A Brief History of Child Custody Law

From the colonial era until the mid-nineteenth century, child custody cases were almost invariably settled in favor of fathers. The idea that children were the property of their fathers was a reflection of the widespread belief that divine law decreed fathers the undisputed heads of the household. During this time, our nation was largely an agrarian society, with most children growing up on self-sustaining family farms where their labor was essential for the economic survival of the family.

As the nation industrialized and increasing numbers of fathers left their homes during the day to work elsewhere, mothers took over the role of managing households. Husbands were still the breadwinners, but they were no longer seen as having absolute dominion over all members of the family. The children, on the other hand, began to experience something similar to the childhood we know today; rather than being put to work as soon as they were able, many youngsters were able to play and go to school. Children were now widely seen as needing nurturing, and mothers were the ones who provided it. Custody cases began to be settled “in the best interests of the child” – typically, by granting custody to the mother.

The concept of the child’s best interests has remained the focus of child custody law, but it has taken on different meanings as values have shifted. Through the 1950s and 1960s, divorce was strongly discouraged because it was believed not to be in the best interests of children. In the 1970s there was a shift toward the notion that youngsters were better off being raised by divorced parents than by unhappily married couples. As it became easier to obtain a divorce, mothers were still awarded custody more or less automatically under the assumption that they were naturally best suited to raise children.

In the 1980s, the idea of joint custody took hold as the standard for what was in the best interests of children. As mothers rapidly began to enter the workforce, fewer and fewer were primary caregivers within their families– and they were no longer seen as the automatic best option when it came to deciding custody cases. As the divorce rate continued to climb and family configurations began to rapidly evolve, the courts had fewer obvious answers when it came to determining what was in the best interests of the child.

Today, the definition of “family” is more fluid than ever, and there is even less consistency in terms of what is in the best interests of children when their family structures break down. Courts are still grappling with this question.

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