The Maternal Preference
Contrary to popular belief, there was never a time in American history when courts treated children as the “property” of their fathers so that mothers had to wage a decades-long Equal Rights campaign to win the right to have the custody of their own children. As explained in my book, The History of Custody Law, whatever the case may have been in other countries, American judges were applying the “best interests of children” standard to decide custody as early as 1804. Sometimes an early nineteenth century judge even went so far as to chastise an attorney who tried to put forward a “father’s rights” argument instead of a “best interests” argument. The truth is that America began by deciding custody on the basis of morality and marital fault. The movement that occurred in the nineteenth century was from that to a near-absolute preference for placing children in the sole custody of their mothers. That judicial predilection has come to be known as the maternal preference doctrine.
The maternal preference that was established in the nineteenth century continued to be the principal standard of decision in custody cases throughout most of the twentieth century.
“It is universally recognized that the mother is the natural custodian of her young. Accordingly, the mother is ordinarily awarded the custody of children of tender age, especially girls, unless it is clearly shown that she is not a fit and proper person.” Some jurisdictions codified it. In others, courts applied a judicially-created presumption that maternal sole custody is in every child’s best interests.
In all states, it was a firmly established rule of law throughout most of the twentieth century that the mother was entitled to custody of the children in a divorce or separation unless she was proven to be unfit to parent. “The mother of an illegitimate child is entitled to its custody unless she be unfit therefore. And the same rule as to custody of legitimate children is applied to the custody of illegitimate children, and the courts are controlled and actuated by the same considerations.” As late as 1976, American Law Reports reported that “the vast majority of the jurisdictions continue to follow” the maternal preference, viewing the mother as the “natural custodian of her young” because “her love for her child is irreplaceable.” Judges believed fathers either had no love for their children or whatever love they had was replaceable.
Prior to the 1980’s, judges simply assumed that mothers were imbued with a natural instinct for child-rearing, and that this instinct was lacking in fathers. Courts explained their refusal to grant custody to fathers this way: “To deprive [a] child of the society, companionship and the instinctive and natural maternal love of her mother … would hardly be to the interests of the child.”
Sometimes courts characterized the mother-child bond as “sacred.”  The father-child bond was not. As the Wisconsin Supreme Court explained:
[No father’s love] can be an adequate substitute for mother love – for that constant ministration required during the period of nurture that only a mother can give because in her alone is duty swallowed up in desire; in her alone is service expressed in terms of love.
In 1972 the Maryland Court of Appeals candidly expressed its bias in favor of mothers in the following terms:
The maternal tie is so primordial that it should not be lightly severed or attenuated. The appreciation of the visceral bond between mother and child will always be placed upon the balance scales, and all else being equal or nearly so, will tilt them.
From article of faith to rule of reason
In 1973, Joseph Goldstein and Albert Solnit teamed up with Sigmund Freud’s daughter, Anna Freud, to publish a book called Beyond the Best Interests of the Child. It espoused a psychoanalytic approach to determining what is in a child’s best interests, one that relied heavily on Sigmund Freud’s psychoanalytic theories and John Bowlby’s attachment theory, which also was grounded in Freudian theory.
Freud and her colleagues observed that an infant develops a psychological attachment to an adult who is personally and emotionally involved with him. They theorized that the attachment consisted of the baby’s superimposition of its libidinal interests on the events of bodily care (feeding and diaper-changing, for example.) They postulated that because of this early attachment, it is vitally important to a child’s psychological well-being for this first bond to remain uninterrupted.
Such primitive and tenuous first attachments form the base from which any further relationships develop. What the child brings to them next are no longer only his needs for body comfort and gratification but his emotional demands for affection, companionship, and stimulating intimacy. Where these are answered reliably and regularly, the child-parent relationship becomes firm, with immensely productive effects on the child’s intellectual and social development.
“Unlike adults, who are generally capable of maintaining positive emotional ties with a number of different individuals,” they asserted, “Children lack the capacity to do so.” Since mothers are the ones who are biologically equipped to nurse their babies, it is easy to see how Freud‘s theoretical framework could have been thought to support a preference for making awards of sole custody to mothers.
The fly in the ointment of course, is that it is not necessarily true that the mother is the one upon whom the child superimposes its libido in every case. If a particular father does a greater share of the feeding, diapering and comforting of the baby than the mother, then the theory would support a preference for making an award of sole custody to the father rather than the mother. The theory is not sufficient, by itself, to support a maternal preference or presumption specifically in favor of mothers.
Moreover, there was no basis for Freud‘s assumptions that children are incapable of forming psychological attachments to more than one person, much less that multiple attachments are detrimental to a developing child’s psychological health. In fact, available empirical evidence contradicted those assumptions. For example, researchers H. Rudolph Schaffer and Peggy E. Emerson found that from birth to three months of age, babies respond and attach equally to any caregiver; between four and nine months, a baby tends to have a primary attachment to one person, but also maintains secondary attachments to others; and that by nine months babies form multiple attachments. In addition, they found that attachment correlates closely with the person who responds most accurately to the baby’s needs and desires, not the person who spends the most time with the baby. Further, they reported that at eighteen months, a child’s main attachment figure was the mother for only about half of the children studied, and the father was the main attachment figure for nearly all of the rest. Finally – and contrary to Freud‘s libidinal-superimposition theory — they found that the most important factor in forming attachments is not who feeds and diapers a child, but who plays and communicates with her.
Nevertheless, late-twentieth century judges, custody evaluators, and family law policy-makers increasingly cited Freud‘s theory, as expounded in Beyond the Best Interests of the Child, as the justification for their preference for maternal sole custody, and for permitting children to have only very brief periods of visitation with their fathers. By the end of the century, Freudian attachment theory had supplanted both God and maternal instinct as the doctrinal basis for the judicial preference for mothers.
The maternal preference was never absolute. A father could rebut the presumption that custody should be awarded to the mother by proving that she was unfit to be a parent. Courts construed the concept of parental unfitness very narrowly when considering the fitness of a mother to parent, though. The double standard they had developed in this respect in the nineteenth century continued into the twentieth.
A father’s insolvency or poverty was sufficient to support a finding of his unfitness for custody. In Bryant v. Dukehart, the mother died and the trial court, instead of leaving the children in the custody of their father, awarded them to the guardian the mother had appointed in her will. Acknowledging that the surviving parent normally has a right to custody of the couple’s children when one of the parents dies, the appellate court nevertheless affirmed the award of custody to the guardian rather than the father. In support of its decision, the court cited the fact that the father had entered into a lump-sum child support settlement at the time of the parties’ divorce. The court held that a father’s attempt to enter into a one-time lump-sum settlement of his child support obligation at the time of the divorce evidenced an intention to evade the obligation of a father to support women and children financially with periodic payments of money throughout their lives. That intention, the court declared, rendered him unfit to be a parent.
A mother’s insolvency or poverty, by contrast, was deemed irrelevant to her fitness to parent. If a woman was not able to support her child, the courts reasoned that her financial difficulties could be ameliorated by ordering the father to pay alimony and child support to her. So long as she was not habitually drunk, did not suffer from a serious mental illness, and was not guilty of severe physical child abuse, a mother would be considered sufficiently fit for child-raising.
In most states, a mother’s commission of adultery would not support a finding the she was unfit to parent. A few states did treat adultery or other marital misconduct as evidence of parental unfitness. Even in these states, though, a mother’s termination of the adulterous relationship sufficed to restore her to full fitness.
Other courts applied a more general double standard. These courts treated a father’s commission of adultery, desertion or other marital misconduct as conclusive evidence of his unfitness to parent, but held that a mother’s commission of these kinds of things did not necessarily render her unfit to parent, especially if the custody of a daughter, a disabled or unhealthy child, or a young child, was at stake. To these courts, the tender years doctrine overrode the presumption of parental unfitness that otherwise would arise upon proof of marital fault.
In most states, the fact that the mother was the one who was at fault for the divorce did not prevent a court from awarding her custody of the children, no matter how egregious her behavior had been. In Crabtree v. Crabtree, the wife had cut a five-inch slit in her husband’s throat with a razor blade, intending to kill him, and then chased him down and stabbed him again as he was running away. Upon his release from the hospital, he petitioned for divorce on the grounds of extreme cruelty. The court found that the wife’s attempt to kill him was not justified, her reason apparently having been simply her displeasure with his “sullen” attitude, and her anger at him for trying to get away from her. The court found that he had not been guilty of any wrongdoing, so he was indeed entitled to a divorce on the grounds of extreme cruelty. The court then proceeded to award custody of the children to the wife because she was their mother.
 Comwell v. Comwell, 224 A. 2d 870 (Md. 1966); see also Hartog supra note 1 at 306 (“In 1950 (and still in 1960 and even in 1970), much of the nineteenth century law of husband and wife remained.”)
La. Rev. Civ. Code art. 146 (1912) (superseded by La. Civ. Code art. 131 (2011)) (requiring courts to award custody to the wife even if she is at fault for the divorce); N.H. Stat. ch. 176 § 4 (superseded by N.H. Rev. Stat. § 458:16 (2011)) (authorizing only wives, not husbands, to get orders for temporary custody of children during the pendency of a divorce); R.I. Gen. Laws ch. 245, § 1 (1909) (superseded) (declaring that a married woman has sole custody if she lives separately from her husband for a year); Utah Comp. Laws § 3004 (1917) (superseded by Utah Code § 30-3-10 (2012)) (requiring courts to award custody to the mother unless she is proven to be “immoral or otherwise incompetent”); P.R. Civ. Code §§ 166, 175 (1902) (superseded) (requiring courts to award custody to the wife unless she is at fault for the divorce.)
 Pierce v. Jeffries, 137 S.E. 651 (W. Va. 1927).
 Thomas R. Trenkner, Annotation, Modern Status of Maternal Preference Rule or Presumption in Child Custody Cases, 70 A.L.R.3d 262 (1976).
 Pitts v. Pitts, 29 A. 2d 300, 305 (Md. 1942). Freudian dogma held that women were naturally suited for child-raising and had an inherent nurturing ability that men lacked, thereby making the mother-child relationship more important to children than the father-child relationship is. See Roth, supra note 2)
 See, e.g., Waldron v. Childers, 148 S.W. 1030 (Ark. 1912) (holding that “the natural affection of a mother … is stronger and more sacred than that of any other….”)
 Jenkins v. Jenkins, 181 N.W. 826, 827 (Wis. 1921)
 Kirstukas v. Kirstukas, 286 A.2d 535 (Md. Ct. App. 1972)
 Joseph Goldstein et al., Beyond the Best Interests of the Child (1973).
 Id. at 18.
 Id. at 13.
 H. Rudolph Schaffer and Peggy E. Emerson The Development of Social Attachments in Infancy, 29 Monographs of the Soc’y for Res. in Child Dev. no. 94 (1964)
 Kathryn L. Mercer, A Content Analysis of Judicial Decision-Making: How Judges Use Primary Caretaker Standard to Make a Custody Determination, 5 Wm. & Mary J. Women & L. 73 (1998)
 210 P. 454, 457, 459 (Or. 1922).
 American Bar Association, supra note 288 at 172
 See, e.g., Palmer v. Palmer, 207 A.2d 481 (Md. 1965)
 As one family law treatise from the period put it: “the mother is preferred as their custodian,…and this though she may have been guilty of delinquencies in the past [provided] there is no evidence that she was delinquent at the time of determining the matter by the court.” Frank H. Keezer, Keezer on the Law of Marriage and Divorce (3d ed., John W. Morland ed., 1946)
 242 S.W. 804 (1922)
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Author: Tom James
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