De Manneville v. De Manneville: the most notorious custody decision in the history of Anglo-American law

Mrs Margaret de Manneville, nee Crompton

(painting of Margaret De Manneville, née Crompton, by an unknown artist, ca. 1800)

One of the early nineteenth century attempts to persuade British courts to re-establish an explicit preference for mothers occurred in 1804. It was not successful. Neither the law courts nor the chancery courts could be persuaded to accept the argument that children of tender years should never be separated from their mothers. The cases were Rex v. De Manneville1 and De Manneville v. De Manneville.2 They may very well be the most frequently cited cases in the history of Anglo-American child custody law.

The material facts in these cases were not really in dispute. Although not initiating a divorce or a legal separation proceeding, Mrs. Margaret De Manneville alleged that her husband was such an extremely unpleasant man that she moved out of the family home, taking the couple’s then-eight-month-old daughter with her. Mr. De Manneville then came to her home and took the child back with him. Mrs. De Manneville applied to the King’s Bench for a writ of habeas corpus to require the father to release the child to her. Lord Ellenborough denied the writ, holding that a married father is entitled to custody of his children while he is still married to their mother, even if the children are very young.3 She then turned to the chancery court for equitable relief. Father’s counsel argued to the court that unless a child was in danger of being harmed, “the law is clear that the custody of a child, of whatever age, belongs to the father.”4 Contrary to what has been written in peer-reviewed legal histories in scholarly journals, the judge of the chancery court hearing the case, Lord Eldon, did not adopt that language. He did, however, refuse to use the equity power of the Chancery Court on the mother’s behalf. The ruling touched off a wave of outrage both in England and abroad, the ripples of which continue to be felt to this day.

The assertion that custody always belonged to the father was not true even when it was made. To begin with, unmarried mothers possessed a sole and exclusive right to custody of their children. Only married fathers could claim any right to custody of their children; unmarried fathers could not. More to the point, earlier chancery court decisions had held that the chancery court’s paramount concern was with what was in a child’s best interests, and that the state’s interest in advancing a child’s best interests could override a father’s legal rights. If maternal custody served a child’s interests better than paternal custody did, then a court of equity would award custody to the mother irrespective of any legal rights the father might assert. Those earlier rulings were consistent with established principles of equity jurisprudence.

Lord Eldon’s ruling in De Manneville did not alter the common law doctrines that fathers could acquire custody rights only through marriage to the mother and that unmarried mothers had an exclusive right to custody of their illegitimate children.5 That was not a fair interpretation of De Manneville. Lord Eldon’s ruling did not hinder a married mother’s ability to move away from her husband and take the children with her if grounds for a divorce or a legal separation (both of which were called “divorces” at that time) were proven. The ruling in De Manneville meant that a married woman had no legally enforceable right to move away from her husband and take the couple’s children with her unless she had grounds for either an absolute or a limited divorce, or the children were at risk of being harmed.

 

Coverture

 

Lord Eldon explained the rationale for his ruling in terms of the legal doctrine of coverture. Under that doctrine, the law treated a husband and wife  as one person. The woman’s status as a separate juridical person was said to be “suspended during the marriage, or at least is incorporated and consolidated into that of the husband.”6 The husband possessed both his own and his wife’s rights, just as he was responsible for his own and his wife’s debts, obligations, torts and crimes. An unmarried woman (feme sole), by contrast, possessed all of her own rights and responsibilities, including the right to sole custody of her children. According to Lord Eldon, coverture had the effect of suspending all of a married woman’s rights, even her right to custody of children.

After Lord Eldon’s edict in De Manneville, English law allotted presently-existing  parental rights, including custody, only to unmarried women and married men. Married women and unmarried men had no presently-existing right to custody of their children.

The doctrine of coverture had some unexpected consequences. For example, on the authority of De Manneville, English courts held that a married or separated woman could not use the writ of habeas corpus to get custody of a child unless the child was in the care of a person other than the father.7 Yet mothers of illegitimate children were able to use the writ to secure custody of their children from anybody, even the father. With respect to custody rights, then (though certainly not in other ways), the law seemed to give women who fornicated an important legal advantage that it denied to women who took the moral high road by “saving themselves for marriage.”

 

The natural rights of parents

 

It is often said that De Manneville stands for the proposition that English common law treated child custody as the natural right of fathers, but not mothers. In fact, however, English common law treated child custody as a natural right of mothers, not of fathers.

natural right is one that does not require the enactment of a statute, the initiation of a court proceeding, or the formation of a contract; it arises naturally. Legal rights, by contrast, have their origin in positive law, i.e., man-made laws, contracts and declarations. Since a woman’s right of custody arose from the fact of giving birth, irrespective of whether or not she had performed the additional step of entering into a marriage contract, and irrespective of any legal enactment giving her the right of custody, it came within the meaning of a natural right. English law did not treat a man as having a right to custody merely by virtue of fathering a child. Rather, a father’s right came into existence if and only if he had undertaken the additional legal step of entering into a valid contract of marriage with the mother. It was only through coverture, as an incident of the contract of marriage to the mother, that a father acquired custody rights. That is to say, an English father did not have a natural right to custody of his children, but he might acquire a legal right to custody of his children by entering into a legally valid contract of marriage before their birth. So long as a woman remained unmarried, she retained her natural right to custody of her children. If she became married, then her husband acquired a legal right to custody of any children born to the couple during the marriage, and the mother’s natural rights were suspended for the duration of the couple’s marriage.

Lord Eldon’s ruling did not alter these particular principles. It reaffirmed them.

 

Limitations on the scope of De Manneville

 

A more fundamental misinterpretation of the De Manneville ruling – and one that is now almost universal – is that it gave fathers an “absolute right to custody.”8 As we have seen, this interpretation is completely false with respect to fathers of illegitimate children. They had no custody rights at all.

A married father did not have absolute rights, either. Nor were they even superior to the mother’s rights in every circumstance. The doctrine of coverture applied only so long as a married couple remained married. It had no application to the determination of child custody in a divorce proceeding. Whether the kind of divorce sought was an absolute or a limited divorce, custody of children generally went to the innocent party, and that person could be either the mother or the father.

In early nineteenth century England, a divorce could be granted only if the spouse from whom the divorce was sought was guilty of wrongdoing. Adultery was grounds for either kind of divorce, absolute or limited. A limited divorce (now called a legal separation) could also be granted on the basis of physical cruelty. Conduct of either kind was regarded as so highly immoral as to render a person unfit to parent. Accordingly, in the event of a divorce, custody of the children generally would be awarded to the party who was not at fault for the divorce. Depending on the circumstances, that could be either the father or the mother.

These were not the only possible bases upon which a court of chancery might award custody to the mother instead of the father. As Lord Eldon acknowledged in De Manneville, the chancery court had the power to award custody to the mother, whether or not grounds for a divorce existed, if doing so would protect a child from harm.9 Even after De Manneville, chancery courts recognized that harm to a child could be either moral or physical. If a married woman wished to separate from her husband and take the children with her, but she could not prove that he had committed adultery or that he had been physically cruel to her, she might nevertheless prevail by demonstrating that he had engaged in behavior, or adhered to beliefs, that could be a bad influence on a child’s moral development.

 

Paternal misconduct, bad moral character or poverty as grounds for an award of custody to the mother

 

In 1827, the chancery court had occasion to decide whether marital fault (adultery), standing alone, sufficed as grounds for an award of custody to the mother in a case in which neither party sought a divorce. Reasoning that marital misconduct makes a parent morally unfit to parent, the court ruled that adultery could indeed furnish grounds for removing a child from his father if the child was aware of the affair.10 If the father brought his paramour along with him on trips with his children, for example, he would be deemed unfit to parent. In so doing, he thereby forfeited all claim of entitlement to the custody of his children.11

Early English law, both before and after De Manneville, also recognized certain other kinds of conduct or circumstances, in addition to adultery, that rendered a father unfit to parent, and that would work a forfeiture of his custody rights. A father who was guilty of child abuse (“ill-treatment and cruelty”) thereby forfeited his right to custody of them.12 A father who permitted a daughter to engage in prostitution forfeited his right to custody of the daughter.13 Abandonment vitiated a father’s right to custody, as did neglect of a child’s financial, physical or educational needs.14

Courts treated a father’s insolvency as the legal equivalent of abandonment, even if his poor financial condition was due to circumstances beyond his control.15 Thus, a father’s financial inability to support his children was grounds for denying him custody.

Atheism, blasphemy, or a lack of religious convictions would also work a forfeiture of a father’s custodial rights, as the famous atheist poet Percy Bysshe Shelley learned in 1817.16

 

Equitable estoppel

 

A father also could lose custody rights by equitable estoppel. This could occur where a father had allowed another person to raise his child, particularly if he accepted benefits from the person, or if the child stood to receive an inheritance from the person.17

 

Ecclesiastical courts

 

The ecclesiastical courts were tribunals of the Church of England that had jurisdiction over all proceedings related to marriage. Although these courts did not have jurisdiction over custody, they did have jurisdiction to order spousal support (alimony.) They used that power to coerce fathers into ceding custody to mothers, penalizing them with higher alimony obligations if they failed to do so:

 

[B]y the 1820’s they were openly using this authority to manipulate child custody on behalf of the mother. The court defended this delicate financial blackmail on the increasingly familiar grounds that: ‘the welfare of the child would probably best be served under her maternal care.’18

 

Chancery

 

Chancery courts, which did have jurisdiction over custody, were very receptive to maternal custody. Though chancery judges like Lord Eldon sometimes felt constrained by the English common law rule that married fathers have the right to custody of their children, this did not prevent them from making statements like, “I know of no act more harsh or cruel than depriving the mother of proper intercourse with her child.”19

In 1827, Lord Eldon awarded the custody of a daughter and two sons to their mother and not their father, on the grounds that the father was engaged in ongoing “scandalous” adultery and was therefore unfit to parent.20 This ruling was consistent with his statement in De Manneville that chancery courts may award custody to a mother notwithstanding the father’s legal rights, where doing so will protect a child from harm. Four years later, in Mytton v. Mytton21 the Chancery court declared that the children in that case were to remain with their mother, apparently because it deemed maternal custody to be in their best interests. By 1848, the chancery courts had firmly re-established as a principle of English equity jurisprudence that courts were not to award custody of children on the basis of the father’s legal rights, nor solely on the basis of marital fault or the sex of the parents. Rather, courts were to structure custody and access in a way that best advanced the interests of children.22 Beliefs about the impact of marital fault and parental sex on child development continued to be operative, but they were employed only as a method of determining what was in a child’s best interests. The best interest of the child was the overarching consideration in custody cases.

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  1. 5 East 221, 102 Eng. Rep. 1054 (K.B. 1804)
  2. 10 Ves. 52, 32 Eng. Rep. 762 (Ch. 1804)
  3. Rex v. De Manneville, 5 East 221, 102 Eng. Rep. 1054 (K.B. 1804); see also Caroline Norton, The Separation of the Mother and Child by the Law of “Custody of Infants” Considered 33-37 (London, Roake & Varty 1838).
  4. De Manneville v. De Manneville, 10 Ves. 52, 63, 32 Eng. Rep. 762 (Ch. 1804)
  5. See Ex parte Knee, 1 Bos. & P.N.R. 148, 127 Eng. Rep. 416 (1804) (observing that at common law, the mother of an illegitimate child has the right of custody to the exclusion of the father.) Unfortunately, the venerable Sir William Blackstone later asserted, incorrectly, that under English law “a mother, as such, is entitled to no power, but only to reverence and respect.” 1 William Blackstone, Commentaries on the Laws of England 452-53 (Oxford, Clarendon Press 1765-69).
  6. 1 Blackstone, supra note 5 at 442. The coverture doctrine also helps explain why separation agreements came to be viewed as unenforceable. Because a husband and wife were regarded in law as a single entity, “a man cannot grant any thing to his wife, or enter into covenant with her….” Id.
  7. Ex parte Skinner, 9 Moore 278, 279, 27 Rev. Rep. 710 (1824).
  8. See, e.g., Young v. Young, 4 S.C.R. 3 (1993) (Can.) (citing De Manneville for the proposition that “At common law, the right to custody of children was originally  incontestable and reposed with the father to the exclusion of any claims of the mother”); Ann M. Haralambie, Handling Child Custody, Abuse and Adoption Cases 2 (1993) (describing fathers’ rights as “nearly absolute”); Christopher L. Blakesley, Child Custody and Parental Authority in France, Louisiana and Other States of the United States: A Comparative Analysis, 4 B.C. Int’l & Comp. L. Rev. 283, 292 (1981) (“nearly absolute”); Kenneth Brown, Customary rules and the welfare principle: Post-independence custody cases in Solomon Islands and Vanuatu, 21 J. Pac. Stud. 83-101 (1997) (“absolute right”); Cynthia Lee Starnes, Swords in the Hands of Babes: Rethinking Custody Interviews after Troxel, 2003 Wis. L. Rev. 115, 119 (2003) (citing De Manneville in support of a claim that England adopted the “Roman law” that “fathers had an absolute right to custody of their children”); Yuri Joakimidis, Back to the Best Interests of the Child: Towards a Rebuttable Presumption of Joint Residence 15 (Joint Parenting Association Policy Monograph, 2nd ed. n.d.) (describing father’s right to custody as “almost irrefutable”); cf. Blackstone, Commentaries On The Laws of England 372-73 (19th ed. 1857)
  9. See note 9, supra, and accompanying text.
  10. Ball v. Ball, 2 Sim. 25, 36-37 (1827).
  11. Wellesley v. Duke of Beaufort, 2 Russ 1, 38 Eng. Rep. 236 (1827)
  12. Whitfield v. Hales, 12 Ves. Jr. 492, 33 Eng. Rep. 186 (1806).
  13. Rex v. DeLaval, 2 Burr. 1434, 97 Eng. Rep. 913 (1763).
  14. Blisset’s Case, Lofft. 748, 749, 98 Eng. Rep. 897 (1767).
  15. Id.
  16. Shelley v. Westbrook, Jac. 266, 37 Eng. Rep. 850 (Ch. 1817)
  17. Colston v. Morris, Jac. 257, 22 Rev. Rep. 246 (1821); Lyons v. Blenkin, 1 Jac. 245, 37 Eng. Rep. 842 (Ch. 1821)
  18. Lawrence Stone, Road to Divorce: England 1530-1987, at 177 (1990) (quoting Kempe v. Kempe, 162 Eng. Rep. 669 (1828).)
  19. Ball v. Ball, 57 Eng. Rep. 703, 704 (1827)
  20. Wellesley v. Duke of Beaufort, 2 Russ 1, 38 Eng. Rep. 236 (1827); Ann. Reg. 293-313 (Ch. 1827).
  21. 162 Eng. Rep. 1298 (1831). As one commentator has observed:

     

    {T}he court of chancery will interfere to disturb the paternal rights only in cases of a father’s gross misconduct; such misconduct seeming, however, to be regarded with reference rather to the interests of the child than the moral delinquency of the parent. If the father has so conducted himself that it will not be for the benefit of the infants that they should be delivered to him, or if their being with him will injuriously affect their happiness, or if they cannot associate with him without moral contamination, or if, because they associate with him, other persons will share their society, the court will award the custody to another.

     

    James Schouler, Treatise on the Law of the Domestic Relations 360 (4th ed. , Boston, Little Brown & Co. 1889), citing, inter alia, Anonymous, 11 E. L. & Eq. 281, 61 Eng. Rep. 260 (Ch. 1851) (awarding custody to mother on basis of father’s immorality) and Warde v. Warde, 2 Phil. 786 (1849) (holding that a court of equity has “an absolute control over {children under seven} without regard to the peculiar common-law right of the father to the custody of all his children” and may award custody of older children to the mother if it is in the children’s best interests.)

  22. J.F. MacQueen, The Rights and Liabilities of Husband and Wife 351-54 (London, S. Sweet 1849); John F. MacQueen, A Practical Treatise on the Law of Marriage, Divorce and Legitimacy 174-75 (London, W. Maxwell 1860); Schouler, supra note 21 at 359 (“the courts of chancery, in assuming a liberal jurisdiction over the persons and estates of infants, soon made the claims of justice override all considerations of parental or rather paternal dominion, at the common law”); 2 Joseph Story, Equity Jurisprudence § 1341 (6th ed., Boston, Little Brown & Co. 1853); see also Barnardo v. McHugh, A.C. 388, 61 L.J. & Q.B. 721 (Eng. 1891) (observing that although the English law courts may not have enforced mothers’ rights, “in equity regard was always had to the mother….”)