Child Custody and the Father Right Principle

Abstract

The history of child custody reflects changing conceptions of family and gender roles. The common law parens patriae (“parent of the country”) principle vested in Chancery in 1600 empowered courts to award child custody based on the father right principle that bestowed ownership of children on the father. The principle was central to the pater familias structure, protected the father's material and familial property, and deemed his authority to be “natural.” Its authority was challenged through case law and by legislators and social reformers. In the United Kingdom an 1839 statute replaced father right with maternal preference for children of tender years. Most American jurisdictions began to endorse maternal preference for tender years offspring throughout the nineteenth century. Australian states were tardier in replacing father right with maternal preference. The late twentieth century internationally saw shifts away from both father right and maternal preference to joint custody.