The Crisis of Child Custody: A History of the Birth of Family Law in England

Abstract

This article attempts to show that the inter-spousal custody cases of the nineteenth century created such a crisis in equity that they eventually demanded a new court structure and a new set of legal doctrines. The custody cases posed such a profound threat to the stability and authority of the Chancery courts that within fifty years an entirely new court system was required. That court system combined the tripartite jurisdictions of the law, equity, and ecclesiastical courts in matrimonial matters. While many scholars and historians have applauded that moment, I would suggest that the new court was merely a way to solve the legal and jurisdictional problems without improving the rights or status of women and children. We can see this by observing the arguments and wishes of the women reformers who wanted a complete separation of marital and maternal duties. Instead, by creating an interdependent court with interdependent rules, women were forced to adhere to traditional patriarchal patterns of behavior. Children became the reward, but at what cost? Women were expected to accept the sexual double standard, they still had to prove their husband's unfitness and their own fitness to defeat the paternal presumption, and they would lose custody if they deviated even slightly from the most subordinate and traditional behavior. By understanding the role played by child custody disputes in the creation of the unified family law courts, we can begin to unpack the way in which contemporary family law contributes to the subordination of women in our own day and age.

Keywords: custody, women, divorce, children, marriage, coverture