Ancient Rome

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Children did not fare better in early ancient Rome than they did in ancient Greece.[1]Parents were governed by the state for acts committed in public, but within their own homes they had absolute authority over their children. The head of the household had the right, upon the birth of a child into the household, to either accept the child or kill him; and parents could beat and kill their children with impunity.[2] Acceptance of a male child was never final. The head of the household could banish a son from the home at any time if he misbehaved. Starvation of children was common. Children of either sex could be sold into slavery.[3]

Laws enacted in the eighth century B.C. banned infanticide, though an exception was made in the case of disabled and genetically deformed children. Parents continued to have the right to kill those children, provided at least five neighbors agreed with the decision.[4]

Physical and sexual abuse of male children reached the same extraordinary levels in ancient Rome as they did in ancient Greece. Male children were often sold into concubinage or to brothels, and young male slaves were commonly kept for sexual purposes. There were boy brothels in every city. In addition, Plutarch referenced many instances of teachers sexually abusing male students eleven years of age and younger. Male children were sometimes castrated as babies so they could be sold to brothels or to men who enjoyed sodomizing them. It was believed that producing children who could be used sexually or as court eunuchs would help further a parent’s political ambitions.

Horace’s Epodas describes a young boy’s liver being removed and used to make a love potion. There was also a market for boys’ testicles as an ingredient in medical potions.[5]

The Law of the Twelve Tables

The Law of the Twelve Tables, ca. 450 B.C., sets out a summary of Roman law that was in effect at that time. A provision giving recognition to common law marriages appears in Table VI, titled, “concerning ownership and possession.” Some historians cite this as evidence that Roman law classified women as property.[6] As explained by the Roman jurist Gaius in the second century A.D., however, a wife was regarded, for purposes of the Twelve Tables, as a lawful heir to property.[7] In addition, wives had dowry rights.[8] Since property does not have rights, and property does not inherit property, it seems irrational to interpret the title of Table VI as evidence that Roman law treated women as property. A more logical explanation is that Table VI was simply intended to describe the circumstances in which an unmarried woman would have the same property rights as a married woman. In any case, there is no question that the early laws of ancient Rome gave some men much greater power than women, children and slaves. The Twelve Tables conferred on married fathers the privilege of patria potestas, a right of life and death over the father’s legitimate male children. A father did not possess this authority over either daughters or illegitimate children, however.

The Tables imposed upon fathers a duty to kill any sons who were born with a deformity or abnormality. Additionally, sons could be sold into slavery.[9]

Devolution and reform

Roman law was not static. The period between 150 B.C. and 1 A.D. was the culmination of one of the lowest, if not the lowest, point in the recorded history of children. Romans generally seemed to have lost all interest in raising children. At one point, the senate decreed that no male children at all should be raised, meaning that if a male child was born to a couple, his parents were required to kill him. Infanticide and abortion were rampant.[10] The divorce rate was very high. Cannibalism – parents literally eating their young – was not uncommon. Young boys were regularly sacrificed to the gods. Adults tortured and killed children for entertainment. One such “entertainment” involved dangling a young child from a pole and watching hyenas pull him down and eat him alive.  These atrocities eventually led to significant legal reforms. These would occur during the first few centuries A.D.[11]

Justinian

Modern legal historians assert that Roman law treated children as the property of their fathers, and that concern for the interests and well-being of children would not emerge in Western law until nearly two millennia later, in twentieth century America.[12] Justinian’s Digest (a compendium of Roman judicial rulings), however, shows that Roman courts were treating children’s interests as superior to parents’ rights at least as early as the second century A.D., and that concern for the well-being of children continued throughout what is sometimes called the Golden Age of the early Byzantine period of ancient Rome.[13] During this period, fathers had no absolute right to the custody of their children. In fact, mothers had the sole and exclusive right to custody of illegitimate children, while fathers generally had a right to custody of legitimate children only during an intact marriage.[14] Gnaeus Domitius Annius Ulpianus, ca. 170 to 223 A.D., described Roman law on the father’s patria potestas right during marriage as follows:

If…it is the mother of the child who retains it in her possession, and it appears to be better that it should remain under her care than to be placed under that of its father, that is to say, if the reason is perfectly just, the Divine Pius decided, and it was stated in a Rescript by Marcus Severus, that relief should be granted to the mother by means of an exception.[15]

The passage quoted above recognized an exception to the rule in the case of legitimate children who were already in the care of their mothers, such as where a married woman separated from her husband and took the children with her. In such cases, if a judge determined  that it would be better for the children to remain with the mother than to go with the father, then the court would order that the children were to remain in the custody of their mother. Proof of the father’s fault or bad character was sufficient to establish that it would be better for the children to remain with the mother.[16]

Under early Roman law, then, a mother had — in addition to an absolute right to custody of her illegitimate children — a right to custody of her  legitimate children if they were living separately from the father and if it appeared to be in the children’s best interests to remain with the mother.[17]

The passage quoted above dealt with situations in which the husband and wife were still married but living separate and apart from each other. A different legal question is presented when a married couple seeks a dissolution of the marriage. According to Justinian’s Code, in the event of a divorce, custody of legitimate children was never to be decided solely on the basis of the sex of a parent. When a married couple divorced, the court could award custody of children to either the mother or the father. As a general principle, at least, neither a divorcing mother nor a divorcing father had a superior claim. As stated in the Code: “[I]t is not provided by any constitution of ours or of our divine parents that the division of children among the parents should be made according to sex.”[18]

A constitution of Diocletian and Maximian left it to the judge to determine in his discretion to which of the parents the children should go….If a wife divorced her husband for good cause, and she remained unmarried, the children went to be in her custody, but to be maintained by the father; but if the mother was in fault, the father obtained the custody. If he was unable, from want of means, to support them, but she was able to do so, she was obliged to take them and support them.[19]

It appears, then, that Roman law, actually favored mothers. In the case of children born out of wedlock, mothers had an absolute right to sole custody. In the case of married parents living separately, the patria potestas rule that appeared to give fathers absolute rights and powers over their legitimate children was severely limited by the rule that custody would be awarded to the mother if the children were already living with her and it appeared to be in their best interests to remain in her care. In the case of a divorcing couple, the law awarded custody to the mother unless the father could prove both that he had the ability to support the children financially and that the mother was at fault for the breakup of the marriage. Unlike a father, a mother was not required to prove that she had the ability to support the children financially in order to have custody of them.



[1] For a comparison of the seemingly contradictory attitudes of ancient Greco-Romans toward children (harsh and abusive vs. “interest and delight”), see Valerie French, Children in Antiquity, in Children in Historical and Comparative Perspective: An International Handbook and Research Guide 13-29 (Joseph M. Hawes and N. Ray Hiner eds., 1991)
[2] Sander J. Breiner, Slaughter of the Innocents: Child Abuse Through the Ages and Today 104-06 (1990); see also W. Hunter, Introduction to Roman Law 30 (9th ed. 1934.) The parental right to kill children was subject to one proviso, though: While parents could kill as many male children as they desired, Roman law required citizens to raise at least one daughter to adulthood. A.R. Colón & P.A. Colón, A History of Children: A Socio-cultural Survey Across Millennia 90 (2001)
[3] Dionysius Harlicarnassensus, Roman Antiquities (Edward Spelman trans., London, Booksellers of London and Westminster 1758)
[4] Breiner, supra note 2 at 106-07; French, supra note 1 at 21; see generally Valerie French, Birth Control, Childbirth and Early Childhood, in 3 Civilization of the Ancient Mediterranean 1362 (Michael Grant and Rachel Kitzinger eds., 1988).
[5] Legislation prohibiting the castration of babies for this purpose was enacted during the latter part of the first century. Breiner, supra note 2 at 112-15.
[6] See S.P. Scott, The Civil Law 68 (1932)
[7] Gaius, Third Commentary, in Scott, supra note 6.
[8] M. Corbier, Divorce and Adoption as Familial Strategies, in Marriage, Divorce, and Children in Ancient Rome 47, 52 (B. Rawson ed., 1991)
[9] William Blackstone, Commentaries On The Laws of England 372-73 (19th ed., London, John Murray 1857). A father who was still subject to the authority of another ascendant, however, did not acquire the patria potesta power, as his child would still be subject to the same authority as he was. Scott, supra note 6.
[10] Suetonius, The Lives of the Twelve Caesars (Joseph Gavorse ed., 1965)
[11] Breiner, supra note 2 at 118-20; French, supra note 1 at 21.
[12] See, e.g., Joan B. Kelly, The Determination of Child Custody in the USA, 4 Future of Children 121, 122 (Spring 1994); Ramsay Laing Klaff, The Tender Years Doctrine: A Defense, 70 Cal. L. Rev. 335, 337 (1982) (declaring that “[t]he doctrine originated in the nineteenth century as a child-protective reform intended to elevate the interest of children above fathers’ common law proprietary rights in children”); Lynne Marie Kohm, Tracing the Foundations of the Best Interests of the Child Standard in American Jurisprudence, 10 J.L & Fam. Stud. 347 (2008) (“The standard of the best interests of the child may generally be described as a principle deriving from Anglo-American family law”)
[13]Emperor Justinian (525-65 A.D.) codified Roman law in the Corpus Juris Civilis, of which his Digest is part.
[14] See The Rules of Ulpian, tit. V, reprinted in Scott, supra note 6; see also James Schouler, A Treatise on the Law of the Domestic Relations 416 (4th ed., Boston, Little Brown & Co. 1889) (“The doctrine that a natural tie connects the illegitimate child peculiarly with his mother was recognized at the civil law…under the ordinance of Justinian.”)
[15] Ulpianus, On the Edict, Bk. LXXI, reprinted in Scott, supra note 6; see also Dionysius Godefroy, Corpus juris civilis, Pandectis ad Florentinum archetypum expressis, Institutionibus (Amsterdam, Elzevirs 1663); A. Kriegel and E. Osenbrüggen, Corpus iuris ciuilis (Lipsiae, sumtibus Baumgaertneri 1872); R. Pothier, Pandectæ Justinianeæ in Novum Ordinem Digestæ (Paris, F. I. Fournier 1818); cf. Justinian Code, Bk. V, tit. 24, reprinted in Scott, supra note 6 (“[T]he proper judge, nevertheless, will decide whether, in case of divorce, the children should live with and be supported by the father or the mother”)
[16] The Rules of Ulpian, tit. V, reprinted in Scott, supra note 6.
[17] F. Blume, Annotated Justinian Code (2d ed. 2009), https://uwacadweb.uwyo.edu/blume&justinian/. Concern for the well-being of children is also evidenced in some ancient Roman writings. See, e.g., Cicero, De Officiis I.iv (44 B.C.)(“Nature produces a special love of offspring”) as translated in C.S. Lewis, Abolition of Man 101 app. (Simon & Schuster 1996) (1944); Juvenal, Satire XIV 47 (n.d.)(“Great reverence is owed to a child.”)
[18] Bk. V, tit. 24, quoted in Blume, supra note 17.
[19] H. Chisholm, Divorce, in Encyclopedia Britannica 336 (11th ed. 1910)

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The complete History of Custody Law is now available in paperback and as a Kindle e-book:

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A brief history of custody law

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“You must always know the past, for there is no real Was, there is only Is.”
–William Faulkner

 

For the past fifty years or so, the history of custody law has almost universally been presented as a linear progression from a primitive system that viewed children as the property of their fathers, forcing them to endure a harsh and cruel  existence, to an enlightened approach that treats the best interests of the child as the paramount consideration, and for that reason places them in the loving, nurturing care of their mothers.1 Typically, the account begins with the patria potestas system of ancient Rome, under which fathers had an absolute right to custody of their children; asserts that this system carried forward, unchanged, into eighteenth and nineteenth century England two thousand years later; that colonists brought it to America; and that it remained the rule of decision in custody cases until the Great Enlightenment, i.e., modern-day America. It was only because American women mobilized to overthrow patriarchal rule, the story goes, that courts finally started caring more about children’s interests than fathers’ rights. The traditional account typically concludes with an observation that it is only relatively recently that courts have begun to acknowledge the superiority of maternal care over patriarchal control as the right and proper means of promoting the best interests of children.2

In truth, the history of custody law is neither a linear progression nor an opus on the triumph of motherly care over harsh male control. The historical record supports a theory that the maternal preference in custody law stems at least as much — and probably considerably more — from a desire to confine women and men to rigidly defined sex roles as it does from any quest for recognition of women’s supposed natural superiority as parents.

Even the notion that custody of children should be decided on the basis of what is in their best interests rather than parental rights is not a recent invention. It was part of the Roman law codified by Justinian more than a thousand years ago, and there is evidence that the idea was around long before then. Contrary to the popular view of the history of children as one of deliverance from the cruel tyranny of fathers into the loving arms of mothers, it appears that from earliest recorded times, parents of both sexes have cared about their children. And judges, to varying degrees at different times in history, sometimes have shared that concern — sometimes using it as a justification for favoring fathers, sometimes for favoring mothers, and sometimes for favoring one sex while purporting to favor the other.

It is said that you can’t know where you are or where you should go unless you know where you have been. This blog will attempt to facilitate that journey by tracing the history of custody law (to the extent there are records of it) from ancient times to the modern day.

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The complete History of Custody Law, with a new bibliography, is now available in paperback and as a Kindle e-book:

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  1. See, e.g., Mary Ann Mason, From Father’s Property to Children’s Rights: The History of Child Custody in the United States (2d ed. 1994). Professor Hartog summarizes the current state of legal scholarship in the area of family law as follows: “Nearly all recent scholarship on the legal history of American marriage … begins with a demonstration that traditional legal rules…were bad, like slavery. The narrative tells of a titanic struggle against coverture, one in which good (egalitarian law reform) is always pitted against bad (the patriarchal common law)….” Hendrik Hartog, Man and Wife in America: A History 3 (2000). See also Danaya C. Wright, De Manneville v. De Manneville: Rethinking the Birth of Custody Law under Patriarchy, 17 Law & Hist. Rev. 247 (Summer, 1999) (describing the argument that “a linear progression from patriarchy to egalitarianism in family relations occurred in the early nineteenth century and that once mothers were accorded a presumption in custody disputes, all was right in the family” as “too simplistic.”)
  2. See, e.g., 1 Jeff Atkinson, Modern Child Custody Practice § 4-4 (2nd ed. 2004) (asserting the ancient Roman paternal right to custody continued throughout Europe until the middle of the nineteenth century, and that “The common law rule that a father was entitled to custody was carried over to the United States”); Harry D. Krause & David D. Meyer, Family Law in a Nutshell (5th ed. 2007) (“At common law, the father…’owned’ his children and had the primary custodial claim….Paternal preference gave way in the late 1800s”); Mason, supra note 1 at x (“For most of our history, well into the twentieth century,…(f)athers…were granted paramount rights to custody and control of their children. Mothers…had no right to custody as long as the father was alive…”); Webster Watnik, Child Custody Made Simple: Understanding the Laws of Child Custody and Child Support 42 (2000) (“Up until the mid-1800’s, children were considered the property of the father, who was usually awarded custody following a divorce….Today, the laws in all states require judges to consider what is in the best interests of the child when making a custody decision”); Ralph J. Podell et al., Custody-To Which Parent?, 56  Marq. L. Rev. 51, 51-52 (1972) (crediting Justices David Brewer and Benjamin Cardozo, while sitting as state court judges in 1888 and 1925, respectively, with establishing the “best interests of the child” as the rule of decision in custody cases); Allan Roth, The tender years presumption in child custody disputes, 15 J. Fam. L. 423-61 (1976-77). Sarah Pinkerton’s account of the development of early American custody law is fairly representative of the modern canon:

    Until well into the nineteenth century, the English law on child custody treated the child as the father’s chattel. Before the English, the Romans in custody matters had followed patria potestas, a doctrine that originally gave complete power over children to the father….The American Colonies inherited and implemented the English common law on the subject of child custody, meaning that children belong to their fathers…and mothers were legally irrelevant.

    Sarah Pinkerton, Custodial Rights of California Mothers and Fathers: A Brief History, 16 J. Contemp. Legal Issues 155 (Spring 2005)