Kids are Not to Be"Owned" and "Loaned":
by Diane Chambers


The concept of "custody" is archaic by today’s standards. The roots of child custody can be traced to the Roman Empire two millenniums ago when fathers could sell their children or condemn them to death for just about any reason. However, at age seven, these children were viewed as no longer needing physical care from their parents, at which time they usually became servants to others. During times of English Common Law and on into the nineteenth century, children were seen as valuable property to parents because of their income-producing capabilities. It was not uncommon during the industrial revolution to find a seven-year-old working fourteen to sixteen hours a day. By the early 1800s in the United States, fathers were given superior rights of custody over mothers because it was believed fathers had the income and resources to take care of their children. In other words, they could protect their “property investment” better than mothers could.

By the turn of the 20th century, the status of women began to improve, and with that came an increased interest in child welfare and the enactment of child labor laws. The "tender years" doctrine was adopted by most courts at the time, which said that mothers should be the ones to physically care for children, while fathers were expected to be financially responsible for them. This resulted in women being in charge of the private sphere of the family and men being in charge of the public sphere. By the 1970s, however, the divorce rate was up, a record number of women were in the work force, and the gendered lines between the private and public spheres of the family became blurred. This, then, led to the courts deciding on custody based upon the "best interests of the child," which continues to be the way courts typically make decisions today. The best interests concept allows for either parent or both parents to share in the responsibilities of raising a child based on what is in the best interests of the child. In other words, the courts advocate for the child - not for either parent.

This brief historical look at how child custody has evolved over the centuries should help us to see that children are no longer our property to fight over and divide up like the weekly paycheck. Yet, we still continue to hear parents use phrases like "giving up" or "keeping" my kids. We hear of parents demanding fifty percent custody in lieu of paying child support, as if they can put a price on spending time with their kids. We hear custodial parents express paralyzing fear that the other parent will try to "take the kids away" from them and, likewise, non-custodial parents complaining that the primary custodian is using the kids to get more child support.

The fact is, we still do view our children as possessions, even if we no longer sell them off or sentence them to death like the Romans did. We are selling them short, though, when it comes to allowing them to have significant and healthy involvement with both parents after divorce. Too many divorcing parents automatically demand 50-50 joint custody because, as Americans, we feel it is only fair to approach all of our legal proceedings with an attitude of equal rights and equal treatment - even if that comes at the expense of our children. When children are viewed as something to be owned (i.e. custody) or loaned (i.e. visitation), they are not treated as human, but merely as compensation for pain and suffering, as might be awarded in a civil lawsuit.

Donald Saposnek, a well-known child psychologist and family mediator says in his book Mediating Child Custody Disputes (Jossey-Bass 1998), "Sometimes parents believe that 50-50 percent custody will magically make them equally important to their children. However, children don’t think in terms of percentages regarding their parents. They just want to be able to love and spend time with each of their parents. Most children’s lives are not set up to spend exactly equal time with each of their parents. When they do, it’s often at some sacrifice to their comfort" Saposnek says the bottom line is that "Talking percentages is talking about parents’ rights, not children’s needs."

So how should co-parenting be approached in today’s society? We know enough now about the effects of divorce to understand that you simply cannot make black and white rules regarding custody and visitation decisions. As a divorce mediator, I remind parents that there are three major points to consider when developing a healthy parenting plan:

  • The age and stage of a child’s development:
    What works for a 10-year-old may be too stressful for a 3-year-old. At age ten, your child is mentally capable of conceptualizing what it means to be at dad’s house for a week without stressing out about it. At three or four, however, a child may only be able to conceptualize the idea of “tomorrow.” This may mean different schedules for two children in different age groups.

  • The temperament and personal style of each child: If your child is a very structured person who finds security in a predictable schedule, you will be causing him or her undue stress by imposing a convoluted visitation schedule that has her at mom’s on Mondays, Thursdays and Saturdays one week and Tuesdays, Wednesdays and Fridays the next. Also, a child who may be naturally rambunctious and loud will probably do best living with the parent who understands his or her temperament and can help vent the child’s energy positively rather than a parent who is continually scolding and putting the child down for misbehaving.

  • The parents’ interactive communication patterns: If the parents have never been able to say two words to one another without arguing, it would not make sense to develop a parenting plan that requires parents to talk about the visitation schedule each week. You may not be able to change how you interact with one another, but you can avoid problems by structuring a parenting plan that is realistic given your communication limitations with each other.


When helping parents develop their custody and visitation schedules, I ask them to check all of their ideas against these three points before making them part of their plan. In other words, ask yourself, does this proposal make sense given the age and stage of my child’s development? Is this proposal going to fit well with my child’s personality and temperament? Is it realistic that we can carry through with this plan given our current ability to communicate as parents? Above all, recognize that a parenting plan should be seen as an agreement in constant transition. As children’s needs change with their growth and development, parents should be flexible enough to allow the parenting plan to change with those needs.

We have got a lot to lose by placing our own needs for revenge, pride, and justice, over the fragile and often critical needs of our children. When Herbert Hoover said "Children are our most valuable natural resource," he obviously was encouraging us to protect them for the sake of future generations, not to possess them and consume them for our own purposes.  


A Note From The Editor:

Diane Chambers is a divorce mediator in Atlanta, Georgia, and author of Solo Parenting: Raising Strong & Happy Families (Fairview Press 1997). To order a copy, call 1-800-544-8207. She can be reached via e-mail at solemom@aol.com.

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