quote:

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If you and your spouse are not in love, you dread coming home and you fantasize daily about being in a happier situation, that sounds more harmful to you if you continue to stay together.

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quote:

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Custody Decisions in the 19th Century

Here are some extracts from texts on custody decisions and related issues in the 19th century. Note that we should not assume that custody was automatically awarded to
fathers.

France, 1792-1816:

"The law also stipulated that the parents themselves should decide on who had custody of the children. In cases where the parents could not reach a mutually satisfactory agreement, the law provided for a division of children according to gender: The father would have custody of any sons, the mother custody of any daughters. Children under the age of seven would be looked after by the mother, but on reaching seven, sons would be turned over to their father's care."

Phillips R (1988) Putting Asunder: A History of Divorce in Western Society, Cambridge: Cambridge UP p.273

England, 19th century:

"Under most Western legal codes until the nineteenth century, the father was deemed to have primary rights over his children... In the course of the nineteenth century there were some reforms, such as the 1839 Infant Custody Act, which allowed the courts to give mothers custody of children until they reached seven, and which also made provision for mothers to visit their children at arranged times... Under the 1857 divorce legislation the reform
went further. The divorce court was empowered to exercise discretion and could make arrangements for the custody, support and education of children as it saw fit under the special circumstances of each case... In 1873 women's rights to custody were extended even further, and later, in the twentieth century, it became a principle that custody of the children in cases of divorce was vested in the wife unless there weree compelling reasons why it should be otherwise."

Phillips R (1988) Putting Asunder: A History of Divorce in Western Society, Cambridge: Cambridge UP p.601-2

Also:

"Caroline Norton, beside writing fiction, often turned her attention, and her pen to her problems and those of other similarly situated women. Her child custody fight produced A Plain Letter to the Lord Chancellor on the Law and Custody of Infants in 1838, which contributed greatly to a change in the law. After that year, mothers in most circumstances had custody of children up to the age of seven."

Horstmann A (1985) Victorian Divorce, London: Croom Helm, p.44

And the US, late 19th century:

"... most divorces (about two-thirds) in late nineteenth-century America were sought by women, and so it is hardly surprising that women most often won custody of their children. This effect was enhanced by an increasingly clear preference on the part of the
judges to place children in the care of their mothers. Child care was, in their eyes, an important role women played in their special "sphere". in california, 91% of women who sought custody of their children were granted it, but this was true of only 37% of men. The same imbalance was true of Los Angeles and New jersey divorces, where custody was almost always granted to the mother, even if she were the defendant, an indication that the principle of motherhood had begun to override the principle of fault... Throughout Western society, in fact, divorce provided a means by which women were increasingly likely
to be assured of keeping their children. In New South Wales a law of 1873 gave judges discretion in custody decisions, but almost all awards were made to mothers rather than fathers. In Canada, the law and practice underwent similar development."

Phillips R (1988) Putting Asunder: A History of Divorce in Western Society, Cambridge: Cambridge UP p.602

Also for the US in the 19th century:

"... many women were afraid that they might lose custody of their children. But legislative divorce records indicate that Virginia women usually received sole control of their children. In a random sample of fifty legislative divorce cases that occurred
between 1802 and 1850, women almost always received custody of children."

Riley G (1991) Divorce: An American Tradition, New York: Oxford UP, p.39

Several books refer to women being unwilling to risk losing custody of their children, as if this suggests disadvantage for women, but sole custody requires that one parent lose custody, and a complete absence of risk for women would mean certainty of
loss of custody for men. This point seems to be lost. Note the following in the context of the Riley quote above:

"Because many women feared losing their children in divorce actions, they remained in destructive marriages for years."

Riley G (1991) Divorce: An American Tradition, New York: Oxford UP, p.51

How many men stayed in "destructive marriages" for the same reason? Her book is woman-centred, as she states in her preface, "As I explored the history of nineteenth-century American women....." (p.vii)

Also:

"The idealisation of motherhood after the American Revolution encouraged many judges to reject the traditional notion that children belonged to their fathers. By the 1820s, many judges had adopted the newer view that young children were better off with
their mothers.

Judges also considered the matter of guilt in making chuild custody decisions. If a female petitioner could prove her husband's guilt to a judge's satisfaction, she was likely to receive custody of their children. Some judges believed that young children should be raised by their mother even if she was the guilty party in a divorce. For instance, in 1813...."

Riley G (1991) Divorce: An American Tradition, New York: Oxford UP, p.52

"In 1860, a New Jersey statute expressed the tender years view of child custody: "The mother is entitled to the custody of her children under the age of seven unless it affirmatively appears that, in her custody, they would be exposed to either neglect, cruelty, or the acquisition of immoral habits and principles."

Riley G (1991) Divorce: An American Tradition, New York: Oxford UP, p.83

Riley is interesting because she describes mid-19th century America having high divorce rates and suffragists split on women's freedoms and threats to the institution of marriage (pp.76-79).

Current views of domestic violence are also foreshadowed 150 years ago:

"The ground of cruelty [for divorce] also began to encompass verbal and mental abuse. many judges agreed that a husband who hurled such epithets as "whore" and "slut" at his wife was committing cruelty. And when a husband falsely accused
his wife of adultery, he was damaging her health, well-being and reputation. Some judges even defined a spouse's refusal to communicate openly as a form of cruelty."

Riley G (1991) Divorce: An American Tradition, New York: Oxford UP, p.82

"Western divorce-seeking women also had a slightly better chance of getting custody than did women in southern and north-eastern states. Between 1887 and 1906, Census Bureau figures show that women received custody at a three-to-one ratio to men. In western states, women received custody at a noticably higher ratio..."

Riley G (1991) Divorce: An American Tradition, New York: Oxford
UP, p.92

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said by jmorlan:

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The divorce process won't make anybody happy. In fact it is almost guaranteed to make everybody who is involved miserable (except the lawyers).

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