TOM JAMES: The maternal preference in the 20th century.

In all states, it was a firmly established rule of law throughout most of the twentieth century that the mother was entitled to custody of the children in a divorce or separation unless she was proven to be unfit to parent. . . .

Courts construed the concept of parental unfitness very narrowly when considering the fitness of a mother to parent, though. The double standard they had developed in this respect in the nineteenth century continued into the twentieth. . . .

In most states, the fact that the mother was the one who was at fault for the divorce did not prevent the court from awarding her custody of the children, no matter how egregious her behavior had been. In Crabtree v. Crabtree the wife had cut a five-inch slit in her husband’s throat with a razor blade, intending to kill him, and then chased him down and stabbed him again as he was running away. Upon his release from the hospital, he petitioned for divorce on the grounds of extreme cruelty. The court found that the wife’s attempt to kill him was not justified, her only reason having been her displeasure with his “sullen” attitude, and her anger at him for trying to get away from her. The court found that he had not been guilty of any wrongdoing, so he was indeed entitled to a divorce on the grounds of extreme cruelty, and then proceeded to award custody of the children to the wife because she was their mother.

Earlier: The Maternal Preference in 19th Century American Law.