TOM JAMES: Neutering custody law in the 20th century.

Nineteenth century feminists had sought to . . . preserve and secure preferential treatment for women with respect to matters as to which women either had, or were believed to be entitled to have, an advantage, such as the custody of children. . . .

Unlike their predecessors, however, feminists of the 1960’s and 1970’s opposed sex-based stereotypes, and challenged the sex-based division of labor that resulted from them. . . .

Influential feminist writers of the period saw the maternal preference doctrine and its corollary, the tender years doctrine, as limiting women’s opportunities. Although these doctrines had become established in the law at the insistence of an earlier generation of women, the new generation portrayed these laws as strictures that men had invented to keep women “in their place,” i.e., at home, bearing and raising children. This is undoubtedly what feminist Simone de Beauvoir had in mind when she wrote to one of her contemporaries that “as long as … the myth of … the maternal instinct /is/ not destroyed, women will still be oppressed.”

State and federal legislators responded by enacting laws designed to bring an end to sex discrimination. . . .

By the end of the century, judicial protestations notwithstanding — and subject to two important exceptions (children born out of wedlock, and very young children) — most states, either by judicial decision or statute, had abandoned the use of the maternal preference as an explicit basis for the decision of custody cases.

Earlier: The maternal preference in the 20th century.

Also: What judges really think about fathers: Responses to court-commissioned judicial bias surveys.