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
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
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