A Shift in Child Custody Standards: From A Maternal Presumption to Gender Neutral Standards

Summary

Modern child custody law has been marked by two major shifts. The first shift came in the late nineteenth and early twentieth centuries and took custody rights away from fathers in favor of a maternal presumption. The second shift took place in the latter half of the twentieth century and marked the practice of moving away from the maternal presumption towards gender neutral standards, which improved fathers' chances of obtaining custody.

Under traditional patriarchal systems, such as Roman law or the English Common Law, fathers had "ownership" rights over their wives and children, and thus had complete custodial authority over children if the marriage ended. With the advent of the women's movement and the industrial age, the shift toward a maternal presumption began. The expansion of legal rights for women as well as the creation of more separate and distinct spheres for men and women placed wives in the position of nurturer and caregiver. During this time, the "cult of motherhood" and the "tender years" doctrine arose. Unless proven unfit, the legal presumption became that the mother would be granted custody.

The key to the second shift in child custody standards was divorce law reform. The introduction of no-fault divorce led to a significant increase in the country's divorce rate. Between 1960 and 1990, the divorce rate almost tripled. Studies revealed that the absence of father figures in the lives of children of divorce was having significant and harmful effects. Berry also discusses the Men's Liberation Movement, which began in the 1980s and organized to support visible, involved fathers.