For as long as I can remember, I was told that mothers have priority when it comes to child custody. But growing up, life made it painfully clear that this belief is little more than a myth—one based on a ridiculously brief period of legal history compared to the centuries that came before.
For most of human history, custody wasn’t a maternal right, nor was it up for debate. Children were the property of the father, and their fate was his to decide. This wasn’t a cultural quirk—it was the norm across much of the world.
In Ancient Rome, for example, fathers held patria potestas, absolute legal authority over their families. They could decide their children’s future, their education, even sell or disown them. Mothers, no matter how devoted, had no legal claim to their children. In cases of divorce, children stayed with the father. The mother simply vanished from the legal picture.
The Middle Ages, dominated by Christian doctrine, offered no improvement. Marriage was declared sacred and indissoluble, effectively erasing divorce from the legal landscape. In rare cases of separation, children were automatically placed under the custody of the father or his relatives. It didn’t matter if the mother had raised them, if she gave birth to them, or if they were still young and vulnerable. The rationale was brutally straightforward: the man carried the name, the money, and the power—therefore, the children were his.
Similar dynamics played out in imperial China, where women could be cast aside by their husbands for reasons that seem absurd today—failing to produce a male heir, being too emotional, or even too jealous. Once expelled from the household, a woman had to leave her children behind. Custody belonged entirely to the father or his kin. Even in lower-class families where survival depended on joint labor, the law stood firmly on the man’s side.
In medieval Islamic societies, the system was only marginally more favorable. Mothers could retain custody of young children during early childhood, based on the recognition that they were best suited to provide infant care. But this right came with a strict expiration date. Once the child reached a certain age, legal custody passed automatically to the father or his family. The mother might still see the child—but she no longer had any say in their life.
Only in some precolonial African societies do we find a different pattern. In matrilineal cultures like the Ashanti of West Africa, children belonged to the mother’s clan. In the event of separation, there was no dispute: the children remained with the mother. But such systems were the exception, and they were quickly dismantled by European colonialism, which imposed its own patriarchal legal frameworks—reasserting paternal control over custody.
The first real shift didn’t come until the 19th century, with the onset of the Industrial Revolution. Only then did some legal systems begin to consider the radical notion that young children might be better off with their mothers after a divorce. The Custody of Infants Act of 1839 in the United Kingdom was the first law to recognize this, granting mothers limited custody rights for children under the age of seven. Not full custody—just a narrow exception to the rule, and only under very specific circumstances.
Put in context, mothers have only had recognized priority in child custody for around 185 years—a blink of an eye when measured against centuries of paternal dominance. And even today, that supposed maternal advantage is more illusion than reality. Shared custody laws, while marketed as gender-neutral and fair, are often deployed as tools to weaken the mother-child bond—echoing power structures that are centuries old.
The history of child custody isn’t just a legal story—it’s a political one. Children have long been used to control women. And while the language of the law may have changed, the underlying dynamics of power have not. Modern family court isn’t a new, egalitarian world—it’s a repackaged version of the same structural inequality. If history teaches us anything, it’s that surface-level reforms rarely amount to real justice.
It’s worth highlighting that the brief window in which mothers began to gain custody of young children was driven by what came to be known as the “tender years doctrine.” This concept emerged in 1839 with the very same Custody of Infants Act in the UK, which first established the idea that children under seven should remain with their mothers after divorce. The rationale was rooted in the perception that mothers were naturally suited to care for young children. This logic gradually spread to other legal systems and became embedded in 20th-century family court jurisprudence.
But it was never a true maternal right. It was a concession—temporary, fragile, and always subject to reversal. By the mid-20th century, the “tender years” doctrine was replaced by the so-called “best interests of the child” standard. In theory, it meant that custody decisions should prioritize the child’s well-being over parental rights. In practice, it opened the door to legal and psychological manipulation, giving disproportionate power to judges and so-called experts.
Enter the psychologists. Court-appointed, expert-labeled, and cloaked in the language of science, they began to shape custody rulings with evaluations that are often unscientific, subjective, and deeply biased. These reports—treated as gospel by many judges—have justified devastating outcomes for mothers and children alike.
Psychologists in family court have become one of the most insidious tools in legitimizing institutional violence against mothers. Under the banner of protecting the “child’s best interest,” children are separated from their mothers based on pseudoscience, speculative diagnoses, and reports riddled with prejudice. Forensic psychologists’ opinions routinely override the facts, stripping mothers of custody with accusations of parental alienation, emotional instability, or any label convenient enough to support a predetermined outcome.
What began as a way to protect vulnerable children has become a mechanism of erasure. Mothers are no longer seen as essential to their children’s well-being, but as obstacles to be removed—if a report says so. The so-called “best interest of the child” has become a cover for a judicial system that continues to erase maternal presence and perpetuate the same historical inequality under a different name.
Isabel Salas
