The Mother Factor in Australian Child Custody Law 1900-1950

Australian Journal of Legal History 6: 1 & 2 (2000) 51-111.

61 Pages Posted: 11 Jun 2013

See all articles by Constance Backhouse

Constance Backhouse

University of Ottawa - Common Law Section

Date Written: 2000

Abstract

This report investigates how the “Mother Factor” influenced Australian child custody decisions from 1900 to 1950. Legal historians claim that judges assumed mothers should usually be the custodial parent, especially if the child was young (the early years doctrine). A survey of child custody decisions does not show an overwhelming judicial bias toward mothers. Mothers won approximately two thirds of the custody cases against their male partners. Fathers were more likely to win custody cases against other relatives. The author explores the origins and judicial treatment of the early years doctrine, and how the mother factor was influenced by the world wars and changing sexual norms of the time. Courts inconsistently decided whether to give priority to maternal rights and under what circumstances mothers should be denied that advantage. Judges also disagreed on how to interpret new legislation that increasingly called for parental equality and child paramountcy. The author concludes that the data collected does not conclusively show that Australian courts had a maternal preference when awarding child custody from 1900 to 1950.

Keywords: mother, father, child, custody, family, law, legal, trial, Australia, women, men, gender, sex, Australian, history, historical, feminist, feminism, judicial, bias, factor, parent, early years, doctrine, mother factor, maternal, preference, 1900, 1950, Backhouse

Suggested Citation

Backhouse, Constance, The Mother Factor in Australian Child Custody Law 1900-1950 (2000). Australian Journal of Legal History 6: 1 & 2 (2000) 51-111., Available at SSRN: https://ssrn.com/abstract=2277300

Constance Backhouse (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
46
Abstract Views
627
PlumX Metrics