Men's Rights Movement

[Rev. Rye]

It appears that the history of gender bias in divorce custody is a fairly complicated one, so here's me trying to explain it:

Early on, it was actually customary that, in a divorce, it was the father who got custody, largely because of assumptions (actually enshrined in law at that point, look up "coverture" for more details) that women [unless, of course, she ended up as the Queen of England] should have a similar place in the law as children, always with someone in control over her, whether it's her father, her husband or her son.

Eventually, Caroline Norton of England started pushing for laws that allowed mothers to retain custody of their children during a divorce, which ended up with the Custody of Infants Act of 1839, which allowed judges discretion in child custody cases, and created a presumption called "The Tender Years Doctrine," which established maternal custody for children under the age of seven, and eventually increased to sixteen by 1873. The law started to spread to the Commonwealth and elsewhere (including America.) On the one hand, it gave women more rights than they had had, but the assumptions behind "The tender Years Doctrine" seemed to be rooted in the same patriarchal ideology that kept custodial rights from them in the first place.

Then, after about a century of this, in the 1970s and 1980s (at least in America), courts started moving away from the "Tender Years Doctrine" to "The Best Interests of the Child Principle," which is pretty much self-explanatory. I suspect that things started off biased in the mother's favour, as the judges raised on the "Tender Years Doctrine" grew old and retired and ended up getting replaced by younger judges who were taught to consider the best interests of the child, it ended up evening out. I wish I could find some data across the decades to support this hypothesis (ideally with subsets of data focusing on older vs. younger judges), but I strongly suspect if I could find it, it would bear out my hypothesis.

"Everyone knows" it's the case because it used to be the case. And the fact that they seemed to have moved towards parity (at least in this area) doesn't seem to actually change people's perception of it. A lot of commonly accepted claims that turn out to be bullshit were, in fact, once true, but people never got around to seeing if things changed that much.