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Journal Issue: Children and Divorce Volume 4 Number 1 Spring/Summer 1994

The Determination of Child Custody
Joan B. Kelly

Custody Decision Making in Historical Context

In Roman law, children were viewed as the property of their father, who had the absolute power to sell his children and enter them into enforced labor. Mothers had no legal rights with respect to their children, even as guardians in the event of the father's death.1

In later English common law, fathers continued to have near absolute powers, and the legal obligation to protect, support, and educate their children. Thus, in divorce, until the mid-nineteenth century, fathers had a right to custody as well, regardless of circumstances, and mothers had very restricted access to their children after divorce.1 A landmark change was initiated with the British Act of 1839,2 which directed the courts to award custody of children under the age of seven to mothers, and to award visiting rights to mothers for children seven years and older. This "tender years" doctrine advanced by the English lawyer and author Justice Thomas Noon Talfourd, though intended to determine custody only until the children were old enough to be returned to the father's custody, provided the first major challenge to the paternal presumption.

In the seventeenth and eighteenth centuries, America had a patriarchal legal system, and upon divorce the paternal preference was applied to divorce custody cases.3 However, by the nineteenth century, the paternal preference was not as strictly applied as in English law.4 While many states adopted statutes modeled on the Talfourd Act, several states radically departed from English common law by enacting laws giving both parents equal rights to custody of the children.1

Several major historical trends also converged to weaken the paternal presumption in the late 1800s, including society's increasing concern for children's welfare and the effects of the industrial revolution. As fathers sought work beyond the farm or village, mothers remained at home as primary caretakers of children. The resultant division of family responsibilities into wage earner and child nurturer influenced subsequent custody decisions. In addition, according to Mason, the movement toward a maternal preference was accompanied by an increase in the legal status of women in the United States during the nineteenth and twentieth centuries.3 The paternal preference was gradually replaced by a maternal preference, and by the 1920s, the maternal preference in custody determinations became as firmly fixed as the earlier paternal preference, both in statutes and in judicial decision making.1

The assumption that mothers were better suited to raise children received an intellectual underpinning in the 1940s from Freudian psychoanalytic theory, which emphasized the mother's role as "unique . . . the first and strongest love object . . . the prototype of all later love relations."5 The subsequent body of theory and research on the development of infant attachments to the mother was equally influential in supporting the maternal preference.6,7 Later research indicating infants formed meaningful attachments to both of their parents by the middle of the child's first year 8 provided support to paternal claims for sole or joint custody.

The maternal presumption for custody remained firm for many decades, challenged only after the divorce rate began its dramatic rise in the 1960s. Spurred on by fathers' claims of sex discrimination in custody decisions,9 constitutional concerns for equal protection,9 the feminist movement,10 and the entry of large numbers of women into the work force, which weakened the concept of a primary maternal caretaker, most states abandoned the maternal presumption by the mid-1970s in favor of gender-neutral laws. 1,11,12 The Uniform Marriage and Divorce Act, approved in 1970, provided for a straight best interests standard, and was adopted in varying forms by the majority of states.1 For the first time in history, custody decisions were to be based on a consideration of the needs and interests of the child rather than on the gender or rights of the parent.

In attempting to define this newer but more vague standard of the child's best interests, the ground-breaking concept of the psychological (rather than biological) parent, the need for continuity in parenting, and the need for expedited decision making were proposed as important criteria.13 And, consistent with the best interests focus, children's own wishes with respect to custody were newly considered if they were deemed to be of sufficient age to form an intelligent opinion.

The historic shift to gender-neutral and best interests standards prepared the path for a new custody arrangement to emerge, that of joint custody. The concept of joint custody originated in the early 1970s from a small number of fathers, including mental health professionals, who desired continuity in their relationship with their children after divorce and strongly objected to being disenfranchised of their parental rights simply because divorce had occurred.14 Newly formed fathers' rights advocacy groups provided the impetus for a joint custody movement,15 supported in the early 1980s by lay and scholarly publications which described various advantages of joint custody for society, parents, and children.16-21

The growing interest in shared custody as a means of preserving parental status and responsibilities was enhanced by several parallel developments. First, after focusing almost exclusively on mothers and children for decades, the child development field began, in the early 1970s, to study the father's contributions to the development of the child.22 The expanding literature suggested that fathers' contributions to their children's development had been undervalued, as had the importance of children's attachment to their fathers.23,24 Second, gender roles within families began to shift, particularly in dual-career families. More mothers began to work outside the home in addition to carrying out domestic responsibilities. To distribute the work load more evenly, larger numbers of fathers in dual-career families participated more fully in household and childrearing responsibilities. While women still spend significantly more time than men caring for children and performing household tasks,25-27 the increase in paternal involvement may reflect a social trend.26 As a result, many mothers and fathers wanted fathers to play a greater role in their children's lives after divorce. And third, as divorce engaged the attention of the nation, numerous studies documented the sense of loss and alienation experienced by noncustodial parents and children in traditional custody arrangements after divorce.19,28-30

These converging trends, amplified by the fact that more than one million children were involved in divorce each year, resulted in pressure to pass new laws permitting joint custody as a viable option for postdivorce custodial status. In 1979, the first joint custody statute was enacted in California, followed by Kansas, and Oregon.18 By 1991, more than 40 states had statutes in which joint custody was either an option or a preference, and most other states had recognized the concept of joint custody in case law.31,32 The effect of such legislation has been to promote increasingly positive attitudes toward greater paternal involvement after divorce among parents, lawyers, mental health professionals, and judges.33-35

Strong resistance to joint custody statutes remains among some feminists,11,36,37 who advocate for primary caretaker standards which, in their view, reflect the distribution of labor regarding children during the marriage. As a result, several states have adopted language that favors the primary caretaker of the child in custody disputes. The prevailing basis at this time for determining custody is that of the best interests of the child.

Parents now have a variety of custodial arrangements available to them for providing care to their children after divorce. The struggle between various advocacy groups to influence custody legislation and practice, particularly feminists and fathers' rights groups, is likely to continue for some time.