The Early History of U.S. Family Courts

Spoiler alert: it's been a sexist system from the start

You may be standing in the courtroom and ask yourself, in the words of David Byrne, “how did I get here?”

No one expects to end up in a court room. We all think it will be someone else. My marriage won’t end in divorce, certainly, despite the statistics. Life has its own ways of surprising us; sometimes shocking us. As someone recently reminded me, “we plan, God laughs.” Alternatively, “we plan, God corrects.”

In recent discussions with readers, in the comments section of one article in particular (“The Abusive Ex as Co-Parent”) I’ve been prompted to think about the family court system itself, as a whole. In addition to thinking about ways that protective parents can endure the current iteration of the custody system, I’ve been thinking about ways that system can be shifted or shoved into new, different iterations.

We can start by learning about the origins of the family courts, and look at how this system has changed over time. My hope is that this can inform our understanding of this broken system, and perhaps yield some ideas on how it can be reformed.

As always, I’m very grateful for your engagement and love to read your comments. We can all learn together, brainstorm together, try to come up with actionable solutions and next steps.

Origins of Family Courts in the United States

The U.S. family court system wasn’t born in a vacuum. It evolved out of a long history of patriarchy, social reform, and well-meaning but often misguided ideas about what’s best for children. In colonial America and through the 1800s, family matters—divorce, custody, guardianship—were typically handled by general civil courts, with decisions rooted in English common law. Under that framework, fathers held near-absolute authority. Children were treated as property. Mothers had little say. If a marriage ended, the father usually got the children, full stop.

Under English common law, which heavily influenced American colonial law, fathers possessed extensive rights over their legitimate children. This included both physical custody and the entitlement to their children's labor and earnings. Legal scholars have noted that these rights positioned children as a form of property under the father's control. [Source: “From Father’s Property To Children’s Rights: A History of Child Custody Preview” at UC Berkeley Law site.]

In colonial America, fathers had paramount rights to how they related to and directed the lives of their kids. This included the authority to send children to live with others or to apprentice them, all without requiring the mother's consent. Such practices underscore the legal emphasis on the father's role to the exclusion of the mother. [Source: From Father’s Property to Children’s Rights: The History of Child Custody by Mary Ann Mason, previous professor at UC Berkeley; passed in 2020]

To think of divorcing in the 1800s makes me shudder. It’s tough to think of our current situation as better. Still, I imagine theirs was worse.

The Coverture Trap; Legal Identity Erasure

During this period, mothers had virtually no legal rights concerning the custody of their children. Even in cases of divorce or separation, the father retained full custody and control. This legal framework left mothers without recourse or rights regarding their children's upbringing.

The doctrine of coverture further entrenched this disparity. Under coverture, a married woman had no separate legal identity from her husband. She could not own property, enter into contracts, or make legal decisions independently. Consequently, she had no legal standing to claim custody or make decisions regarding her children.

Custody Outcomes in Marital Dissolutions

In the event of marital dissolution, the prevailing legal norms dictated that fathers retained custody of the children. This was consistent with the broader legal principle that children were under the father's authority and control. Mothers, lacking legal rights and recognition, were typically excluded from custody considerations. Based on the fact that mothers would have basically no legal options for exercising any sort of autonomy in their maternal role, I’d imagine that many, many women simply opted to endure abuse in order to stay in the lives and stay close to their children.

These historical legal frameworks highlight the systemic nature of paternal authority and the marginalization of mothers in matters of child custody, since the very creation of the family court. Understanding this context is crucial for comprehending the evolution of family law and the ongoing efforts to address gender disparities in custody decisions.

How can we make a system unsexist?