Custody Evaluations

Historical Perspectives

From colonial times until about the middle of the 1800s, child custody decisions were based upon British common law. These laws were gender biased and gave custody to fathers based upon paternal entitlement. This practice continued until around the time of the Industrial Revolution, when women's groups began protesting these laws. By the 1880s, most states had adopted the tender-years doctrine for custody decisions. The tender-years doctrine basically stated that when all other factors are equal, children under the age of 13 should reside with their mothers. If fathers wanted to retain custody, they had to prove that the mother was unfit or had committed adultery. The fitness of parents was heavily influenced by the perceived morality of the time. This often resulted in discrimination against homosexual or cohabiting parents.

Starting in the mid-1960s, the best-interest doctrine was adopted as a gender-neutral, child-centered model for custody decisions. The Uniform Marriage and Divorce Act, passed in 1974, attempted to standardize best-interest criteria. The criteria included [Page 147]consideration of the wishes of the parents and child, the physical and mental health of all parties, parent-child interactions, the child's adjustment in multiple areas of life, and any special matters relevant to parental fitness. The first joint custody statute was passed in North Carolina in 1957, but due to lack of a favorable reception, records show shared parenting rulings were not widely recognized until the 1980s. Recent studies by the American Bar Association have shown that the number of sole custody decisions has decreased dramatically since that time, and joint custody is a far more common outcome. In most cases, permanent physical custody is awarded to the parent with whom the child will live the majority of the time. The custodial parent will have joint custody with the noncustodial parent, and they will share important decisions related to matters such as health care and education. In most cases the courts will also order scheduled visitation or temporary custody to the noncustodial parent.

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