A History of Father’s Rights

In Child Custody, Parenting, Separation & Divorce by Elizabeth Stephenson

In the eyes of the law in North Carolina, mothers and fathers enter child custody proceedings with equal footing. In other words, when a child custody case is filed, there is no presumption that a child is better of with their mother or that they are better off with their father. Instead, a court has to hear evidence from both parents, then order a parenting plan that serves the child’s best interest. However, this was not always the case. In honor of father’s day, we are taking a look back at historical trends in father’s rights to their children.

The “Tender Years” Doctrine

In pre-industrial England and in colonial America, fathers were once granted sole custody of children if a divorce occurred. This is because women had an incredibly limited set of legal rights. In addition, men’s jobs tended to involve work that was done where they lived, such as farming or other trades. Over time, with the industrial revolution, there was a cultural shift where men would leave home to go to cities and work at factories for employment; the children would be left at home with their mothers.

The law in England eventually changed to reflect this cultural shift in 1839 with the Custody of Infants Act. This act effectively created the first legal presumption that children should be with their mothers unless proven otherwise. This also established that fathers should be financially responsible for supporting the children. This law followed the “tender years doctrine”, which is premised on the theory that children should spend their tender years being raised by their mothers. This doctrine would eventually make its way to the United States, where it was widely adopted by the states.

Best Interest of the Child

The tender years doctrine was effectively abolished in the United States in the late 1960’s through the 1970’s. The reason? There was a dramatic increase in divorces in the country, and following the Korean War, there was an increasing movement of women entering the workforce. The tender years doctrine was replaced nationwide by the “best interest of the child” standard of child custody decisions. This standard is still in practice today and has been largely defined by case law.

Father’s Rights Movement

There are groups of fathers and advocates who believe that the law does not go far enough in protecting father’s rights. Sometimes referred to broadly as the father’s rights movement, there has been a national push from father’s rights advocates since the 1960’s for fathers to be granted greater access and custody rights to their children so they can maintain strong relationships with them. The underlying belief of these groups is that the courts still favor mothers and that fathers have an uphill battle to gain custody of their children.

New Direction Family Law

New Direction Family Law has more than sixteen years of experience representing both fathers and mothers in North Carolina child custody cases. We can provide you with comprehensive and thoughtful legal services and will fight for your legal rights to your children. Our team of smart, hard working attorneys serve Wake, Johnston, Lee, Harnett, Cumberland, Nash, Granville, Franklin, and Durham counties. Call our office at (919) 719-3470 to schedule a consultation, or contact us at our website.