In 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.
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.
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.