From Father’s Property To Children’s Rights: A History of Child Custody

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Mary Ann Mason 1994, Columbia University Press
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Introduction

The relationship between parents, children, and the state is arguably the most fundamental relationship in a society. The social attitudes and legal norms embedded in this triangle determine the way we raise our children and provide the basis of social continuity within a nation. This relationship usually is unexamined. Only when the family breaks down, by virtue of the death of one or more parents, divorce, or parental incompetence or abuse does the state intervene to carry out and make explicit society's value. Temporarily, and sometimes permanently, the state becomes involved with the issue of custody and control of the child. And, at times, the triangle is transformed into a complicated matrix involving fourth parties: masters (of indentured servants and child slaves), stepparents, foster parents, and grandparents. The parties, too, often seek legal recognition in custody disputes.

This book traces the historical development of the American family, and focuses specifically on the evolution of legal rules determining who shall have custody and control over a child. In examining child custody it is charting new parental competence. If parents violated these laws they risked losing custody of their children. At the same time the state, for the first time, considered aiding poor but "worthy" mothers rather than removing their children when they were unable to support them. These state actions established the structure for the modern child welfare system. The earlier judicial trend preferring mothers in custody disputes following divorce became nearly universally established in case law and was ratified by many state legislatures.

Beginning in the 1970s a major swing in custody law sharply reversed what had been a well-entrenched preference for mothers. Most states adopted laws conferring an equal status on the custodial rights of mother and father with a favorable attitude toward joint custody. Biological parents gained rights over the growing numbers of non-biological parents, particularly stepparents and foster parents, who were, in fact, raising the children as traditional families broke down. The state took a more active role in monitoring standards of parental conduct, frequently intervening to take temporary or permanent custody of the child. On the other hand, the state supported an ever-growing population of single parents, allowing them to maintain custody of their children. New reproductive technology, separating conception and childbearing, blurred the concept of biological parenthood and challenged the ingenuity of lawmakers.

Finally, the determined entrance of the social and behavioral sciences into custody issues toward the end of the twentieth century changed not only the legal rules governing custody but the proceedings themselves. Overwhelmed by the volume of divorce cases and frustrated by indeterminate standards after the abolition of the maternal preference, lawmakers and judges increasingly looked to social and behavioral scientists to provide guidelines for what con­stituted the best interests of the child, employing expert witnesses to evaluate the relationship between the parent and the child.

Focusing on child custody offers us a unique window from which to view American history, it provides an intimate view of childhood and parenting, but also allows us to see how the law in this arena responds to social change. Among the many factors that affect a society's view of children, the changing status of their mothers is perhaps the most important. Both the organized movement for womens rights and the changing role of women in the economy have affected the way society views children and thus have critically impacted child custody law.

The move from a colonial household economy to an urban economy separated the father from the home and elevated the mother to the role of primary child raiser. The same urban middle-class culture encouraged the growth of the first wave of feminists, dedicated to more rights for women, including the right to the custody of their children. The vision of the first wave of feminists, however, was focused on middle-class mothers, not poor mothers. It was the second wave of feminists, the social feminists of the Progressive era, who introduced the concept that society should support "worthy" poor mothers in their efforts to retain custody of their children. In the late twentieth century the abolition of the maternal preference coincided with the movement of women out of the home and into the labor market. Indeed, the abolition of the maternal preference was advocated by the third wave of feminists who, in seeking equal rights for women, rejected special preference for women in divorce and custody.

Perhaps the reason that their mothers' status has been so determinative in custody issues is that children have no voice of their own. In this story of child custody children are seen but rarely heard. Court records offer sparse details about children, usually omitting their names, while providing lengthy accounts of the conduct and misconduct of their parents. Still, these court decisions are our ear to the wall behind which the human dramas that create custody disputes occur. The judges' reasoning also permits us to understand the values and judgments of past and current eras.

In addition to court records I have relied upon legislation and legal commentators of the time. I have also utilized a wide variety of primary and secondary sources that illuminate custody issues at different historical periods. These include some lively scholarship on families and children and a small sample of the growing body of scholarship on the women's movement.

This historical examination should expand our limited understanding of families, children, and the law in the past, but also illuminate current controversies. The custody of about half of American children is at issue at some point in their lives today. The rights of stepparents, foster parents, and other non-biological parents are being reexamined without a grasp of their historical development. Basic questions are being asked about resolving custody disputes that could be guided by historical understanding. Is a mother a more appropriate custodian for young children than a father? What voice should the child have in custody disputes? Under what conditions should the state intervene to remove children from their parents? And finally, should the law relinquish its role as decision-maker in favor of the social and behavioral sciences? These questions of today and the future are difficult to answer, but an understanding of the underlying historical foundation may help to build our future.

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