The grievance that divorce laws placed all power in men’s hands in preference to women, “wholly regardless of the happiness of women,” however, is not quite as supportable as the others. As we have seen, early American divorce laws made marital offenses, such as adultery, grounds for divorce whether committed by the husband or by the wife. Women actually had two special grounds for divorce or legal separation both of which, in most states, were denied to men: cruelty and non-support. In the nineteenth century, only husbands were legally obligated to support their spouses; and in most states, at least during the first part of the century, cruelty to wife was grounds for divorce but cruelty to husband was not.
The grievance that child custody laws gave men all the power “wholly regardless of the happiness of women” also is not quite as supportable as the others. . . . American courts had been favoring mothers for custody of children, especially young children, at least since 1813, and probably earlier. . . .
The resolutions quoted above make it clear that first-wave feminism was not entirely, or even primarily, an “equal rights” movement. Although an equal right to vote was part of the platform, the ultimate objective seems to have been to ensure women’s primacy in the law, not mere equality. Hence the resolution quoted above, that the obligation of the law to make women happy was “superior” (not merely equal) to all others. . . . Feminists made no effort to extend the male-only child-support obligation to women. Rather, they were committed to advancing and promoting sex-based stereotypes according to which women’s naturally superior and proper role was that of child-raiser, while men’s only legitimate function was to provide material sustenance for women and children. This kind of supremacism was congruent with the sexist judicial philosophies that had spawned the tender years and maternal preference doctrines, and it helped cement those doctrines more firmly in the law than they already were. . . .
In many states, statutes enacted during this period not only gave mothers equal rights, but actually gave them superior rights, with respect to the custody of children.
Interesting stuff. Read the rest here.
Earlier: The Maternal Preference in 19th Century American Law.