Divorce and Custody

The history of child custody following divorce reflects the changing view of children and the evolving relationship between husbands and wives. During the colonial period and the early Republic, children were viewed as economic assets whose labor was valuable to their parents and other adults. In this early era, the father as the head of the household had the complete right to the custody and control of his children both during the marriage and in the rare event of divorce. Over the course of the nineteenth century, the child's value as a laborer decreased and more emphasis was place on child nurture and education. The legal concept of the best interestof the child was initiated. Under this rule, mothers gained favor as the parent better able to handle the emotional and nurturing needs of children of tender years and mothers were likely to prevail over fathers in the custody battles following the increasingly common event of divorce. In the late twentieth and early twenty-first centuries, fathers regained ground in the now-common event of divorce as women and men struggled for equal standing before the law. There are no longer clear rules on what is in the best interest of the child and psychological experts have increasingly usurped much of the power from judges in custody determinations.

The Colonial Era and Early Republic: 1630–1830

In the modern era child custody is automatically thought of in the context of divorce, and, indeed, beginning in the last half of the twentieth century, divorce has been the setting for the vast majority of custodial disputes. Earlier in American history, however, custodial issues surfaced far more frequently on other occasions: the death of a father or both parents, the incompetence or financial inability of parents to care for their children, and the birth of illegitimate children. With these events the two major considerations in determining who should have custody and control of the child were the labor value of the child and the ability of the adults to properly maintain and supervise the child. Widows often lost custody of their children because they were no longer able to support them. In the era before orphanages and formal adoptions, such children were usually apprenticed or "placed out" to another family who would support them in exchange for their services. A child born out of wedlock was known as filius nullius ("child of no family") and the town's poor law official was authorized to place out the child with a family.

Within marriage, fathers had complete right to custody and control of their children. Married women were considered, under common law, femmes couvertes (literally "covered women") who were covered by their husband's identity and authority. A father could hire out a child for wages or apprentice a child to another family without the mother's consent. In the very rare event of divorce, the father normally maintained his legal right to custody and control. The right to divorce was not uniformly established in colonial America and therefore there are few examples of custody decisions following divorce. South Carolina, for example, did not grant its first divorce until 1868. Colonies like New York and Virginia followed the English tradition where full divorce was an ecclesiastical affair and only rarely granted. English law, until 1753, retained the principle of canon law that no marriage can be destroyed. In those states following English tradition, divorce could be obtained only by a private bill in the legislature. In New England, divorce laws were more liberal, as marriage fell under the jurisdiction of the civil courts and legislatures. Following what they believed to be the laws of God, states granted divorce (with the right to remarry) when either party to a marriage could prove that the other had neglected a fundamental duty. The usual grounds for divorce were adultery, desertion, and absence for a length of time determined by the government.

The two most divorce-prone states, Massachusetts and Connecticut, have been fairly well studied. The most important aspect of records of these divorces is that children were not considered at all. In no cases do the courts speak about the best interests of the children, or indeed, show any concern for the children's welfare.

The absence of dispute over the custody of children before the nineteenth century has at least two possible, not mutually exclusive explanations. The first is that mothers believed they had no chance to gain the custody of their children and therefore did not even advance this cause. Fathers alone were entitled to custody and control of their children, as they were to all forms of property. There is, in fact, anecdotal evidence that some women avoided divorce because they feared their husbands would take the children away from them. Nancy Shippen Livingston, a woman from a prominent Philadelphia family, endured a loveless marriage in which her husband forced her to turn the baby over to his family to be brought up. As she was living in New York, she could obtain a divorce only by a private bill in the legislature, which was a notoriously difficult feat. She considered hiring the dashing lawyer Aaron Burr to plead her case to the legislature, but lost courage when she realized that if she won the divorce her husband would gain complete custody and she could be prevented from ever seeing her child again.

Women's belief that they had no legal right to their children was reinforced by English precedent. In Rex v. DeManneville (1804), a mother ran away from an allegedly brutal husband, but Lord Ellenborough of the King's Bench, emphasizing a father's paramount right to custody of his children, returned the child to her father, even though "she was an infant at the breast of the mother."

A second explanation for the absence of custody disputes during the colonial period is that mothers often got custody of the children without a fight. Women were most often granted divorces in cases of adultery or desertion, and it is unlikely that the father deserted with children in tow. In fluid, expanding colonial America, the father most often "went west" in search of new opportunities and failed to send for his family. More than likely, many deserted wives never took the matter to court at all.

The Nineteenth Century

The legal and social status of the child was transformed during the first century of the new republic. The colonial view of children as helping hands in a labor-scarce economy gave way to a romantic, emotional view of children who were no longer legally akin to servants under the complete control of their fathers or masters but instead were deemed to have interests of their own. Increasingly, these interests became identified with the nurturing mother.

The reasons for this shift are complex, reflecting the rising middle-class culture where educational and emotional investment on the part of parents replaced the economic value to the parents which children earlier represented. The newly emerging women's movement at mid-century also took up the right to child custody as an important plank in their campaign for women's rights. This priority is illustrated in a passage from the 1848 Seneca Falls Convention Declaration of Rights and Sentiments, the founding document of the women's rights movement:

He [the legislative and judicial patriarchy] has so framed the laws of divorce as to what shall be the proper causes, and in the case of separation, to whom the guardianship of the children shall be given as to be wholly regardless of the happiness of women–the law in all cases going upon the false supposition of the supremacy of man, and giving all power into his hands.

The growing number of custody disputes in the nineteenth century most likely reflected two trends: the rise in divorce and the uncertainty of the laws governing custody. Divorce became easier to obtain in most states, and by the second half of the nineteenth century many people were taking advantage of this new opportunity. A U.S. Census Bureau study reveals a rapidly escalating pattern of divorce. While there were 53,574 divorces granted in the years 1867 to 1871, the figure nearly tripled to 157,324 between 1887 and 1891. In about 40 percent of the divorces, children were involved; another 20 to 40 percent did not report either the presence or absence of children. These figures do not account for couples who separated but never divorced. In a culture where a strong stigma was attached to divorce, separated couples were probably far more numerous than those who sought legal termination.

Judges continued to be torn between applying common law rights of the father and the more modern rule of the bestinterest of the child. Eventually, however, the trend favored children. The best interests of the child, particularly for very young or female children, became increasingly associated with the child's mother. This tendency of courts to award infants and young children to their mothers later became known as the tender years doctrine. In awarding a four-yearold boy to his mother, the court in People ex rel. Sinclair v. Sinclair stated:

Nature has devolved upon the mother the nurture and care of infants during their tender years, and in that period such care, for all practical purposes, in the absence of exceptional circumstances, is almost exclusively committed to her. At such periods of life courts do not hesitate to award the care and custody of young infants to the wife as against the paramount right of the husband where the wife has shown herself to be a proper person and is able to fully discharge her duty toward the child.

The almost universal exception to the growing rule of awarding children of tender years to their mother occurred when the mother was considered unfit. The very high moral standards attributed to mothers in the nineteenth century allowed judges to view them more positively in custody disputes, but it also meant that judges turned harshly against them when they strayed from conventional moral standards. The two transgressions that most frequently caused women to lose custody of their children were adultery and leaving their husbands without, in the opinion of the judge, just cause.

The Early Twentieth Century

In 1890, the date often used to mark the beginning of the reform-minded Progressive Era, there were 33,461 divorces in the United States. In the year 1920, at the end of the reform era, there were 167,105 divorces. While these numbers may not be precise, as local records are often incomplete or missing, they suggest that a remarkable increase occurred in the numbers of couples who experienced divorce. Not all of these couples had children; in fact, less than 50 percent of these divorces involved children. Still, for the first time, the number of children who lost a parent from divorce began to approach the number who lost a parent through death. Moreover, countless parents simply deserted, with no divorce sought, and many couples lived apart without divorce.

For the courts and the legislatures, the formerly unusual event of divorce was now commonplace; child custody was no longer an arcane and rarely exercised area of the law and the lives of thousands of children and their parents were affected by custody decisions. These realities accelerated trends that had begun in the nineteenth century, such as the father's obligation to support his children without the benefit of custody, for which there previously had been little precedent. The judiciary still took the lead in developing rules to resolve the private disputes between divorcing couples, but state legislatures increasingly codified these rules, often narrowing the margin of judicial discretion.

The case of Mr. and Mrs. Harmon (Harmon v. Harmon [1922]) provides a glimpse of the changing attitudes of the "Roaring Twenties" and reveals that a woman's sexual conduct was no longer a complete bar to custody. Two married couples in Kansas, Mr. and Mrs. Harmon and an unnamed husband and wife, associated in the same social circles and became good friends, going on late-night rides together and spending much of their free time together. One day Mr. Harmon found Mrs. Harmon engaged in an act of adultery with the other husband. He insisted that she must go to live with her parents and renounce the custody of their five-yearold daughter. Both men made her sign a written agreement admitting her guilt and agreeing to the custody arrangement.

Mr. Harmon then sued for divorce on the ground of adultery and sought custody of their daughter. The court agreed that adultery had been encouraged by the husband. "He must have known the absurd lengths to which extraordinary intimacy, informality, and unconventionality [with the other couple] had grown, it was bound to culminate as it did." The court affirmed the denial of a divorce to the Harmons but granted temporary custody of the daughter to the mother, reasoning that "except for defendant's temporary infatuation for her paramour, she was a good mother."

Other courts concurred with this assessment, gradually turning away from the double standard of moral fitness which viewed a mother's sexual misconduct as damning and a father's as forgivable. The leading family law treatise of the 1920s, Keezer on the Law of Marriage and Divorce, states the "new" rule: "Where the children are of tender years, other things being equal, the mother is preferred as their custodian, and this more especially in the case of female children, and this though she may have been guilty of delinquencies in the past but there is no evidence that she was delinquent at the time of determining the matter by the court." In Crab-tree v. Crabtree (1922) the court even overlooked the fact that Mrs. Crabtree had almost murdered Mr. Crabtree, cutting his throat with a razor blade, slicing through his fingers and stabbing him in the back. The court explained: "It does not follow that because the wife tried to kill him in a fit of anger, she did not have any parental affection for the children. On the contrary the record discloses that she loved them and was properly caring for them."

The Late Twentieth and Early Twenty-First Centuries

By the last third of the twentieth century, law relating to child custody had permeated the casual conversation of everyday life; indeed, few households were untouched by a custody matter. A child born in 1990 had about a 50 percent chance of falling under the jurisdiction of a court in a case involving where and with whom the child would live. The great majority of these child custody determinations were the products of an exploding divorce rate.

While the divorce rate soared, the rules governing child custody grew increasingly confused. "The simple fact of being a mother does not, by itself, indicate a capacity or willingness to render a quality of care different from that which the father can provide" a New York court stated in 1973, challenging nearly a century of a judicial presumption in favor of mothers. The court rejected the notion that mothers and their children shared a special bond, invoking the authority of social scientist Margaret Mead, who once wrote, "This is a mere and subtle form of anti-feminism which men–under the guise of exalting the importance of maternity–are tying women more tightly to their children than has been thought necessary since the invention of bottle feeding and baby carriages."

Not all courts were as outspoken in reducing the importance of mothers or in suggesting that maternal presumption is a male conspiracy. Nevertheless, the presumption that the interest of a child of tender years is best served in the custody of the mother was legally abolished or demoted to a "factor to be considered" in nearly all states between 1960 and 2000.

With the old rules gone, state legislators and judges have turned to social science to develop new guidelines to aid judges in making this most difficult decision. Two popular psychological theories are enlisted to support two opposing models of custody. The first model assumes that one parent should take primary responsibility of the child's care, but that parent need not be the mother. This model embraces sole custody (with visitation) and a primary caretaker preference. The second model stresses the importance of both parents in the child's development and promotes some form of joint or shared custody. Neither model gives any preference to mothers and neither model considers the age or developmental stage of the child, as was the case in the tender years doctrine.

Evidence to support this subjective criterion can be obtained only outside the courtroom by lay eyewitness testimony, or by the evaluation of the parties by mental health professionals. Thus, experts are increasingly utilized in child custody cases and are engaged in every step of the proceeding; parents can jointly seek the services of a mental health consultant to aid them with private mediation, or one party, often on the advice of his or her attorney, can employ the consultant with a view to settlement or potentially, trial testimony. Increasingly, the court itself, or the guardian ad litem (an attorney, or sometimes a layman or a psychiatrist, appointed by the court to represent the child), requests a psychological evaluation. These evaluations, usually performed by court social workers or by psychologists, provide a wide range of information about the parents and children, including social and economic data, but especially focus on psychodynamic factors.

While mental health experts are prominent in pretrial procedures, where most disputes are settled, their presence has also increased dramatically in those cases that find their way to trial. Between 1960 and 2000, the pattern of expert utilization at trial changed dramatically; the number of experts soared and these experts were more likely to be appointed by the court rather than by the parents. In addition, the nature of expert testimony shifted from an evaluation of the sanity of the parent (usually mother) to observations regarding the relationship between parent and child, and in a substantial number of cases these experts testified regarding alleged sexual or physical abuse.

Outside the courtroom, a battle rages among the social and behavioral scientists on what effect divorce has on children. This question has serious implications for a nation considering whether or not to actively promote marriage and discourage divorce. The scientists, however, have reached no consensus. Some studies indicate that divorce has lifelong negative consequences for most children. Others insist that most children fare well and that those negatively affected most often recover completely.

At the start of the twenty-first century, a few observations can be made with some certainty: the proper role of the social and behavioral sciences in custody matters is still a subject of controversy but their continuing influence is an established fact. Finally, it can also be said that what constitutes the "best interests of the child" is a matter of continuing dispute.

See also: Beyond the Best Interests of the Child; Law, Children and the.

bibliography

Anthony, Susan B., and Ida Hustead Harper, eds. 1902. "Seneca Falls Women's Rights Convention of 1848, Declaration of Rights and Sentiments." In The History of Women's Suffrage, vol.1. Rochester, NY.

Grossberg, Michael. 1985. Governing the Hearth: Law and Family in Nineteenth-Century America. Chapel Hill: University of North Carolina Press.

Heatherington, E. Mavis, and John Kelly. 2002. For Better or For Worse. New York: W.W. Norton.

Mason, Mary Ann. 1994. From Father's Property to Children's Rights: The History of Child Custody in the United States. New York: Columbia University Press.

Mason, Mary Ann. 1999. The Custody Wars: Why Children Are Losing the Legal Battles and What We Can Do About It. New York: Basic Books.

Mead, Margaret. 1954. "Some Theoretical Considerations of the Problems of Mother-Child Separation." American Journal of Orthopsychiatry 24. In State ex rel. Watts v. Watts, 350 N.Y.S.2d. 285 (1973).

Morland, John W., ed. 1946. Keezer on the Law of Marriage and Divorce, 3rd edition. Indianapolis: Bobbs-Merrill.

O'Neill, William. 1967. Divorce in the Progressive Era. New Haven, CT: Yale University Press.

Wallerstein, Judith S. 1980. Surviving the Breakup. New York: Basic Books.

Wallerstein, Judith S. 1989. Second Chances. New York: Ticknor and Fields.

Mary Ann Mason