From Father's Property to Children's Rights: The History of Child Custody in the United States.

Mary Ann Mason, an expert in family law and Associate Professor of Law and Social Welfare at the School of Social Welfare, University of California, has published widely on the current status of women and children. In The Equality Trap (1988), she argued that expectations fostered by feminists for today's women - to be wives, mothers, and wage-earners - are unrealistic and have helped to accelerate the feminization of poverty. In Why Kids Lie (1989, coauthor), she focused on the diminished parenting most children receive today. From Father's Property to Children's Rights constitutes Mason's first venture into historical legal research.

Mason's monograph dovetails with Michael Grossberg's Governing the Hearth: Law and Family in Nineteenth-Century America (1985), the defining work in the field of family law history. Grossberg's study covers only the nineteenth century, whereas Mason carries her history from the colonial era to the present day. Mason focuses strictly on custody law, not family law as a whole. As such, the book presents a valuable resource for scholars and students looking for information on the changes in custody law in the U.S. It is also useful for its national scope.

Mason's monograph begins with the nearly unlimited authority of a father over his children in the colonial era. Married women were without legal status in this period and had no rights over the indenture, guardianship, or custody of their children. With the growth of the cult of domesticity - and its correlate, the cult of motherhood - in the nineteenth century, judges increasingly deemed essential mothers and mother-love for the proper care of children. Fathers thus lost more custody battles in the courts than they won. Poor parents, on the other hand, often lost custody of their children, as judges thought poverty rendered parents incapable of proper childrearing. In the progressive era, a group of women Mason terms "social feminists" urged the government to consider the best interests of the children and helped to construct the social welfare framework that is still in operation today. The main achievement of these women, Mason holds, was the recognition that poverty should not be a sufficient cause for the separation of the parent and child. The modern period has witnessed a shift in the presumption of which parent is the natural caretaker of a child to a more gender-neutral situation. The influx of psychiatrists, psychologists, and social workers as court-appointed experts has removed a large part of the decision making from the judge and exposed parents and children alike to the shifting currents of social science thought.

Mason focuses on the ability and inability of feminists to affect custody law, but buries this consideration of human agency in the text, slighting it in both the introduction and conclusion. Mid-nineteenth century feminists, Mason holds, expended the bulk of their energy on acquiring property rights equal to those of men. In the case of children, this meant that feminists looked backward, arguing for the right to indenture their children and their right to children's wages, not for rights to equal custody. These women were not successful in their efforts, but judges began to shift their custody decisions to take into greater account the "tender years" of the children involved and to emphasize the mother's role in child nurture. This shift took place because the middle-class judiciary responded to a growing mass culture emphasizing the best interests of the child. In the late nineteenth century, social feminists worked to create a whole panoply of child protective legislation. Judges responded by granting equal custody to women, presuming that the mother was the proper care-taker of children, and allowing poor children to stay with their parents. In the most recent wave of feminism that Mason considers, the emphasis was on gender discrimination, with little attention paid to family law and custody. Judges responded to the movement against discrimination, Mason contends, by using a more gender-neutral decision making process in custody battles and were therefore more likely than before to give custody to a man. As in her earlier work, Mason accords too much negative power to feminists, blaming them when they did not bring about change and chastising them for focusing on gender discrimination, creating an atmosphere that expects women to be able to do it all.

One disappointment of this text is the extent to which Mason focuses on legal cases to the exclusion of the children involved. She acknowledges in the introduction that the history of child custody is one in which children are more often seen than heard. The book offers glimpses of the children, as in the 1912 case of eight-year-old Linda Cozza, who was returned to her mother and stepfather from a good adoptive home even though the step-father had forced her out of the house. The court reasoned that the conduct of the parents toward the children did not matter in an adoption proceeding (pp. 109-110). What happened to Linda? Did she live happily with her parents? Did her step-father decide to accept her in the home? Would she have been better off in the adoptive family? These sorts of questions are, admittedly, extremely difficult to answer, but the text could have been illuminated by a few interviews or diaries of the children involved in the cases discussed.

The author was not served well by her editors, unfortunately, as the text contains a number of typographical errors and a few small errors of fact.

Caveats aside, From Father's Property to Children's Rights will be useful not merely to historians but also to social workers, psychiatrists, psychologists, lawyers, and judges. Mason's reflections on the U.S.'s current custody decision making process reveal flaws in the system, possible biases among mediators, and the continuing lack of real attempts to consider - and bring about - the best interests of the child.

Victoria L. Getis Amherst, MA