Child Custody: Fathers’ Rights Then and Now

After what appeared to be a long and contentious child custody battle, entertainer Usher Raymond was recently granted primary custody of his two sons with former wife Tameka Foster. While there was a time when mothers had the advantage walking into a child custody dispute, the ruling reflects a shift in child custody law which has leveled the playing field for fathers. From the English-based common law doctrine of paternal rights to the "tender years" doctrine to today, the evolution of child custody laws in the United States reflects economic and social changes throughout history.

Early English common law was based on a male-led family structure wherein as the primary means of supporting itself, the entire family worked on the family farm. Because women could not own property under the laws at that time and children were considered property, when it came to divorce, it was commonplace that men were awarded custody of minor children. A shift from this male-centric view of child custody arose with the rise of modern industry. Men sought employment opportunities which took them outside of the home for a majority of the time, leaving women at home to be the primary nurturers and caregivers for the children. In response to this economic and social shift, the "tender years" doctrine was born.

One of the first cases in Pennsylvania to recognize the tender years doctrine was the case of Commonwealth v. Addicks decided in 1813. The court stated that "... considering their tender age, [the minor children] stand in need of that kind of assistance, which can be afforded by none so well as a mother." With this statement, the "tender years doctrine" became a presumption in Pennsylvania custody cases that custody of children of tender years (in other words minor children) should be awarded to their mothers. Even when the tender years doctrine was found to be unconstitutional and abolished in 1977, Pennsylvania courts nevertheless still favored primary custody awards to the mother, but simply stated that other factors had influenced their decisions.

A shift in child custody laws came yet again in the 1990s. With women also working outside of the home, the tender years doctrine appeared outdated. More and more expert testimony was being presented by child psychologists regarding the negative impact of presuming that one parent is more fit than the other as a matter of law. Research showed that children need a significant relationship with both parents in order to survive the emotional impact of divorce. Thus the tender years doctrine was replaced with the notion that both parents play an important role in a child's development and the best interest of the child became the paramount concern.

One of the best things a father can do to protect his rights is to contact an experienced family law attorney. The divorce and child custody process may be difficult, especially if the father thinks he is confronting an uneven playing field. A family law attorney can help a father make sure that his rights are protected.  Schedule an appointment today with our experienced Pittsburgh child custody lawyers.