“What about the children?” is often bemoaned when discussing divorce. Fair question, but historically the phrase was used to refer to child labor. In terms of divorce, “what about the children” is often decided by laws and courts determining what’s best for the kids. While children do require a lot of labor by the parents, child custody laws have swung wildly over the years from dads, to moms, to joint custody.
Historically, American child custody laws were rooted in English common Law and Roman law where fathers, as the head of the family with unlimited authority, had an absolute right to custody of their children because wives and children were considered property. The Colonies adopted the English common law of paternal rights but it wasn’t fought much as divorces were hard to get. Not surprising if the men were in charge of everything!
The shift in the family structure during the Industrial Revolution when fathers left farms to find work and mothers were left behind to manage households and kids was huge in shifting custody decisions in divorces. In the 1800’s married women actually gained property and custody rights and by the turn of the century, courts no longer saw kids as property.
It was during the 19th century that divorce rates rose sharply, along with child custody rights. Finally, courts began considering the children’s best interests.. Mothers started to get custody if they were innocent in the reason for the divorce (aka the dad was a drunk or the kids were little). During this time, courts often granted child visitation rights and the schedule was put in place by the parent with custody.
For nearly a hundred years, the US adopted the Tender Years Doctrine, which was passed by British Parliament in 1873 which stated that during a child’s “tender” years (4 and under), the mother should have custody of the children.
Custody didn’t change much until the 1960’s with a divorce boom, which continues today. Debates arose as women became involved in the gender equality movement along with father’s rights groups became more pervasive. The Tender Years Doctrine was deemed to be dated and replaced with inclusive standards and judges were deciding what was “best for the children.” Cue the bitter and drawn-out custody battles.
During the 1970’s, another major swing occurred within the field of child development recognizing the effect of fathers and shifting gender roles. In 1979, California became the first state to pass a joint custody law and other states followed suit. By 1991, over 40 states had joint custody statutes as an option.
On a personal note, I was a child of divorce in the early 1990’s in California. Myself and most of the divorced kids I knew lived with their moms with every other weekend dad visits, including weekly dinners peppered in when it fit everyone’s busy schedules. Today, my friends with children getting divorced are seeing much more structured 50/50 custody agreements. Maybe the next question needs to be “what about the parents”?
Source:
https://repository.library.georgetown.edu/handle/10822/1051398
