Is the Bar Set Higher for Dad? A Historical Overview of Father’s Roles in Custody Agreements

parents playing with kids and sparklers
Jun 17, 2019 | Sara Khaki

In honor of Father’s Day, our team wants to acknowledge all the amazing work that dads (married or single) all around the world do to provide for their children. Being a divorce firm, a great number of the cases our attorneys handle include a custody agreement. And while there have been several positive developments regarding state child custody laws over the last few years, inequalities in the laws still exist.

When the American families of the original colonies initiated a divorce, laws granted the father sole custody of the children. But following the start of the Industrial Revolution in the 1800s, dads began working long hours in city factories while mothers often stayed home and took on more child-rearing responsibilities. Many believe this change in the family dynamic prompted the establishment of “the tender years doctrine” in 1873, a law which concluded that young children are best cared for by their mother. This notion was adopted by both English and American courts of law for an entire century.

By the 1960s, as the rate of divorce in America continued to grow, so did activist groups fighting for fathers’ rights. This spurred psychological researchers to begin looking for ways in which fathers are necessary to a young child’s development. These psychological — and gender — equality movements regarding custody arrangements, coupled with cultural movements involving more women joining the workforce, drastically changed the way the court viewed the role of the custodial parent. The “tender years doctrine” was replaced with what is now referred to as the “best interest of the child” standard.

Currently, the custody policy of many states has become gender neutral and encourages the involvement of both parents. According to a study published through the University of Wisconsin, there have been sustained changes in mother-sole-custody cases over the past 20 years — down from 80% in 1986 to 42% in 2008. It now seems that joint custody is becoming more and more advantageous in the American judicial system. But while progressive and necessary steps have been taken to ensure that custody arrangements best reflect a child’s needs, there still exists an implicit bias that favors mothers as the custodial parent. The reality inside and outside of the courtroom is that while both mothers and fathers have to fulfill ample expectations to be considered excellent parents, the bar seems to be a bit higher for dads.

Here at ADLG, because we acknowledge that this bias exists, we assiduously work with our clients to ensure that custody agreements really are in the best interest of the child. If you have any questions, don’t hesitate to reach out to us today.

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