Rethinking the History of Child Custody
By Don Hubin, Ph.D.
Psychologists tell us that we have a hard time rethinking beliefs we’ve long held. We’re subject to “confirmation bias”--ignoring evidence that would undermine our beliefs—and even the so-called “backfire effect”--digging in our heels more firmly when our beliefs are challenged. But sometimes long-held beliefs have to give way to evidence. I have been forced to revise my understanding of the history of child custody in the face of compelling evidence.
I should mention that my beliefs about the history of child custody weren’t formed out of thin air. I’ve published papers in law reviews and philosophy journals that rely on sketches of this history. In researching to write these articles, I’ve read dozens of articles and a handful of books on the history of child custody. I thought I had a reasonably good understanding of these matters.
Then I read The History of Custody Law, by attorney Tom James. Tom has served on NPO’s Advisory Council for several years but I’d been unaware of this book, published in 2014. It is, quite simply, the best book I’ve ever seen on the history of child custody law. It’s painstakingly researched, which is especially remarkable given the historical scope of the book, which begins with a discussion of custody laws of ancient Mesopotamia, 2,000 years before the rise of the Roman Empire.
It is not light reading; it’s a book for those who want a deep and detailed understanding of the history of child custody laws—how we got to where we are now. And, as historians like to remind us, knowing how we got to where we are is crucial to figuring out how to get to where we want to be.
James’ terrific book forced me to change some of my long standing beliefs. Like many, I had tended to accept the view that, in the U.S., there was a strong presumption of father custody up until the end of the 1800s or so. And, at that point the so-called “tender years” doctrine began being employed to favor mother custody, at least through the younger childhood years, which eventually grew into a general presumption of maternal custody.
The extreme version of the presumption of paternal custody was often framed in terms of a property right. So, we get book titles like Mary Ann Mason’s From Father’s Property to Children’s Rights, reinforcing the idea that up until the late 1800s at least, children were viewed as the property of their fathers in Anglo-American law. This is misleading for several reasons. First, in the 1700s and 1800s, the term ‘property’ was used in a far broader sense than it now is. So, John Locke, on whom our founding fathers relied significantly, speaks of our “property” as including one’s liberties and one’s own person, not merely objects. To have property in something was for it to be properly one’s own—for one to have the right to determine how it is used. So, to talk of property in children was not to treat children as property in our modern sense—as a mere object.
More importantly, while some talked about the rights that parents had over their children as being the sort of rights one has over one’s inanimate property, that was certainly not the prevailing view. Locke himself, and other leading thinkers explicitly rejected that view and held that property rights were what we now call “fiduciary rights”—the rights and responsibilities one has to act in the best interest of another.
But, most importantly, and what James’ book made me rethink, for a very long time—and I mean centuries—Anglo-American courts have been making child custody determinations based on the goal of promoting children’s best interests. The presumption that fathers had the primary right of custody applied mostly to custody controversies between parents and non-parents. When there were custody disputes between parents—the kind we’re most familiar with—courts typically applied a presumption in favor of the “innocent” party.
Recall that no-fault divorce did not exist. A divorce always required a finding of fault. And the party at fault, especially if it was the father, was the one likely to be denied custody. But, for the most part this wasn’t conceived of as a punishment for the wrongful acts on which the divorce was based or a reward for the innocent parent. It was a decision made because it was believed that the party at fault was not morally fit to be a parent to the child and, so, the child’s best interest wasn’t served by being in that parent’s custody.
And, during the same period that fault was often used as a basis for custody determinations, the maternal preference was also operative. (This was, by the way, long before we had the term “tender years doctrine.”) So, even when mothers were at fault, it wasn’t uncommon for them to get custody. As James puts it, “[w]hile marital misconduct could work a forfeiture of the father’s custodial rights, it would not necessarily work a forfeiture of a mother’s custody rights, at least not if the children were young. …In other words, the tender years doctrine trumped the marital fault doctrine.” (p. 138-9)
One of the crucial takeaway messages for me from James’ book is that we are quite wrong to think that judicial focus on the best interest of the child is a relatively modern phenomenon. It has for centuries been the goal of legislators and courts to settle custody matters based on evaluations of the best interest of the children involved. But legislators and courts have relied on presumptions to guide their decisions.
The presumption that parents had a claim to custody of children over nonparents was based on a belief about what was in children’s best interest. So was the presumption against a parent at fault for the termination of a marriage. And the same is true of the presumption of mother custody.
Our focus on children’s well-being in custody determinations isn’t new at all. What’s new is that, now that we’ve rejected the idea that marital fault or the sex of the parent is a good guide to children’s best interest, we are left without clear guidance about how courts should proceed. The laundry list of “best interest factors” that most states have, provides little help because there are so many factors, the factors are often vague, and there is no indication how they are to be weighted in the court’s decisions. In effect, they simply tell courts to do whatever they think best.
This sends no clear message to parents and it’s a recipe for parental conflict. The solution isn’t to bring back fault based, much less gender based, presumptions. We need to replace those flawed earlier presumptions about marital fault and a parent’s gender with the empirically grounded presumptions about what custodial arrangements best serve children’s interests. We should rely on the more than 40 years of scientific research we now have that shows that shared parenting is typically in the best interest of children.
The History of Custody Law was published in 2014 and, so, doesn’t cover the last decade of custody law, during which there have been very dramatic changes, many prompted by the work of National Parents Organization. But there’s good news on this front. Tom is preparing a second edition of the book to bring it up to date with the recent improvements in child custody laws in the U.S. and elsewhere.
