Custody of Children Born Out of Wedlock in the 19th Century

The Open Door Home for Unwed Mothers

(Photo: The Open Door, a home for unwed mothers opened in 1892, PD-US)

While early American courts departed from the English with respect to custody of the children of married couples, they tended to follow Roman law and English common law with respect to children born out of wedlock. Like the Roman and English common law systems, nineteenth century American law treated children of unmarried mothers as the property of their mothers. Unmarried fathers did not have parental rights.1

Although Louisiana was unlike the rest of the country in that it was the only state to adopt  the civil law system of France, fathers of children born out of wedlock had no rights there, either. The civil law of France also denied parental rights to fathers of children born out of wedlock.2

The parental rights of mothers of children born out of wedlock were not subject to conditions precedent or subsequent. Even if she later became married to the child’s father, she was entitled by law to retain sole custody of the child in the event of a divorce or separation.3

The parental rights of the father of a child conceived as a result of sexual intercourse with a woman to whom he was not married received legal recognition only if he “legitimated” the child by becoming married to the mother prior to the child’s birth. Doing so prevented the child from being born out of wedlock.

Having no parental rights, the father of a child born out of wedlock did not get custody of his children if their mother died.4 This meant that the mother could appoint someone other than the father as the testamentary guardian for her children upon her death. Except in Texas, an unwed father had no legally enforceable right to guardianship of his child upon the death of the mother.5

Nineteenth century judicial decisions usually described the rights of fathers of children born out of wedlock as non-existent.6 Some cases, though — particularly near the end of the century — described the mother’s right as “superior” to the father’s, implying that an unmarried father may have at least some rights.7 In cases of this kind, it was sometimes said that the father’s right was inferior to the mother’s but superior to all others.8 In theory, then, it seemed that in the view of at least some courts near the end of the century, an unwed father might have standing to assert a claim to custody of his children, at least if the mother had died, or if she was found to be unfit to care for children.

Through the end of the nineteenth century and throughout most of the twentieth century, mothers had an exclusive right to the custody of any children born to them out of wedlock. Fathers had support obligations. Legal protection of the parental rights of fathers of children born out of wedlock would not be established until 1972, in Stanley v. Illinois.9

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  1. See, e.g., Friesner v. Symonds, 20 A. 257 (N.J. Eq. 1890); Bustamento v. Analla, 1 N.M. 255 (1857); Robalina v. Armstrong, 15 Barb. 247 (N.Y. 1853); Timmins v. Lacy, 30 Tex. 116 (1867) (holding that only a mother could authorize the apprenticeship of a child born out of wedlock; the father could not); 2 Bishop, Commentaries on the law of marriage and divorce, of separation without divorce, and the evidence of marriage in all issues § 550 (Boston: Little, Brown 1864) (“The father of a bastard child has no right, as father, to its custody; the parental right, in this case, is with the mother.”)
  2. James Schouler, A Treatise on the Law of the Domestic Relations 418 (4th ed., Boston, Little Brown & Co. 1889).
  3. Wright v. Wright, 2 Mass. 109 (1806); Bustamento v. Analla, 1 N.M. 255, 261 (1857); Robalina v. Armstrong, 15 Barb. 247 (N.Y. 1853); 2 Bishop § 550, supra note 1.
  4. See, e.g., Freisner v. Symonds, 46 N.J. Eq. 521 (Prerog. 1890) (holding that a child born out of wedlock becomes an orphan upon the mother’s death, as the father has no right to custody.)
  5. Schouler, supra note 2 at 418.
  6. See, e.g., Wright v. Wright, 2 Mass. 109 (1806); Carpenter v. Whitman, 15 Johns. 208 (N.Y. 1818); Robalina v. Armstrong, 15 Barb. 247 (N.Y. App. Div. 1852); People v. Kling, 6 Barb. 366 (N.Y. App. Div. 1849); McGunigal v. Mong, 5 Pa. 269 (1847); see generally 4 Chester G. Vernier, American Family Laws 19 (1936) (describing nineteenth century and early twentieth century American common law as “giving the mother the exclusive right” of custody.)
  7. “As between the putative father and the mother of illegitimate children, it is well settled that the mother’s right of custody is superior, and the father’s right, if any such exists, is secondary.” B. Finberg, Annotation., Right of mother to custody of illegitimate child, 98 A.L.R.2d 417, 431 (1964); see also Graham v. Bennet, 2 Cal. 503 (1852); Marshall v. Reams, 14 So. 95 (Fla. 1893); Alfred v. McKay, 36 Ga. 440 (1867); Henderson v. Shiflett, 31 S.E. 186 (Ga. 1898); Wright v. Bennett, 7 Ill. 587 (1845): Young v. State, 53 Ind. 536 (1876); Dalton v. State, 6 Blackf. 357 (Ind. 1842); Dehler v. State, 53 N.E. 850 (Ind. Ct. App. 1899); Pratt v. Nitz, 48 Iowa 33 (1878); Allen v. Allen, 8 Bush. 491 (Ky. 1871); Baker v. Winfery, 15 B. Mon. 499 (Ky. 1854); Acosta v. Robin, 7 Mart. (N.S.) 387 (La. 1829); Ramsay v. Thompson, 18 A. 592 (Md. 1889); Petersham v. Dana, 12 Mass. 429 (1815); Somerset v. Dighton, 12 Mass. 383 (1815); Wright v. Wright, 2 Mass. 109 (1806); State v. Nestaval, 75 N.W. 725 (Minn. 1898); Hudson v. Hills, 8 N.H. 417 (1836); Freisner v. Symonds, 20 A. 257 (N.J. 1890); State v. Stigall, 22 N.J.L. 286 (1849); Bustamento v. Analla, 1 N.M. 255 (1857); Carpenter v. Whitman, 15 Johns. 208 (N.Y. 1818); Robalina v. Armstrong, 15 Barb. 247 (N.Y. App. Div. 1852); People ex rel. Heilbronner v. Hoster, 14 Abb. Pr. (n.s.) 423 (1873); Pote’s Appeal, 106 Pa. 574 (1884); McGunigal v. Mong, 5 Pa. 269 (1847) (father has no right of custody of children under the age of seven); Moritz v. Garnhart, 7 Watts 302 (Pa. 1838); Commonwealth v. Fee, 6 Serg. & Rawle 255 (Pa. 1820); Hope’s Petition, 34 A. 994 (R.I. 1896); Austin v. M’Cluney, 36 S.C.L. (5 Strobh.) 104 (1850); King v. Johnson, 11 S.C. Eq. (2 Hill) 624 (1837); Lawson v. Scott, 1 Tenn. (Yerg.) 92 (1825); Timmins v. Lacy, 30 Tex. 116 (1867). Mothers’ rights were superior in another way, too. A father could be declared unfit to parent on the basis of his commission of an immoral act, but a mother’s immoral conduct would not support a finding of her unfitness to parent children born to her out of wedlock. Bustamento v. Analla, 1 N.M. 255 (1857).
  8. See, e.g., In re Doyle, Clarke Ch. 154 (N.Y. 1839); People ex rel. Trainer v. Cooper, 8 How. Pr. 288 (N.Y. 1853); Moritz v. Garnhart, 7 Watts 302 (Pa. 1838); Pote’s Appeal, 106 Pa. 574 (1884); King v. Johnson, 11 S.C. Eq. (2 Hill) 624 (1837)
  9. 405 U.S. 645 (1972)

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