130 Children’s Legal Rights Journal [Vol. 37: 1 2017]
historically determined child custody and how decisions have transformed through time. Section
III will examine the modern approaches used in determining custody. Section IV will discuss the
standard exercised by courts today: the best interest of the child. Section V will discuss the
action taken in Australia with regards to child custody, specifically by implementing the Family
Law Act, and discuss the results of the studies conducted on Australian families following the
Act’s passage. Section VI will contemplate the “gender-neutral” approach, the problems with
joint custody, the factors used by the court in determining sole custody, significant arguments in
favor of and against sole custody, and the issue of father’s rights in regard to child custody.
Finally, in Section VII, I will present a brief conclusion explaining the direction that should be
taken in the legal field in order to more adequately accomplish the goal of safeguarding children,
minimizing their potential damage, and genuinely ensuring their best interests in the future.
II. HISTORICAL PERSPECTIVE
Before the 19th century, fathers automatically obtained custody of their children. 12 This
principle stemmed from Roman Law, which was later adopted by English Law, and subsequently
also embraced by American Law. 13 Because men were generally the only financial providers for
the family during the time, the father was the only parent considered capable of maintaining
control and custody of the children. 14 At that time, the father was considered to be in total control
of his property and household, so he was presumed the appropriate custodial parent. 15
Furthermore, the father was seen as more capable of financially providing and taking care of the
12 See LINDA D. ELROD, CHILD CUSTODY PRACTICE AND PROCEDURE, § 1: 5 (Westlaw 2015).