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You are here You are here: Home Terrace Children Are Slaves Children Are Property From Father’s Property To Children’s Rights: A History of Child Custody

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

From: Berkeley Law – Mary Ann Mason 1994, Columbia University Press


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.

Introduction (continued)

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.

Page 1

Children/Servants:Child Custody in the Colonial Era

In 1620 the Virginia Company complained to Sir Robert Naunton, principal secretary of James I, that London street children were unwilling to be sent to Virginia colony as apprentices.

'The City of London have by act of their Common Council, appointed one hundred children out of their superfluous multitude to be transported to Virginia: there to be bound apprentices for certain years, and afterward with very beneficial conditions for the children.... Now it falleth out that among those children, sundry being ill disposed, and fitter for any remote place than for this city, declare their unwillingness to go to Virginia, of whom the City is espe­cially desirous to be disburdened, and in Virginia under severe masters they maybe brought to goodness.

In response, the English Privy Council granted the Virginia Company permission to do whatever necessary to force the children into the ships.

And if any of them shall be found obstinate to resist or otherwise to disobey such directions as shall be given in this behalf, we do likewise hereby authorize such as shall have the charge of this service to imprison, punish, and dispose any of those children...and, so to ship them out for Virginia with as much expedition as may stand with conveniency.

This exchange of letters between the Virginia Company and the Privy Council suggests several salient facts regarding children and custody in the colonial era:

first, the Virginia Company was desperate for child labor and went to to great lengths to import unwilling youths; second, while it is not clear whether or not they had parents, these children certainly emigrated without them and were placed in the custody of the masters to whom they were apprenticed; and third, neither the Virginia colonialists nor the English showed any concern for the best interests of these children, nor, for that matter, for basic due process before punishment-rights guaranteed adult Englishmen, but apparently not children.

Page 2

Children who came to America as indentured servants without parents were an important part of the story of the colonies' settlement. More than half of all persons who came to the colonies south of New England were indentured servants, and, according to historian Richard B. Morris, most servants were less than nineteen years old. The average age was between fourteen and sixteen, and the youngest was six.3 By contrast, most children who emigrated to the New England colonies did so as a member of a family.

While most children were not forcibly imported to the New World without parents, separation from parents and forced labor were common in all the colonies. Children were critical to the colonial labor force; after the age often children were often employed like adult workers, and many, if not most, did not remain in the custody of either parent until adulthood.4 While some came without parents, many others lost both parents through death or abandonment. Parents very often apprenticed or sent out their children to serve another family at around age ten. Children born out of wedlock were routinely separated from their mothers upon weaning and "bound out" to a master. Slave children, who comprised about one-fifth of all children by the end of the eighteenth century, could be sold away from their parents at any time. Sentimentality about children and childhood, which bloomed in the nineteenth century; was nearly absent in this practical, struggling era. And, as we shall see in the following section, in the hierarchical structure of the colonial household the relationship between child and father overlapped the relationship between slave and master.

The harsh manner in which colonialists treated children reflected the English tradition. Colonial family law and employment law were still firmly tied to their English origins. Common law relating to indenture contracts for children, custody following divorce or the death of a parent, and the disposition of orphans and bastards traversed the ocean virtually unchanged. Sometimes these laws were modified in practice by the colonialists. For the most part, however, these laws were well suited to the New World experience, where the demand for labor exceeded the available supply of adult workers. These laws did not formally change until the nineteenth century. Only the unique experience of slavery created custodial arrangements for children that were unknown to common law.5

Page 3

Since children were viewed as important economic producers, the courts became principally involved in issues of the custody and control of children when they were asked to approve contracts for indenture or to resolve conflicts regarding child labor. The dockets of the ordinary courts were filled with such cases. Courts regulated the abuse of child indentures-including the selling of children-settled disputes between father and the masters to whom their children were apprenticed, returned runaway indentured children, and bound out orphans and indigent children to relieve the community of the financial burden of maintaining them. In the southern states, by the eighteenth century, judges typically settled disputes regarding the selling or devising (gift by will) of slaves, including slave children.

Custody disputes between mother and father following divorce or separation, which loomed as the major custodial issue in later centuries, received scant attention in this era, when women had few rights and divorce was rare, even forbidden in some colonies. Far more common was widowhood, where the rights of custody and control of children by the surviving mother could be assigned by the father temporarily or given by the court to a male guardian. Also prevalent was illegitimacy, where both mother and putative father were subject to punishment and fines and the fate of the illegitimate child was determined by the court.

Courts frequently were asked to intervene into families on grounds of abuse or neglect, particularly in New England, but they often focused on neglect that was labor oriented. Masters and fathers risked losing the children if they failed to adequately prepare them for a role in the labor economy. Parents also lost their children if they were not able to provide economic support. All these children were quickly recycled into the labor force as apprentices in other households.

Page 4

The Colonial Household: Parents and Children

Functional rather than blood ties were frequently the basis of relationships between adults and children in the colonial era. Thus the primary unit of social and economic organization during the colonial era was not the family but rather the multipurpose colonial household. All the important interactions between adults and children occurred within this self-contained unit; there, children were born, raised, schooled in religion, and, as soon as they were productive, put to useful labor. These children could be blood relatives or merely be hired help. Understanding the colonial household, then, is central to our understanding of child custody arrangements of that period.

This examination of child custody begins with a glance at the colonial household as a unit, followed by a deeper analysis of the roles of each of the members of that household and their relationship to the household's children. Within the hierarchy of the household the adult roles relevant to child custody, in descending order, included: father, master, putative father, guardian, stepfather, married mother, mistress, widow, stepmother, unwed mother, and slave mother. Children could be Sons or daughters, apprentices or servants, orphans, bastards, or slaves. Other relatives and non-relatives might fill out the household, but their roles in relation to the custody and control of children were usually peripheral.

Households in New England and the Chesapeake colonies were similar in many respects. Both performed the same dual functions of socialization and economic production, and both were most likely to be nuclear rather than multigenerational. Yet, they were demographically quite distinct throughout the seventeenth century. New England was settled mostly by families, who, with the exception of a few notable epidemics, enjoyed good health and relatively low infant mortality. The New England household, therefore, was more likely to comprise a mother, father, and several children of their own, with the addition of one or two servants or apprentices not their own.

Page 5

By contrast, the Chesapeake colonies were settled mostly by single people, usually male and under twenty-one. More than half of the settlers came as indentured child servants without parents.7 These colonies were a "death trap" for early child immigrants and were not conducive to infant survival. By one estimate as many as one-fourth to one-third of all children died before their first birthday, and 45 to 55 percent died before their twentieth birthday. Most children who survived could expect to lose one or both their parents by the time they reached adulthood. These factors contributed to smaller and more unstable households, which could include orphans, stepbrothers, and sisters, half-brothers and sisters, as well as the children who had immigrated as indentured servants. The head of the household may have been an uncle or stepfather, not necessarily the biological father of any of the children.9

The demographic differences between New England and Chesapeake households also grew as the South became more dependent upon slavery. Slave children became a common presence in southern households, although usually housed in separate slave quarters. In several colonies slaves comprised half or more of the population; on large plantations slave children greatly outnumbered all other children. Slavery certainly complicated the legal relationships between adults and children in the Chesapeake household, and affected the quality of the childhood experience. Nevertheless, the existence of slavery in the South had little effect on the basic function of the colonial household. As a production unit the household in both the New England and Chesapeake colonies was arranged in a system of hierarchical mutual obligations. The father/master, clearly at the pinnacle of the hierarchy, was obliged to provide adequate sustenance, vocational training, and, with some variation between the colonies, rudimentary education and religious training to all children (except the slave children) in his custody. The mother was obliged to assist him in these tasks. Children were obliged to be obedient and to provide labor as fit their age and legal status. The labor of a child, even a non-slave, was a commodity that could be sold or hired out by fathers and assigned by masters. Slave children, like their natural parents, were sold as a chattel. All children were looked upon as current or potential economic producers; in the labor-hungry colonies, small hands could not be idle.

Page 6

Fathers: Rights and Responsibilities

All Parents and Masters of Families are obliged by themselves or others, to Teach or Cause to be taught, all their Children, so much Learning as they may be able to Read perfectly the English Tongue, upon penalty of 20s. for every Offence.

All Masters of Families, are to teach their Children and Apprentices, the knowledge of the Capital Laws, on penalty of 20s. for Every Offence.

Masters of Families are to Catechize or cause to be Catechized, their Children and Apprentices at least once a week, on the Grounds and Principles of religion. A. 1642. (seventeenth-century Massachusetts Bay Colony statute)

In labor-scarce America the services or wages of a child over ten was one of the most valuable assets a man could have. Thus fathers, without dispute, had almost unlimited authority of custody and control over their natural, legitimate children, leaving almost no room for maternal authority, at least during the fathers' lifetime. This authority was enshrined in the common law. For example, a father's right to custody was firmly established in English common law as the right to the association and services of his legitimate children. Association was defined as physical custody as against all parties, including the mother, and services included not only the labor of the children for his own use, but their wages, if they worked for another. A father had the right to maintain an action for the seduction of his daughter or the enticement of a son who left home, since this deprived him of services or earnings. The existence of these common law rights have led some contemporary legal historians to conclude that the law regarded children as a property right, to be treated as chattel.

Page 7

Yet, as indicated by the Massachusetts Bay Colony statute, the relationship between fathers and children was far more complex than these legal historians might have us believe. While fathers had almost absolute control over their children, fathers also had considerable responsibilities, both to their own children and to children legally bound to them as apprentices. In that sense the relationship between father and child was more that of master and servant than of owner and chattel. A master-servant relationship, although not equal, required that master give something to servant in exchange for the servant's labor. In addition, a master could not injure the servant, while an owner theoretically might dispose of his chattel in any manner, including extermination.

Commentary writer James Kent, frequently cited by early nineteenth-century jurists, emphasized the mutuality of the relationship. Kent wrote that because of the father's " provide for the maintenance, and, in some qualified degree, for the education of his infant children, he is entitled to the custody of their persons, and to the value of their labour and services." The right to a child's labor therefore was seen as recompense for the father's obligation of support. This mutuality was a relatively recent development in the father-child relationship. Ancient English tradition initially required only that the father control the child's education and religious training. The Elizabethan poor laws and, later on, common law and statutes, added the duty of maintenance and support.' Mutuality was contrary to Roman law, where the father enjoyed absolute power, and in the early Roman republic, according to the historian Dionysius, "the atrocious power of putting his children to death, and of selling them three times in an open market, was vested in the father."

Page 8

Colonial America expanded and enforced these mutual obligations beyond the English tradition. The duty to educate and provide religious training was enlarged to include vocational training. In New England local governments insisted that parents train their children to be literate, religious, and economically productive citizens. As an early Massachusetts law dictated:

This court [the court serving in its law-making function], taking into consideration the great neglect in many parents and masters in training up their children in learning, and labor, and other employments which may be profitable

to the commonwealth, do hereupon order and decree that in every town the chosen men appointed for managing the prudential affairs of the same shall henceforth stand charged with the care of the redress of this evil. . . espe­cially of their ability to read and understand the principles of religion and the capital laws of the country.'

The New England father was responsible for making his child a productive member of the community, either by his own teaching or by apprenticing his child to another master for training. Fathers were not allowed to exploit their children by assigning them only menial work, such as tending livestock, but were expected to prepare them to perform skilled tasks. Laws instructed town officials to assign work to children that taught skills. "They are to take care that such are set to keep cattle be set to some other employment withal, as spinning…knitting weaving tape, etc."

Although the father was squarely at the head of the household, those elected or appointed by charter to enforce community standards carefully supervised the household. In New England these town officials could enter the household, interrogate the children to determine the level of their education and skill, and remove the children from the home and apprentice them to another master if the father was found wanting the teaching of his children. According to an early Massachusets law,

Page 9

The Select Men of every Town, may examine the Children and Apprentices, in any Family within their respective Towns, and if they find them Rude and Ignorant they shall admonish the Parents and Master, and in case of contin­ued neglect, may with the consent of two Magistrates, or the next county court, take such children from them, and placed them with such other Masters as will reduce them to Government and Instruction.

Following an unsatisfactory inspection by selectmen the Suffolk County Court decreed, "William Scant of Braintree being bound over to this court to answer for his not disposing of his children as may be for their good education, and for refusing to consent to the Selectment of Braintree as the law directs doth leave it to the prudent of the Selectment of Braintree to dispose of his children to service so far as the necessity of his family will give leave."

In the Chesapeake colonies intrusion by public officials into households was less frequent, although the expectations were similar, at least with regard to religious and vocational training. A series of Virginia acts from 1631 to 1645 required fathers and masters to provide compulsory religious education to all children and servants by sending them weekly to church. If the heads of households ignored the warning of ministers and failed to send the children, they were subject to a penalty of five hundred pounds of tobacco for the use of the parish, "unless sufficient cause be shewn to the contrary."

Virginia, like New England, worried about "sloth and idleness where with such young children are easily corrupted." Beginning in 1646 the legislature passed a series of ambitious laws to create workhouses for "the relief of such parents whose poverty extends not to give them good breeding." Children would be taken from their homes to live in the workhouses where they would learn "spinning, weaving, and other useful trades." While there is no firm evidence that these workhouses were actually established, the laws clearly endorsed the need for vocational training.

Unlike New England, Virginia compelled masters and guardians to provide book learning, but not vocational training, to orphaned, poor, illegitimate, and, sometimes, mulatto children. The first law requiring masters or guardians to provide such education did not appear in Virginia until 1705. However, an education requirement frequently was included in the indenture contract during the seventeenth century. Fathers in Virginia were never legally compelled to provide non-vocational education for their own children. The assumption was that fathers would attend to the education of their own children and did not need to be forced by law.

Page 10

Fathers were expected to work hard to provide food and shelter for their wife and children in all the colonies, and it was the community's responsibility to enforce this obligation. In New England the same town officials who supervised the proper education and religious training of the children also monitored their father's diligence as provider. In Watertown, when Hugh Parsons was found lacking as breadwinner for his family, "he was Sent For, and advised to employ his time to the better providing For his Family, and for his encouragement, he was supplied with some present Come." If fathers did not mend their ways they could be punished by imprisonment, as was the case with Samuel Mattock, indicted by the grand jury of Suffolk "for Idleness and neglecting his Family," and sentenced "to the house of correction for an idle person and to pay fees of Courts."

In Virginia the vestrymen of each parish supervised family welfare, following the English model. After 1676 these vestrymen were chosen by the freeholders. They were to investigate cases of immorality and disorder and to administer the poor laws. At the same time the English Poor Law Act of 1601 firmly established the obligation of the father to support his children until they reached majority at the age of twenty-one. This law also emphasized the system of apprenticing poor children. Virginia, with its large population ol orphans and illegitimate children and its insatiable labor needs, eagerly embraced the apprenticeship model.

While the community was willing to advise and supervise households, its patience was not infinite. Ultimately, in all the colonies, communities were unwilling, and usually unable, to subsidize poor families. Following the tradition of the English poor laws, fathers who could not adequately maintain theit family lost custody of their children to poor law officials. These officials routinely "bound out" the children to a master who could support them. The preamble of a Virginia "Act of 1672 for Suppressing of Vagabonds and Disposing of Poor Children to Trades" expressed regret for previously straying from the English laws.

Be it Enacted and it is hereby ordained that the justices of peace in every County do put the Laws of England against Vagrant Idle, and desolate Persons into strict Executions: And that the Respective County Courts shall and hereby are authorized and impowered to place out all Children whose Parents are not able to bring them up, apprentices to Trades: The males till one and twenty years of Age, and the Females to other necessary imployments until eighteen years of Age and no longer.

Similarly, a Massachusetts Act of 1642 authorized the town officials, with the consent of any appropriate court or magistrates, "to put forth as apprentices the children of such as shall not be able and fit to employ and bring them up."

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Contents: Children as Property