From feudalism to family law: Inter-spousal custody disputes and the repudiation of mother's rights

This dissertation tells the history of the English law of inter-spousal custody, from its origins in the early nineteenth century through the legislative changes in guardianship and divorce law that culminated in the 1925 adoption of the best interests standard for all custodial decisionmaking. I begin with an examination of the feudal doctrines treating children differently depending on their property-holding status, then the 17th-century abolition of wardship, and the 18th-century guardianship cases making inroads on paternal rights to custody. But when the first inter-spousal custody case arose in the early 19th century, judges reacted to the potential family disruption they foresaw from these cases by creating a harsh rule of near-absolute patriarchal rights to children.; This harsh rule led to legislation that attempted to ameliorate the plight of many women: the 1839 Custody of Infants Act that gave mothers the legal right to petition for access or custody of their children, and the 1857 Divorce and Matrimonial Causes Act that consolidated divorce, family property, and custody issues under the jurisdiction of a single court and a single set of legal principles. The result of the 1857 Act was the creation of our modernsystem of family law and family courts, which represented a profound change in the treatment of familial disputes from the nearly 800 years of prior total disregard for the interests of children under the English Common Law. More importantly, the family law that evolved perpetuates many of the patriarchal values of the early cases by subsuming custody awards to determinations of marital fault.; I conclude that: (1) the law treated women and children better in the eighteenth century than it did in the nineteenth, that there was a kind of patriarchal backlash against demands for women's rights that came out in the fledgling inter-spousal custody cases. (2) Historians who have argued that women's status in the family improved as a result of changes in the law of domestic relations have not carefully enough considered either the eighteenth-century law or the disjunction between legislation and judicial application of the nineteenth-century statutes. (3) I also conclude that inter-spousal custody disputes were the catalyst for bringing about profound changes in what has come to be known as family law and provide a way to critique current family law issues within a historical framework.