Demanneville V. Demanneville: Rethinking the Birth of Custody Law Under Patriarchy
Law and History Review, Vol. 17, Pp. 247-307, 1999
Posted: 29 Sep 1999
This article looks at the period leading up to and immediately following the first inter-spousal custody case in England. The article attempts to explicate the legal and social context in which that case arose, and the legal and social responses to that case and those that followed. In particular, I found that the history of English custody law is a rather complicated one. In the late seventeenth and early eighteenth centuries people began challenging the heretofore unquestioned rights of fathers to absolute custody of their legitimate children. These challenges were uniformly made by third parties and in most instances the father lost because he was either failing to support his children, had physically abused them, or had voluntarily relinquished their custody to others. During the same period, mothers were gaining some recognized legal rights to their children in cases against third parties, usually testamentary guardians appointed by deceased fathers. Thus, when it came time for the first custody case between two arguably fit parents, the question was open as to whether mothers' rights would be recognized. As it turned out, a very conservative court effectively precluded any rights by mothers to custody of their children except where the child was in danger of life and limb, a standard that was even harsher than the one applied when third parties challenged fathers. This patriarchal backlash is the subject of the article.
As I detail the handful of cases between 1804 and 1839 that litigated inter-spousal custody disputes I show that each time a mother was the plaintiff she lost. And each subsequent case reveals an attempt by litigants to correct what the court claimed in the prior case kept the mother out. So where the DeManneville court gives custody to the father on the grounds that the mother is still married and therefore, under coverture, cannot challenge her husband in a custody suit, in the next case the parties were separated. But in that case the court came up with a different reason why the mother should lose. And when that reason was resolved in a later case, the court would come up with an even different reason. What I conclude from these legal maneuverings is that the courts simply didn't want to open the domestic can of worms by allowing inter-spousal custody disputes. But in their efforts to discourage them, they created a law that was so rigid and unreasonable that parliament had to step in and ameliorate the situation of innocent mothers.
Unfortunately, the parliamentary reform was not particularly effective and judges continued, between 1839 and 1857, to give custody to fathers unless they failed the life and limb standard. What we find in this legal history is a tension between the chancery's equity jurisdiction to ostensibly make decisions in the best interests of children and their deeply ingrained beliefs in the primacy of property and patriarchy in the legal doctrines they upheld. On one level I challenge the numerous histories that depict the nineteenth century as a period of improving status for women by showing that there appeared to be a patriarchal backlash in the first half of the century dealing with the laws of custody of children. But I am also interested in revealing how legal discourse subtly shifts to defuse the claims of the oppressed without, in reality, yielding any ground or viable legal rights.
For a continuation of this history through the 1857 Matrimonial Reform Acts and the 1886 Guardianship Acts, see my dissertation: "From Feudalism to Family Law: Inter-spousal Custody Disputes and the Repudiation of Mothers' Rights," Johns Hopkins University, Nov. 1998.
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