The Historical Development of Child Custody Decisions in Hungary in the 19th and 20th Century

Abstract

Parental responsibility has undergone dramatic changes since the Roman times when the pater familias could decide even upon child’s life. Mothers didn’t have rights, they also lived under their husband’s power. The unlimited power of fathers existed till the medieval times. It was John Locke who first said that the mother and the father should exercise parental rights together, although this principle turned into practice only centuries later. The situation in Hungary was formed similarly as well. After taking up Christian religion father’s rights weakened, while their obligations enhanced. However fathers still had prior rights to mothers. By the 19^th century the paternal power had changed. The protection of children’s rights and interests slowly and gradually appeared. Obligations showed up before rights. The family law act in 1952 brought the biggest changes. Parental power turned into parental custody. The child custody decisions were unimportant for a long time as the father had all the rights and the parents’ divorce was not common. First the matrimonial act in 1894 regulated it in more detail. Back then, the focus was on which parent was guilty in wrecking the marriage. In 1940 it was Kálmán Csorna who pointed out that guiltiness shouldn’t play a role, we should investigate child’s best interest instead. After several amendments the family law regulations softened. The law said that if the parents live together, they exercise their rights together. If they split up only one parent exercises all the rights exclusively. The other parent’s rights are paused, they only have the right of visitation and the obligation of paying maintenance. Although the parents should have had to cooperate in the favour of the child, it was not always successful. The regulations of parental rights and child custody decisions changed very slowly during the centuries but this change has speeded up recently. From the ancient times there was paternal power for a long time which switched to parental power in the 19^th century, and to parental custody in the 20^th century, finally to parental responsibility in the 21^st century. The difference is not only based on the level of words. In 2019 it is not a question anymore that during exercising parental rights and child custody decisions it is the child’s best interest which is the main point. In this essay I focus on the following questions: how the legislator reacted to the changes in society as the role of children in the family and male-female relationships that caused problems which had to be solved.