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. Custody disputes arose in cases of divorce, separation, widowhood, and illegitimacy. During the colonial era, widows could lose their children to a guardian selected by the father before his death. Courts determined who would get custody of illegitimate children and did not generally give mothers custody until the 1800s.
American child custody law is rooted in Roman law and English common law. Under Roman law, fathers had an absolute right to custody of their children. This right sprang from the view of the father as head of the family, with unlimited authority over its members. Fathers had near absolute custody rights under English common law as well. They were given the right to the services and earnings of their children, and the right to pursue legal action for seduction of their daughters or enticement from home of their sons. However, courts awarded mothers custody of their children if the fathers were bankrupt, ill-treated their wives, or contributed nothing to the family. The Colonies adopted the common law paternal right to child custody, but few disputes arose because divorces were hard to obtain. Even in early divorce cases, children were rarely mentioned.
Historical and sociological developments surrounding women's rights in the early 1800s laid the groundwork for changes in child custody law. Under the common law of coverture, a married woman was legally one with her husband; she was not a legal person and could not own many forms of property. Children were considered assets in which their fathers had property rights. Wives, limited by coverture, had no economic or familial rights to the custody of their children. As married women gained property rights in the 1800s, they gained custody rights as well. By the turn of the twentieth century, courts no longer viewed children as property, and children's rights were the focus of custody disputes.
During the 1700s, the family included extended relatives, boarders, servants, and the like, and was considered to be a unit of society with its own hierarchical structure topped by the father. The father was considered to be the children's educator and moral guide. The nineteenth century saw the emergence of the concept of the "Republican family," in which the father provided for the family and the mother was the educator, moral guide, and caretaker of the children. The increasing role of women in the rearing of children gradually led to more frequent awards of custody at divorce.
The divorce rate increased sharply in the nineteenth century, and with it, the frequency of child custody disputes. During this period, courts replaced absolute paternal custody rights with a discretionary appraisal of the parents' qualifications and the children's best interests. Northern states abandoned the paternally based common law of child custody earlier than did southern states. Mothers most often received custody if they were the innocent party to the divorce, if the father was a drunkard or the children were young. Pennsylvania was known for judicial precedents favorable to mothers. In the 1813 case Commonwealth v. Addicks, a court awarded child custody to the mother because the children were of a tender age and she had raised them well. The state Supreme Court reversed because the mother was adulterous, but it rejected the common law paternal right to custody. Later cases considered the children's best interests and showed a bias towards awarding mothers custody. Virginia was slower to reject the common law, but finally held the children's welfare paramount in Owens v. Owens in 1894.||en-US