The Rationale of Father Custody under Coverture

Body Crimes said in the comments section of the “Gynocentrism, Fairness, and Morality” post at this site:

“Judithann, are you aware that it wasn’t until the late nineteenth century that women were able to get custody of their children? In the days before the legal changes that the author of this blog wants to strip away, women had NO rights to their children after divorce, regardless of whose fault. And the early nineteenth century was an improvement on what had gone before, when men had the right to contract their children out as enforced labour. It wasn’t until the 1920s that the preference for mothers as the custodial parent took almost complete effect. In the 1970s, it became recognised that children need both their parents, hence a move towards joint custody. Many of the changes in custody law have been driven by regard to children’s rights and what’s best for them.

If you want to return to the good old days, it’s best to be specific about which good old days these were, because they often weren’t that great at all.”

In my understanding of how child custody worked; father custody was the rule before mother custody became the norm later. Giving approximate dates here referring to the United States; father custody was the rule up until 1850, then mother custody along the lines of the Tender Years Doctrine hit its maximum in 1950, then after 1950 the bias in favor of custody to the mother weakened up until today. There is still a bias in favor of the woman regarding custody today but it is weaker than it was at its peak in 1950. So early stage feminism led to a strengthening of mother custody while more recent feminism has led to a weakening of mother custody. This whole custody issue is only relevant regarding “who gets the children” after a divorce; assuming the marriage is intact of course both parents “share custody” so to speak.

It should be kept in mind, when father custody prevailed that did not mean children always lived with their fathers away from their mothers, what it meant is that the father would decide where the children lived. Often the children would still live with their biological mothers after the divorce but that would be because the father agreed to the children still living with their mother. Alternatively it was common for the children to live with their father and the father’s new wife. While researching this subject once I read that only 5% of the time were children completely kept away from their biological mothers by their fathers after a divorce. Still, the principle was that the father had custody in the sense of the father choosing with whom the child would live. My impression is that only rarely would a father and his children be living alone together, that the great majority of the time the children were with either their biological mother or the father’s new woman or some female relative of the father.

As far as fault in the divorce; a divorce could not be gained merely by choice, some kind of fault had to be involved; I am not aware of the father being at fault lessening the father’s child custody rights so Body Crimes is probably right in that the father got custody regardless of who was at fault in the divorce. Again the father having “custody” did not mean the child would live with the father, it meant the father decided where the child would live. If the man was at fault in the divorce I am quite sure that meant the man was liable to support his ex-wife for the rest of her life; that fault for the divorce meant the man would continue to be obligated to support his ex-wife but that fault did not affect the child custody issue.

The likely rationale for father custody after divorce was probably that marriage and family was considered to be the man’s project and the man’s responsibility and that therefore the man should decide how best to execute his family mission and family purpose, the care and upbringing of children being part of his family mission. So basically when a man married a woman the idea was that the man was choosing the woman to be the bearer and caretaker of his children. The man then was to become responsible for the welfare of his wife and his children both. This meant if at some point in the future the man and wife split up the man was still responsible for the children of the marriage as the man was always responsible for the well being of the children from the beginning. So the father would have custody of the children after a divorce because it was always the man’s responsibility to provide for the children and it continued to be the man’s responsibility to provide for the children whether he was still married to the children’s mother or not.

Fault in the marriage leading to divorce was an issue between the husband and the wife; it was not an issue between the father and his kids. This is why who was at fault in the divorce did not affect the father’s right to custody. Who was at fault in the divorce affected to what degree the man would be liable in the support of his ex-wife but it did not affect the child custody issue.

It is worth pointing out that in 1870 in the United States the divorce rate was 3% but that the divorce rate was 23% in 1950. Likewise among whites the proportion of married women who worked was 2% in 1890 but 21% in 1950. When father custody prevailed divorce was much less common and married women working was much less common. The shift to thinking that mothers should have custody of the children after a divorce (against the father’s wishes) that peaked in 1950 was the result of an already established weakening of male investment in marriage and children. The idea that women are more invested in children than men is not “natural,” it is the by product of family breakdown.

So, yes, I am in favor of father custody as a long term goal as a general rule similar to what the thinking on child custody was before the Custody of Infants Act in 1839.

There is an oddity regarding the issue of child custody. Stronger bias in favor of women along the lines of the Tender Years Doctrine would be an improvement over today because 1950 was a better family situation than today. At the same time bias in favor of men in an overall patriarchal context such as was the case in 1850 is better than the Tender Years Doctrine which was at its peak in 1950.

In my understanding of how things developed; why at first feminism caused a strengthening of mother custody but later caused a weakening of mother custody. At the beginning, in 1850, both fathers and mothers were heavily and equally involved in the raising of their children. Fathers and mothers supported the raising of their children in different ways, fathers largely through financial support of the mother and mothers more through direct hands-on care and attention, but still the raising of the children was very much a joint enterprise that both parents invested in heavily.

From 1850 to 1950 family breakdown was slow and steady; the thing is when family breakdown got started men tended to abandon their investment in children more than women did. Men’s connection to children was more fragile so that when things went wrong women tended to stick to their children while men became less reliable and predictable in their commitment to hold up their end of the family responsibilities. This fading of male commitment and male support of the family then led people to think of women as being the primary responsible parent which then led to the idea that children were “women’s territory” and that therefore in the case of divorce the woman should get custody of the children; this being what the Tender Years Doctrine was based on.

From 1950 to today family breakdown then accelerated and during this later stage of feminism women decided that they wanted to abandon their children just like men had done before so now because of women wanting to distance themselves from the mother role the idea that the woman should always get custody is now “sexist” and based on the “gender stereotype” of women being “natural caregivers” and primarily responsible for the children. This new feminist attitude where women themselves are seeking to escape their parental roles and duties is what is now leading to a weakening of the bias in favor of mother custody.

So I am in favor of mothers being the primary caretakers of children based on male support; based on husbands financially providing for their wives; but at the same time as a long term goal I am in favor of the idea of the family being a male project and a male mission and the father being the one responsible for the well being of his wife and his children both leading to the bias in favor of father custody as that concept was understood under coverture before feminism got started. Still, going back to the Tender Years Doctrine of strong bias in favor of mother custody would be an improvement over today. It is just that strong mother custody is an intermediate step in repairing the family; it is not the final goal.

The overarching goal can be seen as trying to achieve maximum male investment in family life. The current situation is the worst of all possible worlds; both men and women abandoning their responsibilities towards children. Going back to mother custody as prevailed in 1950 would represent a strengthening of male investment in children compared to today but going back to father custody as prevailed in 1850 along with all the other cultural practices that were in force in 1850 represents the maximum level of male investment in children.

My overall goal is to maximize male investment in children which goes along with maximizing male investment in women which makes for strong and stable family life and the health of society overall. Father custody is part of the overall picture of how male investment in family life is held at its maximum strength. Only when the family is considered to be a male project to fulfill the man’s purpose in life will men become fully engaged in their role and responsibilities as the head of household.

 
References:

Marriage is Masculinity and Coverture

Responding to the Rationale of Father Custody Under Coverture

Father Custody Under Coverture Revisited

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About Jesse Powell TFA

Anti-Feminist, MRA, Pro-Traditional Women's Rights Traditional Family Activist (TFA)
This entry was posted in Coverture, Patriarchy and tagged , , , , . Bookmark the permalink.

18 Responses to The Rationale of Father Custody under Coverture

  1. Jesse, I totally disagree with you. You say that “male” investment in children weakened after the tender years doctrine, but even today, there are plenty of men-most men, it could be argued, for whom it would not be possible for them to be more invested in their children. You say that divorce rates were lowest in the early 1820’s, and you seem to assume from that the early 1820’s were therefore a healthier time, but divorce rates are lower in Saudi Arabia than they are in the U.S. This does not mean that Saudi Arabia has a healthier culture than the U.S. does.

    As has probably become apparent to those following these posts, I am not well versed in the history of these issues; I am not totally clear on what the tender years doctrine was. If it meant that women were automatically granted custody in divorce regardless of who was at fault, then I don’t support it: no woman should be able to arbitrarily decide that her children will only see their father on the weekends simply because she doesn’t feel like being married anymore. We all know that millions upon millions of women have made that arbitrary and unbelievably selfish decision, and it is horrendous, but automatically granting custody to the father is not the answer, unless you want to destroy marriage once and for all. I consider myself a very strong believer in marriage, but I would never ever ever get married under a system such as you describe: if the choice is, be a single mother and retain full custody of your children, or get married and risk totally losing custody of your children, many if not most women will choose to be single mothers, or they will just live with their boyfriends. Even if you believe that the world of 1820 was a better place than today is-and I don’t believe that-we can’t re create the world of 1820, and we especially cannot re create the world of 1820 by bringing back one law that existed back then. The past is a different planet, and we can’t go back to it.

    If anything is to improve in our culture, women must feel that they can trust men. Taking a woman’s children away from her is the worst thing you can do: it is worse than killing her, it is worse than abandoning her, it is far, far worse than refusing to be chivalrous. Advocating the kind of policy that you are advocating is not the way to restore women’s faith in men.

    • mamaziller says:

      So you think it should be shared custody or automatic 50/50? As far as I see it personally taking away m kids from me would be the worst thing someone could do. But it would probably be the worse thing someone could d to my husband as well. It is true that I spend more time with them but they are equally attached to him and he is just as much attached to them as I am.

      Like you say both ways are wrong. Do you then support shared custody?

  2. Divorce could not be done at will in the past; one had to claim fault before they could be granted a divorce. One might speculate that a man could willfully desert the wife and take the kids with him in which case the man would be at fault for the following divorce but that the man might still be able to keep the kids if he wished since the rule of father custody was not altered based on who was at fault in the divorce. In this scenario the man’s “punishment” would be a lifetime obligation to financially support his ex-wife but otherwise he could start a new life with his mistress and marry her and keep the kids so that the man’s new wife would act as the children’s mother from that point on.

    I don’t know if such a scheme would work, whether such a process was allowed in the later years of coverture, but as far as I know such a scenario was allowed.

    I do know in practice divorce was very rare and the children being alienated from their biological mothers was even more rare. With 3% of marriages ending in divorce and 5% of children being totally kept away from their mothers by the father after divorce that means that only 1 out of 700 mothers ended up being excluded from their children’s lives due to the father custody rule.

    Mother custody as it was practiced in 1950 is better than today as it was consistent with high investment by the mother in her children but father custody as it was practiced in 1850 was better than both 1950 and today because father custody meant high investment in the children by both the mother and the father. That is how things worked out historically and I would presume under similar cultural and legal circumstances that is how things would work again if the cultural and legal circumstances of the past came to be recreated.

    For whatever it’s worth I am not inclined to lobby for father custody as a public policy anytime soon because the cultural situation as it stands now is not geared towards maximizing male responsibility or male involvement but in terms of theoretical ideals to be hoped for at some point in the future a presumption of father custody is preferable to a presumption of mother custody as a cultural end state and homeostasis.

    As far as women going on a “marriage strike” if they were faced with such a presumption in the law; there are already a lot of men threatening the same kind of thing in reverse claiming the laws are unfair to men and at any moment their wife might leave them and take the kids with them and then be awarded “cash and prizes” as they put it by the courts. The idea of a woman having children out-of-wedlock because under such a situation her parental custody rights would be greater; that would certainly be an odd outcome to contemplate. I don’t know what the law did about such scenarios in the past; I have certainly never heard of women actually doing that in the past to protest against the father custody rule.

    Anyways, I do not find the threat of a potential “marriage strike” by women against father custody making a return someday as being a very credible threat.

    From the man’s point of view he is getting married for the purpose of having children and providing to his children a good mother. The man is taking the initiative in what woman to court, he then is committing himself to provide for the woman and the children he will have with the woman, and so it is natural from the man’s point of view that he sees himself as being responsible for the well being of his wife and the well being of his children. The man is not going to see himself as not being responsible for his children anymore just because his relationship with his wife goes bad. This then is the basis of the father custody rule; to assign responsibility to the man for the well being of his children no matter what so that the man will be fully invested in his children both during marriage and also after marriage if the marriage ends for some reason.

    Looking at things historically father custody was the rule during coverture all the way up until feminism got started. Family indicators immediately started to go downhill after the presumption of father custody started to weaken. The Married Women Property Acts and in parallel the beginning of the Tender Years Doctrine were the beginnings of feminism and the beginnings of never ending self-reinforcing family breakdown. I don’t think father custody was just an accident or an anomaly; I think that father custody was in place for sound reasons.

  3. I don’t believe that either mothers or fathers should automatically be given custody; I believe that who is at fault in the divorce should be taken into account when granting custody. To suggest that a man ought to be able to abandon his wife, take the kids and install his mistress as the children’s mother, and that this ought to be legal, is totally wrong: just because they did it in 1820 doesn’t mean that it was right.

    • Essential Logic says:

      Well, today a woman can abandon her husband, take the kids, the income and the assets and install her boyfriend as the children’s father – and we are seeing the results: poverty, crime, immorality and promiscuity. Furthermore, fewer men want to marry and have children. The law in 1820 may have favored men but they didn’t abuse it. Today, the law favors women and they certainly abuse it.

  4. As for Jesse’s claim that “only” 5% of women were completely cut off from their children after a divorce;I don’t know how many Americans were slave owners, but I would guess the percentage was probably about 5%. Should we look back and shrug, and say, “Well, yes, slavery was legal, but only 5% of Americans owned slaves, so it really wasn’t a problem.” Imagine if cannibalism was legal, but only 5% of people actually practiced it. Would that make it acceptable? An unjust law is unjust even if most people don’t take advantage of it.

    • Essential Logic says:

      A law that is abused by a particular group is unjust even if it exists under the guise of “equality.” Slavery is illegal today but there are many people who work so hard for so little money, which makes them de facto slaves.
      While the law may have been biased against women in 1820 with regard to child custody, few men exercised that bias. Today, the law is biased against men and a lot of women exercise that bias.
      We should pass laws that are equal and enforced equally so that no one has a chance to exercise any unfair bias.

  5. Pingback: Responding to the Rationale of Father Custody under Coverture | What's Wrong With Equal Rights?

  6. I am no longer associated with Jesse Powell, or with the TWRAs.

    • mamaziller says:

      Hi Judithann, I just want to say that I still think this is worthy cause and I hope that you reconsider. I am not really a TWRA as I was told that my views were too liberal would hurt the image of the TWRA. I think though that any group that is to have a chance of gaining a voice and having people come together to fight for something will have people who think differently.

      I think that at our core we all support patriarchy as defined by the relationship between men and women where they come together to benefit children and form family units.This should be or uniting factor and the rest can be up to personal opinion. We should not be so quick to dissolve and go our own ways or else we have no chance at all

      I really hope you reconsider and know that at the heart of TWRA’s whether you support traditionalism as the foundation of the family unit and the foundation of a successful society is what matters not how different people see this particular law.

      • When the issue of my joining the TWRAs came up, I was told that there were three requirements: in order to be a TWRA, one had to believe in God, one had to believe in unconditional chivalry, and one had to support the patriarchy, whatever that means. I should have asked what that meant; I assumed that I knew what it meant, but obviously, I was wrong about that. Nothing was said about coverture; nothing at all was said about child custody laws. The TWRAs have turned into something that I did not sign up for.

        The idea that it should be legal for a man to divorce his wife, take the children, and install his mistress as their mother is totally wrong on all levels; I suspect that most people will agree with me about that. I suspect that any movement or ideology that supports a system, or would even remotely consider the possibility of supporting a system where such things would be legally possible has absolutely no future.

      • mamaziller says:

        I suspect so as well. I do not know much about coverture. And do not agree with supporting any laws until I am living in a place and time and can judge weather or not they are applicable. That law is not applicable right now most likely never will be. We need to all take baby steps and look towards our current goals.

        The first goal is re branding traditionalism and patriarchy. People need to be open minded to it so that they can hear what we have to say.

        Work with us to tell the truth about traditionalism, all groups have differences, it is the ones that can find ways of working together despite the differences that last and succeed.

      • Hannahd says:

        @Judithann campell

        Such a man would still have an obligation to financially support his wife to the point where she has a good standard of living. A good amount of his paycheck would be going towards her. I think this alone would serve as a deterrent for most men in a patriarchal society to take the children and move in with a mistress. I also believe that this would be grounds for a woman to divorce due to spousal abandonment. After the divorce the man would still have an obligation to support his ex wife and give her a good standard of living. If he was wealthy she would get a very good amount of money from him in alimony payments. If he wasn’t wealthy then how could he support more than one woman? I am sure the mistress would not want to live with a man who didn’t financially support her. Also, controlling female sexuality would prevent men having access to mistresses. By telling women to guard their bodies and by telling women not to have sex before marriage would be a deterrent for being someone’s mistress.

  7. Automatically granting full custody of children to fathers regardless of who is at fault for the divorce is extremely abusive to both women and children. There is no way in hell that I will work with those who advocate such a policy; I will continue to speak out, but I cannot and will not work with the TWRAs.

  8. jonolan says:

    Automatically granting full custody of children to fathers regardless of who is at fault for the divorce was extremely practical and necessary up through the early part of 20th century. It was not abusive to women and children in any way compared to the alternatives.

    Women could rarely own property during those times and only a minority of them – leaving the Blacks out since their model was different – had money-earning job skills. Also, alimony and child support laws were, for the most part, not even thought of yet.

    Giving those women custody of the children would have been monstrously cruel to all involved.

    Of course, that was then and much of the underlying pragmatic reasons for automatically granting full custody of children to fathers are no longer in existence, making the idea of restoring it baseless.

  9. Pingback: So Parents “Deserve” Affordable Childcare? | What's Wrong With Equal Rights?

  10. Hannahd says:

    My only issue with this is if a man is physically harmful towards the children. What about fathers who are violently or sexually abusive towards their children but the father decides they should live with him? How do we handle this? Surely there should be some protocol to protect children from physically or sexually abusive fathers? Even in a patriarchal society, this would still be an issue from time to time.

    I do however agree with much of what you are saying. If a young woman divorces, the responsibility to support the child should not be up to any man she remarries. The father having full responsibility over any children would ensure that the woman has an easier time remarrying.

    • Essential Logic says:

      And women are not violent or sexually abusive towards children?

      The DHHS data shows that of children abused by one parent between 2001 and 2006, 70.6% were abused by their mothers, whereas only 29.4% were abused by their fathers.

      And of children who died at the hands of one parent between 2001 and 2006, 70.8% were killed by their mothers, whereas only 29.2% were killed by their fathers.

      Furthermore, contrary to media portrayals that leave the viewer with the impression that only girls are ever harmed, boys constituted fully 60% of child fatalities. (Table 4-3, p. 71, Child Maltreatment 2006, http://www.acf.hhs.gov/programs/cb/pubs/cm06/cm06.pdf, reports that 675 boys died in 2006 as compared to 454 girls).

      In a patriarchal society, men were responsible for the support of women and children. A patriarchal society punished men who were abusive towards women and children but they didn’t seem to punish women who were abusive towards men.

      In post-Renaissance France and England, society ridiculed and humiliated husbands thought to be battered and/or dominated by their wives (Steinmetz, 1977-78). In France, for instance, a “battered” husband was trotted around town riding a donkey backwards while holding its tail. In England, “abused” husbands were strapped to a cart and paraded around town, all the while subjected to the people’s derision and contempt (Dobash & Dobash, 1979).

      In their 1975 survey, Straus, Gelles, and Steinmetz (1980) estimated that approximately 38 out of every 1000 families experience severe husband-to-wife violence, while 46 out of every l000 families experience severe wife-to-husband violence. Ten years later, Straus & Gelles (1986) reported that the rates have dropped from 38 to 30 and 46 and 44 per 1000 couples, respectively. In overall acts of violence, as defined by the Conflict Tactics Scales, husband-to-wife rates of violence were 121 and 113 and wife-to-husband rates of violence were 116 and 121 per 1000 couples for the two study years (i.e., 1975 and 1985).

      Although Straus and Gelles (1986) did not dwell on these comparisons, they did make a statement that seems to run counter to the prevailing academic and public perception of the time, namely, that “an important and distressing finding about violence in American families is that, in marked contrast to the behavior of women outside the family, women are about as violent within the family as men” (p. 470). The small change in the wife-to-husband rate of violence, as opposed to some change in the husband-to-wife violence, was suggested to result from a lack of attention or concern to male victimization. The case for giving due regard to domestic women-on-men assaults and an acceptance of this higher level of victimization was backed by reference to other studies finding similar levels of male victimization (Brutz & Ingoldsby, 1984; Gelles, 1974; Giles-Sims, 1983; Jourilles & O’Leary, 1985; Lane & Gwartney-Gibbs, 1985; ; Laner & Thompson, 1982; Makepeace, 1983; Sack, Keller, & Howard, 1982; Saunders, 1986; Scanzoni, 1978; Steinmetz, 1977, 1977-78; Szinovacz, 1983).

      Many still believe that men cannot be victims and this in of itself is a sexist attitude.

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