B. THE LEGAL STATUS OF THE CHILD IN THE FAMILY

1. Rights and duties of parents under the common law in the United States, 1827

James Kent, Commentaries on American Law, llth ed. (Boston, 1867), II, 189-205.

James Kent (1763-1847), chief justice of New York Supreme Court and chancellor of New York state, was professor of law at Columbia University. His lectures or Commentaries were published in four volumes, 1826-1830.

1. Of the duties of parents. — The duties of parents to their children, as being their natural guardians, consist in maintaining and educating them during the season of infancy and youth, and in making reasonable provision for their future usefulness and happiness in life, by a situation suited to their habits, and a competent provision for the exigencies of that situation.

(1) Of maintaining children. — The wants and weaknesses of children render it necessary that some person maintain them, and the voice of nature has pointed out the parent as the most fit and proper person. The laws and customs of all nations have enforced this plain precept of universal law. The Athenian and the Roman laws were so strict in enforcing the performance of this natural obligation of the parent, that they would not allow the father to disinherit the child from passion or prejudice, but only for substantial reasons, to be approved of in a court of justice.

The obligation on the part of the parent to maintain the child continues until the latter is in a condition to provide for its own maintenance, and it extends no further than to a necessary support. The obligation of parental duty is so well secured by the strength of natural affection, that it seldom requires to be enforced by human laws. According to the language of Lord Coke, it is "nature's profession to assist, maintain, and console the child." A father's house is always open to his children. The best feelings of our nature establish and consecrate this asylum . . .

All the provision that the statute law of New York has made on this subject applies to the case of necessary maintenance; and as the provision was borrowed from the English statutes of 43 Eliz. and 5 Geo. I., and is dictated by feelings inherent in the human breast, it has probably been followed, to the extent at least of the English statutes, throughout this country. The father and mother, being of sufficient ability, of any poor, blind, lame, old, or decrepit person whomsoever, not being able to maintain himself, and becoming chargeable to any city or town, are bound, at their own charge and expense, to relieve and maintain every such person, in such manner as the overseers of the poor of the town shall approve of, and the court of general sessions shall order and direct. If the father, or if the mother, being a widow, shall abscond and leave their children a public charge, their estate is liable to be sequestered, and the proceeds applied to the maintenance of the children. The statute imposes a similar obligation upon the children, under like circumstances. This feeble and scanty statute provision was intended for the indemnity of the public against the maintenance of paupers, and it is all the injunction that the statute law pronounces in support of the duty of parents to maintain their adult children. During the minority of the child, the case is different, and the parent is absolutely bound to provide reasonably for his maintenance and education; and he may be sued for necessaries furnished, and schooling given to a child, under just and reasonable circumstances. The father is bound to support his minor children, if he be of ability, even though they have property of their own; but this obligation in such a case does not extend to the mother, and the rule, as to the father, has become relaxed. The courts now look with great liberality to the circumstances of each particular case, and to the respective estates of the father and children; and in one case, where the father had a large income, he was allowed for the maintenance of his infant children, who had still a larger income. The legal obligation of the father to maintain his child ceases as soon as the child is of age, however wealthy the father may be, unless the child becomes chargeable to the public as a pauper . . .

And in consequence of the obligation of the father to provide for the maintenance, and, in some qualified degree, for the education of his infant children, he is entitled to the custody of their persons, and to the value of their labor and services. There can be no doubt that this right in the father is perfect, while the child is under the age of fourteen years. But as the father's guardianship, by nature, continues until the child has arrived to full age, and as he is entitled by statute to constitute a testamentary guardian of the person and estate of his children until the age of twenty-one, the inference would seem to be, that he was, in contemplation of the law, entitled to the custody of the persons, and to the value of the services and labor, of his children, during their minority . . .The father may obtain the custody of his children by the writ of habeas corpus, when they are improperly detained from him; but the courts, both of law and equity, will investigate the circumstances, and act according to sound discretion, and will not always, and of course, interfere upon habeas corpus, and take a child, though under fourteen years of age, from the possession of a third person, and deliver it over to the father against the will of the child. They will consult the inclination of an infant, if it be of a sufficiently mature age to judge for itself, and even control the right of the father to the possession and education of his child when the nature of the case appears to warrant it ...

2. Of the rights of parents. — The rights of parents result from their duties. As they are bound to maintain and educate their children, the law has given them a right to such authority; and in the support of that authority, a right to the exercise of such discipline as may be requisite for the discharge of their sacred trust. This is the true foundation of parental power; and yet the ancients generally carried the power of the parent to a most atrocious extent over the person and liberty of the child. The Pesians, Egyptians, Greeks, Gauls, and Romans tolerated infanticide, and allowed to fathers a very absolute dominion over their offspring; but the Romans, according to Justinian, exceeded all other people, and the liberty and lives of the children were placed within the power of the father…

…In everything that related to the domestic connections, the English common law has an undoubted superiority over the Roman. Under the latter, the paternal power continued during the son's life, and did not cease even on his arriving at the greatest honors. The son could not sue without his father's consent, or marry without his consent; and whatever he acquired, he acquired for the father's advantage; and in respect to the father, the son was considered rather in the light of property than a rational being.

The father (and on his death, the mother) is generally entitled to the custody of the infant children, inasmuch as they are their natural protectors, for maintenance and education. But the courts of justice may, in their sound discretion, and when the morals, or safety, or interests of the children strongly require it, withdraw the infants from the custody of the father or mother, and place the care and custody of them elsewhere…

2. "The principle of parental authority and filial obedience," 1842

Commonwealth v. Armstrong, 1 Penna. Law Journal, 392 (1842).

Ellis Lewis (1798-1871) was chief justice of the Pennsylvania Supreme Court from 1854 to 1857. His opinion in the Armstrong case was widely distributed and praised by authorities such as Chancellor Kent.

Lewis, J. — This is an application on behalf of the Rev. William S. Hall, a minister of the gospel of the Baptist persuasion, for an order of this Court requiring the defendant to give surety for keeping the peace. The circumstances of the case are these: On the last Sunday in February last, the defendant prohibited the complainant from administering the ordinance of baptism, by immersion, to his minor daughter, aged about seventeen, she having already been baptized in the Presbyterian church, to which her mother belonged. This prohibition was accompanied with threats of personal injury to the complainant if he baptized her, the defendant declaring that he would shoot him if he did so. On the second Sabbath in April following, the complainant having an opportunity, baptized the daughter, by immersion, in the absence, and without the knowledge of the father, and contrary to his known and positive commands. This proceeding came to the knowledge of the parent afterwards, and on the Monday after the occurrence, he followed the complainant through the street, threatening him with personal injury to such an extent as to induce the present application for surety of the peace.

Whatever may be the rights of the parent, in defence of his child, and in the exercise of his lawful authority over it, in order to prevent any act of disobedience on its part, or any interference with his authority on the part of others, it is clear that no man has a right to take the law into his own hands, to be the judge and executioner in his own case, and inflict punishment upon those who have already injured him. This is vengeance, and not defence. Vengeance does not belong to man. The court therefore order the defendant to give surety in the sum of $500 to keep the peace for six months towards the Rev. William S. Hall, and all other citizens of this Commonwealth.

Thus far we have acted without hesitation or doubt. But under the Act of Assembly of the 28th of March, 1814, it is the duty of the Court, in cases of surety of the peace, to direct the defendant, the prosecutor, or the county to pay the costs. In the exercise of this discretion, it becomes necessary to inquire into the conduct of the parties, and to ascertain whose wrongful act produced the necessity for this application for the preservation of the public peace. If the prosecutor was acting within the line of his duty, he ought not to pay them. If, on the contrary, he has interfered with the lawful authority of the father over his own offspring, in its minority, and therefore provoked him in his excited feelings, to meditate the personal injury, and to make the threats complained of, it would be just that the prosecutor should pay the costs which his own first wrongful act had occasioned.

The authority of the father results from his duties. He is charged with the duties of maintenance and education. These cannot be performed without the authority to command and to enforce obedience. The term education is not limited to the ordinary instruction of the child in the pursuits of literature. It comprehends a proper attention to the moral and religious sentiments of the child. In the discharge of this duty, it is the undoubted right of the father to designate such teachers, either in morals, religion or literature, as he shall deem best calculated to give correct instruction to the child. No teacher, either in religion or in any other branch of education, has any authority over the child, except what he derives from its parent or guardian; and that authority may be withdrawn whenever the parent, in the exercise of his discretionary power, may think proper. If he should come to the conclusion that the attendance of his child upon the ministration of any particular religious instructor is not conducive to its welfare, he may prohibit such attendance, and confine it to such religious teachers as he believes will be most likely to give correct instruction and to secure its welfare here, and its eternal happiness in the world to come. He cannot force it to adopt opinions contrary to the dictates of its own conscience, but he has a right to its time and its attention during its minority, for the purpose of enabling him to make the effort incumbent on him as a father, of "training it up in the way it should go." He may not compel it, against its own convictions of right, to become a member of any religious denomination; but after it has been initiated, with its own free will, into the religious communion in which its parent belongs, he may lawfully restrain it, during its legal infancy, from violating the religious obligations incurred in its behalf, by placing itself under the control of a minister whose opinions do not meet its parent's approbation.

The patriarchal government was established by the Most High, and, with the necessary modifications, it exists at the present day. The authority of the parent, over the youth and inexperience of his offspring, rests on foundations far more sacred than the institutions of man. "Honour thy father and thy mother," was the great law proclaimed by the King of kings. It was the first commandment accompanied with a promise of blessing upon those who obeyed it: while the dread penalty of death was inflicted upon all who were guilty of its infraction. "The eye that mocketh at his father, and despiseth to obey his mother, the ravens of the valley shall pick it out, and the young eagles shall eat it." Proverbs xxx. 17. "The stubborn and rebellious son who will not obey the voice of his father shall be stoned with stones that he may die, and all Israel shall hear and fear." Deuteronomy xxi. 21. Abraham commanded his children, and his household after him, to keep the way of the Lord. Joshua resolved both for himself and his house to serve the Lord. And the house of Eli was destroyed because his sons made themselves vile and he restrained them not. "My son keep the instruction of thy father and forsake not the law of thy mother." Proverbs i. 8, 9; and Proverbs vi. 20. "A fool despiseth his father's instruction." Proverbs xviii. 1. "Cursed be he that setteth light by his father or his mother, and all the people shall say, Amen." Deuteronomy xxvii. 16.

Dr. [Francis] Wayland, President of Brown University, and a distinguished minister of the Gospel, of the same denomination with the prosecutor, declares in his work on moral science, "the right of the parent is to command — the duty of the child is to obey. Authority belongs to the one, submission to the other. The relation," he continues, "is established by our Creator. The failure of one party does not annihilate the obligations of the other. If the parent be unreasonable, this does not release the child. He is still bound to honour and obey and reverence his parent. The duty of parents is to educate their children in such a manner as they (the parents) believe will be most for their future happiness, both temporal and eternal. The parent is under obligations to cause his child to be instructed in those religious sentiments which he the parent believes to be according to the will of God. With his duty in this respect no one has a right to interfere. If the parent be in error, the fault is not in teaching the child what he believes, but in believing what is false without having used the means which God has given him to arrive at the truth. In such matters he is the ultimate and the only responsible authority. While he exercised his parental duties, within their prescribed limits, he is, by the law of God, exempt from interference both from individuals and from society. In infancy (under 21) the control of the parent over the child is absolute — that is, it is exercised without any respect whatever to the wishes of the child."

These are the sentiments of a man of great learning, piety, purity of heart — of one whose fame has extended into every part of the widespread Union, and the learned and good of other nations have been taught to know and to appreciate his exalted worth. His works will remain, after the present generation shall have passed away, an imperishable monument of his memory.

The doctrines of the common law are in accordance with these principles. It is the duty of the parent to maintain and educate the child, and he possesses the resulting authority to control it in all things necessary to the accomplishment of these objects. The law has assigned no limits to the authority of the parent over the child, except that it must not be exercised in such manner as to endanger its safety or morals. If the parent should transcend his authority in this respect, an appeal does not lie to the minister of the Gospel of any denomination whatever. Application for relief can only be made to the authorities entrusted by the supremacy of the law, with the high power of controlling parental authority where the morals or safety of the child require such interference.

…The Orphans' Court have by law the right to appoint guardians for orphan children—but so careful have the legislature been of the right of the parent to have his offspring brought up in the religious persuasion to which he belongs, that the Court are bound to have respect to this consideration in the selection of guardians, and persons of the same religious faith as the parents must be preferred over all others.

The principle of parental authority and filial obedience has its home in the human heart is in accordance with the law of nature, and will ever be near and dear to every good man of every religion under the sun. It has already been remarked, that there is no limit to that authority save that which is necessary for the preservation of the health and morals of the child.

Without the slightest disrespect for the Baptists, for whom we have every respect for their virtues and piety, it may safely be affirmed that the morals of the child were not endangered by remaining within the folds of the Presbyterian church, in which it had been baptized, and to which its mother belonged. There was therefore no just ground for interfering with the parent's authority, or for participating in the act of filial disobedience committed by the child. This proceeding cannot be justified under any claim founded upon the rights of conscience. The child whose conscience stimulates it into open rebellion against the lawful authority of its father, stands more in need of proper instruction and discipline under that authority than any other. If every child, under a claim founded upon the supposed rights of conscience, were allowed to carry into effect every I decision of its immature judgment, where is that to end? Who shall prescribe limits to the crude conceptions of its youth and inexperience?—Shall it be allowed, under this pretence, to violate the law of God? to repudiate the Christian religion? to become a Jew or a Mohammedan? Or, retaining the Christian name, shall it be allowed to mingle with the battle-axe community, who make it a matter of conscience to disregard the holy institution of marriage? Or, upon this pretence, shall the beloved daughter of a Christian parent, in a moment of delusion, and in the tender years of her minority, be allowed to become one of the secret wives of the Mormon prophet?

It is dangerous to depart from established principles. Parental authority is not to be subverted so long as it is exercised within the limits which the law has prescribed. It is the duty of the parent to regulate the conscience of the child, by proper attention to its education; and there is no security for the offspring during the tender years of its minority but in obedience to the authority of its parents, in all things not injurious to its health or morals.

We wish it to be distinctly understood, that no imputations are cast upon the motives of the Rev. Mr. Hall. We believe that he acted conscientiously as he conceived to be right. But, in our opinion, he has transcended the divine and human law, in disregarding the authority of the father over his own offspring while in its minority. This is the opinion of the constitutional authority—the result of our conscientious convictions of the law, and it is hoped that he will feel himself bound to respect it accordingly, in any after proceedings. In refusing to render unto Caesar, the things that are Caesar's, he has fallen under the condemnation of the law.

It is therefore ordered that he pay the costs of this application.

1. Status of illegitimate children in the United States, 1827

James Kent, Commentaries on American Law, 14th ed. (Boston, 1896), II, 210-216.

A bastard being in the eye of the law nullius filius, or, as the civil law, from the difficulty of ascertaining the father, equally concluded, patrem habere non intelliguntur, he has no inheritable blood, and is incapable of inheriting as heir, either to his putative father, or his mother, or to any one else, nor can he have heirs but of his own body. This rule of the common law, so far at least as it excludes him from inheriting as heir to his mother, is supposed to be founded partly in policy, to discourage illicit commerce between the sexes. . . Bastards are incapable of taking in New York, under the law of descents, and under the statute of distribution of intestates' effects; and they are equally incapable in several of the other United States, which follow, in this respect, the rule of the English law. But in Vermont, Connecticut, Virginia, Kentucky, Ohio, Indiana, Missouri, Illinois, Tennessee, North Carolina, Alabama, and Georgia, bastards can inherit from, and transmit to, their mothers, real and personal estate, under some modifications, which prevail particularly in the states of Connecticut, Illinois, North Carolina, and Tennessee; and in New York, the estate of an illegitimate intestate descends to the mother, and the relatives on the part of the mother . . .

This relaxation in the laws of so many of the states, of the severity of the common law, rests upon the principle that the relation of parent and child, which exists in this unhappy case, in all its native and binding force, ought to produce the ordinary legal consequences of that consanguinity . . .

The mother, or reputed father, is generally in this country chargeable by law with the maintenance of the bastard child; and in New York it is in such way as any two justices of the peace of the county shall think meet; and the goods, chattels, and real estate of the parents are seizable for the support of such children, if the parents have absconded. The reputed father is liable to arrest and imprisonment until he gives security to indemnify the town chargeable with the maintenance of the child. These provisions are intended for the public indemnity, and were borrowed from the several English statutes on the subject; and similar regulations to coerce the putative father to maintain the child, and indemnify the town or parish, have been adopted in the several states . . .

2. Legitimatizing and adopting children, Alabama, 1852

John J. Ormand, Arthur P. Bagby, George Goldthwaite, eds., Code of Alabama, 1852 (Montgomery, 1852), pp. 384-385.

The marriage of the mother and reputed father of a bastard child, renders it legitimate, if recognized by the father as his child.

The father of a bastard child may legitimate it, and render it capable of inheriting his estate, by making a declaration in writing, attested by two witnesses, setting forth the name of the child proposed to be legitimated, its sex, supposed age, and the name of the mother, and that he thereby recognises it as his child, and capable of inheriting his estate, real and personal, as if born in wedlock; the declaration being acknowledged by the maker before the probate judge of the county of his residence, or its execution proved by the attesting witnesses, filed in the office of the probate judge, and recorded on the minutes of his court, has the effect to legitimate such child.

The father may at the same time change the name of such child, stating in his declaration the name it is then known by, and the name he wishes it afterwards to have.

Any person desirous to adopt a child, so as to make it capable of inheriting his estate, real and personal, or to change the name of one previously adopted, may make a declaration in writing, attested by two witnesses, setting forth the name, sex, and age of the child he wishes to adopt, and the name he wishes it thereafter to be known by; which, being acknowledged by the declarant before the probate judge of the county of his residence, filed and recorded as in the two preceding sections, has the effect to make such child capable of inheriting such estate of the declarant, and of changing its name to the one stated in the declaration; and for services under this chapter, the judge of probate is entitled to a fee of one dollar.

1. Adoption by deed, Texas, 1850

Laws of the State of Texas, 1850 (Austin, 1898 ), ch. 39.

In the 1850's American states began to make legal provision for adoption, a procedure which did not exist under the common law. The Texas law, which remained in effect until 1931, made adoption analogous to the transfer of real property.

Be it enacted by the Legislature of the State of Texas, That any person wishing to adopt another as his or her legal heir, may do so by filing in the office of the Clerk of the County Court in which county he or she may reside, a statement in writing, by him or her signed and duly authenticated or acknowledged, as deeds are required to be, which statement shall recite in substance, that he or she adopts the person named therein as his or her legal heir, and the same shall be admitted to record in said office.

Be it further enacted, That such statement in writing, signed and authenticated, or acknowledged and recorded as aforesaid, shall entitle the party so adopted to all the rights and privileges, both in law and equity, of a legal heir of the party so adopting him or her. Provided, however, that if the party adopting such person have, at the time of such adopting, or shall thereafter have a child or children, begotten in lawful wedlock, such adopted child or children shall in no case inherit more than the one-fourth of the estate of the party adopting him or her, which can be disposed of by will.

2. Massachusetts adoption law, 1851

"An Act to provide for the adoption of children," 1851 — ch. 324, Massachusetts Acts and Resolves, 1851 (Boston, 1851), pp.815-816.

The Massachusetts law establishing judicial procedures for adoption became the model for other states.

Any inhabitant of this Commonwealth may petition the judge of probate, in the county wherein he or she may reside, for leave to adopt a child not his or her own by birth.

If both or either of the parents of such child shall be living, they or the survivor of them, as the case may be, shall consent in writing to such adoption; if neither parent be living, such consent may be given by the legal guardian of such child; if there be no legal guardian, no father nor mother, the next of kin of such child within the State may give such consent; and if there be no such next of kin, the judge of probate may appoint some discreet and suitable person to act in the proceedings as the next friend of such child, and give or withhold such consent.

If the child be of the age of fourteen years or upwards, the adoption shall not be made without his or her consent.

No petition by a person having a lawful wife shall be allowed unless such wife shall join therein, and no woman having a lawful husband shall be competent to present and prosecute such petition.

If, upon such petition, so presented and consented to as aforesaid, the judge of probate shall be satisfied of the identity and relations of the persons, and that the petitioner, or, in case of husband and wife, the petitioners, are of sufficient ability to bring up the child, and furnish suitable nurture and education, having reference to the degree and condition of its parents, and that it is fit and proper that such adoption should take effect, he shall make a decree setting forth the said facts, and ordering that, from and after the date of the decree, such child should be deemed and taken, to all legal intents and purposes, the child of the petitioner or petitioners.

A child so adopted, as aforesaid, shall be deemed, for the purposes of inheritance and succession by such child, custody of the person and right of obedience by such parent or parents by adoption, and all other legal consequences and incidents of the natural relation of parents and children, the same to all intents and purposes as if such child had been born in lawful wedlock of such parents or parent by adoption, saving only that such child shall not be deemed capable of taking property expressly limited to the heirs of the body or bodies of such petitioner or petitioners.

The natural parent or parents of such child shall be deprived, by such decree of adoption, of all legal rights whatsoever as respects such child; and such child shall be freed from all legal obligations of maintenance and obedience, as respects such natural parent or parents.

Any petitioner, or any child which is the subject of such a petition, by any next friend, may claim and prosecute an appeal to the supreme judicial court from such decree of the judge of probate, in like manner and with the like effect as such appeals may now be claimed and prosecuted in cases of wills, saving only that in no case shall any bond be required of, nor any costs awarded against, such child or its next friend so appealing.

1. The child's welfare requires the mother's custody, 1813

Commonwealth v. Addicks and wife, 5 Binney, 520 (1813).

This custody case, one of the earliest in which the interests of the children were the paramount consideration, was decided in the Supreme Court of Pennsylvania. It was frequently cited in later cases elsewhere.

The Court, upon the application of Jose Lee, granted a habeas corpus to the defendants to bring up two female children, his daughters, in their custody; and they were accordingly brought into Court, under the care of their mother, Barbara Addicks, with whom, as was stated in the return, they had lived ever since their birth.

One of the children was ten, the other about seven years old.

J. R. Ingersoll for the father, read to the Court the proceedings in the Common Pleas, upon a libel for divorce by Lee against Barbara, at present the wife of Addicks, by which it appeared, that about the beginning of the present year, she had had a child by Addicks, and for some time before, and constantly since, had lived with him. Lee was divorced from her a vinculo, for this cause, on the 12th of June 1813; and since that time, the wife and Addicks were married ... He contended that the father, as the natural guardian of the children, had a right to their custody, and that the nature of the intercourse between their mother and Addicks, rendered it highly improper to permit them to remain under her care.

Hopkinson contra, replied, that it was entirely in the Court's discretion to interfere or not, as there was no illegal restraint of the children; and for the purpose of enabling the Court to exercise a sound discretion upon the subject, he gave to them an outline of the mother's history, her marriage with Lee, his conduct to her and his family, and the circumstances under which her acquaintance with Addicks and her subsequent indiscretion had originated. From the whole it appeared, that she was at least as unfortunate, as she was culpable; that for four years prior to the divorce, from the embarrassments of Lee, and other causes, he had made no provision for either his wife or these children, although he had been applied to for this purpose. That during this period, the mother had kept a boarding house, and had educated the children herself, having applied in this manner the accomplishments she had acquired in the course of an excellent education in Canada. That the marriage with Addicks had taken place without a knowledge of the legal impediment, and that in no respect had her intercourse with him, interfered with the attention that was due to the children whose sex as well as age, particularly required the care of a mother.

J. R. Ingersoll on the other hand, made a statement to exculpate the husband, and to shew that his pecuniary circumstances, which at one time prevented him from giving aid to his family, now enabled him to educate and maintain the daughters, as he did a son of the same marriage, who had always been under his care.

One fact was not disputed, that the children were well treated and educated by the mother, and had hitherto in no respect suffered under her care.

After holding the case under advisement for a day, the Chief Justice now delivered the Court's opinion.

Tilghman C.J. We have considered the law, and are of opinion, that although we are bound to free the person from all illegal restraints, we are not bound to decide who is entitled to the guardianship, or to deliver infants to the custody of any particular person. But we may in our discretion do so, if we think that, under the circumstances of the case, it ought to be done ... The present case is attended with peculiar and unfortunate circumstances. We cannot avoid expressing our disapprobation of the mother's conduct, although so far as regards her treatment of the children, she is in no fault. They appear to have been well taken care of in all respects. It is to them, that our anxiety is principally directed; and it appears to us, that considering their tender age, they stand in need of that kind of assistance, which can be afforded by none so well as a mother. It is on their account, therefore, that exercising the discretion with which the law has invested us, we think it best, at present, not to take them from her. At the same time, we desire it to be distinctly understood, that the father is not to be prevented from seeing them. If he does not choose to go to the house of their mother, she ought to send them to him, when he desires it, taking it for granted that he will not wish to carry them abroad, so much as to interfere with their education.

2. Denial of father's absolute right to custody, 1824

U.S. v. Green, 26 Fed. Cas. 30 (1824).

Joseph Story (1779-1845), a leading jurist and legal writer, was appointed to the United States Supreme Court in 1811. Simultaneously, he sat on the United States circuit bench for the northeastern states.

Habeas corpus upon the petition of Aaron Putnam, a citizen of New York, against Timothy Green, a citizen of Rhode Island, to bring up the body of Eliza A. Putnam, an infant daughter of Putnam, about ten years old, alleged to be wrongfully detained in the custody of the defendant, who was her grandfather. Upon the execution of the writ, a special return was made by the defendant, alleging, that the infant was the child of his daughter Mary, who married Putnam, and had since deceased; that in 1817, Putnam became embarrassed, and brought his wife and the said infant to reside at his house in North Providence, where they lived for two years; that they were subsequently removed to Connecticut, and again came back to his house with the consent of Putnam; that the wife died in his family in 1820, and upon her death-bed requested her parents to keep and bring up the said infant as their own; that they promised accordingly so to do: that the infant had ever since, until within a few months, resided in his family, and she was then placed by them in the Friends' Seminary at Providence for education;

STORY, Circuit Justice. As to the question of the right of the father to have the custody of his infant child, in a general sense it is true. But this is not on account of any absolute right of the father, but for the benefit of the infant, the law presuming it to be for his interest to be under the nurture and care of his natural protector, both for maintenance and education. When, therefore, the court is asked to lend its aid to put the infant into the custody of the father, and to withdraw him from other persons, it will look into all the circumstances, and ascertain whether it will be for the real, permanent interests of the infant; and if the infant be of sufficient discretion, it will also consult its personal wishes. It will free it from all undue restraint, and endeavour, as far as possible, to administer a conscientious, parental duty with reference to its welfare. It is an entire mistake to suppose the court is at all events bound to deliver over the infant to his father, or that the latter has an absolute vested right in the custody.

3. The father's "paramount" right to custody, New Hampshire, 1860

State v. Richardson, 40 N.H. 272 (1860).

The development of child custody law in the United States in the nineteenth century is surveyed in U.S. Bureau of Education, Circular of Information No. 3, 1880, Legal Rights of Children (Washington, 1880), pp.23-28.

…In this case the father, and natural guardian of the child, is seeking ... to have it restored to his custody, and we are required to determine whether, in the exercise of a sound discretion, the custody of the child ought, or ought not to be awarded to the father.

In determining this question the court will take into consideration the right of the father, his ability and inclination to perform faithfully the trust imposed upon him, the present condition of the child, and, if of years of discretion, its wishes upon the subject. Prima facie, however, the right of custody is in the father; and when the application is resisted upon the ground that he is unfit for the trust, by reason of grossly immoral conduct, harsh usage of his child, or other cause, a proper regard to the sanctity of the parental relation will require that the objection be sustained by clear and satisfactory proofs . . .

The discretion to be exercised is not an arbitrary one, but, in the absence of any positive disqualification of the father for the proper discharge of his parental duties, he has, as it seems to us, a paramount right to the custody of his infant child, which no court is at liberty to disregard. And while we are bound also to regard the permanent interests and welfare of the child, it is to be presumed that its interests and welfare will be best promoted by continuing that guardianship which the law has provided, until it is made plainly to appear that the father is no longer worthy of the trust . . .The breaking of the ties which bind the father and the child can never be justified without the most solid and substantial reasons. Upon the father the child must mainly depend for support, education and advancement in life, and as security for this he has the obligation of law as well as the promptings of that parental affection which rarely fail to bring into the service of the child, the best energies and the most thoughtful care of the father. In any form of proceeding the sundering of these ties will always be approached by the courts with great caution, and with a deep sense of responsibility.

In the case before us, the child, a female, was ten years old in February last, and is quite intelligent and well educated, for her years; and it appears that for nearly the whole of her life she has resided in the family of the respondent, and that it is her wish to remain there. It also appears that the respondent, the maternal uncle of the child, and his family, consisting of his mother and an unmarried sister, are in every way suitable persons to have the charge of such a child, and that it has been treated by them uniformly with great kindness, and that between the child and the family there exists a strong mutual affection. On the other hand, there is no evidence of the unfitness of the father for the proper discharge of his parental duties toward the child, or of the want of proper parental affection, but the evidence shows both the father and uncle to be highly respectable clergymen of the same religious sect, both suitable persons to have the charge of such a child, and, so far as the evidence goes, having equal means.

Under these circumstances, and upon the principles we have stated, we are satisfied that the father is entitled to the custody of the child, and that, in the exercise of a sound judicial discretion, we are not at liberty to allow his right to be controlled by the wishes of a child of such tender years.

In this case, there being no evidence that the father is unfit for the trust imposed upon him, there is no solid or substantial ground for refusing to award to him the custody of his child, unless we give to its wishes an influence which is not based upon either authority or reason, and might seriously and extensively interfere with that parental control which is wisely committed to the natural guardian of children.