gender discrimination in child custody prevalent historically

Among separated parents with financial child support agreements, fourteen times more mothers than fathers have physical custody of their children. Such anti-men gender discrimination in child custody decisions is deeply rooted historically. In contrast to mythic child custody history, children weren’t legally fathers’ property a century ago, or two centuries, or three centuries ago.[1] Living within the gynocentric social structure that humans share with most other primates, men have been historically disadvantaged in legal decisions about custody of their children.

De Manneville v. De Manneville, an English case decided in 1804, commonly headlines mythic child custody history. Lord Eldon did not declare that “the law is clear that the custody of a child, of whatever age, belongs to the father, if he chooses.” That was actually a statement of the advocates for the father. Lord Eldon actually declared:

It has been truly observed, that, the petition being presented upon the part of an infant, the Court will do what is for the benefit of the infant, without regard to the prayer {petitioner}. … This is an application by a married woman, living in a state of actual, unauthorized separation, to continue, as far as the removal of the child will have an influence to continue, that separation, which I must say is not permitted by law. [2]

Lord Eldon ruled that a mother couldn’t just move with the couple’s child out of the marital home and then, when she lost custody in an extra-legal wrangle, expect the court to order the child to be returned to her. Lord Eldon made conventional perfunctory reference to the best interests of the child. That abstract touchstone has long justified courts’ child custody decisions. Nonetheless, Lord Eldon’s ruling generated outrage. In response to De Manneville and other cases publicly depicted as showing insufficient solicitude for women, the British Parliament explicitly supported women’s custody rights with The Custody of Infants Act of 1839 (Talfourd Act).[3] Public outrage and responding legislation suggest that cases like De Manneville were aberrational in the socio-legal history of child custody.

Men have long lacked equal rights with respect to child custody under English common law. Under English common law, women had a natural right to custody of children they bore outside of marriage. An unmarried father, in contrast, had no right to custody of his child. The unmarried father had only a legal obligation to provide periodic payments to the mother (“child support”).[4] Relative to unmarried women, unmarried men have long lacked equal rights to custody of their children. Unmarried men have long suffered the injustice of forced financial fatherhood.

De Manneville didn’t address child custody upon legal divorce or legal separation. English chancery courts before and after De Manneville justified child custody decisions with the abstract “best interests of the child” standard.[5] De Manneville applied only to actions in response to child abductions among spouses. In De Manneville, the wife moved out of the marital home and took their child. She refused to give custody of the child to her husband. On a visit to his wife, the husband took the child and refused to return custody of the child to his wife. The wife by guile then took the child back. The husband then forcefully took the child again.[6] The court was required to decide whether husband or wife would have custody of their child. A Solomonic decision wasn’t possible. Under the coverture doctrine shielding wives from mass imprisonment for debt, the court decided that father-husbands (at least those not imprisoned) had the first right to child custody in a custody dispute among married parties.[7]

Historical distance makes anti-men gender stereotypes in child custody decisions easier to perceive. Consider Nickols v. Giles, a Connecticut case decided in 1796. Nickols brought a writ to regain custody of his three-year-old daughter. The mother, Nickols’ wife, had left him and taken their daughter. The wife went to live with her father. The report of the Court’s decision was brief and direct:

Upon inquiry it appeared that the child was with its mother, who lived with her father the said Thomas Giles; that the child was well provided for; and said Nickols having no house and very little property, and very irregular in his temper and life, his wife had left him and went and lived with her father, where both she and her child were well provided for. Upon which the court refused to grant said writ. [8]

Poor mothers could retain custody of their children and receive financial child support from the father or others. Fathers who were poor were much less likely to receive financial support and much more likely to be deprived of custody of their children.

Discrimination in child custody was not just in favor of women relative to men, but also against poor men in general. In 1816, the Supreme Court of New York in In re Waldron refused to vindicate Waldron’s claim to custody of his child against his deceased wife’s father, M’Gowan. M’Gowan had taken Waldron’s pregnant wife into his home without her or her husband’s consent. There she gave birth. Shortly thereafter she died. The maternal grandfather M’Gowan retained physical custody of the child. Waldron applied to the Court for physical custody of his daughter. The Court refused to grant. It reasoned:

M’Gowan is a man in very affluent circumstances, and abundantly able to educate and maintain his granddaughter; and it appeared, that Waldron was insolvent, and unable to pay certain trifling debts which he had contracted, although it was alleged that his mother, with whom he lived, was competent and willing to support him and his daughter. … It is to the benefit and welfare of the infant to which the attention of the Court ought principally to be directed … We think, therefore, that it will be a due exercise of the discretion with which the law has invested us, to deny the present application … We think proper, however, to suggest, that the father ought, on all suitable occasions, to be permitted to see the child [9]

Men historically have been treated as socially disposable persons. If the maternal grandfather is more affluent than the father, then the father could legally be reduced to a visitor in his child’s life.

Deeply entrenched gender stereotypes have long justified anti-men gender discrimination in child custody decisions. A Philadelphia court in 1840 declared:

The reputation of a father may be stainless as crystal; he may not be afflicted with the slightest mental, moral, or physical disqualification from superintending the general welfare of the infant; the mother may have separated from him without the shadow of a pretence of justification; and yet the interests of the child may imperatively demand the denial of the father’s right, and its continuance with the mother. … The tender age and precarious state of its {the child’s} health, make the vigilance of the mother indispensable to its proper care; for, not doubting that paternal anxiety would seek for and obtain the best substitute which could be procured, every instinct of humanity unerringly proclaims that no substitute can supply the place of HER, whose watchfulness over the sleeping cradle or waking moments of her offspring, is prompted by deeper and holier feelings that the most liberal allowance of a nurse’s wages could possibly stimulate. [10]

Views about commercial daycare and hired childcare have changed greatly. But anti-men gender discrimination in child custody decisions has change little. In discriminating against fathers in child custody, the Illinois Supreme Court in 1849 less floridly invoked gender stereotypes:

it can not be expected that he would bestow that personal care and attention upon a girl seven or eight years old, which may be expected from a mother, who appears to be well qualified for the care of the child, and against whom no just objection is shown to exist. If left with the father, the child must, to a great extent, be entrusted to the superintendence of others; her nature will lead her to associate with her own sex, by whom her manners will be formed, her thoughts and tastes directed, and, in truth, her character mainly moulded. His occupations will doubtless prevent that constant watchfulness over her, so essential to her proper cultivation, and which could be better contributed by a vigilant and tender mother. We shall, therefore, leave her for the present, at least, where she has been placed by the circuit court. [11]

Men today are commonly recognized to have equal capability to women in child care, including care for female children. Moreover, having an occupation outside the home is not now regarded as an essential barrier to having custody of children. Nonetheless, anti-men gender discrimination in child custody decisions remains large. Across the U.S. in the nineteenth century, courts decided child custody “on the basis of the best interests of the child, with a strong presumption that maternal custody was in a child’s best interests.”[12] The main change in anti-men gender discrimination in child custody has been in the details of the justifications put forward for it.

Mythic history of paternal preference / patriarchy dominates peer-reviewed legal history of child custody. That’s not independent thought. Such work documents the anti-men gender bias long at work in child custody decisions.

*  *  *  *  *

Read more:

• paternity within marriage: long history of legal fiction
• criminalizing seduction: the crime of men seducing women
• Madonna Filippa ridiculed moralizing formalists

Notes:

[1] Mason (1994) is a fine example of such tendentious and misleading scholarship.

[2] De Manneville v. De Manneville, 10 Ves. Jun. 53, 58, 61; 32 English Reports 763, 765, 766 decided in Court of Chancery, July 26-28, 1804, by the Lord Chancellor {Eldon}. Legal scholarship published in peer-reviewed journals has misrepresented Lord Eldon’s opinion. For example, Wright (1999), pp. 247-8, states:

Lord Eldon agreed that “the law is clear that the custody of a child, of whatever age, belongs to the father.” (footnote. 3) |  footnote 3: De Manneville v. De Manneville, 10 Ves. 52, 53 (1804), “In whatever principle that right is founded, it is unquestionably established, and is not disputed.”

The footnoted text, which id. used to support the main-text quote that’s not actually from Lord Eldon, concerns Lord Eldon’s judgment about jurisdiction, not who gets custody. Wright (2002), which suggests that family law has evolved historically to maintaining “patriarchal relationships within families under the guise of legal formalism” (id p. 182), is simply risible in light of current injustices in paternity establishment and large anti-men bias in child custody decisions.

Kohm (2008), p. 356, similarly misrepresents Lord Eldon’s opinion in De Manneville. This peer-reviewed legal scholarship states:

Despite the fact that it might be best for a nursing infant child of eleven months to remain with his mother, the court had no problem removing the child from the mother’s care and giving custody to the father, as a matter of law. “The law is clear, that the custody of a child, of whatever age, belongs to the father, if he chooses.” (fn. 123) De Manneville clarified and emphasized that a British court cannot interfere with a father’s right to his child.(fn. 124) | fn. 123:  (1804) 32 Eng. Rep. 762, 764 (Ch.). fn. 124: Id. An extremely thorough examination of the De Manneville case is contained in Danaya C. Wright, De Manneville v. De Manneville: Rethinking the Birth of Custody Law under Patriarchy …

The free-floating quote dodges the need to acknowledge explicitly who made that statement. The context misleadingly suggests that the Court’s opinion in De Manneville contained the quoted statement. The footnote referring to an “extremely thorough examination of the De Manneville case” refers to Wright (1999). See above.

James (2014) is a self-published book that a practicing lawyer apparently wrote as an independent researcher. This book makes clear that anti-men gender bias is deeply entrenched in legal scholarship on child custody. While providing much insight that existing legal scholarship has missed, this important book follows existing legal scholarship in misunderstanding De Manneville v. De Manneville:

Explaining his refusal, Lord Eldon stated that unless a child was in danger of being harmed, “the law is clear that the custody of a child, of whatever age, belongs to the father.” (ft. 189) | ft. 189: De Manneville v. De Manneville, 10 Ves. 52, 63, 32 Eng. Rep. 762 (Ch. 1804).

Id. p. 72.

[3] The Custody of Infants Act of 1839 explicitly authorized the Lord Chancellor to order a wife to receive custody of a child that was being held in her husband’s custody. As De Manneville indicates, courts had already long been issuing such orders. The Custody of Infants Act of 1839, like legislation addressing violence against women, reflects social power, not aggregate statistical reality. That’s evident in parliamentary debate about the Custody of Infants Act (more) and historical accounts of that debate.

[4] James (2014) pp. 83-5.

[5] Id. pp. 64-7. In apparent play to intellectual patriotism, Kohm (2008), p. 338, declares: “the best interest of the child doctrine is uniquely established in American law and has set the trend for the treatment of children throughout the rest of the world today.” That’s false, as actually reading De Manneville v. De Manneville makes clear. See above. Apparently attempting to foreclose working for social justice, Kohm opens with the claim “The best interests of the child doctrine is … relied upon because there is nothing better.” Id. p. 1. A “best interests of the child” standard with affirmative action to address deeply entrenched historical gender discrimination against men in child custody decisions might be fairly regarded as better. Such affirmative action continues to be far outside the bounds of acceptable scholarly discussion.

[6] Wright (1999) begins her ostensibly scholarly article with the sensational claim that de Manneville “wrenched his eight-month-old daughter from her mother’s breast, and absconded with the naked child in an open carriage in inclement weather.” Id. p. 247. That account comes from Caroline Norton, an obviously and intensely biased source. Norton is no more credible in reporting the facts of the case than are the father’s advocates for reporting the law governing the case. See note [2] above and associated text. Wright (1999) used an ironically suitable introduction to her deeply biased and tendentious scholarly article.

[7] Anti-men bias in child custody decisions and anti-men bias in responding to domestic violence has spread across legal history and popular history. For example, the official website of the U.K. Parliament declares on a page entitled Custody Rights and Domestic Violence:

The custody of children had already been the subject of parliamentary action in 1839 {The Custody of Infants Act of 1939}. Previously mothers had no rights at all over their children if the marriage broke down.

Women could and did ask courts for custody of children of a marriage. Within competing custody claims of husband and wife, courts invoked “bests interests of the child” and commonly issued child custody to the wife. James (2014) pp. 64-7. For example, in 1774 Lord Mansfield ruled:

If the parties are disagreed, the Court will do what shall appear best for the child … The natural right is with the {married} father; but if the father is bankrupt, if he contributed nothing for the child or family, and if he be improper, for such conduct as was suggested at the Judge’s chambers, the Court will not think it right that the child should be with him.

In this case, the Court ordered that the father not be allowed to take custody of his six-year-old child. That child was in the custody of the wife, who had moved out of the marital home. Blissets Case, Lofft 748, a habeas corpus case at the King’s Bench, 1774.

[8] Nickols v. Giles, 2 Root 461, September Term, 1796, Superior Court of Connecticut. Divorce cases recorded in surviving records from Connecticut in 1676 and 1692 also show mothers awarded custody of children following divorce. Dayton (1995) pp. 122-5. Id., providing tendentious, misandristic history in support of dominant myths, explains these cases as “Puritan foreshadowings” of the exceptional American “tender years” doctrine. More realistically, these cases were probably business as usual in maternally biased child custody decisions. In New Haven County Superior Count, 1711-1789, 2.5 times as many women filed for divorce as did men. Id. p. 135, Table 6. That filing skew is consistent with courts favoring women.

[9] In re Waldron, 13 Johns. 418, August 1, 1816, Supreme Court of New York.

[10] DH-Sears (1840) pp. 292-3, reporting Commonwealth ex. rel. d’Hauteville v. Sears, July Term, 1840, Philadelphia, Pennsylvania, Court of General Sessions.

[11] Miner v. Miner, 11 Ill. 43, December Term, 1849, Supreme Court of Illinois. The Court noted the father had an “ignorant housekeeper.” The Court’s concern for the daughter’s female associations plausibly reflects racial and class bigotry toward a black woman who served as Miner’s housekeeper.

[12] James (2014) p. 146. Here’s a less detailed review of historical maternal preference in child custody.

The Supreme Court of Errors and Appeals of Tennessee in 1825 declared:

Perhaps the strongest law in animated nature, is the disposition of the female to protect and support her offspring; … The mother is the natural guardian of the child. The father, if it is born in wedlock, is the municipal guardian of both the mother and the child; and why? Because he is bound to support them. The mother has no rights that are not merged in the rights of her husband, and in whose name she is compelled to act. The married woman becomes the bounden servant of the husband to all political purposes, by the common law; and he is entitled to the custody of the mother, and of course the child also. But it never was intended, even by the marital relation of husband and wife, that the great law of nature should be violated by a separation of the mother from her infant.

Lawson v. Scott, 9 Tenn. 92, August, 1825, Supreme Court of Errors and Appeals of Tennessee. The “great law of nature” is now widely recognized to be a gender stereotype. The role of that gender stereotype in continuing anti-men gender discrimination in child custody decisions hasn’t been widely appreciated, or at least not openly acknowledged.

[images] Gender egalitarian marriage. Photos courtesy of Elmer Galbi.

References:

Dayton, Cornelia Hughes. 1995. Women before the bar: gender, law, and society in Connecticut, 1639-1789. Chapel Hill: University of North Carolina Press.

DH-Sears. 1840. Report of the D’Hauteville case, the Commonwealth of Pennsylvania, at the suggestion of Paul Daniel Gonsalve Grand D’Hauteville versus David Sears, Miriam C. Sears and Ellen Sears Grand D’Hauteville: habeas corpus for the custody of an infant child. Philadelphia: Printed by William S. Martien.

James, Tom. 2014. The History of Custody Law. 2nd ed. ISBN-13: 978-1499182033, available from Amazon.

Kohm, Lynne Marie. 2008. “Tracing the Foundations of the Best Interests of the Child Standard in American Jurisprudence.” Journal of Law & Family Studies 10: 337-76.

Mason, Mary Ann. 1994. From father’s property to children’s rights: the history of child custody in the United States. New York: Columbia University Press.

Wright, Danaya C. 1999. “De Manneville v. De Manneville: Rethinking the Birth of Custody Law under Patriarchy.” Law and History Review. 17 (2): 247-307.

Wright, Danaya C. 2002. “The Crisis of Child Custody: A History of the Birth of Family Law in England.” Columbia Journal of Gender & Law 11(2): 175-270.