marriages couldn’t be destroyed. In spite of this, the idea of child custody still existed. Common reasons for this issue included the inability or incompetence of being able to care for the child, the death of one or both parents, and a birth of an illegitimate child. When these issues of custody arose, two major areas of consideration became the child’s labor value and the ability or lack thereof for the parents to properly support their child. In a marriage, the father had complete control and custody of the children because under common law women were considered femmes couvertes (meaning “covered women”). Therefore, in the rare case of a divorce, the father 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 either 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 determine
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 custody rights as part of their platforms during this period.
JUDGES TORN BETWEEN NEW AND OLD TRADITION
Judges dealing with divorce used to be torn between ruling in the old tradition, favoring the father, 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 where the wife has shown herself 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 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 father 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 father’s sexual misconduct is forgiven.
NEW MOVEMENT IN 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 where 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 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 father 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 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 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. Neither 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 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 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