Court Review: Volume 38, Issue 4 - Age Differences Among Judges Regarding Maternal Preference in Child Custody Decisions

Over the last 30 to 40 years, sweeping changes have occurred in societal attitudes toward divorce. These changes have been reflected in the laws governing divorce and child custody as well as in the increasing rate of divorce in the United States. Just as divorce laws have changed, making the divorce process much less difficult, there have also been dramatic changes in custody and visitation statutes. From the mid-1800s until the 1960s, maternal preference was the general rule in the large majority of judicial custody decisions. During this period, the mother’s “natural ability” to nurture the child was considered as a primary factor in custody decisions. This attitude was especially prominent with regard to younger children or children of the “tender years.” This “tender years doctrine” developed in some jurisdictions through legislation and in others through judicial opinion. Reference was frequently made in judicial opinions to the mother’s “natural superiority” in caring for children. There was little public controversy regarding this attitude since it seemed to reflect societal values at that time. Thus, from the second half of the nineteenth century until the 1960s, legal norms dictated that custody of children belonged with the mother unless she was incapable of providing appropriate care, usually due to mental illness or moral depravity as evidenced by adultery. A finding of inability to care for the children was usually related to a finding of fault in the divorce proceedings