Medieval European Custody Law (5th to 11th centuries A.D.)

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medieval-clipart-8

Custody of children, as between divorcing parents, was rarely an issue in the Middle Ages. The Roman Catholic Church regarded marriage as a sanctified, indissoluble (i.e., life-long) covenant, so divorces were quite rare.1 Custody law generally became relevant only upon the death of a parent. Disputes typically involved widows and widowers wrangling with relatives and other third parties over the custody of a deceased parent’s children, not husbands and wives competing against each other for their own children.

The prevailing view, for many years, has been that medieval courts analyzed child custody issues in terms of the father’s financial interests, without any regard at all for what was in a child’s best interests, the idea being that courts viewed children as the property of their fathers. The theory was that the concept of childhood as a distinct period of human development did not come into existence until modern times; that medieval parents thought of their children as miniature adults.2 Consistent with this theory, historians assumed that people had no concern at all about the interests of children as such. Indeed, one historian went so far as to theorize that childhood in the Middle Ages was never more than “a nightmare of abuse and murder.”3

Medievalists today are challenging this idea. They cite evidence of “tenderness toward infants and small children, interest in the stages of their development, awareness of their need for love.”4hildhood was a recognized separate period of life” and parents were aware of, and attended to, children’s needs); David Nicholas, Childhood in Medieval Europe, in Children in Historical and Comparative Perspective: An International Handbook and Research Guide 31 (Joseph M. Hawes and N. Ray Hiner eds., 1991).] According to historian David Nicholas, “[t]here can be little doubt that most parents in the Middle Ages valued their children and cherished them, even if the parents’ means of disciplining their children seem unenlightened to modern eyes.”5 And historian Mary McLaughlin has acknowledged that by the end of the twelfth century the notion of children as mere items of property, if any such notion ever existed, “had also been joined by more favorable conceptions, by a sense of the child as a being in its own right, as a nature of ‘potential greatness,’ and by a sense of childhood as a distinctive and formative state of life.”6 Works of art from the period certainly suggest that at least some adults must have felt affection and sympathy for children, and must have abhorred violence against children.7 Eleventh century literature contains references to kindness toward children.8 Germanic law codes clearly distinguished between children and adults.9 And in 1376 the city of York enacted an ordinance prohibiting citizens from letting their horses run loose, the stated purpose being to protect children while they were playing in the streets.10 This kind of ordinance suggests a view of children as developing human beings whose wishes to have fun and to play must be protected. It is not consistent with a view of children as either property or miniature adults.

Also running contrary to the traditional account of the history of custody law is the fact that the patriarchal laws of early ancient Rome were not, in fact, carried over into England in the Middle Ages. As we have seen, those early Roman laws were supplanted by a maternal preference doctrine during the first few centuries A.D. In the first part of the Middle Ages (sometimes called the Anglo-Saxon period, ca. 550 to 1066 A.D.), it appears that women’s social positions and roles were neither rigidly defined nor inferior to men’s. Women were not limited to child care and homemaking functions. Married women had independent status, and women in general contributed to production as men did.

Although children in the Middle Ages were in the guardianship of their fathers until they reached the age of majority or left home, fathers did not have a superior right to physical custody. To the contrary, women were free to divorce their husbands if grounds existed; and upon separation and widowhood, mothers had the right to custody of the children and one-half of the marital estate, as well as a right to receive financial support from the former husband.11 A mother who did not take custody of the children, however, could not be assured of receiving half of the marital estate. In other words, there were financial advantages to retaining custody of children after the breakdown of a marriage – for women, anyway.

Custody of children also went to the mother upon the death of the children’s father. The law did not allow a father to appoint someone other than the mother as a testamentary guardian for the children.12

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  1. Divorces were not impossible to get during the first few centuries of the Middle Ages, but the circumstances under which they could be obtained were extremely limited. Susan Atkins & Brenda Hoggett, Women and the Law (1984)
  2. See, e.g., Philippe Ariès, L’Enfant et la vie familiale sous l’ancien rèegime (1960); Ivy Pinchbeck & Margaret Hewitt, Children in English Society (1969).
  3. The History of Childhood 1 (Lloyd de Mause ed., 1975); see also Edward Shorter, The Making of the Modern Family (1975); Lawrence Stone, The Family, Sex and Marriage in England 1500-1800 (1977)
  4. Mary McLaughlin, Survivors and surrogates: children and parents from the ninth to the thirteenth centuries, in The History of Childhood, supra note 3 at 117-18; see also Barbara A. Hanawalt, The Ties That Bound: Peasant Families in Medieval England 187 (1986) (“[C
  5. Nicholas, supra note 4 at 35.
  6. McLaughlin, supra note 4 at 140.
  7. Ilene H. Forseth, Children in Early Medieval Art: Ninth Through Twelfth Centuries, in 4 J. of Psychohistory 31-70 (1976); see also S. Crawford, Childhood in Anglo-Saxon England (1999); Nicholas Orme, Medieval Children 2-5 (2001); Shahar Shulasmith, Childhood in the Middle Ages (1990).
  8. Nicholas, supra note 4 at 33.
  9. David Herlihy, Medieval Children, in Essays on Medieval Civilization: The Walter Prescott Webb Memorial Lectures 115-16 (1978); Nicholas, supra note 4 at 32.
  10. See Lorraine C. Attreedin, From Pearl Maiden to Tower Princes: Towards a New History of Medieval Childhood, 9 J. of Medieval Hist. 47 (1983).
  11. Atkins & Hoggett, supra note 1 at 9-10; J. Perkin, Women and Marriage in Nineteenth Century England 1 (1989); Doris M. P. Stenton, The English Woman in History (1957); Dooms of Aethelobert, Nos. 79-81, cited in Henry Foster and Doris Freed, Life with Father, 11 Fam. L.Q. 321, n.2 (1978).
  12. Christine Fell, Women in Anglo-Saxon England 79-80 (1984); see also Frances Gies & Joseph Gies, Marriage and the Family in the Middle Ages 111 (1987).

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