ABA Family Legal Guide

Family Law

3.4 Separation, Annulment, and Divorce

Custody

How have the laws changed in deciding custody disputes between mothers and fathers?

The law has swung like a pendulum. From the early history of our country until the mid-1800s, fathers were favored for custody in the event of a divorce. Children were viewed as similar to property. If a husband and wife divorced, the man usually received the property--such as the farm or the family business. He also received custody of the children. Some courts viewed custody to the father as a natural extension of the father's duty to support and educate his children.

By the mid-1800s, most states switched to a strong preference for the mother under the Tender Years Doctrine. In a contested custody case, a mother would receive custody unless there was something very wrong with her, such as she abused the child or suffered from mental illness or alcoholism. The parenting skills of the father were not relevant. This automatic preference for mothers continued until the 1970s. Then principles of equality and co-parenting took over.