A Brief History of Parental Rights

The beliefs about parental rights and custody of children have changed dramatically over the years. The purpose of this article is to give a brief history of how children and child custody were treated throughout the centuries.

In the early Roman and English laws children were considered the property of their fathers. It was the father’s responsibility to protect, support and educate his children. If there was a split between the parents, the father always got custody of the children.

This presumption changed in English law in the late 1800s, with the advent of the “Tender Years Doctrine.” According to this doctrine a maternal presumption replaced the paternal preference when the children were six years or younger. The theory was that a mother is more suited to care for a child that is six or younger. However, the children were returned to their father’s care once they reached the age of six..

As society changed with the start of the Industrial Revolution where there was a change from rural living to urban living. The fathers increasingly sought work outside the farm or village and the mothers stayed home to take care of the children and the home.

In the 1920s the presumption changed completely from fathers automatically getting custody of the children when the parents divorced, to the mothers almost always gaining custody of the children. This trend was true in both American and English law, and it stayed true regardless of the age of the children. At this time the prevailing theory was that mothers were more suited to raise and nurture children than the fathers.

This theory of the maternal preference in raising children was given even more credence in the 1930s with the Freudian psychoanalytical theory. This theory focused exclusively on the mother-child relationship and completely ignored the father’s role in a child’s development.

In the United States, when there was a divorce, one parent was awarded Sole Managing Conservatorship and the other parent was awarded Possessory Conservatorship of the children. The parent who had Sole Managing Conservatorship of the children had all the rights and duties with regards to the child and the Possessory Conservator basically had the right to “visit” with the child and had the duty to pay child support, but had no other rights with retards to the children. So, the Possessory Conservator had no right to access the children’s medical or educational records, had no right to information about the children. Therefore, in a custody battle there was a clear winner and a clear looser. In the early 1900s the mother was almost always appointed the Sole Managing Conservator of the children.

In the 1960s and 1970s with the sift in American culture to focus more on women’s rights, the climate with regards to a father’s rights with regards to the children started to make a shift. With women gaining more equality in the workplace, many started to question the idea of the maternal presumption.

However, the change in thinking came very slowly. The law changed in Texas in 1995 when the legislature changed the law to presume that parents would be appointed Joint Managing Conservators in the event of a divorce. This change spoke mostly to the rights and duties of parents. So both parents had rights to receive information retarding the children. However, there was still one parent with the primary right of possession of the child and the other parent was given a possession schedule along with the obligation to pay child support.

With regards to the Court’s decision about which parent should be appointed the parent with the primary right of possession, the law plainly states that the best interest of the child is the focus of the inquiry. This proposition has been law from the mid 1970’s. Very often the mother was the one who would be appointed the parent with primary right of possession in Tarrant County Texas.

The laws on the books today about possession and access to children have not changed much regarding possession and access of the children since 1995. However, there has been a shift in opinion by many Judges in Tarrant County regarding mothers being the best choice to have primary possession of the children. There is also a trend developing where Judges are ordering parents to not only be Joint Managing Conservators of the children, but also ordering that the parents have equal time with the children. This is often called a 50/50 access schedule.

So, it will be interesting to see how custody, possession and access of children will evolve in the future. Will a 50/50 access schedule become the norm in Texas like it is in many other states in the United States?