Friedman: the worldwide evolution of child custody laws

August 15, 2014 at 11:08 pm Leave a comment

Towards a Structure of Indifference: The Social Origins of Maternal Custody

[ A summary of Debra Friedman’s work ]

Journal of Social History,  Summer, 1996  by Linda W. Rosenzweig

Note: Considering that this article was penned in 1995 it is remarkably penetrating. Friedman identifies what is only now being more widely accepted as the causal factor and stumbling block, namely, that ‘the state’ has now taken over from the father the paternal and guardianship role – the rhetoric cloak of concern, as she puts it, for “the child’s best interest” which enables the state to do whatsoever it pleases. Not only are her  comments prescient but are still relevant to today’s experience. One can only imagine that in it’s year of publication it must have been seen as sheer heresy.


  •  Abstract: In the forty years between 1880 and 1920, the presumption that divorced and separated fathers in normal circumstances should be granted the custody of their children was changed in all Western countries that permitted divorce. New laws where passed that soon gave way to the almost certain award of child custody to mothers. This book, a study of that change in presumption of custody, addresses two fundamental questions. The first, straightforwardly empirical, is: “Why has a shift of that magnitude and importance been lost to the public memory in less than a hundred years ?” The second is more abstract: “Why did the dominant group, the fathers, cede rights to the mothers without duress — indeed, without concerted political or collective action of any kind ?”  Prior attempts to account for the change in custody failed because they underestimated the role played by the state in each instance, and ignored the class character of divorce of the period. Friedman’s own account begins by examining the considerable pressures brought to bear by rapidly rising divorce rates in England, France, and the United States. Maternal custody arose as a by-product of the state’s concerns about the potential for a vastly increased welfare burden imposed by financially dependent women following divorce. During the transition, responsibility for children’s welfare was diffused, with mothers becoming responsible for nurture, fathers for financial support, and states for schooling. Ultimately this led to a structure of indifference, with striking consequences for the welfare of children after divorce. (Published: 31 Dec 1995, 157 pages).
  • [Not unlike the reaction of town halls to burdens placed ‘on the parish’ by widows and orphans in the 18th and 19th century and the need to ‘off-load’ them as promptly as possible – RW.]


Friedman’s analysis of this transition differs from those of other researchers whose work she summarizes. Most studies stress the impact of several concurrent trends – the development of separate spheres, the cult of domesticity, the invention of modern motherhood, and the rise of feminist activism – as causal factors.

Friedman maintains that the evolution of the presumption of maternal custody involved more than the substitution of one parent for the other and more than the conversion of paternal right to maternal right.

Fathers once had complete custody and control over children, but absolute parental rights were now assumed by the state and were exercised in custody disputes through a rhetoric of concern for the child’s best interest. Although that interest was increasingly interpreted to compel maternal custody, the state rather than the mother had effectively acquired the right of parenthood. Yet the displacement of the father as custodial parent did not relieve him of familial financial obligations.

Friedman explains the transformation in custody laws and practice in terms of the influence of “generic social forces that, in their sweep, were little affected by national variations” such as different legal and political traditions. (p. 59) She cites four such trends – the increasing divorce rate, the increased number of children affected by divorce, the increased life expectancy for privileged white women, and the decrease in maternal and neonatal death rates. The cumulative effect of these forces resulted in the creation of a potential welfare burden for the state which provided the impetus for the reconsideration of paternal preference in custody.

The development of maternalist ‘social welfare’ policies, particularly in the United States, addressed the economic plight of widows and their children. However, because those policies excluded divorced women and their offspring, they effectively encouraged maternal presumption in child custody cases.

The climate in other Western nations was generally unsympathetic to the extension of social welfare, and those states were also unwilling to meet the economic needs of the growing numbers of divorced women over a longer life span, as well as those of their offspring from childhood to adulthood. Hence the state’s economic interests favored the privatization of material support for both children and their divorced mothers through the maintenance of fathers’ financial obligations.

Custodial fathers provided only for their children while non-custodial fathers provided for two sets of dependents, mothers and children, a practice that removed a considerable financial burden from the state. At the same time, the state assumed the father’s earlier obligation to educate his children as compulsory public schooling expanded. Friedman suggests that this development eliminated the last impediment to maternal custody because it ensured that children would be educated even though their mothers could not afford to pay for expensive schools.

This study locates the custody question in the context of the more general issue of whether the laws, norms, and institutions surrounding divorce and custody work to the advantage or the detriment of children.

The author refutes the assumption that parents are intrinsically motivated toward altruistic and self-regulated behavior regarding their offspring, asserting that parent-child relations are “socially constructed inequalities” (p. 13) and as such, are subject to alteration and breakdown. When divorce occurs, the interests of parents often diverge from those of their children as well as those of the state.

Concern for children’s welfare has played a negligible role in the issues surrounding divorce legislation generally, as the evolution of the presumption of maternal custody illustrates. The unintended consequence of that evolution has been the creation of a structure of indifference. After a divorce, responsibility for a child’s well-being is diffused among three agents with three separate, often conflicting agendas. The transformation from paternal presumption to maternal presumption does not reflect a failure on the part of custodial fathers, a change in their feelings toward their children, or a revised interpretation of the best interests of the child. It represents a solution to several related social problems, none of which actually responds to the fundamental, enduring needs of children.

Friedman considers the possibility that those needs were better served when paternal custody prevailed and one agent had a definite obligation to provide support, protection, and education. Existing evidence suggests that contemporary custody arrangements generally do not produce beneficial effects for parents or children. The search for alternatives must acknowledge and address the structure of indifference.

Friedman’s approach to the evolution of child custody laws and practice is more sociological than historical. She stresses the impact of impersonal forces and effectively dismisses the role of individual agency, either male or female (with the exception of judges), in the rise of maternal presumption of custody. She also minimizes the possible significance of the changes in women’s lives during a period of major transformations in female roles and opportunities. Her insistence on the role of broad social trends versus national differences occasionally seems over-stated and contradictory, as in the following generalization:

  • “Yet the sense of the period – in the United States, though not so much in France or England – is one in which the welfare obligations toward children and mothers were growing….” (p. 109)

Despite these imperfections, the book contributes a sophisticated, thoughtful analysis of the interaction between the family and the state to the growing body of literature on state and society. Both the subject matter and the argument will interest historians working on issues pertaining to women, childhood, and the family in late-nineteenth- and early-twentieth-century Western settings.




See also:-

Custody;col1 and;col1



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An end to judicial ‘thuggery’ ? Trends in Family law, divorce and access to justice – Prof Parkinson

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