Often, in order to come to the best understanding of any topic, it is helpful to learn a bit about the history of that subject – how it came to be what it is, and why. Understanding the history of something in which we find ourselves involved can give us important perspective and understanding that we might not otherwise have. It is no different with legal matters, child custody included. Understanding the history of any topic gives us a better grasp of where we are today and why. Knowing how courts used to decide cases gives us an important perspective on how jurisprudence has shifted over the years– what the important factors used to be, and what they are now. As with so many legal and historical matters, the history of child custody is an interesting and complex one. As societal perspectives have shifted and culture has evolved, so also has the state of child custody in our country. Children as Property of the Father When Colonial Americans first settled in the United States, they followed the English common law at the time with respect to child custody. That common law typically granted custody of the children to the father following a divorce. This preference arose from the traditionally historic belief that women were essentially property, and had very few individual rights. Most “rights” that women had were in name only, and were derived from their fathers and husbands. Fathers had the legal right to physical custody of their children, which in those times might have included not only their biological children, but also young servant children, and orphaned children belonging to relatives as well. Often, the survival of a family depended upon the labor of all of these children, as well as the right to any earnings from the labor of their children, which might be very significant to the family’s finances. As a result, in the somewhat rare event of a divorce, the courts almost always awarded custody to the fathers. With the rise of the Industrial Revolution, however, more and more families began to abandon the traditional farming lifestyle of the settlers for industrial jobs in factories and cities. This meant that fathers left the home during the day, while the mothers remained to take care of the children and run the day-to-day affairs of the household. It was at this point that fathers became more traditionally viewed as wage-earners, and mothers as caregivers. It was also at this point in our history that “childhood” as we know it began to exist. Children who, in previous generations, would have been sent out to labor on the farm or at a trade began to experience days that were more largely focused on school and play, under the watchful eyes of their mothers at home, while their fathers went to work. These shifting perspectives began to influence custody decisions as well, both in England, and in the United States, which though independent by this time, continued often to look to England for guidance and vision on some legal matters. The “Tender Years” Doctrine In 1839, England passed the Custody of Infants Act. This law gave judges the authority to use their own discretion in custody cases, and permitted mothers to petition the courts for custody their children up to the age of seven. As societal roles continued to change and perspectives continued to evolve, Parliament extended the age to sixteen, pursuant to what it referred to as the “Tender Years Doctrine”. That doctrine was essentially a way of formalizing the belief that in children’s early years, they are best cared for by their mother. This principle was adopted by the majority of states in the United States as well, and was thereafter the prevailing law for the majority of the next century. North Carolina, like the majority of the states in the country traditionally subscribed to the tender years doctrine. Essentially summarizing the doctrine in its holding in Spence v. Durham, 283 N.C. 671, 687, 198 S.E.2d 537, 547 (1973) the court stated: It is universally recognized that the mother is the natural custodian of her young …. If she is a fit and proper person to have the custody of the children, other things being equal, the mother should be given their custody, in order that the children may not only receive her attention, care, supervision, and kindly advice, but also may have the advantage and benefit of a mother's love and devotion for which there is no substitute. A mother's care and influence is regarded as particularly important for children of tender age and girls of even more mature years. This, indeed, was the prevailing belief and doctrine followed in the United States for nearly a century, until continually evolving cultural norms again precipitated a change. In the 1960s divorce rates began to surge, compared to those of previous decades. A number of factors played a role in this change, including the return of more women to the workforce, an increased interest on the behalf of child development experts in the important role that a father plays in a child’s emotional well-being and development, and the emergence of more egalitarian gender views, among others. As all of these changes were happening, new conversations and debates about the role of each parent emerged. No longer was the mother seen as the only parent capable or willing to stay-at-home or provide primary care to the children. Indeed, father’s rights groups began to form across the country, as part of a larger ongoing movement for gender equality. The Current “Best Interests” Standard In 1977, the North Carolina General Assembly made the decision to do away with any presumption in favor of either the mother or the father, and officially adopted the best interest of the child standard. In pertinent part, that statute, N.C.G Gen.Stat. §50-13.2 states: An order for custody of a minor child entered pursuant to this section shall award the custody of such child to such person, agency, organization, or institution as will best promote the interest and welfare of the child. In making the determination, the court shall consider all relevant factors including acts of domestic violence between the parties, the safety of the child, and the safety of either party from domestic violence by the other party and shall make findings accordingly. An order for custody must include findings of fact which support the determination of what is in the best interest of the child. Between the mother and father, whether natural or adoptive, no presumption shall apply as to who will better promote the interest and welfare of the child. Joint custody to the parents shall be considered upon the request of either parent. Essentially then, in the context of child custody matters, the focus on the child’s “best interests” means that courts are required to make decisions regarding custody and visitation with the overarching goal of ensuring the child’s security, happiness, health, and appropriate development into adulthood. Under the best interest standard, courts have a significant amount of discretion in determining custody matters. On the one hand, it means that either party ideally has a fair and equal chance of obtaining custody, and that there is no preference for either party. And indeed, it is often ultimately in the child’s best interest to maintain a loving and close relationship with both parents. On the other hand, the equal opportunity for each parent to be awarded custody has also opened the door for what can often be bitter custody battles, as each parent tries to prove his or her case. Ultimately, the court ends up being faced with the often difficult decision of choosing a parent, and a household which will, in his or her judgment, best develop the child’s physical, mental, emotional, moral, and spiritual faculties. See In re Peal, 305 N.C. 650, 645, 290 S.E.2d 664, 667 (1982). This understandably leads to the next logical question – what factors do courts consider when trying to determine what is in the best interest of a child? The answer is not necessarily definitive – in fact courts can consider a wide variety of factors – “all relevant factors” in fact. See In re Shue, 311 N.C. 586, 319 S.E.2d 567(1984). While that’s a very broad and open-ended realm of possibility, some of the factors frequently considered include:
Certainly, this is not always an easy decision for the court to make, especially when both parents are very involved in their children’s lives and devoted to their well-being. Ultimately, when the court enters its findings of fact, it should seek to address all characteristics of the parties with respect to their physical, mental and financial fitness to care for the child. See Phelps v. Phelps, 337 NC 344, 446 S.E.2d 17 (1994). Generally, in North Carolina, it is public policy for the courts to promote and encourage parent time with the children by both parents, if possible. See N.C. Session Law 2015-278 (Senate Bill 519). As the court seeks to determine what is in the best interests of the children, it might ultimately decide on any one of a number of types of custody arrangements. It should be noted and emphasized that while courts may decide upon and order certain arrangements, instead of requesting that a court do so, the parties are free to negotiate and agree upon an arrangement that suits them best, instead. That arrangement can ultimately be anything that the couple decides works best with their lifestyle and for the needs of their children, and will of course ultimately be more personalized and provide greater flexibility than a court-ordered arrangement might be. Regardless of what route parties ultimately choose, however, understanding the basics of custody arrangements can be helpful as you move forward toward the next chapter of your life. If you need to speak with an experienced child custody attorney in Huntersville, NC, contact Adkins Law to arrange a consultation.
35 Comments
Susan Christian
8/4/2021 07:47:27 am
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5/2/2023 01:33:37 pm
The watchful eyes of their mothers at home, while their fathers went to work. These shifting perspectives began to influence custody decisions as well, Thank you for making this such an awesome post!
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5/29/2023 06:26:07 pm
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8/28/2023 05:29:00 pm
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Haldis Wimpee
9/6/2023 04:45:29 pm
I 𝖺𝗆 very 𝗀𝗋𝖺𝗍𝖾𝖿𝗎𝗅 𝗍𝗈 𝗁𝖺𝗏𝖾 𝖿𝗈𝗎𝗇𝖽 𝖺 𝗋𝖾𝖺𝗅 𝖺𝗇𝖽 𝗉𝗋𝗈𝖿𝖾𝗌𝗌𝗂𝗈𝗇𝖺𝗅 𝗁𝖺𝖼𝗄𝖾𝗋 𝗐𝗁𝗈 𝗐𝖺𝗌 𝖺𝖻𝗅𝖾 𝗍𝗈 𝗀𝖺𝗂𝗇 𝖺𝖼𝖼𝖾𝗌𝗌 𝗍𝗈 𝗆𝗒 𝗉𝖺𝗋𝗍𝗇𝖾𝗋'𝗌 𝖼𝖾𝗅𝗅 𝗉𝗁𝗈𝗇𝖾 𝗋𝖾𝗆𝗈𝗍𝖾𝗅𝗒. 𝖳𝗁𝗂𝗌 𝖼𝗒𝖻𝖾𝗋 𝗐𝖺𝗋𝗋𝗂𝗈𝗋 𝗉𝗋𝗈𝗏𝗂𝖽𝖾𝖽 𝗆𝖾 𝗐𝗂𝗍𝗁 𝖿𝗎𝗅𝗅 𝖺𝖼𝖼𝖾𝗌𝗌 𝗍𝗈 𝗁𝖾𝗋 𝗉𝗁𝗈𝗇𝖾 𝗐𝗂𝗍𝗁𝗈𝗎𝗍 𝗁𝖾𝗋 𝗄𝗇𝗈𝗐𝗅𝖾𝖽𝗀𝖾, 𝗂𝗇𝖼𝗅𝗎𝖽𝗂𝗇𝗀 𝗍𝗁𝖾 a𝖻𝗂𝗅𝗂𝗍𝗒 𝗍𝗈 𝗆𝗈𝗇𝗂𝗍𝗈𝗋 𝖺𝗅𝗅 𝖺𝖼𝗍𝗂𝗏𝗂𝗍𝗂𝖾𝗌 𝖺𝗇𝖽 𝗋𝖾𝖺𝖽 𝗁𝖾𝗋 𝗆𝖾𝗌𝗌𝖺𝗀𝖾𝗌, chats including deleted ones or the ones she was hiding. 𝖨 𝗐𝖺𝗌 𝗂𝗇𝗂𝗍𝗂𝖺𝗅𝗅𝗒 𝖼𝖺𝗎𝗍𝗂𝗈𝗎𝗌 𝗐𝗁𝖾𝗇 𝗌𝗎𝖻𝗆𝗂𝗍𝗍𝗂𝗇𝗀 𝗆𝗒 𝗋𝖾𝗊𝗎𝖾𝗌𝗍, 𝖻𝗎𝗍 𝗌𝗁𝖾 𝗌𝗁𝗈𝗐𝖾𝖽 𝗆𝖾 𝗍𝗁𝖺𝗍 𝗁𝖾𝗋 𝗌𝖾𝗋𝗏𝗂𝖼𝖾𝗌 𝗐𝖾𝗋𝖾 𝗋𝖾𝗅𝗂𝖺𝖻𝗅𝖾 𝖺𝗇𝖽 𝗎𝗇𝗍𝗋𝖺𝖼𝖾𝖺𝖻𝗅𝖾. 𝖨 𝗁𝗂𝗀𝗁𝗅𝗒 𝗋𝖾𝖼𝗈𝗆𝗆𝖾𝗇𝖽 𝗁𝖾𝗋 𝗌𝖾𝗋𝗏𝗂𝖼𝖾𝗌 𝖿𝗈𝗋 𝖺𝗇𝗒𝗈𝗇𝖾 𝗂𝗇 𝗇𝖾𝖾𝖽 𝗈𝖿 𝖺𝗌𝗌𝗂𝗌𝗍𝖺𝗇𝖼𝖾. 𝖨𝖿 𝗒𝗈𝗎 𝖺𝗋𝖾 𝗂𝗇 𝗇𝖾𝖾𝖽 𝗈𝖿 𝗌𝗂𝗆𝗂𝗅𝖺𝗋 𝖺𝗌𝗌𝗂𝗌𝗍𝖺𝗇𝖼𝖾, 𝗉𝗅𝖾𝖺𝗌𝖾 𝖼𝗈𝗇𝗍𝖺𝖼𝗍 📥CYBERWEBPRO1 @ GMAILCOM 𝗈𝗋 ☎️Thru Text @ +1 (503) 877-4273
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Gladys Jory
9/6/2023 04:46:11 pm
PRO|TEAMhacker is a true lifesaver!(CYBERWEBPRO1@GMAIL.COM) I was trapped in a relationship with a narcissistic partner who was constantly gaslighting me. I reached out to this team to help me have access to my partner phone for all the evidence i desperately needed after hearing about their exceptional reviews on Instagram and other platform. Their work is nothing short of miraculous. They uncovered a web of deception that my partner had woven around me, and the evidence they provided was heart-wrenching yet necessary. Their commitment to helping me find the truth was inspiring, and it ultimately gave me the strength to confront my partner and reclaim my life. I am forever grateful for their support during this challenging chapter of my life.
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Lucas Harris
9/6/2023 04:46:53 pm
If you're looking for a safe means in which you can spy and monitor your pals phone(whether android or iPhone). I would gladly recommend you hire this trustworthy cyberpunk. They are the most trustworthy and reliable source for tracking and Monitoring jobs. I saw so many great reviews about them online and decided to hire them also and they got me complete access to my husband phones in less than 2 hours. They deliver a ghost job in the sense that your spouse won't notice you're monitoring them and I gladly gait access to his phone everyday, I had access to his phone call conversations, web history, text messages, email, social media conversations, real time locations, calls logs and history and this cyberpunk also gave me access to all deleted data on his phone. Most times when I'm at work I click on the cyberpunk spy dashboard and see where he's at and what he's doing. I'm really impressed with the good works of this GEEK pro and I'm happy to have found out the truth. I know a lot of people need a reliable private investigator, you can contact them on
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Gundi Forbach
9/6/2023 05:08:44 pm
All you need is a professional top-notch agent who can help you track your spouse phone(WhatsApp, text messages and location of their whereabouts with no traces …I also know He is one with the best ratings on the web who can help you and he’s fast and reliable He has help me couple of times and he did well perfectly without any flaws
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Norman Goblets
9/8/2023 04:24:34 am
𝑬𝑴𝑨𝑰𝑳: CYBERWEBPRO1@GMAIL.COM
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Frank Edwards
9/10/2023 06:46:46 am
Those who have nothing to hide, hide nothing.
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