From Father's Property to Children's Rights: The History of Child Custody in the United States

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— Judith Wallerstein

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Editorial Reviews

Boston Book Review
Shows that attention to child welfare today is not as consistent as we might assume. [Mason's] evidence reveals a system struggling to find a clear path through conflicting political and social interests while the best interests of the child are often ignored.... But what are the best interests of the child? How should courts proceed when children's interests conflict with those of their parents or even of the state?... Such questions become intractable in a society that has lost all consensus on what family, parenthood, and childhood mean. Mason has no easy answers, but her history of custody law holds a mirror up to a society that sorely needs to look honestly at its treatment of children.
Judith Wallerstein
A first-rate book. Mason combines a lively style with sound scholarship as she traces the roots of contemporary child custody issues from colonial times to illuminate the cross currents of community values and the bitter legal controversies of the present.
Boston Book Review
Shows that attention to child welfare today is not as consistent as we might assume. [Mason's] evidence reveals a system struggling to find a clear path through conflicting political and social interests while the best interests of the child are often ignored. . . . But what are the best interests of the child? How should courts proceed when children's interests conflict with those of their parents or even of the state? . . . Such questions become intractable in a society that has lost all consensus on what family, parenthood, and childhood mean. Mason has no easy answers, but her history of custody law holds a mirror up to a society that sorely needs to look honestly at its treatment of children.
Mason (law and social welfare, U. of California) traces the history of child custody from the adaptation of English common law in the colonies, through the growing maternal preference and child welfare in the early 20th century, and the advent of no- fault divorce and joint custody in the 1970s, to the growing influence of the social sciences today. She highlights the development of such contemporary issues as biological parentage and reproductive technologies. Annotation c. Book News, Inc., Portland, OR (
Susan Gluck Mezey
Mary Ann Mason traces the history of child custody, broadly defined as society's determination of a child's legal and physical guardian, from pre-revolutionary times to the present. She argues that most of the decisions made in determining the status of children have little to do with their "best interests," that on the contrary, society's approach to children was (and is) dependent on their station in life. And in her view, despite changes in attitudes toward children, which she attributes largely to the work of social feminists of the progressive era, child custody decisions are still insufficiently focused on the child's best interests. Each chapter is organized around analysis of the rights of mothers and fathers, of nonparents (stepfathers and stepmothers, adoptive parents, foster parents, and grandparents), of unwed parents, slave parents, and poor parents. Indicating the importance of race, class, and gender throughout, she shows how the single most important determinant of custody over time has been the legal and social status of women. Mason begins by reviewing the colonial era in which, because of the needs of a labor-intensive economy, children were largely brought to the New World as indentured servants. During this period the relationship between father and child was on a par with that of master and servant: in each case, the father/master and child/servant had reciprocal rights and responsibilities. Thus, despite variations among colonies, she argues that classifying children as property, as is commonly done in describing that era, is erroneous. She cites examples of a number of colonies in which the father/master was accountable to the state for dereliction of duty in educating and training the child, or for excessive cruelty. Women, on the other hand, reflecting the combination of English common law and colonial law, were almost invisible in the family structure. They had few, if any, enforceable rights in the child, and, unlike the father, had no obligations for the child's future. Significantly, they had no claim to custody in the rare case of divorce, but were mostly, although not necessarily, given custody if the father died or deserted the family. Custody, however, was a often mere formality for children of poor families or slave families of this period. For families incapable of supporting their children, especially families headed by single women, the Poor Law officials had the authority to remove the children and "bind them out." Children living in this era had little control over their lives; if they were fortunate enough to be free, white, wealthy, and born to lawfully wedded parents, although they had few rights to speak of, they were at least likely to be nurtured and educated. Mason then moves to the century from 1790 to 1890 in which society's attitudes toward children changed for a number of reasons, largely extrinsic to any efforts on their behalf by adults. The primary factor was the changing status of women who began to accrue legal rights and greater social equality. A secondary reason was the economy's diminishing need for child labor. As home industry declined, fathers went out to work, mothers stayed home, and the declining birth rate among the middle classes led to new attitudes of protectiveness and love toward children. Mason argues that the new approach to home and family life caused mothers to be perceived as nurturing caregivers. These attitudes, characterized as the "cult of motherhood," were translated into custody preferences for women following divorce. Although this idyllic life did not represent reality for large numbers of the population, as children's interests became more identified with their mother's, courts began awarding custody to "fit" mothers. Mason also notes that in this era, children of unwed mothers achieved some legal rights, indenturing largely ceased, and obviously, slavery was officially ended as well. There was less con- Page 77 follows: demnation of unwed mothers and their children, and fathers were obligated to provide child support. Despite these advances, children were still liable to be removed from their homes by the state and sent out to work when their parents were unable to support them. Mason argues that the major shift in child custody laws occurred in the thirty years between 1890 to 1920, commonly known as the progressive era. Here, the concept of the child's best interests was extended to poor children as well, with society recognizing that it was better served by keeping families intact. Mason attributes much of the change during this era to a group of women called "social feminists." These feminists succeeded in their efforts on behalf of children, according to Mason, because they focused their arguments on improving women's roles within the family rather than on equal civil rights. This new approach to poor children was characterized by Mother's Pensions programs which, replacing the philosophy of the Poor Laws, provided financial support to allow children to stay within the family home. And, although she does not mention it, most of these programs were operated in a racially discriminatory manner, as state and local officials, especially in the South, largely limited aid to white children living with widowed mothers; this was also largely true for federal welfare assistance, the Aid to Families with Dependent Children program, in the first thirty years or so of its existence. In the last era, from 1960 to 1990, Mason records a number of changes in society's attitudes toward its children. This period was characterized first, by an end to the maternal preference in custody awards, replaced by a gender-neutral approach in which mothers were competitively judged on their merits as parents, and joint custody was often legislatively preferred. Second, there was greater government intrusion into family life, with the state adopting a more vigorous role in cases of child abuse and neglect, especially for poor families. And finally, there were increasing problems represented by conflicts between biological and nonbiological parents, with the state usually preferring the former, often as a knee-jerk reaction without examining the arguments presented by each or determining who would most benefit the child. The last substantive chapter examines the role of social scientists, primarily psychologists, in custody cases. She shows that reliance on the tools of social science is on the ascendancy, but warns of the difficulties associated with it. She advocates a more careful assessment of the advantages and disadvantages of judicial dependence on these tools. She concludes by pointing out three lessons: first, that throughout history children have been cavalierly treated by society, and that their most ardent champions have been the social feminists, whom she calls "heroines." She urges adults to follow their example and consider children's interests more carefully when instituting changes in family law. Second, she notes that custody arrangements have always differed according to the child's social class. She suggests placing all custody affairs under the jurisdiction of one court to allow it to focus on the child's best interests without regard to class. And third, she advises revision of the policy of preferring custody in the biological parent. This is an interesting and well-written book in which Mason does an excellent job of reporting the nation's rather dismal record of taking care of its children. For those concerned about children's rights, it provides a compelling chronological and thematic account of society's relationship to its children. My only reservation about the book is that I was uncomfortable with her crediting the social feminists for advancing children's rights, and blaming the equal rights feminists for acting contrary to the interests of children. Equal rights feminists, according to her, were unconcerned about child welfare, and motivated by narrow selfish goals; social feminists unselfishly put their own interests aside and placed the interests of children first. Page 78 follows: Without denigrating the work of the social feminists, it is important to note that they remained confined within a narrow economic and social framework in concerning themselves almost exclusively with white children, largely ignoring the needs of minorities. And for the most part, they looked to private charities to provide income support because they were opposed to governmental efforts to relieve poverty. Moreover, they also refrained from "rocking the boat" by focusing on women's roles within the family rather than on women's equality, making them less threatening to the male-dominated power structure. Finally, although Mason acknowledges that equal rights feminists were not responsible for instigating no-fault divorce laws, she states that their campaign for equal rights, including apparently the ill-fated Equal Rights Amendment, "contributed to the legal climate that fostered the revolution in family law" (p. 125). Undoubtedly true, but one would wish that she displayed slightly more sympathy toward women who were accorded legal equality without the accompanying economic power, and were therefore often worse off than before.
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Product Details

  • ISBN-13: 9780231080460
  • Publisher: Columbia University Press
  • Publication date: 6/9/1994
  • Pages: 256
  • Product dimensions: 6.13 (w) x 9.24 (h) x 0.75 (d)

Meet the Author

Mary Ann Mason is Associate Professor of Law and Social Welfare at the School of Social Welfare, University of California, Berkeley. She is the author of The Equality Trap, coauthor of Why Kids Lie, and coeditor of Debating Children's Lives: Current Controversies on Children and Adolescents.

Columbia University Press

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Table of Contents

Introduction1. Fathers/Masters: Children/Servants: Child Custody in the Colonial Era2. From Fathers' Rights to Mothers' Love: The Transformation of Child Custody Law in the First Century of the New Republic, 1790-18903. The State as Superparent: The Progressive Era, 1890-19204. In the Best Interest of the Child? 1960-19905. The Ascendancy of the Social Sciences

Columbia University Press

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