Vol. 4 No. 6 (June, 1994) pp. 76-78
FROM FATHER'S PROPERTY TO CHILDREN'S RIGHTS: THE HISTORY OF CHILD
CUSTODY IN THE UNITED STATES by Mary Ann Mason. New York:
Columbia University Press, 1994. 237 pp. Cloth $29.50.
Reviewed by Susan Gluck Mezey, Department of Political Science,
Loyola University Chicago.
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-
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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.
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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.
Copyright 1994