The History of 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.