Historical Overview of Custody

What constitutes the ''child's best interests'' has been marked by great ideological shifts. Until the mid-nineteenth century, fathers were unequivocally favored in custody decisions and mothers had virtually no rights. Under English law, upon which U.S. law is based, children and their mothers were viewed as a man's property or ''chattel.'' Over the next hundred years, psychologists increasingly emphasized that mothers were biologically predisposed to be the better parent because they were more nurturing. The role of the father was viewed as an indirect one, as the provider for the mother-child relationship. As a result, the allocation of custody shifted from a complete right of fathers to a sweeping preference for mothers. This maternal preference was fortified by the ''tender years doctrine,'' which held that children of tender years should be raised by their mothers.

In the 1970s and 1980s, significant changes occurred. The courts moved away from the presumption that mothers are always the best parents and discarded the tender years doctrine because it was based solely on gender and was therefore unconstitutional. Perhaps the most prominent change was the shift to a preference for joint custody, a shift based on the presumption that it is important for children to have a continuing relationship with both parents.

States differ in the extent to which they endorse joint custody. Some express a presumption in favor of joint custody. Under the Uniform Child Custody Jurisdiction Act, judges are required to give ''full faith and credit'' to custody orders issued in other states and to enforce these decrees.

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