History of child custody

I have wondered about the history of child custody in America and England, and gotten conflicting accounts. Some say that the fathers had all the rights, and the wives were chattel. But according to this, it usually did not work out that way.

When it was not rejected outright (as many courts did from the beginning), the supposed “paramount right of the father” to the custody of his children was subject to six major exceptions:

children born out-of-wedlock;
young children;
weak, disabled or unhealthy children;
daughters;
older male children who expressed a preference to live with their mothers; and
cases where the father was guilty of marital or moral misconduct, concepts which were defined very broadly in cases where a father sought custody of a child.

Except when a married mother was determined to be unfit to parent, there were not many situations to which a “paramount right of fathers to custody” actually applied. The exceptions nearly swallowed the rule, in those few states where such a rule was actually applied at all.

What this meant was that, in practice, the courts of every state – those that had openly rejected the “fathers’ rights” doctrine from the beginning, and those that had given it lip service while effectively nullifying it through the crafting of exceptions – decided custody on the basis of the best interests of the child, with a strong presumption that maternal custody was in a child’s best interests. As the Philadelphia Court of General Sessions concluded in 1840, after conducting a review of American custody decisions from the earliest reported decisions forward, “[t]he common law of the United States is in favour of the mother’s custody”1

The maternal preference was based on strongly held beliefs about the natural superiority of women and the inferiority of men with respect to child-rearing functions. For example, the Illinois Supreme Court, in 1849, issued this sweeping generalization:

The mother, from her natural endowments, her position in society, and her constant association with [children], can give them that care, attention and advice so indispensable to their welfare, which a father, if the same children were left to his supervision, would be compelled in a great degree to confide to strangers.2

Although the maternal preference was more ardently and eloquently expressed in cases involving younger children, it manifested itself in the rules courts applied to the custody of older children, too. For example, the near-absolute rights of mothers to custody of children born out-of-wedlock, and of daughters, and of weak, disabled or unhealthy children, applied to cases involving children of any age.

Back then, marriage was how a man took responsibility for his kids. Nowadays, the law has so confused the issue, that the legal arguments currently being given for marriage before the US Supreme Court do not even mention this view.

The custody rights of parents were never absolute. A mother, like a father, could lose custody if a judge determined that she was unfit to be a parent.3 The kinds of things that a court would accept as evidence of a mother’s unfitness varied considerably from what would suffice for a father, though. In general, it may be said that the grounds for declaring a mother unfit were more limited than what would suffice to declare a father unfit. And over the course of the century, this double standard became increasingly pronounced.

One clear example of the double standard was the obligation of child support. The law imposed support obligations exclusively on men.4 Women were not expected to be the breadwinners for a family. As a result, a mother’s inability to support her children financially normally was not held to be grounds for denying her custody of her children. By contrast, courts readily denied custody to fathers – and awarded custody to the other parent, or even to a third party — on the basis that the father either could not or did not adequately provide for his children financially.

Another clear example of the double standard was marital infidelity. Courts often treated a father’s commission of adultery as grounds for denying him custody of a child but, as we have seen, a mother’s commission of adultery did not necessarily preclude an award of custody to her, especially if the child in question was young.

Moreover, regardless of the age of the child, a mother’s commission of adultery was not a bar to custody if there was evidence that she had undergone a moral reformation. And courts typically would infer a woman’s complete moral reformation simply from her termination of an adulterous relationship.

Victorian mores were such that women were seen as innocent and asexual.

Now feminism has convinced everyone that women are naturally sluts.

Apparently English courts were also guilty of saying one thing and doing another:

Here’s an account of the situation in 19th century England by Ernest B. Bax:

CUSTODY OF CHILDREN

It has always in England been laid down as a fundamental law based on public policy, that the custody of children and their education is a duty incumbent on the father. It is said to be so fundamental that he is not permitted to waive his exercise of the right by pre-nuptial contract. (See the Agar v. Ellis Case.)

This rule of the Common Law of England is of course in harmony with the policy of all Europe and Christendom, as well as with the historic conditions of the European social organisation, if not with the primal instincts of the race.

Nevertheless, fundamental and necessary as the rule may be, the pro-feminist magistrates and judges of England are bent apparently on ignoring it with a light heart. They have not merely retained the old rule that the custody of infants of tender years remains with the mother until the child attains the age of seven. But they go much further than that. As a matter of course, and without considering in the least the interests of the child, or of society at large, they hand over the custody and education of all the children to the litigant wife, whenever she establishes –- an easy thing to do -– a flimsy and often farcical case of technical “cruelty.”

The victim husband has the privilege of maintaining the children as well as herself out of his property or earnings, and has the added consolation of knowing that they will brought up to detest him.

Even in the extreme case where a deserting wife takes with her the children of the marriage, there is practically no redress for the husband if in narrow circumstances. The police courts will not interfere. The divorce court, as already stated, is expensive to the point of prohibition. In any case the husband has to face a tribunal already prejudiced in favour of the female, and the attendant scandal of a process will probably have no other result than to injure his children and their future prospects in life.

I am not sure if we have made any progress or not.