Published in the Wednesday, March 13, 2019 edition of the Chicago Daily Law Bulletin
Recently, I attended a lecture before seeing the play “How to Catch Creation” at The Goodman Theatre. The lecturer discussed the history of child custody over the course of the last four centuries.
He illustrated how custody laws have shifted over time along with the prevailing attitudes in society about the roles we play as parents. The child custody laws from several hundred years ago do not look anything like the laws we have today and, as a result, it made me want to inquire further and write about the history of custody laws.
Even today, the debate continues.
Since the early days of American society, child custody laws have changed significantly. At the outset, these laws heavily favored the rights of the father. Later, it would be the rights of the mother that superseded all. More recently, the laws have evolved to include a more gender-neutral approach to custody cases. Also, the rights of nonbiological parents have increased as well.
In colonial times, child custody laws were strongly based on divine law. The American economy was agricultural, so frequently every member of the family was involved in the family business. The father was the head of both the household and the family business.
During this period, English common law was the standard for custodial issues and that law heavily favored the father’s rights in custodial cases.
This paradigm shifted in the mid-1800s when the American economy changed from agricultural to industrial. With fathers more frequently working outside of the home, the mothers took over as the head of the household.
Children also began to experience a childhood more similar to what our children experience now — rather than going off to work at a tender age, children went to school and were nurtured into adulthood.
During this period, which lasted until roughly the 1960s, the tender years doctrine often held in custodial cases. Under this doctrine — when all other factors surrounding the custody of the child were roughly equal — the custodial rights of the mother were favored over those of the father.
With the advent of the women’s rights movement in the 1960s, the tender years doctrine began to fall out of favor in custodial cases in lieu of more gender-neutral decisions. Women’s rights groups challenged the notion that the man’s place was as the provider for the family and a woman’s place was as the head of the homestead.
This movement dovetailed with a rise in divorce rates. Before the mid-20th century, the majority of custodial cases in the United States involved orphaned children or children whose parents were no longer able to care for them.
By the mid-20th century, the cases often involved two parents capable of caring for the child who were choosing to no longer remain in the same household.
Around this time, American mothers were increasingly members of the workforce. According to an article by Mary Ann Mason, co-director of the Center, Economies and Family Security at the University of California, Berkeley, School of Law, in the Journal of the American Academy of Matrimonial Lawyers in 2012, by 1985, more than 50 percent of women with children under 3 were in the workforce; by 2004, that number had risen to 64 percent.
In addition, familial structures changed rapidly over the last half of the 20th century with less traditional family models becoming more common. Those models included children born out of wedlock, children raised by stepparents, same-sex couples with children and children raised by grandparents or other older family members.
Over the past 30 years, the laws have attempted to address the changing landscape of the American family by considering the “best interests of the child,” but they haven’t always led to the intended result.
For example, in the 1980s, there was a push by father’s rights groups to give more rights to unwed fathers in custodial situations.
The federal government took up this charge, in large part to try to secure child support payments. During this period, there was a heavy emphasis on the rights of the biological parent over an adoptive or stepparent, regardless of the involvement of the biological parent in the child’s life. That emphasis has waned some over the past decade.
The change in martial laws involving same-sex couples has helped to grant some additional rights to gay and lesbian parents in custodial cases, although sometimes the biological component still holds sway in cases of adoption.
The same can be said for grandparents’ rights.
While some courts are recognizing the rights of grandparents who are the primary caregivers for the child, often it is the biological parent who will ultimately gain the advantage in a custodial situation.
We lawyers are engrossed in the current status of the law, but it’s always interesting to provide perspective by going back and looking at the genesis and evolution of our laws, as they reflect how we as a society have evolved.
