History of Child Custody in America

Colonial America’s Mirroring of English Parliament’s Common Law regarding custody, originally awarded fathers custody of the children following divorces in the early 1700's.  But with the rise of the Industrial Revolution, more fathers began leaving their farms and villages for work, leaving mothers behind to take care of the kids. This is where the image of fathers as wage earners and mothers as caregivers began to emerge and influence custody decisions.

In the early part of the 19th century, a prominent British journalist and social reform author, Caroline Norton, worked with politicians to pass the Custody of Infants Act of 1839. The Act initiated the presumption of maternal custody for children age seven and under. In 1873, the British Parliament extended this presumption through the age of 16.  This presumption, known as the Tender Years Doctrine, spread through many countries due to the influence of the British Empire.

The Tender Years Doctrine was a family law principle that began in 1881 and held that children should remain in their mother's care following a divorce as mothers are best equipped to meet the children's needs.  The idea of this steamed from colonial America’s mirroring of English Parliament’s common law regarding custody in the early 1700s.  The doctrine was eventually replaced in most states by the "best interests of the child" doctrine following the ruling by several courts that the Tender Years Doctrine violates the equal protection clause of the Fourteenth Amendment.

The Best Interests of the Child Doctrine was adopted in the latter half of the 20th century and is now what is primarily considered in child custody proceedings.  According to the UN Convention on the Rights of the Child, assessing the best interests of a child means to evaluate and balance “all the elements necessary to make a decision in a specific situation for a specific individual child or group of children”.

The United Nations Convention on the Rights of the Child is a human rights treaty which sets out the civil, political, economic, social, health and cultural rights of children. Nations that ratify this convention are bound to it by international law. Compliance is monitored by the UN Committee on the Rights of the Child, which is composed of members from countries around the world. It came into force on September 2, 1990, after it was ratified by the required number of nations. Currently, 196 countries are party to it, including every member of the United Nations except the United States.  America signed it in 1995 but never ratified it. (By signing a treaty a country endorses its principles; ratification means committing to be legally bound by it.)

The Equal Rights Amendment (ERA) is a proposed amendment to the United States Constitution designed to guarantee equal legal rights for all American citizens regardless of sex.  Through 1977, the amendment received 35 of the necessary 38 state ratifications. With bipartisan support, the ERA seemed destined for ratification until Phyllis Schlafly mobilized conservative women in opposition, arguing it would (amongst other things) eliminate the tendency for mothers to obtain custody over their children in divorce cases.

Phyllis Schlafly (August 15, 1924 – September 5, 2016) was an American constitutional lawyer and conservative political activist. She was known for her successful campaign in 1977 against ratification of the Equal Rights Amendment to the U.S. Constitution.  Schlafly appealed to married women by stressing that the amendment would (amongst other things) eliminate the tendency for mothers to obtain custody over their children in divorce cases.

However, in 2013 Schlafly found herself in the unlikely position of advocating alongside Karen DeCrow, whom she had bitterly debated over fifty times on the ERA four decades earlier.  They joined forces to promote Leading Women for Shared Parenting.  Stating in an article how "A rebuttable presumption of Shared Parenting should be made the cornerstone of Family Law."

The Siegenthaler Schedule was developed from the case of Siegenthaler v. Siegenthaler, an appellate decision from the Eastern District of Missouri in 1988. The trial court decision awarded mother the bulk of physical custody and gave father visitation on the second and fourth weekends of every month and certain holidays every other year. The Father appealed, claiming that the schedule was too limited. The Appellate Court agreed, and determined its own schedule that added to the alternating weekends six weeks of custody during the summer and an alternating schedule of specific holidays, as well as winter and spring breaks. After this decision, many family court judges adopted this plan. The Siegenthaler Schedule has since been generalized to refer to a custody schedule of visitation every other weekend and one night each week.

References

1. Justice and Gender: Sex Discrimination and the Law (2009), pp. 66–67.

2. Politicizing and Practicing Motherhood: Why We Should Care What Phyllis Schlafly Served her Kids for Breakfast

3. Siegenthaler v. Siegenthaler, lawJustia.com

4. Tender Years Doctrine, Wikipedia

5. Custody of Infants Act of 1839, Wikipedia

6. Convention on the Rights of the Child, Wikipedia

©2016 The 21st Street Foundation, All Rights Reserved

Contact


PO Box 1074

Vancouver, WA 98666​

T: 503-893-2178

info@21street.com

Recommended Organizations