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1 The History of Child Custody Arrangements 3-3 Short Paper: The History of Child Custody Arrangements Joshua Ferreira Zanotto Southern New Hampshire University PSY 205 Dr. Darchelle Curry November 12, 2023

2 The History of Child Custody Arrangements The History of Child Custody Arrangements The law of child custody in the United States has evolved from paternal custody, through maternal custody, to a gender-neutral evaluation of the best interests of children. Before the 1800’s the custody of a child was determined based on the father’s wishes. If the father was still alive, he would have custody of the child. If the father was deceased, before he died, he was select who would become the guardian of the child. The laws of custody in American root from Roman and English common law. Under the Roman laws, fathers have absolute custody of their children. He was considered the head of the family and had unlimited authority of his family. English common law was similar to Roman law with a few exceptions, if the father was bankrupt, ill-treating of their wives, or did not contribute to the family the mothers would be rewarded custody. It was not until the tender years doctrine, which originated around 1800, that mothers were rewarded custody. The tender years doctrine, “states that custody of children of tender years should be awarded to the mother unless she is shown to be unfit.” (Ranelli, 1995 The doctrine became a basis for awarding custody of the child. The tender years doctrine became popular based on the sentiment that mothers were the best caregiver for their children. The most common justifications offered for the maternal preference were (1) the belief that the mother was almost always the child’s primary caregiver, and (2) the belief that, as a matter of nature, mothers were inherently suited ‘to care for and nurture you children” ( Ex Parte Devine , 398 So.2d 686 (Ala.1981).”” (Ranelli, 1995). This attitude remained popular throughout the 20 th century and is still supported by some today. It was not until the late 1900s that the court start to reject the Tender Years Doctrine. In 1974 Illinois courts began to move away from the doctrine with Patton v. Armstrong . The fifth District Appellate Court awarded custody of two child to their father inside of the mother. “The court reasoned that the presumption that the mother was better able to care for the children was based on the assumption that the mother would remain at home and care for the children. Since the mother in this case worked, the court held that the tender years doctrine was inapplicable.” (Schiller, 1977). In 1974 the doctrine was weakened further by Marcus v. Marcus by recognizing the equalization of the mother and the father. The court in this case stated, “it should be noted that there is today no inflexible rule which requires that custody of the children, especially of

3 The History of Child Custody Arrangements tender age, be vested in the mother. Equality of the sexes has entered this filed. The fact that a mother is fit is only one facet of the situation and, standing by itself, it does not authorize a denial of custody to a father.” (Schiller, 1977). The doctrine was finally openly rejected in 1975 by the Illinois Appellate Court in Pratt v. Pratt . The court stated that a result of recent social and legal trends a presumptive favor of the mother could not be recognized any longer. This decline of the tender years doctrine had three factor that contributed to it, changes in family law, changes in attitudes, and constitutional concerns raised by a gender-based preference. Family law was changing from tenders years doctrine to best interest of the child. The doctrine was based on two factors that were changing, the mother was the primary caregiver and did not work outside of the home and the mother was inherently a better caregiver than the father. Over the years both parents were working outside of the home full-time, and it became less clear that the mother was the primary caregiver. The 14 th Amendment became a major factor in moving away from the doctrine. “The 14 th Amendment states that “No state shall make or enforce any law which shall . . . Deny to any person within its jurisdiction the equal protection of the laws.” (Ranelli, 1995). The question of if the doctrine violated the father's 14 th Amendment was posed in awarding custody. The current trend in changes of family law is to de-emphasize the gender role and “element of fault in the rights and responsibilities of parents.” (Ranelli,1995). The best interest of the child is now emphasized in determining custody. Rather than awarding sole custody to either the mother or the father, joint custody has become more popular today. The attitude around gender roles and parents today has changed since the introduction of the tender years doctrine. With the evidence of most families having both parents working outside the one the presumption is both parents spilt the caregiving role to the children. Also, “the belief that a mother’s care is inherently better than the father’s care does not clearly reflect contemporary views regarding male and female roles.” (Ranelli, 1995). Today the best interest of the children and the welfare of the children are used to determine custody of the children. The courts no longer favor the mother or father when determining custody.

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4 The History of Child Custody Arrangements References From Parents’ rights to the best interests of Children: American Child Custody in Historical and Feminist Perspective, 1750-1899. (2018, August 23). DigitalGeorgetown. https://repository.library.georgetown.edu/handle/10822/1051398 Schiller, Donald C. (1977). Child Custody: Evolution of Current Criteria , 26 DePaul L. Rev. 241 https://via.library.DePaul.edu/law-review/vol26/iss2/3 Ranelli, M. (1995, February 21). Custody of Children; Divorce; Statistical Information; The Connecticut General Assembly. Https://www.cages.ct.gov/PS95/rapt/olr/htm/95-R- 0354.htm

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