Child Custody Child Support Child Visitation Divorce Family Law

History of Child Custody Considerations

Child custody, and the awarding of child custody has a long history that dates back to the Colonial Era and Early Republic (1630-1830). The history of how children have been viewed, in addition to how husbands and wives relationships have evolved, can be tracked alongside this history.

Overview of Shifting Patterns in Child Custody

In the colonial period and early Republic, children were viewed as economic assets because of the labor they were capable of performing. This view decreased as we entered the nineteenth century and more emphasis was placed on a child’s nurturing and education. As this view became more of the norm, the legal concept of “the best interest of the child” became a common consideration. Along with this view came a shift from the father always assuming custody and control of his children (because they were labor assets) to mother’s having more of a stake and reason for assuming child custody. The “best interest of the child” became which parent would be the more nurturing one, which typically, in following the traditional norms of men and women, meant the mother. As the late twentieth and twenty-first centuries evolved, and women began to take on a more equal economic standing, the shift in custody became what it roughly is now: both parents, as long as it’s in the best interest of the child, share child custody.


Child custody is typically thought of in the context of divorce. But this was not always the case. As divorce has become more widely accepted, beginning in the last half of the twentieth century, so has the thought that child custody goes hand in hand with divorce. Divorce was not at all common in early American history. Until 1753 English law maintained that no marriage could be destroyed. But the notion of child custody still existed. Common reasons for custodial issues included: death of a father or both parents, a family’ financial inability or incompetence to care for a child, and the birth of an illegitimate child. When custodial issues such as these arose, there were two major considerations: 1. the labor value of the child, and 2. the ability of the adults to properly support the child.

Within a marriage, the father maintained complete custody and control of the children due to the fact that women were considered, under common law, as femmes couvertes (literally “covered women”). And thus, in the very rare event of a divorce, a father maintained his legal right to custody and control of the children.

Divorce Through Legislature

The states that followed English tradition, divorce could be obtained through a private bill sent through legislature. But in New England divorce laws were more liberal and marriage fell under the jurisdiction of the civil courts an legislatures. States were able to grant divorce when either husband or wife were able to prove the other had neglected a fundamental duty. Common grounds for divorce were: adultery, desertion, absence for a length of time determined by the government.

Common Divorce States

Divorce was actually more common in Massachusetts and Connecticut. Children were not considered at all in these divorces. Records of divorces make no statements regarding the best interests of the children involved in these divorces, nor do they document any concern for the children’ welfare.

No Disputes

Reasons for why there might not have been disputes over child custody before the nineteenth century may be for a few reasons, namely that because fathers alone were entitled to custody and control of their children, mothers believed they had no chance to gain custody of their children. The overwhelming knowledge of knowing that they had no chance to gain custody of their children might have deterred many women, and perhaps even encouraged women to stay in loveless marriages in order to remain in their children’s lives.

The second reason there might not have been disputes regarding child custody is that often mothers received custody rights without a fight due to being deserted by their husbands. In cases of adultery, mothers were often left to tend to the family on their own. And it was not uncommon for husbands to “go west” in search of new opportunities and then never send for their families.

Nineteenth Century

The colonial view of children as “labor” gave way to the romantic notion of the nineteenth century that children had interests of their own. The reasons for this shift in perception of children are complex. An emergence of a “middle-class” culture that valued education and emotional investment over a child’s economic value played a large part. Additionally, the women’s movement, which was gaining momentum took up the mother’s right to child custody as one of their platforms during the right’s movement.

Increase in Child Custody Disputes in the Nineteenth Century

The increase in child custody disputes during the nineteenth century can most likely be attributed to two things: the rise of divorce and the uncertainty of the laws that governed custody. As divorce became easier to obtain in most states people began taking advantage of it. During the years 1867 to 1871 there were 53,574 divorces granted. That number almost tripled between 1887 and 1891. During that time period there were 157,324 divorces granted nationally. Children were involved in 40% of those divorces. And another 20-40% did not report either the presence of children or the absence of children.


Judges Torn

Divorce judges were torn between whether to rule in the old tradition that favored the father and the new tradition that took up the idea of ruling in “the best interest of the child.” Eventually, the trend became favoring children. And with that, came the notion that the best interest of the child was to stay with the mother. This was especially true for female and very young children. The tendency of the courts to favor awarding young children to their mothers became known as the “tender years doctrine.” This is made clear in the court case People ex rel. Sinclair v. Sinclair 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 her. 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 her duty toward the child.

It became an almost universal practice that, unless deemed unfit, the mother of “tender years” children maintained custody. The two most frequent reasons mothers lost custody were adultery and leaving their husbands without just cause. This “just cause” was, of course to be determined by a judge.

The Progressive Era

The year 1890 is often used to mark the beginning of the reform-minded Progressive Era.  There were 33,461 divorces in the United States in 1890. That amount surged to 167,105 in 1920, which marked the end of the reform era. This increase marks a large shift of the stigma once associated with divorce. What was once rare now became commonplace. And with that, child custody disputes became commonplace. The notion of child support and a father’s obligation to support his children without the benefits of custody came to the forefront. At this time courts gradually began turning away from the double standard regarding “moral fitness” and with that the idea that a mother’s sexual misconduct was damning, whereas a father’s sexual misconduct was forgivable.

“New Rule”

A “new rule” emerged with Keezer on the Law of Marriage and Divorce, the leading family law treatise of the 1920’s, which stated: “Where the children are of tender years, other things being equal, the mother is preferred as their custodian, and this more especially in the case of female children, and this though she may have been guilty of delinquencies in the past but there is no evidence that she was delinquent at the time of determining the matter by the court.”

Late Twentieth and Early 21st Centuries: A New Movement

By the last third of the twentieth century, the term “child custody” had permeated societal conversations. In fact, few households went untouched by child custody matters. Much of this was due to the ever increasing divorce rate. And as divorce rates grew and grew, so did the laws and rules governing child custody. As a New York court stated in 1973, “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 notion that the interest of a child in its tender years were best served by granting a mother custody was abolished in nearly all 50 states during the period between 1960 and 2000.

New Modes of Thinking About Child Custody

Now that old notions have been set aside, state legislators and judges have turned to social science to determine the difficult decisions that are set before them during a child custody dispute. To popular psychological theories have emerged: 1. one parent should assume primary care responsibilities over a child, and that parent need not be the mother, and 2. both parents should be involved in the child’s development through a joint custody arrangement. Neither of these theories favor the mother or the idea of tender years.

Bring in the Experts!

Developmental experts and mental health professionals are increasingly becoming utilized during child custody cases when it comes to determining which parent should be awarded custody, or if joint custody is the best determination. A court will now often request a psychological evaluation during which a wide range of information about the parents, child, social and economic data, and psychodynamic factors is collected.

Divorce Effect on Children

The exact effect of divorce on children is still unknown, and still up for much debate. No consensus has been reached on if divorce has lifelong negative impact, or if children of divorce fare well. And to that point, it only makes sense that the idea of what constitutes the “best interests of a child” is still widely disputed.


Divorce Law LA, Esq.

Divorce Law LA

33 S. Catalina Ave. Ste. 202

Pasadena, Ca. 91106

(626) 478-3550