The Truth About Feminism and Child Custody Discrimination

Whenever I read about claims that feminism has spurned a modern era of “misandry” and sexism against men, the practical evidence always boils down to custody battles and a “financial rape culture” which forces men to pay child support.

Now don’t get me wrong. There are lots of men (and some women) also raging about how man-hating has become socially acceptable; how feminists can go to extreme lengths to oppress men without any word from the government or society at large; how men are assumed to be evil, useless, or perverted until proven otherwise; and even (yes, I laughed too) how television shows are unfairly portraying men in tropes such as abusive father, silly dad, pedophile, bullying big brother, etc.

But when push comes to shove and somebody asks for some real life evidence of this supposed phenomenon, the battle cry resounds: The feminists have used their empowerment to take away our children and our livelihoods! This is proof that they are ruthless oppressors!

I decided it might be worth looking more closely into divorce and child custody laws and customs. As it turns out, the history of child custody has gone through many phases and philosophies and has been influenced very little by feminist goals, but when it has, it has arguably been a positive change for fathers.

In very early U.S. history, we’re talking late 1700’s and early 1800’s, children were always considered property of the father, and since women at the time had no legal right to own property, a child could be legally willed to another relative or friend of the father’s after his death even if the mother was still alive. Fathers played what was considered the most important role in their children’s lives, taking responsibility for their education and religious upbringing, as well as preparing them for work in the community. 

According to Joan B. Kelly, Ph.D., “in divorce, until the mid-nineteenth century, fathers had a near absolute right to custody, regardless of circumstances,” and as Mary Ann Mason writes in her summary of the history of child custody, “no known English court gave custody to a mother over an unfit father until 1774.” Even then, instances were rare.

This began to change in the late 1800’s, especially during the Industrial Revolution, as men began working further away from home and women became the primary caretakers of children. As Kelly writes:

The paternal preference was gradually replaced by a maternal preference, based on the “tender years” presumption. [This doctrine] was originally invoked to determine temporary custody arrangements in English law, giving mothers custody of infants only until they were ready to be returned to the father.

This temporary arrangement gradually gave way to a permanent one, however, as “motherly  love” became more and more idealized, and the biological bond between a mother and child more strongly preached by both men and women. Freudian developmental psychology enforced this belief in motherhood by focusing entirely on the relationship between mother and child and ignoring the father’s contributions.

By the 1920’s, the maternal preference for custody in English and American law, regardless of the child’s age, became as firmly fixed as the earlier paternal preference, and was encoded in statute in all 48 states.

So we have two major eras in child custody so far: that of preference to the father and that of preference to the mother. In the 1970’s however, things began to change again, and a third era was introduced: that of the best interests of the child. Due to growing complaints of sex discrimination from men, the feminist movement, concerns for equal protection under the constitution, and a large number of women entering the workforce, it was decided that rather than base custody decisions on the gender of the parent, it would be more apt to consider the best interests of the child. This led to the next trend: joint custody agreements of various forms. 

This standard of determining custody agreements prevails to this day, but has often turned into, as many have noted, a “best parent” contest.

It would be un-true if I said this was never gender-biased. Almost everything is in some way or another. But if any discrimination does occur, and that is a strong if, it is most certainly NOT because of feminism, but because of the assumptions and expectations about gender institutionalized by men a long time ago.

I share this history of laws and customs in order to demonstrate the palpable difference between the “discrimination” men are complaining about now and the kind that actually existed in the past. The fact is, the current legal system is much less biased than it used to be, and it is one in which every case is allowed to be extremely different. The outcomes are completely dependent on individual circumstances, as opposed to the gender of the parents.

Most (if not all) states allow the parents to work out a plan together and then make their case in front of a judge. If the parents cannot cooperate well enough to reach an agreement and it becomes an actual custody “battle,” there are bound to be consequences that one party will not enjoy, but those are more likely to be determined by the quality of attorneys and of the relationship than by gender.

As far as money is concerned, just because men often end up having to pay more child support than women does not spell discrimination. Taking care of a child costs money, and whoever has more money has the responsibility of paying up! If the mother has a higher income, she will have to pay higher child support. It is a matter of mathematics, not gender.

Obviously, I have no way of knowing whether or not certain men have been discriminated against, but I do know that discrimination against men is not built into any system in the same way that it is for women.

When it comes to legal conflicts, sometimes men get screwed over, and sometimes women do too. Howver, generalizations about the issue based on gender are all bull-shit, and blaming it on feminism is even more ridiculous.