Custody of children in 1896

The following is an excerpt from Bax’s The Legal Subjection of Men (1896) (p.16)


It has always in England been laid down as a fundamental law based on public policy, that the custody of children and their education is a duty incumbent on the father. It is said to be so fundamental that he is not permitted to waive his exercise of the right by pre-nuptial contract. (See the Agar v. Ellis Case.)

This rule of the Common Law of England is of course in harmony with the policy of all Europe and Christendom, as well as with the historic conditions of the European social organisation, if not with the primal instincts of the race.

Nevertheless, fundamental and necessary as the rule may be, the pro-feminist magistrates and judges of England are bent apparently on ignoring it with a light heart. They have not merely retained the old rule that the custody of infants of tender years remains with the mother until the child attains the age of seven. But they go much further than that. As a matter of course, and without considering in the least the interests of the child, or of society at large, they hand over the custody and education of all the children to the litigant wife, whenever she establishes –an easy thing to do– a flimsy and often farcical case of technical “cruelty.”

The victim husband has the privilege of maintaining the children as well as herself out of his property or earnings, and has the added consolation of knowing that they will brought up to detest him.

Even in the extreme case where a deserting wife takes with her the children of the marriage, there is practically no redress for the husband if in narrow circumstances. The police courts will not interfere. The divorce court, as already stated, is expensive to the point of prohibition. In any case the husband has to face a tribunal already prejudiced in favour of the female, and the attendant scandal of a process will probably have no other result than to injure his children and their future prospects in life.



See also: Maternal Preference in 19th Century American Law

Maternal Preference in 19th Century American Law


(Illustration from Little Red Cloak by Harriet Burn McKeever. Ca. 1866.)

When it was not rejected outright (as many courts did from the beginning), the supposed “paramount right of the father” to the custody of his children was subject to six major exceptions: (1) children born out of wedlock; (2) young children; (3) weak, disabled or unhealthy children; (4) daughters; (5) older male children who expressed a preference to live with their mothers; and (6) cases where the father was guilty of marital or moral misconduct, concepts which courts defined very broadly in cases where a father sought custody of a child.

Except when a court determined a mother to be an unfit parent, there were not many situations to which a “paramount right of fathers to custody” actually applied. The exceptions nearly swallowed the rule, in those few states where such a rule was ever actually applied at all. What this meant was that, in practice, the courts of every state – those that had openly rejected the “fathers’ rights” doctrine from the beginning, and those that had given it lip service while effectively nullifying it through the application of broad exceptions – decided 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.[1]

The maternal preference was based on strongly held beliefs about the natural superiority of women and the inferiority of men, as a class, with respect to child-rearing functions. For example, the Illinois Supreme Court, in 1849, issued this sweeping generalization:

The mother, from her natural endowments, her position in society, and her constant association with [children], can give them that care, attention and advice so indispensable to their welfare, which a father, if the same children were left to his supervision, would be compelled in a great degree to confide to strangers.[2]

Although the maternal preference was more ardently and eloquently expressed in cases involving younger children, it manifested itself in the rules courts applied to the custody of older children, too. For example, the near-absolute rights of mothers to custody of children born out of wedlock, and of daughters, and of weak, disabled or unhealthy children, applied to cases involving children of any age.

Maternal unfitness

The custody rights of parents were never absolute. A mother, like a father, could be denied custody if a judge determined that she was unfit to be a parent.[3] The kinds of things that a court would accept as evidence of a mother’s unfitness varied considerably from what would suffice for a father, though. In general, it may be said that the grounds for declaring a mother unfit were more limited than what would suffice to declare a father unfit. And over the course of the century, this double standard became increasingly pronounced.

One clear example of the double standard was the child support obligation. Women were not expected to be the breadwinners for a family,[4] so a mother’s inability to support her children financially normally was not held to be grounds for denying her custody of her children. By contrast, courts readily denied custody to fathers – and awarded custody to the other parent, or even to a third party — on the basis that the father either could not or did not adequately provide for his children financially.

Another clear example of the double standard was marital infidelity. Courts often treated a father’s commission of adultery as grounds for denying him custody of a child but, as we have seen, a mother’s commission of adultery did not necessarily preclude an award of custody to her, especially if the child in question was young.

Moreover, regardless of the age of the child, a mother’s commission of adultery was not a bar to custody if there was evidence that she had undergone a moral reformation. And courts typically would infer a woman’s complete moral reformation simply from her termination of an adulterous relationship.

Victorian mores were such that women were seen as innocent and asexual. Therefore, any demonstration of an interest in sex, or of a lack of moral virtue, on a woman’s part was thought to be merely a temporary fall from the pedestal. The fall was assumed to have happened as a result of being pushed by a man. Accordingly, if a married woman simply renounced her interest in the man who had led her astray, then she was entitled to immediately reclaim her position on the pedestal, and all order was restored to the Victorian world.[5] Men rarely were afforded such beneficent dispensation. There was an underlying current of opinion that men who strayed from their marital obligations did so of their own free will, and were virtually assured of doing it again: Once a scoundrel, always a scoundrel, it seemed.

The principal grounds upon which a mother might be deemed to be unfit to parent in nineteenth century America were habitual drunkenness (though this did not always prevent a court from awarding her custody of a child of tender years);[6] mental illness; and severe child abuse.[7]


[1] See Commonwealth ex rel. d’Hauteville v. Sears 279 (Phila., Pa. Ct. of General Sessions 1840) (concluding, on the basis of a review of early American custody cases, that “[t]he common law of the United States is in favour of the mother’s custody”)

[2] Miner v. Miner, 11 Ill. 43, 50 (1849)

[3] See generally American Bar Association, Guide to Marriage, Divorce, & Families 172 (2006) (observing that “[b]y the mid-1800’s, most states had come to exhibit a strong preference for the mothers in issues of custody.”) Since the maternal preference was the guidestar for custody decisions throughout most of the twentieth century, it will be explored in more depth when this blog makes it into the twentieth century.

[4] The law imposed support obligations exclusively on men, not on women. It is sometimes thought that this was an aspect of the coverture doctrine, the idea being that the person who has all the rights should also have all the responsibilities. The support obligation was exclusively male, however, even when coverture was not applicable. For example, support obligations continued to be imposed exclusively on males even after the marital unity had been dissolved by a divorce. Gilley v. Gilley, 9 A. 623 (Me. 1887); Logan v. Murray, 6 Serg. & Rawl. 175 (Pa. 1820); Campbell v. Campbell, 37 Wis. 206 (1875) (holding that a divorce may terminate a husband’s right to custody but it does not terminate his obligation to support his wife and children.) see generally Epaphroditus Peck, The Law of Persons or Domestic Relations 253-60, 278 (1913).

[5] Of course, if she refused to abandon her paramour, then the court would have no basis for a finding of moral reformation, and most likely would proceed to find her unfit to parent.

[6] See, e.g., Brandon v. Brandon, 14 Kan. 264 (1875)

[7] American Bar Association, supra note 3.

The above article reprinted with permission from author and copyright holder Tom James.

SEE ALSO: Custody of children in 1896