A History of the Custody of Children, Part One

No, no orangutans or ocelots today. Instead, let’s engage in a little historical perspective on the legal process, specifically the maturation of the idea of Child Custody in the arena of divorce. To understand most legal concepts, it is helpful and wise to review the historical transformation of the law. The modern view of Child Custody is likewise best learned by seeing from whence it came.

Prior to the 1960s, there were few divorces and few children born out of wedlock, specifically when compared to present-day. The decade of 1960s brought about a transformation in American society that is unprecedented in American history with regard to marriage and child-rearing. World War II had resulted in the mass enlisting of women in the work force, and the evolution our concept of the “family unit”, propelled by forces such as the women’s liberation movement, anti-war demonstrations and other societal transformations which led to women abandoning the roles assigned by traditional marriage that had existed from the founding of our country. Today, the national divorce rate exceeds 50% as compared to a rate of about 5% in the early 1960s. As a consequence, disputes arose as to which parent would have physical custody of the children and also how major decisions pertaining to the children would be resolved.

In the late 1950s and into the 1960s, the Courts applied what was known as the "Tender Years Doctrine" In effect since the late 19th century, this concept established a presumption that children age eight or younger be placed with their mother. A father challenging such a presumption had a heavy burden of proving that the mother was clearly unfit to care for the children. As a result, very few children spent more than every other weekend with their fathers through the 1960s, and weekday contact for a father was rare unless the mother agreed.

The establishment of Equality of the Sexes in the 1960s established precedent which has evolved through today The number of women working full time increased dramatically, and as a result, even children belonging to solid, intact marriages found that upon their return from school, they either required the care of an adult or (if they were old enough) that they were responsible to care for each other until a parent returned from work. This new breed of youngsters became known as
"Latchkey Kids”; children who came home from school before the parents returned from work. The "Latchkey" group normally consisted of a least one child of age 14-15 or older. The younger ones were greeted by babysitters or a neighbor who agreed to fill the approximate two hour gap in time.

As a consequence of these changes, the legislatures of the states (custody is a state-not federal law) slowly equalized the playing field for the fathers in custody laws. Over time, fathers were afforded the opportunity to challenge for primary custody of the children. Although the law generally changes slowly, the presumption in favor of the mother (a societal as well as legal presumption) began to erode. By the 1980s, the standard for determining a custodial award was no longer “Tender Years”, but became "The Best Interests of the Children". However, as you may expect, the mindset of the judiciary was slower to change than the statutes that were promulgated.

The 1980s ushered in a dramatic increase in the number of divorce filings nationwide. In that decade, more and more fathers were awarded the primary physical care of their children. But the Courts were not as quick to undo hundreds of years of precedent. Consequently, unless there was strong evidence that the mother was unfit to some degree, the scales of justice continued to favor the mother. However, even when the mother was awarded primary physical care of the children, the contact/visitation rights of fathers increased substantially.

As we entered the 1990s, fathers would hire psychiatrists as experts to evaluate both the parents and the children and make recommendations. The use of such experts has increased through this day. Other experts such as psychologists and social workers played a peripheral role, but today, it is the psychiatrists that are the primary source of expert recommendation. Guardian Ad Litems (primarily attorneys appointed by the courts to represent the interests of the children) are another option available to parents embroiled in a custody dispute. The author was appointed in approximately twenty-five such cases in the 1990s in Orange County, Florida.

The testimony of such experts is afforded substantial weight at trial. The introduction of these court appointed experts saved the courts valuable time. These experts are permitted to use hearsay evidence (information acquired through interviews with third parties and the review of documents created and possessed by third parties). With the increase in divorce and related custody cases, the time saved by the use of such experts allowed each judge to handle more cases.

For instance, a custody evaluation is completed prior to trial. If the recommendation of the expert clearly favors one parent, the parent on the short end is more likely to negotiate to acquire expended contact rather than incurring the time and expense of a trial as they realize that the expert will be the primary witness called by the other parent.

As psychiatrists weighed in on what contact schedule is most beneficial to children, it became clear that the recommendation would include a substantial expansion of the traditional alternating weekend schedule applied in the early years. Rather than alternating weekends from Friday evening to Sunday at 6:00 p.m. were expanded to Fridays from after school until the non-custodial parent delivered the child to school on Monday morning.

In addition, the "non-custodial" parent was afforded weekday contact from after school until about 8:00 p.m. on Wednesday or whichever day the parent could make this fit his/her work schedule. Time during the holidays and summer vacation was also expanded. Custody not only evolved as to the time a parent spent with their child, but also came to encompass the involvement of both parents in the decision-making for the children. In Florida, this concept is known as "Shared Parental Responsibility".

My next post will bring us forward from the late 1990s to the present and will extend the discussion to include the concept of Shared Parental Responsibility, the relocation of children and other judicial considerations which include addressing the stigma associated with naming one parent with the title of Primary Residential Parent. Stay tuned.