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

Fourteen-year-old Andy Hall's family lived in unspeakable poverty. His drunken father brutalized his worn-down wife and regularly threatened little Roxy, Andy's crippled sister who found refuge under ragged blankets in a dark corner. The family barely survived on scraps of begged-for food. Andy associated with other "idle and profane" boys, "seeking mischief and delighting in it it as all idlers do." His saving grace: the biscuits or snacks he occasionally brought home for his inexplicably cheerful younger sister.(1)

Into this familial cesspool steps - gingerly at first - the Kents, a comfortably middle-class family who undertakes to salvage these wrecked lives through kindness and religious conversion. Mrs. Kent brings food and, later, Christmas presents to Roxy, whose father sells the latter for beer money and forces his daughter to beg at the Kents' door. They take her in, but Roxy soon succumbs to a vague illness, gladly joining her Savior in heaven. In the meantime, Mr. Hall dies "the dreadful death of a drunkard" and Mrs. Hall, released from her husband's intoxicated tyranny, finds a job as a servant in a good home. Although Andy occasionally attends a neighborhood mission school, he doggedly resists the straight and narrow path offered by his new friends until Roxy's pious death, his mother's new life, and his father's ugly demise finally spark in him a sudden and violent conversion.(2)

All of this occurs a few years before the Civil War. After Fort Sumter, Andy joins Mr. Kent's company and serves loyally and bravely in the Union army. He converts fellow soldiers left and right, is wounded severely, receives a discharge, and returns home, where he continued his godly and compassionate life. Although Andy Hall: The Mission Scholar in the Army appeared in 1863, its wartime denouement is really just an extension of the moral redemption that nineteenth-century reformers thought possible, even in such wholly "dysfunctional" families as the Halls.

Andy Hall takes place over the course of half a decade, yet the story illustrates a number of the factors examined for much longer periods of time in Children in the House and From Father's Property to Children's Rights. For instance, the Halls were buffeted by economic forces beyond their control that were only made worse by Mr. Hall's moral bankruptcy. The Kents' middle-class status equipped them with certain class assumptions and responsibilities that led them to intervene in the Halls' ghastly lives. Finally, the evangelical tone of the book provides a clue to the ideological context of reform - for children as well as other needy members of society.

These and other forces are also analyzed by Calvert and Mason. Although they tackle highly divergent subjects, they both approach childhood not from the point of view of children, but from the ways that the interests and actions of parents have affected the lives of their progeny. Calvert examines everyday objects such as toys, clothes, and furniture, and argues that the attitudes and ideas that determined the evolution of the material culture of very young children passed through three stages before 1900. The first, from 1600 to 1750, was a period in which parents viewed their children as subhuman beings who had to be hurried through childhood to rational and useful adulthood. Stage two, from 1750 to 1830, saw an "across-the-board rejection of traditional childrearing methods" (p. 56), and the creation of "natural" childhood. Stage three, from 1830 to 1900, revealed childhood as innocent and joyful, a set of images shaped at least partly by the nostalgic memories of middle-class parents. Mason also divides her study of the history of child custody law and practice into phases. The first began in the colonial period and extended well into the nineteenth century, when fathers enjoyed a nearly absolute right to the custody of their children; the second comprised the late nineteenth and early twentieth centuries, when mothers gained the advantage because of their nurturing instincts; and the third encompasses the more recent past, when legislatures, courts, and social workers threw out paternal as well as maternal preference in favor of less clear-cut guidelines. The link between these very different books is their demonstration of the ways that the economic, social, and ideological forces acting on American families throughout these periods helped to shape the lives of children.

Economic factors had their most basic impact on the material existence of young Americans. During the colonial period, the subsistence economy in which many Americans worked limited their access to possessions of any kind, much less those rare items made expressly for children. In addition, large families and home-centered economies made it necessary to find ways to restrict the movements of infants and toddlers through tight swaddling, long petticoats (for both girls and boys), and standing stools. The most important economic development affecting material culture was the rise of a large middle-class, which became most apparent during the Victorian era. These smaller, urban families could afford child-rearing books, larger houses whose many rooms included nurseries, and servants to care for children. In addition, affluent Victorians used children's artifacts as "public furniture" that displayed their wealth and their children's good behavior; elaborate and expensive perambulators made their appearance on Sunday promenades and in burgeoning park systems late in the nineteenth century.

Economic developments had a more sinister effect on the history of child custody. For centuries, the labor of children was considered an economic asset to which fathers had a nearly absolute right. Mason compares the legal relationship of father and child to that of master and servant. White bastards and orphans were frequently indentured so they would not drain the minuscule treasuries of local governments. In England, street children were unwillingly sent to the colonies as servants and even children with both parents living could be bound out if the latter were proven incapable of caring for them.

The agricultural context in which children were seen primarily as sources of labor faded during the nineteenth century, but urbanization, immigration, and industrialization created economic conditions that continued what Mason calls a two-tiered system of relationships between the state and the family. Increasingly, poor and immigrant families were more likely to be acted upon by the court system, either in cases of disputes over child custody or in state efforts to remove neglected children from their parents. Even the entry of increasing numbers of women into the workplace affected child custody practices by helping to reverse the short-lived tendency of awarding custody to mothers that had prevailed during the first half of the twentieth century.

Although the employment of women outside the home was, for most mothers, an economic decision, it can also be considered as one of a number of social factors that had an impact on children. Another, much earlier societal condition was the colonial mortality rate - especially in the Chesapeake region - which was so high that the legal status of orphans, guardians, and step-parents was a vital question. Settlers in New England generally lived longer, but large families crowded onto small farms and into tiny houses had little privacy and even less time to worry about their youngest members. The rise of the middle class after 1800 also had social as well as economic influences; their more delicate sensitivities required more privacy and quieter children and they cheerfully employed "soothing" drugs spiked with narcotics. The Victorian generations' fondness for busy decor led them to accept baby swings and jumpers - items familiar to modern-day parents - which occupied and contained quick-handed children who might otherwise find the knick-knacks and other paraphernalia crowding adult-oriented parlors too tempting to ignore. Mason also argues that the acceptance by Victorian judges of middle-class assumptions about the special relationship between mothers and children led them to frequently reject the common-law traditions that had benefited fathers in child custody cases in favor of the "natural law" that dictated granting custody to mothers.

Victorian attitudes probably did not quite amount to a full-fledged ideology, but Calvert and Mason show how several other ideological trends deeply affected the lives of American children. One set of ideas revolved around slowly changing attitudes about childhood, while feminists and social scientists mounted their own ideological campaigns. It has already been noted that colonial Americans considered children as subhuman and as potential commodities; children had to be forced to grow straight in the physical as well as the moral senses. This detachment was reflected not only in the paucity of material artifacts designed expressly for children, but also in the rather cold approach to disposing of child custody cases. The Enlightenment helped to raise the emotional links between parents and their kids, but it took the nineteenth-century fear that American civilization was entering a period of social degeneration to awaken in parents an affectionate, even indulgent approach to child-rearing. Children had to be protected from growing up too fast; their childhood had to be extended, not shortened. This same feeling no doubt influenced judges and legislatures who began to make child custody decisions based on the doctrine of the "best interests of the child."

Even with this more relaxed notion of childhood, parents assumed that toys and games would help prepare children for inevitable adulthood and bought gender-specific toys that would teach boys and girls their proper roles in society. This underlines the importance placed by both parents and by courts and governments on gender. For instance, until fairly recently, judges imposed a sexual double standard on women, whose immorality was thought to be more damaging than men's, thus disqualifying women from taking custody of their children.

Seeking to remedy these discrepancies, feminists created an ideology that could not fail to affect children, especially in terms of child custody rights. Women's fight for equal rights may have gained them legal equality, but their drive for economic independence and for more liberal divorce laws eventually compromised the short-lived maternal preference model in child custody cases. One group of feminists - Mason calls them the "heroines" of her study - were the social feminists of the Progressive Era, who actually sought to create standards and practices that were aimed at the welfare of children. They promoted the idea that actual neglect or abuse, not simply poverty, should become the criterion on which the increasingly active state governments based decisions to remove children from their parents, fought for child support payments from fathers, and generally promoted the best interests of children from broken or poverty-stricken homes.

Building on the work of these volunteers and reformers was a third group that offered an empirical kind of ideology: the social scientists, who, in the early twentieth century, began influencing the course of child custody law. In many ways, their theories about families and children replaced older, less scientifically based assumptions. While this eliminated the gender bias that had prevailed previously, by the late twentieth century the growing problems of child abuse and neglect, the overwhelming case loads of social workers and family courts, and the increasingly contradictory nature of the available data made the courts' reliance on social science experts questionable, at best. In Mason's mind, the social scientists have all but eliminated the social feminists' gains in protecting the best interests of the children; once again, the parents' and the state's interests have taken precedence.

These summaries cannot do justice to two books that pack more punch than their lengths would suggest. Calvert has produced a gracefully written book of essays linked by a convincing set of themes and assumptions, and although Mason's book is marred by sometimes wooden writing and frequent and distracting typos, it, too, presents a strong argument whose wide scope proves useful. The authors' strengths lay in their decisions to place their subjects in wider contexts like the changing status of women or the development of the United States economy. Yet each book neglects some pertinent elements of children's lives. Calvert admits that she is focusing primarily on middle-class Americans, and although it is never fair to criticize an author for failing to write a different book, it must be pointed out that child-rearing practices and the nature of the material lives of children were very different for the poor and immigrant children mentioned so frequently by Mason. In addition, the focus on parents rather than children tends to obscure the fact that children were participants in their own lives; even the youngest children found their own toys and made their own ways in life, as authors like Elliott West in Growing Up With the Country: Childhood on the Far Western Frontier (1989) and David Nasaw in Children of the City: At Work and At Play (1986) have shown. Mason, on the other hand, ignores child labor laws, which provided an important context for the notion of children as economic assets, as well as the New Deal, which initiated some of the programs that evolved into the government structure she refers to as a "superparent." Whatever their shortcomings, both books offer original and moving contributions to the expanding historiography of children, and Mason, a professor at Berkeley's School of Social Welfare, provides some common-sense suggestions for changing current policy.

"Parents do not merely raise their children," concludes Karin Calvert, "they define them" (p. 149). But the forms of parents' influence on their children's lives are constantly changing, at least partly due to the outside forces clearly described in these books. Readers will surely recognize that these forces are still acting on American children. Despite the expansion of material opportunities and the growth of social service bureaucracies, it is sad and more than a little chilling to realize that there are still families like the Halls in American society.

1. Caroline E. Kelly, Andy Hall: The Mission Scholar in the Army (1863), p. 36.

2. Ibid., p. 173.

James Marten, Department of History, Marquette University, is the author of Texas Divided: Loyalty and Dissent in the Lone Star State, 1856-1874, and is currently writing a book about children during the Civil War.
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Author:Marten, James
Publication:Reviews in American History
Article Type:Book Review
Date:Mar 1, 1995
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