ABA Examines History of Child Custody Laws


Gordon Burrows

An accomplished attorney with more than three decades of experience in family law, Gordon Burrows serves clients out of his private practice in White Plains, New York, where he focuses on child support, custody, and divorce cases. Over the years, Gordon Burrows has maintained membership with the American Bar Association, which offers its own insight about how custody is determined in divorce cases and how that determination has changed over the years.

Child custody law has evolved markedly over the past century and a half. For example, in the early 19th century, children were thought of as property rather than individuals who could think and choose for themselves. And because property rights typically favored men, fathers were almost always awarded custody in divorce cases.

That trend changed in 1850, however, when a new policy called the Tender Years Doctrine began governing custody cases in American courts. In accordance with this doctrine, preference for custody switched to the mother, as she was viewed, at least in the eyes of the court, as the most appropriate caregiver for young, developing children. Only in extreme cases where the mother was clearly unfit (e.g., those involving mental illness, drug abuse, child abuse, etc.) would the mother not be granted custody.

In modern times, the idea of preferring one parent over another has mostly gone by the wayside. In New York, as well as other states, courts are guided by the “best interest of the child” when determining which parent should be awarded custody. Factors that go into the “best interest” determination include which parent has been the primary caregiver thus far in the child’s life, work schedules, and the mental and physical fitness of each parent.