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Anglo-American Criteria for Resolving Child Custody Disputes from the Eighteenth Century to the Present: Reflections on the Role of Socio-Cultural Change

Transformations (from the eighteenth century to the present) of legal and cultural criteria pertaining to child custody are examined, with special reference to issues pertaining to ipso facto preference for the father or the mother as the custodial parent. Starting out with (1) the traditional doctrine which (in theory) gave the father an absolute right to custody in the event of divorce or separation, the essay traces (2) early modifications of that doctrine, with incipient concern for the child's best interests; (3) the “tender-years” doctrine, which favored the mother as the caretaker for very young children; (4) a preference (in an almost 180-degree reversal of the traditional doctrine) for the mother as the custodial parent, except in case of the presence of what were viewed as strongly disqualifying factors; and (5) the egalitarian standard, which rejects ipso facto preference based on the parent's sex. These transformations are discussed in relation to fundamental alterations in perception of sex roles and of children's rights; to changing social and economic realities; to judicial attitudes; and to trends in de facto custody arrangements. Disparities between legal principles and social practices are noted.