From Father’s Property
To Children’s Rights: A History of Child Custody
View First Ten Pages
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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