Family figure and gavel on the table. Family law concept

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As a specialist lawyer for family law, I am often asked by clients whether they can apply for “sole custody” of their children. The history of custody and social influences throughout history sheds light on the answer.

History of child custody: preferences of fathers and mothers

In Roman law, children were already the property of their father, who had the authority to sell them and force them to do forced labor. Mothers had absolutely no rights over their children, even if the father died.

Later in English Common Law (the basis of our legal system in the United States except Louisiana, which follows Roman law) fathers had absolute power over their children with an obligation to protect, support, and raise them. In the event of a divorce, fathers also had custody rights, and mothers had very limited contact with their children after the divorce[1].

The British Act of 1839 ordered the courts to give mothers custody of children under 7 and visiting mothers of children over 7, like India. The law was the first great challenge to the paternal presumption.

In the United States we had a patriarchal legal system in the 17th and 18th centuries, and so patriarchal custody was preferred in cases of divorce. While some states adopted the presumption of “tender years” in the 19th century, others deviated from English common law and passed laws that gave both parents equal custody of their children.

Historical trends such as the industrial revolution, society’s increasing concern for the well-being of children, and the search for fathers outside the home with the mothers at home as the primary caretakers of the children, resulted in a maternal preference for custody. In the 1920s, paternal preference was replaced by maternal preference in the United States. This was further driven by Freud’s psychoanalytic theory, which emphasized the mother’s role as “unique”. The investigation of the child’s developmental attachment to the mother also influenced the maternal preference. This remained the presumption of custody for many decades.

Changing social and legal framework conditions: increasing divorce rates and gender-specific discrimination

The divorce rate began to rise dramatically in the 1960s, along with concurrent allegations of gender discrimination by fathers in custody decisions and the trend towards large numbers of women entering the labor market weakened the concept of the maternal head caregiver. Most states abandoned the presumption of motherhood in the mid-1970s in favor of gender-neutral laws with a focus on child welfare and custody preferences.

Joint custody

The transition to gender neutral and for the best interests of the child has opened the way for a new custody regime, joint custody. It started with advocacy for the rights of the father. Additionally, in the 1970s, child development experts began to focus on the father’s contributions to the child’s development.

Numerous organizations are currently advocating joint custody, including Americans for Parental Equality, the National Parents Organization, Americans for Equal Shared Parenting the Children’s Rights Council, Families Need Fathers, the International Council on Shared Parenting, WISCONSIN for Children and Families (WFCF ) and Leading Women for Shared Parenting. Wikipedia publishes a list of states that have passed presumption of custody laws.

Can I still apply for sole custody?

Depending on where you live and your state’s legal presumption of custody, you may be able to seek sole custody, but you should be able to articulate why the child or children shouldn’t have two actively engaged parents in their lives. Drug addiction, alcohol abuse, domestic violence, physical abuse, child sexual abuse, and abandonment are all very good reasons to argue against joint custody, but these are extreme. A possible exception to shared or shared parenting are families with children with special needs who need a parent who is fully dedicated to caring for the child.

Most courts advocate joint or joint custody: children who have two actively engaged parents in their lives

Many courts today advocate joint legal (decision-making) and physical (right of residence) with two capable parents.

Parental coordinators are often used when parents cannot communicate with one another in a civilized manner, which enables another avenue for joint decision-making and joint custody.

Financial arrangements with two parents to work from home, or the need for both parents to work from home, are more likely to create a financial reality that favors joint custody.

The Covid-19 benefit of common parenting

During Covid-19, many households had two parents at home, with many parents still working from home, creating common parenting in terms of school, activities, childcare, meal times, bedtime, and household routines.

It’s hard to try to reverse this rule in the event of a divorce or separation.

Social changes influenced child custody

As can be observed in the course of human history, social changes (industrial revolution, entry of women into working life) and child development (maternal attachment theory, role of fathers) influenced custody. Covid-19 could be the biggest boost to joint custody.

[1] Kelly, J. (1994). Determining the best interests of the child. The Future of Children, 4 (1), 121-142. doi: 10.2307 / 1602481