Gender Polarization

man-vs-woman-380x325

The era of equality-oriented feminism that began in the 1970s and resulted in the gender-neutralization of laws in the 1980s was relatively short-lived. It was followed close-upon by a movement opposing equal rights, and demanding, instead, special legislation exclusively for the benefit of women. This movement, at times, has included a demand that even the legislative processes by which such legislation is secured be reserved exclusively for women. For example, male victims of domestic violence reportedly were not permitted to testify at Congressional hearings when the federal government’s entry into the field of domestic violence was under consideration. Those hearings yielded a Violence Against Women Act.1 Objecting to proposed changes to custody laws “because they are deliberately gender neutral,” feminists have made similar demands for the exclusion of men from legislative hearings on proposed changes to custody laws.2

The last decade of the twentieth century saw a flurry of special interest legislation, and the trend has continued unabated into the first and second decades of the twenty-first century.3 Federal and state governments have even gone so far as to pass laws directing courts to issue outcomes favorable to specific women in pending custody proceedings regardless of what the judge assigned to the case has determined the facts to be. The Civil Contempt Imprisonment Limitation Act4 and the Elizabeth Morgan Act,5 for example, legislatively freed a mother who was illegally concealing a child in violation of the father’s court-ordered visitation rights. The legislation directed the court not to enforce its own order.

Men, for their part, got “responsible fatherhood” programs. The objective was said to be to help men to be better fathers. The focus, however, was not on educating men about child development, or teaching them how to raise children. Rather, the stated objective was to enhance the flow of money from male parents to female parents. Responsible Fatherhood grants have been used to fund workshops for unemployed and underemployed fathers, the goal being to increase male compliance with family support orders; to train child support enforcement personnel; and to provide direct grants of millions of dollars to state child support enforcement agencies.6

Feminist legislative enactments at the end of the twentieth century and the beginning of the twenty-first century have tended to be premised on stereotypes of men as violent, oppressive, privileged, and irresponsible; and stereotypes of women as passive, nonviolent, instinctively protective of children, dependent, and victimized. It is not surprising, therefore, that arguments for the resurrection of the maternal preference are being advanced.7

Meanwhile, Professor Daniel Amneus, reacting to the historical preference for mothers in custody cases, and to increased marginalization of males in general, published a book in 2000 making the case for the establishment of a preference for fathers in custody cases.8

Notwithstanding the trend toward greater polarization of the sexes in the twenty-first century, it does not seem likely that an explicit maternal preference will be fully restored to American custody jurisprudence at any time in the near future. It seems even less likely that a paternal preference as propounded by Professor Amneus will be established. Significantly more women than ever before have chosen to pursue careers outside the home than to devote themselves full-time to nurturing children. In fact, women now outnumber men in managerial and professional occupations, and there are roughly an equal number of women and men in the workforce in general. In 2010, for example, 57.4% of professional positions, 68.9% of sale and office positions, and 56.8% of service jobs were held by women. The unemployment rate is higher now for men than for women. In 2010, the unemployment rate for men was 10.5%; for women, it was 8.6%. In that year, 71.3% of mothers with minor children worked outside the home; and this rate has held steady for several years.9 Meanwhile, social acceptance of the performance of child-nurturing functions by fathers seems to be increasing, albeit at a somewhat slower rate than the social acceptance of women’s performance of traditionally male functions has progressed. These forces, together with the obliteration of any meaningful qualitative difference between parental visitation and joint physical custody rights, have contributed to a general movement toward shared parenting and equality as the paradigms for child custody outcomes.

Of course, it is never possible to predict the future with absolute certainty. It seems likely, though, that the momentum for shared parenting will operate, at least for the time being, as a counterbalance to any movement for the resurrection of sex-based preferences in custody law.

As the battles for sole ownership of children rage on, it may be hoped that some day, when the dust has cleared, somebody will notice that the children have been there all along, watching. They are waiting for adults to think about – to really think about – what is in their best interest.

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

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  1. Cathy Young, The Sexist Violence Against Women Act, WALL ST. J. A15, March 23, 1994.
  2. Chris Cobb, Feminists Might Be Granted Own Hearing on Divorce Law, NATIONAL POST, July 5, 2001; Donna LaFramboise, When Dad Becomes a Dirty Word, NATIONAL POST, June 14, 2001; Ontario Women’s Network on Custody and Access press release , June 19, 2001.
  3. In addition to the federal Violence Against Women Act (Title IV, §§ 40001-40703 of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, codified as amended in scattered sections of U.S.C.), other examples of special interest legislation for women include, inter alia: programs to educate men and boys not to be violent toward women and girls; programs to address the “heightened vulnerabilities of women and girls to HIV that are targeted specifically at reducing HIV infection rates among women and girls;” mandated use of “gender-specific indicators to monitor progress on outcomes and impacts of” programs designed to reduce women’s HIV infection rates; mandates for executive branch participation in “activities to enhance educational, microfinance, and livelihood opportunities for women and girls.” 22 U.S.C. § 7611 (2012). Further examples include: laws prohibiting female genital mutilation while encouraging male genital mutilation, compare 18 U.S.C. § 116 and 22 U.S.C. § 7611 (2011); establishment of an Office of Women’s Health within the Centers for Disease Control, 42 U.S.C. § 242S (2011); establishment of an Office of Women’s Health within the Health and Human Services Department, 42 U.S.C. § 237a (2011); establishment of an Office of Women’s Health and Gender-Based Research, 42 U.S.C. § 299b-24a (2011); establishment of a national data system and clearinghouse on research on women’s health, 42 U.S.C. § 287d-1 (2011); establishment of Women’s Business Center programs, 15 U.S.C. § 656 (2011); establishment of an Office of Research on Women’s Health, 42 U.S.C. § 287d (2011); establishment of an Interagency Committee on Women’s Business Enterprise and Women’s Business Enterprise Development Council programs, 15 U.S.C. §§ 7101, 7107 (2011); grants to programs and to individual women to further women’s educations and advance their careers in science and engineering, 42 U.S.C. § 1885a (2011); state battered women’s protection acts; programs for female offenders with children but not for male offenders with children, see, e.g., MINN. STAT. § 241.70 (2012). The Patient Protection and Affordable Care Act of 2010, Public L. 111-148 (codified as amended in scattered sections of U.S.C.) contains a host of special protections exclusively for women. In addition to authorizing grants to private organizations exclusively for the purpose of improving women’s health, the Act (as codified at 42 U.S.C. §§ 300gg-13 and 18022 (2012)) requires private health insurance plans to cover “women’s health care needs” and to provide no-cost coverage of any preventive care and screenings recommended by the Health Resources and Services Administration (“HRSA.”) The HRSA’s Required Health Plan Coverage Guidelines require insurers to provide no-cost coverage of “comprehensive preventive services for women,” including the following preventive services for which men may be required to continue to pay: HIV screening and counseling; sexually-transmitted infections counseling; contraception (including birth control and sterilization for women; insurers may require men to pay for condoms and vasectomies); domestic violence screening and counseling; and health checkups annually or more frequently as recommended by a doctor. Men may still be required to pay for this coverage out of their own pockets. The cited statutes represent only a tiny fragment of the special interest legislation for the exclusive benefit and protection of women that has been enacted since the end of the era of equality-feminism. It is not an exhaustive list. See generally Nancy Levit, Feminism for Men: Legal Ideology and the Construction of Maleness, 43 UCLA L. REV. 1037, 1114 (1996) (“In many ways, current legal doctrines foster a separatist ideology. They reflect and reinforce the sharp separation of the genders.”)
  4. Pub. L. 101-97, 103 Stat. 633 (1989)
  5. D.C. CODE § 11-925 (2001). Ultimately, a federal court of appeals struck down the Elizabeth Morgan Act as an unconstitutional bill of attainder. Foretich v. U.S., 351 F.3d 1198 (D.C. Cir. 2003)
  6. See 42 U.S.C. § 603 (2011); see also U.S. Dep’t of Health & Human Services press releases, June 18, 1999; January 2, 2003; May 9, 2003.
  7. See, e.g., MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES 12–28, 176–93 (2002); BARBARA K. ROTHMAN, RECREATING MOTHERHOOD: IDEOLOGY AND TECHNOLOGY IN A PATRIARCHAL SOCIETY (1989); Mary E. Becker, Double Binds Facing Mothers in Abusive Families: Social Support Systems, Custody Outcomes, and Liability for Acts of Others, 2 U. CHI. L. SCH. ROUNDTABLE 13 (1995); Mary Becker, Maternal Feelings: Myth, Taboo, and Child Custody, 1 REV. L. &WOMEN’S STUD. 133, 139 (1992) (asserting that “judges should defer to the fit mother’s judgment of the custodial arrangement that would be best”); Mary Becker, Strength in Diversity: Feminist Theoretical Approaches to Child Custody and Same-Sex Relationships, 23 STETSON L. REV. 701 (1994); Nancy S. Erickson, The Feminist Dilemma Over Unwed Parents’ Custody Rights: The Mother’s Rights Must Take Priority, 2 LAW & INEQ. J. 447 (1984); Martha Fineman, Dominant Discourse, Professional Language, and Legal Change in Child Custody Decisionmaking, 101 HARV. L. REV. 727 (1988); Mary Ann Mason, Motherhood v. Equal Treatment, 29 J. FAM. L. 1 (1990).
  8. DANIEL AMNEUS, THE CASE FOR FATHER CUSTODY (2000)
  9. BUREAU OF LABOR STATISTICS, U.S. DEP’T OF LABOR, REP. 1034, WOMEN IN THE LABOR FORCE: A DATABOOK 1, 8-9 Table 2, 18. Table 7, 28-38 Table 11 (2011). Id. at 1, 18 Table 7 (2011)

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. The chancery court, however, also refused to intervene. Explaining his refusal, Lord Eldon stated 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 The ruling touched off a wave of outrage both in England and abroad, the ripples of which continue to be felt to this day.

Lord Eldon’s declaration was not a correct statement of English law. It was not true that custody of a child always belonged to the father. 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, Lord Eldon ignored earlier chancery court decisions that 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 any legal rights the father might assert. Those earlier rulings were consistent with established principles of equity jurisprudence. Lord Eldon’s ruling was not.

Despite the broad sweep of Lord Eldon’s dictum in De Manneville, the decision did not alter the common law doctrine that fathers could acquire custody rights only through marriage to the mother, or that unmarried mothers had an exclusive right to custody of their illegitimate children.5 It did, however, hinder a married mother’s ability to move away from her husband and take the children with her unless 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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The complete History of Custody Law is now available in paperback and as a Kindle e-book:

Purchase at Amazon.com

 

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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, Lord Eldon was not the only English jurist who overstated fathers’ rights under English common law. The venerable Sir William Blackstone also 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….”)