Many legal historians see pre-1839 English child custody law as consisting of near-absolute paternal rights. These historians believe that the weakening of fathers' rights began with the 1839 Custody of Infants Act, which created certain maternal custody rights. Other historians have noted that paternal custody was qualified even before 1839 by the Court of Chancerys application of the doctrine of parens patriae. This Note tells a different story and argues that the origin of incursions into the so-called "empire of the father" was the 1660 Tenures Abolition Act, a statute that ironically seemed designed to strengthen fathers' rights. The Tenures Abolition Act granted fathers the right to appoint guardians to their children by will. According to Blackstone, the effect of the Act was to extend the father's empire "even after his death." But by involving courts in child custody--even as enforcers of fathers' rights--the Tenures Abolition Act created a tradition ofjudicial intervention that would eventually undermine those rights. This Note traces the development from 1660 to 1839 whereby court supervision of testamentary guardians led to court supervision offathers themselves, transforming the "empire of the father" into the empire of the judge.
Comparative and Foreign Law | European Law | Family Law | Law | Legal History
Sarah Abramowicz, Note: English Child Custody Law, 1660-1839: The Origins of Judicial Intervention in Parental Custody, 99 Colum. L. Rev. 1344 (1999).