The crisis of child custody: a history of the birth of family law in England.

• Author: Wright, Danaya C.

Ask--may the victim of a hasty vow Ne'er seek release nor remedy? Ah no! A maiden once enclosed in nuptial ties Must wear her fetters till she sins or dies; And suffer as she may, within these bounds, No cure for sorrows and no balm for wounds. Such finished torture England's code can boast; A formal framework, which at woman's cost, Flings a disguise o'er ruthless tyranny, And drugs men's conscience with a special tie. (1) Harriet Grote (1853) I. INTRODUCTION

In 1856 the House of Lords engaged in extensive debates over the introduction of a bill that would reform the law of divorce in England. (2) Numerous critics of the law complained that the cost and complexities of jurisdiction foreclosed the remedy to the poor, while many women complained that the dual standards for obtaining a divorce were unfair to women. To get a divorce, a husband (and it was only husbands) had to bring a criminal conversation action against his wife's lover and get an award of damages, obtain a legal separation in the ecclesiastical courts, then petition both Houses of Parliament for a separate bill of divorce allowing him to remarry. (3) The total cost could easily surpass [pounds sterling]1,000. A woman generally could not get a divorce, nor could she sue her husband's mistress for alienation of his affections. (4) She could only obtain a legal separation in the ecclesiastical court that gave her no right to remarry, and any alimony order out of the ecclesiastical court was unenforcea ble without a petition for enforcement in the Royal Courts.

It was not unexpected, therefore, that during a period of intense law reform, Britons would challenge the unwieldy and uneven laws of divorce. (5) In the 1856-57 debates, Parliament focused primarily on two issues: simplifying the process in order to make justice available to a wider class of litigants and equalizing the rights of husbands and wives to seek absolute divorce. In the end, a bill was passed in 1857, to take effect January 1, 1858, establishing a unitary court with jurisdiction over all matrimonial matters, thus expanding the court's availability to a greater percentage of the population, (6) though still not bringing justice to the poor who could not afford the fees or the trip to London where the court sat. Furthermore, in a compromise between those who wanted the law to imitate the Scottish law of divorce granting both husbands and wives equal rights to seek divorce, and those who wanted to entirely foreclose the possibility to wives, the final bill granted husbands the right to an absolute d ivorce upon evidence of mere adultery by their wives, but wives needed to prove aggravated adultery to petition for the same remedy. (7) This law stood relatively unchanged until 1937 when desertion, cruelty, habitual drunkenness, and incurable insanity were added as fault bases that stood alone. (8)

The 1857 bill also included a provision granting the new court jurisdiction to make interim and final orders regarding the custody of any children of the marriage. The bill further provided that upon receiving a judicial separation, (9) a wife's property, wages, and inheritances would be held to her own private use as if she were a feme sole. (10) The bill effectively combined the jurisdiction of the ecclesiastical courts over marital disputes with the jurisdiction of the law courts over property, the jurisdiction of Parliament over absolute divorces, and the jurisdiction of the equity courts over custody of children and equitable estates, locating them all in a new court operating as a wing of the probate courts with appeal to a bench of at least three justices from the Court of Arches, the Queen's Bench, Common Pleas, the Admiralty Court, and the Chancery. (11)

This divorce reform bill has been identified by scholars as critical in improving the status of women. (12) It has been credited with the institutionalization of domesticity and separate spheres. (13) It arguably was the legal origin of a dedicated family law. (14) It can be seen as an important precursor to modern alternative dispute resolution and mediation practices because it provided a less antagonistic tribunal than traditional adversarial courts. (15) Historians of the period accept the reform as a logical, positive step in providing greater protections to women and children, because the creation of a special, dedicated matrimonial causes court recognized the family as a communal, integrated aggregate' of interrelated interests. (16) When women have no protections in either their public or private capacities, reform giving them some limited protections within the private sphere is easily seen as an improvement.

Yet few historians have explored the interrelationship between the general social pressure for protecting the domestic sphere and the complex institutional and jurisdictional constraints that had to be dealt with in creating a legal or judicial solution to the inequities in divorce law. A few historians have examined the political climate of the 1850s to see what might have spawned such an important legal reform. It was a critical stage in the women's movement and in the expanding role of women in the marketplace caused by industrialization. (17) It also followed the disastrous Crimean war and the well-known missionary work of Florence Nightingale, a woman whose war activities challenged the common notion that women should stay safely in the home. (18) As Lee Holcombe suggests, this was a decade of law reform that included both external societal pressure to protect the rights of women and internal pressure to reexamine the intricate and arcane proceedings of both chancery and common law courts. (19) Much has been written on this period, the growing women's movement, and the social ideology of separate spheres that relegated women to a private, domestic world, while men operated in and from a public, commercial world. (20) From the separation of public and private spheres and the rise of the cult of domesticity, it seems a small step to a separate set of laws and a separate court system for family disputes. Historians have overlooked, however, the role that child custody disputes played in divorce reform. (21) The first interspousal custody case of a wife suing her husband for custody of their infant child occurred a mere fifty years before this radical institutional change, though property and divorce disputes had been treated in a relatively consistent manner for centuries. These custody cases were profoundly unsettling to the courts, for they challenged the very core of coverture, the legal fiction of the unity of husband and wife (22) From within the legal rules and mechanisms of the chancery, these inter-spo usal custody cases put such pressure on the equity courts that the internal pressure for reform equaled or exceeded the pressure for reform outside the law.

Without denying the profound importance of women activists, of ideological and social beliefs in a changing role for women, and of the pressures imposed by industrialization, I believe an especially important catalyst for the new court and the new law that came out of it was the handful of extremely difficult and unsettling custody cases that had begun to appear after the turn of the nineteenth century. Few people realize that it was not until the late nineteenth century that mothers began obtaining custody in sufficient numbers and the law began to express something like maternal rights to children. (23) It is almost unthinkable today to imagine divorce occurring without any legal attention to custody of the children of the marriage. But unlike the law of divorce and property, the law of interspousal custody was relatively new. (24) In attempting to solve the difficulties posed by the custody cases, the courts forced Parliament to come up with a new solution--a unified family law court--that continues to se rve as the model for legal resolution of family breakdowns today. Out of the court grew a new set of doctrines we have come to call family law, doctrines that many believe have perpetuated women's subordinate status. (25) I suggest that the court most importantly failed to reflect the type of change advocated by nineteenth-century women reformers. Moreover, the new court and the law that evolved from it appear not to have adequately addressed either the class or gender biases that preoccupied the minds of the legislators. (26)

In analyzing legal change, it is important to examine both the internal constraints of legal institutions as well as the external social pressures that spurred the change. It is also important to examine the context in which parties turn away from informal mechanisms and enter a court to resolve family disputes. In this article I give a history of the parental disputes over custody that made it to the courts from the early eighteenth century until nearly thirty years after the 1857 divorce reform. In doing so, I examine the cases, relevant legislation, the political writings about the issue of custody, and the law's role in determining a mother's rights to her children. I also look briefly at writings by women, both reformers and novelists, about the relationship of law to motherhood and child rearing. I cover three basic periods: 1700 to 1839 when the first legislation was passed giving mothers a right to petition for custody of their children, 1839 to 1857 when the divorce courts were created and given the power to make interim and final custody orders as part of their divorce and separation powers, and 1857 to the late I 880s when further reform in guardianship, custody, married women's property, and divorce occurred. Although I view in this article the 1857 divorce reform as the pivotal change in the law of coverture and custody, the Custody of Infants Act that was passed in 1839 was terribly important, not for what it accomplished, but for what it did not accomplish. Much time is spent analyzing the social...