“You must always know the past, for there is no real Was, there is only Is.”
For the past fifty years or so, the history of custody law has almost universally been presented as a linear progression from a primitive system that viewed children as the property of their fathers, forcing them to endure a harsh and cruel existence, to an enlightened approach that treats the best interests of the child as the paramount consideration, and for that reason places them in the loving, nurturing care of their mothers.1 Typically, the account begins with the patria potestas system of ancient Rome, under which fathers had an absolute right to custody of their children; asserts that this system carried forward, unchanged, into eighteenth and nineteenth century England two thousand years later; that colonists brought it to America; and that it remained the rule of decision in custody cases until the Great Enlightenment, i.e., modern-day America. It was only because American women mobilized to overthrow patriarchal rule, the story goes, that courts finally started caring more about children’s interests than fathers’ rights. The traditional account typically concludes with an observation that it is only relatively recently that courts have begun to acknowledge the superiority of maternal care over patriarchal control as the right and proper means of promoting the best interests of children.2
In truth, the history of custody law is neither a linear progression nor an opus on the triumph of motherly care over harsh male control. The historical record supports a theory that the maternal preference in custody law stems at least as much — and probably considerably more — from a desire to confine women and men to rigidly defined sex roles as it does from any quest for recognition of women’s supposed natural superiority as parents.
Even the notion that custody of children should be decided on the basis of what is in their best interests rather than parental rights is not a recent invention. It was part of the Roman law codified by Justinian more than a thousand years ago, and there is evidence that the idea was around long before then. Contrary to the popular view of the history of children as one of deliverance from the cruel tyranny of fathers into the loving arms of mothers, it appears that from earliest recorded times, parents of both sexes have cared about their children. And judges, to varying degrees at different times in history, sometimes have shared that concern — sometimes using it as a justification for favoring fathers, sometimes for favoring mothers, and sometimes for favoring one sex while purporting to favor the other.
It is said that you can’t know where you are or where you should go unless you know where you have been. This blog will attempt to facilitate that journey by tracing the history of custody law (to the extent there are records of it) from ancient times to the modern day.
The complete History of Custody Law, with a new bibliography, is now available in paperback and as a Kindle e-book:
- See, e.g., Mary Ann Mason, From Father’s Property to Children’s Rights: The History of Child Custody in the United States (2d ed. 1994). Professor Hartog summarizes the current state of legal scholarship in the area of family law as follows: “Nearly all recent scholarship on the legal history of American marriage … begins with a demonstration that traditional legal rules…were bad, like slavery. The narrative tells of a titanic struggle against coverture, one in which good (egalitarian law reform) is always pitted against bad (the patriarchal common law)….” Hendrik Hartog, Man and Wife in America: A History 3 (2000). See also Danaya C. Wright, De Manneville v. De Manneville: Rethinking the Birth of Custody Law under Patriarchy, 17 Law & Hist. Rev. 247 (Summer, 1999) (describing the argument that “a linear progression from patriarchy to egalitarianism in family relations occurred in the early nineteenth century and that once mothers were accorded a presumption in custody disputes, all was right in the family” as “too simplistic.”) ↩
- See, e.g., 1 Jeff Atkinson, Modern Child Custody Practice § 4-4 (2nd ed. 2004) (asserting the ancient Roman paternal right to custody continued throughout Europe until the middle of the nineteenth century, and that “The common law rule that a father was entitled to custody was carried over to the United States”); Harry D. Krause & David D. Meyer, Family Law in a Nutshell (5th ed. 2007) (“At common law, the father…’owned’ his children and had the primary custodial claim….Paternal preference gave way in the late 1800s”); Mason, supra note 1 at x (“For most of our history, well into the twentieth century,…(f)athers…were granted paramount rights to custody and control of their children. Mothers…had no right to custody as long as the father was alive…”); Webster Watnik, Child Custody Made Simple: Understanding the Laws of Child Custody and Child Support 42 (2000) (“Up until the mid-1800’s, children were considered the property of the father, who was usually awarded custody following a divorce….Today, the laws in all states require judges to consider what is in the best interests of the child when making a custody decision”); Ralph J. Podell et al., Custody-To Which Parent?, 56 Marq. L. Rev. 51, 51-52 (1972) (crediting Justices David Brewer and Benjamin Cardozo, while sitting as state court judges in 1888 and 1925, respectively, with establishing the “best interests of the child” as the rule of decision in custody cases); Allan Roth, The tender years presumption in child custody disputes, 15 J. Fam. L. 423-61 (1976-77). Sarah Pinkerton’s account of the development of early American custody law is fairly representative of the modern canon:
Until well into the nineteenth century, the English law on child custody treated the child as the father’s chattel. Before the English, the Romans in custody matters had followed patria potestas, a doctrine that originally gave complete power over children to the father….The American Colonies inherited and implemented the English common law on the subject of child custody, meaning that children belong to their fathers…and mothers were legally irrelevant.
Sarah Pinkerton, Custodial Rights of California Mothers and Fathers: A Brief History, 16 J. Contemp. Legal Issues 155 (Spring 2005) ↩