The Gender Equality Checkpoint

[DanaC]

Don't know about elsewhere, but the tendency to assume maternal custody (in itself now starting to give way to assumptions of shared custody) is relatively recent. It was a reversal of the previous assumption of paternal custody. Up until the 20th century it was generally assumed that the man was the head of the household and had legal rights over both spouse and children. Up until the 19th century, in Britain, women essentially lost their legal identity when they married. It was called 'coverture' (or couverture)- literally it meant that she was covered by her husband - she existed under his authority and protection and therefore her legal identity was contained in his. She was not, legally speaking, an equal partner in the marriage, and she did not have the right to remove his children from him. Only if the child was still of nursing age (actually, I think it could sometimes count up to about 5 years old) was maternal custody considered appropriate.*

Not sure, but I think in cases of extreme cruelty, petitions for custody may have been successful sometimes. I know of at least one infamous case in the late 18th century in which such a petition was unsuccessful, despite the apparent sympathy of all concerned for the cruelty the wife had suffered and feared for her child.

By the 20th century attitudes had shifted and matters of custody were dealt with very differently - even so, I think assumptions of maternal custody as a preferred solution may not have started to take hold until the latter half of the century. But - I'm guessing there - it's a long time since I read up on this stuff.

* I should point out that up until relatively recently divorce of any kind was pretty much only available to the wealthy, and until the late 18th/early 19th century only through successful parliamentary petition. Separation, like marriage was a different matter further down the social and economic scale and they really did do things very differently. It varied enormously, from place to place, trade to trade, but there were certainly many working-class (as we might term them) cultures in which marriage was much less formalised, and where women were the custodians of children, with men moving in and out of the family and the children remaining with the women. Also, somewhat counter to the common image of distant fathers, there seems to have been a lot more sharing of parenting between wives and husbands in some working cultures - just from a pragmatic perspective.