The History Of Child Custody Laws In America

child custody lawsIn November, North Dakota voters rejected the “Parental Rights Initiative,” which would have awarded equal parenting time to each parent following divorce or separation unless one parent was deemed unfit.

Although the initiative failed, it is emblematic of a movement over the past half century to involve both parents in the process of child rearing following divorce.

Last year, there were a number of developments regarding state child custody laws. Lawmakers in Arkansas passed a law calling for the “approximate and reasonable equal division of time” of children between parents during the divorce process. Maryland and Connecticut also created task forces and commissions to examine child custody issues. 

Unfortunately, inequalities in child custody statutes still remain.

As custody laws continue to evolve, it’s important to look back on the history of child custody in the U.S. to understand how we got to this point, where we are now, and where we might be going in regards to child custody issues.

Child custody in Colonial America

When colonial Americans settled in the U.S., they followed English common law that granted the father custody of children following divorce.

But with the rise of the Industrial Revolution, more fathers began leaving their farms and villages for work, leaving mothers behind to take care of the kids. This is where the image of fathers as wage earners and mothers as caregivers began to emerge and influence custody decisions.

In 1839, England enacted the Custody of Infants Act, which allowed the judge to use his own discretion in custody cases. The act permitted a mother to petition courts for custody of her children up to the age of 7.

In 1873, Parliament extended the age to 16 under the “Tender Years Doctrine,” which presumed that in a child’s early years, they are best cared for by the mother. This principle was adopted by the majority of U.S. states and the law reigned for the next century.

“Best interest of the child”

As divorce rates began surging in the 1960s and the following decades, a new debate emerged about the parental roles of each parent. Father’s rights groups grew more prevalent, which gave rise to a movement for gender equality.

Eventually, the Tender Years Doctrine was replaced by a more inclusive, but more vague, “best interest of the child” standard. This granted judges an extraordinary amount of discretion in determining what was in a child’s best interests when determining custody. It also opened the door to bitterly contested custody battles.

The rise of the best interest standard also led to the birth of joint custody in which parents began sharing custody of their children. This was aided by a couple cultural developments.

First, in the 1970s the child development field began paying more attention to the important contributions fathers can make in a child’s development. Second, family gender roles started shifting with more women joining the workforce.

In 1979, California passed the first joint custody statute. By 1991, more than 40 states had statues with joint custody as an option or preference.

Child custody norms have changed dramatically in the years since. One of the largest surveys of child custody cases, which looked at court-ordered placement arrangements in Wisconsin between 1996 and 2007, shows that the percentage of divorce cases in which the mother was granted sole custody fell from 60.4 to 45.7 percent while the percentage of equal shared custody cases nearly doubled.

Flaws remain

Until recently, nearly all child custody was divided into custodial and non-custodial with the custodial parent receiving custody the majority of the time and the non-custodial parent only receiving visitation.

Now, most arrangements are joint physical and legal custody with both parents receiving parenting time with their children.

Although progress has been made, massive flaws still remain in the country’s child custody laws.

Many of these problems were summarized in the National Parents Organization’s comprehensive Shared Parenting Report Card that was released in November. The report card, which was the first of its kind, graded each state based on its child custody statutes.

Sadly, nearly across the board, states scored poorly with a cumulative grade point average of 1.63 (calculated on a 4.0 scale).

Even a state such as Wisconsin, which on the surface seems to be doing a decent job of promoting shared custody, still has critical shortcomings in its statutes.

For example, even though the state’s laws presume that joint legal custody is in the child’s best interest, there is still no statutory preference for shared physical custody for temporary or final orders and the statutes fail to explicitly provide for shared parenting during temporary or final orders.

While the days of a mother or father almost exclusively receiving sole custody are in the past, it is clear that there is still much work to be done before truly equal child custody laws are established.

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4 comments on “The History Of Child Custody Laws In America

    The reason fathers in colonial times received custody of children is because they were considered property. A mother, literally, had no right legally speaking in that era and culture at all. Women are still at a considerable disadvantage.

    A lot of the problems around custody are cultural rather than legal. I’d appreciate if you cited your article.

    The bottom line is that in the MAJORITY of cases a 50-50 split does not benefit the child. Child’s needsband best interest do need to supercede parental rights.

    I once wrote a paper in law school titled BLACKSTONE AND THE GREAT AMERICAN WELFARE SYSTEM. I remember that back in Blackstone’s day, wives and children were considered the property of the husband/father. I’m sure divorce wasn’t common because women got nothing from such a legal fiasco. Further, if both were considered legal property, divorce would have been impossible. When divorce with cause became marginally acceptable, it was clear that the courts maintained continuous jurisdiction over the children of that marriage until they reached the age of majority. This was done for their protection. Once in the domestic relations courtroom, you stay until you were 21. Today it’s 18. There are clearly many instances where fathers should be the custodial parent, but the courts keep deferring to mothers who no longer resemble Donna Reed or Mrs. Cleaver. In fact, many have become a bit hardened and often spend little time with their children. This has given an opportunity for dads to assert what was taken from them without appropriate consideration for the needs of the children. Hope this helps.

    First of all, I appreciated the brief summation on the history of child custody here in the United States; I did not know about the fathers gaining custody back then. It does make sense why more woman were gaining custody during the industrial revolution when the men would leave so often for work. It’s good to read that, although flaws remain, that more equality is being brought to these situations that can be very delicate and sensitive. Thank you for your informative post.

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