Child Custody In The 1800's: An Analysis

Before the 1800’s, children were looked upon as only property. During this time, if a couple were divorced, the children would go directly to the father, because “women were not permitted to own property” (Costanzo & Kraus, 2012). This was practice in child custody was known as “the legal doctrine of Pater familias” (Costanzo & Kraus, 2012). However by the 1800’s thoughts on child custody had changed to what is known as “best interest of the child standard” or BICS (Costanzo & Kraus, 2012). BICS is pretty self-explanatory; its meaning is that the thoughts and feelings of a child or children caught in a divorce were taken into account over those of the adults involved in the case. The child (ren) was at that time placed within the best situation. Since not everyone was in agreement over what is for the best of a child or children caught in a divorce, once again things regarding child custody changed.

In the 1900’s, following BICS a doctrine known as “the tender years doctrine”; it is a practice in child custody that awarded all custody to the mothers (Costanzo & Kraus, 2012).

It states that “unless there were extenuating circumstances” the “children of a young age and all female children” were to be placed with their mothers (Costanzo & Kraus, 2012). So child custody went until the mid- 1900’s when the fathers started to push for “their rights” (Costanzo & Kraus, 2012). The tender years doctrine was finally terminated. The “primary caretaker rule” then went into effect.

The primary caretaker rule used five (5) components to establish which parent in fact was the overall caretaker of the child (ren). Those components are as follows:

1. Which is the parent that purchases and launders the

clothing?
2. Which is the parent that washes and dresses the child (ren)?
3. Which parents corrects the child (ren) when they do something wrong and who helps with homework?
4. Which is the parent that takes care of the child (ren) when they are sick?
5. Which parent lets them play with friends?
In almost all cases it was the mother who took care of the five before mentioned things; so of course custody of the child (ren) went to the mother, sort of like the tender years doctrine (Costanzo & Kraus, 2012).
In the 1970’s the “Uniform Marriage and Divorce Act” or UMDA was the new norm when dealing with the issue of child custody (Costanzo & Kraus, 2012). This practice for custody of the child (ren) also used five (5) factors for determination. Those are as follows:
1. The wishes of the parents.
2. The wishes of the child (ren).
3. The relationship with the child and other members of the family.
4. The “adjustment to home, school, and community” of the child (ren).
5. The overall “physical and mental health of everyone” that interacts with the child (ren) that lives with in the house.
However nothing gives a judge the know “how to balance and weight these different criteria”; only in Texas does it stipulate that the jury is the decision maker for this practice (Costanzo & Kraus, 2012). To help some states give little “add-ons” such as; the “moral fitness” and “economic stability” of each parent (Costanzo & Kraus, 2012).
Another practice in child custody arrangements is that of the “approximation rule” (Costanzo & Kraus, 2012). The practice of this rule in regards to custody is simply to have “stability and continuity” for the child (ren) (Costanzo & Kraus, 2012). This is basically stating that whoever did more for the child (ren) such as taking them to and from after school activities, helping with homework, caring for when they are sick, was the parent that received custody. When this practice is applied it is also reminiscent of the tender years doctrine in the way of most mothers received custody of the child (ren).