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The Changing History of Parental Rights

The way we think about parental rights have changed and evolved over the ages. In Roman and English common law during the early 1800 children were viewed as their father's property. The father had the duty to protect, support and educate his children. Therefore in the event the parents separated the custody of the children always went to the father.

This paternal presumption changed in the late 1800 and was replaced by a presumption that the mother is better suited to care for children under six years old. This was called the "tender years doctrine." So, in the event the parents split, the children would live with their mother until they turned six years old. Once they turned six, they would be returned to the fathers. One reason for this change could be the start of the industrial revolution. During this time men were more and more likely to seek work outside the farm or village where they lived. That left the women to stay at home and take care of the children.

In the 1920s the maternal presumption in both American and English law was expanded even further. Mothers were thought to be more suited to raise and nurture children, regardless of the children's age. In the 1930's the maternal presumption was further strengthen with Freud's psychoanalytical theory, which focused exclusively on the mother-child relationship and completely ignored the father's role in a child's life.

The theory regarding custody of children was changed in the 1970's when the "best interest of the child" standard was substituted for the maternal presumption. One of the reasons for this change was that fathers complained of gender discrimination. The feminist movement could also have been a factor in the change of focus, as more and more women entered the workforce.

Today there is a movement by some people to change the law to allow for parents to have equal amount of time with the children. This would essentially do away with the current state of the law where one parent is the "custodial parent" with the right to have possession of the children at all times except for the possession schedule given to the other parent. 

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