Maternal Preference in 19th Century American Law


(Illustration from Little Red Cloak by Harriet Burn McKeever. Ca. 1866.)

When it was not rejected outright (as many courts did from the beginning), the supposed “paramount right of the father” to the custody of his children was subject to six major exceptions: (1) children born out of wedlock; (2) young children; (3) weak, disabled or unhealthy children; (4) daughters; (5) older male children who expressed a preference to live with their mothers; and (6) cases where the father was guilty of marital or moral misconduct, concepts which courts defined very broadly in cases where a father sought custody of a child.

Except when a court determined a mother to be an unfit parent, there were not many situations to which a “paramount right of fathers to custody” actually applied. The exceptions nearly swallowed the rule, in those few states where such a rule was ever actually applied at all. What this meant was that, in practice, the courts of every state – those that had openly rejected the “fathers’ rights” doctrine from the beginning, and those that had given it lip service while effectively nullifying it through the application of broad exceptions – decided custody on the basis of the best interests of the child, with a strong presumption that maternal custody was in a child’s best interests.[1]

The maternal preference was based on strongly held beliefs about the natural superiority of women and the inferiority of men, as a class, with respect to child-rearing functions. For example, the Illinois Supreme Court, in 1849, issued this sweeping generalization:

The mother, from her natural endowments, her position in society, and her constant association with [children], can give them that care, attention and advice so indispensable to their welfare, which a father, if the same children were left to his supervision, would be compelled in a great degree to confide to strangers.[2]

Although the maternal preference was more ardently and eloquently expressed in cases involving younger children, it manifested itself in the rules courts applied to the custody of older children, too. For example, the near-absolute rights of mothers to custody of children born out of wedlock, and of daughters, and of weak, disabled or unhealthy children, applied to cases involving children of any age.

Maternal unfitness

The custody rights of parents were never absolute. A mother, like a father, could be denied custody if a judge determined that she was unfit to be a parent.[3] The kinds of things that a court would accept as evidence of a mother’s unfitness varied considerably from what would suffice for a father, though. In general, it may be said that the grounds for declaring a mother unfit were more limited than what would suffice to declare a father unfit. And over the course of the century, this double standard became increasingly pronounced.

One clear example of the double standard was the child support obligation. Women were not expected to be the breadwinners for a family,[4] so a mother’s inability to support her children financially normally was not held to be grounds for denying her custody of her children. By contrast, courts readily denied custody to fathers – and awarded custody to the other parent, or even to a third party — on the basis that the father either could not or did not adequately provide for his children financially.

Another clear example of the double standard was marital infidelity. Courts often treated a father’s commission of adultery as grounds for denying him custody of a child but, as we have seen, a mother’s commission of adultery did not necessarily preclude an award of custody to her, especially if the child in question was young.

Moreover, regardless of the age of the child, a mother’s commission of adultery was not a bar to custody if there was evidence that she had undergone a moral reformation. And courts typically would infer a woman’s complete moral reformation simply from her termination of an adulterous relationship.

Victorian mores were such that women were seen as innocent and asexual. Therefore, any demonstration of an interest in sex, or of a lack of moral virtue, on a woman’s part was thought to be merely a temporary fall from the pedestal. The fall was assumed to have happened as a result of being pushed by a man. Accordingly, if a married woman simply renounced her interest in the man who had led her astray, then she was entitled to immediately reclaim her position on the pedestal, and all order was restored to the Victorian world.[5] Men rarely were afforded such beneficent dispensation. There was an underlying current of opinion that men who strayed from their marital obligations did so of their own free will, and were virtually assured of doing it again: Once a scoundrel, always a scoundrel, it seemed.

The principal grounds upon which a mother might be deemed to be unfit to parent in nineteenth century America were habitual drunkenness (though this did not always prevent a court from awarding her custody of a child of tender years);[6] mental illness; and severe child abuse.[7]


[1] See Commonwealth ex rel. d’Hauteville v. Sears 279 (Phila., Pa. Ct. of General Sessions 1840) (concluding, on the basis of a review of early American custody cases, that “[t]he common law of the United States is in favour of the mother’s custody”)

[2] Miner v. Miner, 11 Ill. 43, 50 (1849)

[3] See generally American Bar Association, Guide to Marriage, Divorce, & Families 172 (2006) (observing that “[b]y the mid-1800’s, most states had come to exhibit a strong preference for the mothers in issues of custody.”) Since the maternal preference was the guidestar for custody decisions throughout most of the twentieth century, it will be explored in more depth when this blog makes it into the twentieth century.

[4] The law imposed support obligations exclusively on men, not on women. It is sometimes thought that this was an aspect of the coverture doctrine, the idea being that the person who has all the rights should also have all the responsibilities. The support obligation was exclusively male, however, even when coverture was not applicable. For example, support obligations continued to be imposed exclusively on males even after the marital unity had been dissolved by a divorce. Gilley v. Gilley, 9 A. 623 (Me. 1887); Logan v. Murray, 6 Serg. & Rawl. 175 (Pa. 1820); Campbell v. Campbell, 37 Wis. 206 (1875) (holding that a divorce may terminate a husband’s right to custody but it does not terminate his obligation to support his wife and children.) see generally Epaphroditus Peck, The Law of Persons or Domestic Relations 253-60, 278 (1913).

[5] Of course, if she refused to abandon her paramour, then the court would have no basis for a finding of moral reformation, and most likely would proceed to find her unfit to parent.

[6] See, e.g., Brandon v. Brandon, 14 Kan. 264 (1875)

[7] American Bar Association, supra note 3.

The above article reprinted with permission from author and copyright holder Tom James.

SEE ALSO: Custody of children in 1896

7 thoughts on “Maternal Preference in 19th Century American Law

  1. Interesting. So the Custody of Infants act of 1839 was passed by Parliament in the UK which is said to have established the Tender Years Doctrine. The 14th amendment of the US Constitution was passed in 1868, said to have established the TYD in the US. It sounds like you might be saying that the courts were wildly biased in favor of the mother prior to this by several years? I guess what I’m really asking is – what is meant by your “from the beginning” comment in the 1st sentence?

    If it’s true that there was this bias all along, that does damage to the claim that TYD came about as a reaction to bias in favor of fathers, because there was none!

    Also your links appear to be busted, fyi.

  2. Not sure why the links aren’t working here, but they do work at the original blog site:

    Yes, the tender years doctrine has been around for centuries. In previous blog posts I discussed its development in England and elsewhere. Colonial and early American courts decided custody primarily on the basis of marital fault, but the tender years doctrine often trumped the marital fault principle, even then. In Commonwealth v. Addicks, 5 Binn. 520 (Pa. 1813), for example, an American court applied the tender years doctrine to refuse to order ten- and seven-year-old daughters into the custody of the father, although the cause of the separation was the wife’s decision to move in with a man with whom she was having an adulterous relationship.

    The traditional account of the history of American custody law is that until the Talfourd Act of 1839, fathers had an absolute right of custody, as exemplified in DeManneville v. DeManneville. This isn’t accurate. For one thing, DeManneville was a British court decision, and the Talfourd Act was a British enactment. 19th century American courts were not bound by 19th century British statutes. And the assumption that American courts adopted any and all 19th century court cases into American common law is erroneous. Many American courts rejected the DeManneville ruling. See, e.g., Commonwealth ex rel. d’Hauteville v. Sears 288 (Phila., Pa. Ct. of General Sessions 1840) (rejecting a claim that fathers have superior right to custody, and observing that it is not supported by any case precedents; and also observing that American courts have “repeatedly denied” father’s claims to custody and have “repeatedly … supported” mothers’ claims to custody); Miner v. Miner, 11 Ill. 43, 50 (1849) (noting, with reference to DeManneville and other English decisions giving fathers superior rights to custody, that in America “a court of chancery has never been disgraced by such a decision”); State v. Paine, 23 Tenn. (4 Hum.) 523, 535 (1843) (saying of the notion that fathers have a paramount right to custody, “if it were so, it is no longer…. [T]he court is not bound … to deliver the child to the father….”) Ironically, even though the court in State v. Paine specifically rejected that idea that fathers have a superior right to custody, and even though custody of the child in that case was awarded to the mother, the case is cited in later judicial decisions, and in legal texts and law review articles as authority for the proposition that fathers once had an absolute right to the custody of their children. See, e.g., Stubblefield v. State, 106 S.W.2d 558 (Tenn. 1937).

    Thanks for your interest in this subject.

    • Thanks for the heads up about the broken links, will attempt to fix them today when I get some time. Also noticed the links in Tom’s reply above are missing so will attend to those also.

      A great article BTW Tom, it’s almost a shame to not have your other related articles reposted here. The links will help.

    • Thanks for the detailed reply, Tom. Perhaps the Feminists have a point here, that the TYD was due to women being viewed as better caregivers from time immemorial? Of course, really it all boils down to basic survival. Not that it was unjustly imposed upon women, but that women had the onus placed on them by virtue of logistics.. Just thinking out loud, here.

      What’s really an eye=opener, is the way women were allowed to “sin” openly in a way that some attorneys might try and find a way to hang her high on in today’s environment.

  3. Different feminists have had different opinions about the tender years doctrine. Some prominent late-20th-century feminists rejected it as a patriarchal construct, but nineteenth century feminists actually advocated for broader application of it. Today, there are some feminists who are coming back to the 19th century position — arguing for a return to an explicit maternal preference in the law of child custody. My personal opinion is that ultimately both sexes lose, in one way or another, when sex role stereotypes are rigidly applied, such as by being enacted into law.

    A legal doctrine that 19th century feminists had a legitimate complaint about was coverture. There is no question that it discriminated against women. What has been overlooked is that it also discriminated against men, though in different ways, But that’s a subject for a different blog.