A Historical Look at Child Custody

In ancient Rome fathers had total control of their children. They could even sell them into slavery or kill them. Mothers had virtually no rights. When divorce occurred, the father automatically assumed custody of the children. It was a matter of property ownership.

British common law perpetuated paternal supremacy.

In 1776 Abigail Adams pleaded with her husband, John Adams, to change the status of women in the New World. She wrote, “I desire you to remember the ladies and be more generous to them than your ancestors. Do not put such unlimited power in the hands of husbands.” At that time, women had no political power, were forbidden in many occupations, could not sign contracts or testify in court or own property. Abigail Adams did not get her wish. 18th century thought continued to place family power completely in the hands of the husband. American judges believed that the best interest of the child dictated that the father be assigned custody of the children.

In the 19th century American courts began to place limits on the father’s near absolute right to custody of the children in case of divorce. The pendulum began to swing as courts started to recognize special needs of children that sometimes mothers were better equipped to handle. The Talfourd Act of 1839 gave courts the authority to award custody of children under 7 to the mother. This was referred to as the tender years presumption. At first the presumption was invoked to grant custody to mothers until children reached 3 or 4 years of age at which time the child would be returned to the father. This was the first time in history that child custody was not automatically awarded by the sex of the parent, and the first time that custodial arrangements were not viewed as permanent. It was the beginning of an effort to respond to the needs of children as individuals.

Unfortunately, the pendulum did not remain centered - but once set in motion continued swinging away from individualized custodial planning to a point where mother custody became the dominant court decision. By the 1920’s the preference for awarding custody to mothers was firmly established. This trend continues today.