Divorce has an inevitable fallout. It causes profound disruption—both internally and externally in almost all areas of life. With divorce come pervasive losses, an overload of major and minor life changes, a seemingly endless array of unfamiliar practical problems, and intense and wildly fluctuating emotions. Divorce demands the restructuring of relationships with former partners, with friends, and even with children, as a single parent. It necessitates the forging of a new identity and the building of a new lifestyle, and it motivates self-exploration and reappraisal. Divorce is synonymous with disruption, change, readjustment, and reorganization—and consequently with stress. Stress is generally worse for spouses who are left, particularly if they are unprepared for separation. Believing they have lost control over their lives, they often feel as if they are pawns at the mercy of their former partners. However, divorce is inevitably stressful for both spouses. With the exception of the death of a spouse, divorce has been identified as the most broadly disruptive and stressful event that people face in our society. Never attempt to navigate the complex maze of Utah divorce laws without the assistance of an experienced Magna Utah divorce lawyer.
At the beginning of the twentieth century, every state in the union, with one exception (South Carolina), had some provision for absolute divorce. South Carolina had no divorce law in the nineteenth century, and, indeed, the South Carolina Constitution of 1895 provided that “Divorces from the bonds of matrimony shall not be allowed in this State” (Art XVII, section 3). Divorce did not arrive there until 1948.
During the century, the divorce laws of the various states differed considerably. There were “easy” states and “hard” states. The general shape of divorce law, at least officially, was much the same everywhere. To get a divorce, a person had to file a lawsuit in court. A good spouse filed suit against an (alleged) bad spouse. The plaintiff would claim that the defendant, the bad spouse, had done something wrong—something which gave plaintiff, the good spouse, valid “grounds” for divorce. In the tough states, the statutory list of “grounds” was short. In the easy states, the list was longer. The defendant was supposed to file an answer to the petition. At the trial, both sides could present evidence. In the end, the judge would decide whether or not the plaintiff had made her case. Or his case; though, in fact, most of the plaintiffs were women.
Because of the interest of the state in maintaining the marriage institution, it is sometimes said that an action for divorce is a triangular suit involving husband, wife, and the state. The state is also interested in protecting the interests of persons not before the court. The plaintiff and defendant are usually represented by private attorneys; the state in most jurisdictions is represented merely by the court with no resources for extra-mural inquiry. In ordinary civil litigation, collusion is practically unknown. On the other hand, in divorce litigation it is common knowledge that the parties often do everything in their power to evade the requirements of the statutes and resort to perjury and fraud to accomplish their ends. This is especially true in uncontested suits which make up a large proportion of all divorce litigation. If the litigious theory of divorce actions is to continue, and it seems likely that it will for a long period, there ought to be resources to protect the interests of the state. The duty of supplying this protection should not be left to the already over-burdened courts alone, but should be delegated to some agency which has the time and the opportunity to look into the affairs of the parties outside of the court room. This agency should have the power to make reports and recommendations to the court.
In England, since 1860, the interests of the state have been protected by the King’s Proctor. His main duties are: (1) to intervene after a decree nisi, (2) to instruct and counsel at any stage of the litigation when so directed by the court, and (3) to take steps involving investigation and recommendations when collusion is suspected. The basic theory of the divorce counsel or proctor is that he acts as a special agent of the state to protect the community against too easy dissolution of the family and also assists in obtaining justice for the parties. In most American jurisdictions in the absence of statutes creating such an agency, the court before which the proceedings are pending represents the interests of the state and is charged with the duty of protecting those interests. It has been held that the Attorney-General, District Attorney, or other public officer is not permitted to intervene in behalf of the state, unless specifically authorized by statute to do so.
Rights of Divorced Parties
Since absolute divorce terminates the relationship of the parties as married persons and restores both guilty and innocent parties to the status of single persons, either party is competent to contract a new marriage with a third person in the absence of statutory prohibition to the contrary.
Right To Alimony
The law allows alimony to the wife. It was that allowance which was made to her for her support out of the husband’s estate and was settled at the discretion of the ecclesiastical judge on consideration of all the circumstances of the case. Except for Parliamentary divorce, the only kind of divorce was from bed and board. Since it did not affect the husband’s right to the absolute ownership of his wife’s chattels, to collect her earnings, and to the sole use of her lands during coverture, it, of course, was necessary to make provision for her, which was generally about a third of her husband’s income. When in 1857 Parliament passed an act authorizing absolute divorce in restricted circumstances, it also provided alimony for the wife. By that time the English wife had some rights to her own property, so the courts had the new problem of considering what support was reasonable for the husband to furnish the wife.
In a case arising shortly after the passage of the act the court said, “I consider, . . . that the wife ought not to be left destitute; on the other hand I think it would not be politic to give to wives any great pecuniary interest in obtaining a dissolution of the marriage tie.” Today alimony, strictly speaking, is an enforcement of the husband’s obligation to support the wife. Every jurisdiction granting absolute divorce has some kind of statute authorizing the court to provide for the support of the wife in divorce actions. Under ecclesiastical law, alimony was a money judgment against the person of the husband and was payable in instalments; so alimony, strictly speaking, is a money decree. Most of the states have statutes of this kind, although a number authorize an award of alimony out of the husband’s property. Some jurisdictions follow the rule of the ecclesiastical courts and do not permit a guilty wife, usually when she is an adulteress, to receive alimony.
In Utah, the determination of the amount of the alimony is left to the courts’ discretion. In arriving at a just award the courts take into consideration the health of the parties, their earning power, age, ability to pay, situation in life, etc. Frequently the courts are called upon to revise their awards. The courts have the power to place a reservation in their decrees allowing for change in the award at a later date if the circumstances warrant it. Such conditions as remarriage and change in finances warrant reconsideration of the amount. A decree for alimony is as much a judgment creating an obligation or debt as is any other judgment for money. Accordingly, a wife awarded alimony occupies the position of a judgment creditor of her ex-husband, and as such she is entitled to avail herself of all the remedies given to a judgment creditor. In some respects she is in an even stronger position than the ordinary judgment creditor, for the statute provides that the husband can be punished for contempt of court if he fails to obey the court’s order to pay, and he may actually be confined to jail. This is a common mode of alimony enforcement, both under the statutes and at common law. If you are seeking alimony from your spouse, speak to an experienced Magna Utah divorce lawyer.
Utah divorce law has a provision for temporary alimony and suit money to the wife. Temporary alimony or alimony pendente lite is an allowance ordered by the court to be paid by the husband to the wife for her support during the pendency of the divorce action whether the suit is brought by herself or by the husband. The making of the award and the amount are in the discretion of the court.
Right To Custody of Children
Divorce, when there are children of the marriage, is often particularly unfortunate. The Courts are confronted with the necessity of determining which of the parties to the marriage shall have custody of the offspring. Today the decision regarding custody is based upon the welfare of the child, often an exceedingly difficult matter to decide when both parents can give emotional security and wise guidance and can supply a good home.
In the United States, courts of law and of equity, aided by legislation, have modified the rule that the rights of the father are paramount as against what we consider to be for the welfare of the child; and furthermore, changes have been made in the rule that the father’s rights regarding his children were superior to those of the mother.
Although our early courts did not usually decide so rigidly in favor of the father as did the English courts, the justices in determining what was improper detention of children from the father often favored him as against the mother, as, for example, in a New York case of almost one hundred years ago. Here a husband and wife with two children, a son and a daughter less than two years old, separated. An agreement was entered into in 1838 that the young daughter would remain with the mother and the son would temporarily stay with her. Eventually the son was to be given to his father; this was done. In 1839 the father secured habeas corpus writs for the unlawful detention of his wife and daughter by Mrs. Barry’s father, Mr. Mercein. This was the first of five habeas corpus writs that Mr. Barry sought. Several of them were discharged since the young daughter needed a mother’s care and there was therefore no unlawful detention. Finally the supreme court ordered the daughter, then several years older, to be delivered to her father.
Custody and The American Courts
When the problem of custody of children is brought before the court, it is the duty of the court to determine what is wisest for the child and how the interests of the parents, the child, and the community can best be effected. Problems of custody are brought before courts of various jurisdiction under the following conditions:
• When the child is dependent, neglected or delinquent. The court with jurisdiction is the juvenile court which ideally has resources for careful inquiry, which exercises equity jurisdiction, and which acts for the welfare of the child.
• When one or both parents are deceased and a testamentary guardian has been named. Such actions are brought to the probate courts
• which are usually without resources to determine what are the best interests of the child.
• When both parents are deceased, no testamentary guardian has been named, and property is involved. These cases also come into the probate court.
• When the parents are legally separated or divorced or are seeking legal separation or divorce. Here the question of custody is decided by the court having divorce jurisdiction which is frequently without resources to determine what is for the welfare of the child.
• When the child is mentally or physically disabled. The court with jurisdiction is sometimes the juvenile court and sometimes the court with authority to commit to institutions.
Before the rights of wives and mothers were equal to those of husbands and fathers, the courts gave preference to the father who was the natural guardian and prima facie entitled to the custody of his minor child. Today if the parents are equally fit some external condition can usually be found that enables the court to decide in terms of the welfare of the child. Sometimes the custody is divided, some children going with one parent and some with another, or all of the children going with one or the other parent for certain periods of time. The decision of the court is based upon the welfare of the child and not on the superior rights of the father.
In determining what is for the best interests of the child, the court will consider ties of nature and of association, character and feelings of the parties contending for the custody, the age, health, and sex of the child, the benefits of education and development, and the pecuniary prospects. When the child has reached the age of discretion, he will often be allowed to make his own choice; the court is not bound by his wish if the custody would be improper. It laid down the principle that while neither parent has an absolute right to the custody of minor children, nevertheless the respective claim of each of the parents will be considered. Custody is usually awarded to the innocent and injured party; it is rare indeed that the mother who prevails in a divorce suit will be deprived of the custody of a daughter of tender years.
Today, in the United States the welfare of the child determines which parent shall be given custody, and it may even be given to the “guilty” party. With divorce granted for causes other than adultery in most American jurisdictions, there is little reason for preservation of the theory that custody be given to the innocent spouse. Husband and wife, whether plaintiff or defendant, are often equal; and in awarding custody the welfare of the child, rather than the innocence or guilt of the parties to the divorce action, should be the ultimate determining factor.
In divorce actions, jurisdiction over care, custody, education, and support of children is either statutory or inherent in a court of equity. Without exception, the statutes make the court’s power regarding custody a discretionary one. The commonest type of statute provides that the court may make such orders as are “necessary and proper,” “just and proper,” “reasonable,” “expedient,” etc. Other elements mentioned are safety, well being of the child, age and sex, the circumstances of the parents and of the case, the child’s choice, if he is of sufficient age to choose, and the child’s happiness, comfort, and spiritual welfare.
The general doctrine of the United States courts is that in divorce actions the jurisdiction over both custody and support of children is a continuing one, and that the courts may modify and change the order when circumstances render such changes proper. The order for custody is usually until “further order of the Court” or “during the child’s minority.” The courts consider remarriage, increased age of the child, and changed financial conditions sufficient cause for a petition to reconsider the question of custody and support. In a 1919 Wisconsin case a woman who had been divorced only three months, married in another state and returned to Wisconsin to live, in spite of the fact that remarriage is prohibited to divorced persons for one year. The Wisconsin high court held that this did not conclusively show moral unfitness of the woman to rear her four-year-old daughter and that no change of custody was desirable or necessary. In a New York case the father, an adulterer, remarried in violation of the divorce statute. He later attempted to acquire the custody of the child which had been given to the mother. The court held that the greater wealth of the father was no reason to remove the custody from the mother; there were no new conditions affecting the welfare of the child which required a change in the order regarding her custody.
The “Best-Interests-of-the-Child” Doctrine
In 1809 a South Carolina equity court heard Jennette Prather’s demand for a separation from her husband and the custody of her children. She charged her mate with living openly in adultery. The judges easily complied with her first request, but hesitated in granting the second. Chancellor Henry De Saussure was mindful, he said, of the father being the children’s “natural guardian, invested by God and the law of the country with reasonable power over them. Unless his parental power has been monstrously and cruelly abused, this court would be very cautious in interfering with the execution of it.” The court finally denied the errant husband his full parental rights. It gave the custody of an infant daughter, though not of the older children, to Jennette. In doing so, the judges acknowledged that they were treading on uncertain legal ground.
The ambivalence of the South Carolina court reveals the conflicting pressures on the post-Revolutionary bench generated by custody disputes between mothers and fathers. Traditional male authority over the family remained a fundamental tenet of family law. But a growing concern with child nurture and the acceptance of women as more legally distinct individuals, ones with a special capacity for moral and religious leadership and for child rearing, undermined the primacy of paternal custody rights.
Courts Create New Custody Rights
The Prather opinion also shows how judicial discretion could be used to restrict paternal rights and align the law with new gender beliefs. Judges like those on the South Carolina court began to enlarge their authority to determine if a father had so clearly abused his domestic authority that custody should be forfeited. They used the era’s faith in the innate childrearing capacities of women as counterweights to paternal economic and political power and judicial policy-making prerogatives as counterbalances to domestic patriarchy. Judicial innovations like Prather v. Prather spread throughout the nation by winning the support of more and more state judges. Custody rulings increasingly devalued paternally oriented property-based standards, emphasizing instead maternally biased considerations of child nurture.
This rearrangement of custody preferences occurred as the state judiciary resolved suits triggered by separation, divorce and death. The exact incidence of marital dissolution in early nineteenth-century America is difficult to determine. Though in the popular mind, marriage remained a contract for life and its breakdown a source of shame, the number of divorces rose steadily, as no doubt did separations. Divorce records in New Jersey disclose that between 1788 and 1799 only thirteen formal marital dissolutions occurred, but in 1860 alone eighty-six couples formally severed the marital knot. A liberalization of divorce and separation statutes occurred as well. Much like the change in child legitimation procedures, divorce came to be seen as an act that should be routinely available and under the direction of the bench, not the legislature. Pennsylvania became the first state to make the change in 1816; other states followed gradually.
Attempts by the bourgeois white women involved in these collapsing marriages to secure superior rights for motherhood constituted the strongest assault on paternal custody rights. These mothers used their newly enshrined domestic virtues as a wedge for extending the legal boundaries of their sphere. Their efforts sparked spousal, legislative, and judicial battles over child custody and guardianship that sped legal change.
A Pennsylvania couple discovered the subtleties of the emerging American law of custody in 1813. Joseph Lee petitioned for the custody of his children after he obtained a divorce from his adulterous wife Barbara. The husband contended that his wife’s misdeeds and subsequent marriage to her paramour in violation of a state ban on such unions disqualified her from rearing the couple’s seven- and ten-year-old daughters. Chief Justice William Tilghman, citing the Delaval decision to legitimize his assumption of discretion, expressed the court’s “disapprobation of the mother’s conduct.” But he noted that her care of the two girls had been faultless.”[O]ur anxiety is principally directed,” he explained, “to the children. It appears to us, that considering their tender years, they stand in need of the kind of assistance which can be afforded by none so well as a mother.” Consequently, “It is on their account . . . that exercising the discretion with which the law has invested us, we think it best at present not to take them from her.”
The court monitored the situation, however, and three years later Joseph triumphed. Tilghman again relied on the court’s determination of filial needs, now ruling the girls’ maturity rendered them less dependent on maternal nurture. Invoking his power to place children, the judge argued that two potential wives should not be reared by a mother who had flaunted the marital vow. “At the present they may not reflect upon it,” the jurist concluded, “but soon they will, and when they inquire why it was that they were separated from their mother, they will be taught, as far as our opinion can teach them, that in good fortune or bad, in sickness or health, in happiness or misery, the marriage contract, unless dissolved by the law of the country, is sacred and inviolable.”
The judicial disposition to emphasize child welfare in determining custody began to refashion the preferences of the common law. The “best interests of the child” became a judicial yardstick used to measure all claims for children. Its dramatic impact is most apparent in the resolution of disputes between the natural parents for their children.
The mother who was an injured party in a divorce was an early beneficiary of these shifting standards. In 1815 Chancellor Kent granted a bed-and-board divorce (a formal separation) and custody of a six-year old girl to a woman who proved to the court’s satisfaction that her mate drank habitually and physically abused her. The awards of child custody to women in such suits strengthened the judicial tendency to equate motherhood with child care.
By the 1820s traditional paternal custody rights had declined so precipitously that some judges began to seek a means by which fathers could be given presumptive but not absolute rights. An 1834 Massachusetts decision suggests the bench’s quandary. Samuel Thatcher secured a writ against his wife Mehitabel and her father Wales Briggs for the return of his son. Mehitabel had left her husband without benefit of formal legal proceedings and returned to her parents’ home, complaining bitterly that Samuel’s drinking made life unbearable and left him unfit to be a husband or father. Chief Justice Lemuel Shaw denounced the judicial encouragement of the unauthorized separation of husband and wife that he thought resulted from granting women who had not obtained divorces or legal separations custody of their children. He upheld the discretionary right of judges to use the “good of the child [as the] prominent consideration” in awarding custody of “a child of tender years,” but ruled that only where a man was proven unfit — he cited the example of a vagabond — could mothers claim custody. In general, “the father is by law clearly entitled to the custody of his child.” In this case, Samuel Jr. was returned to his paternal abode.
These issues became more acute as divorce ceased to be a legal rarity, and most likely the province of the wealthy. As divorce became more common and percolated downward in the American class structure, parental custody disputes may have become more complicated. The inability of working class fathers, and many middle class ones, to secure corps of nurses and servants, as wealthy men could, is but one example of the new issues thrown up by the changing demographics of nineteenth century divorce.
Treatise writers began to devise new balancing tests for assessing competing parental custody claims. Chancellor Kent noted and accepted the changes in custody law in his influential Commentaries. Maintaining that a “husband was the best judge of the wants of a family,” he nevertheless cited Lord Mansfield and a number of American decisions to contend that paternal custody rights could be overruled when, as he put it, “the nature of the case appears to warrant it.” The jurist accepted the diminution of paternal rights, despite his sentiment that the father is “the independent . . . Lord of [his] fireside.” Joseph Story reached a similar conclusion in his treatise on equity. He paid homage to the traditional ideal of patriarchy, but in fact urged judges to examine the fitness of each parent when selecting a custodian, admitting his own inclination to place a girl of “very tender years” with her mother.
By the 1830s legislators began to codify these judicial innovations. In an 1830 code revision, the New York legislature recognized that husbands and wives were leaving one another despite the state’s strict divorce laws. Unwilling to leave child custody to informal agreements, they authorized women to apply for writs of habeas corpus to let the courts settle the placement of the child. In one of the first judicial tests of the law, a vice chancellor declared in 1840 that the legislature had “neutralized the rule of the common law as annulling the superiority of the patria potestas and placing the parents on an equality as to the future custody of the children, even if it does not create a presumption in favor of the wife.” Massachusetts passed a similar statute in the 1840s with an even more explicit charge to the courts: “[T]he rights of the parents to their children, in the absence of misconduct, are equal and the happiness and welfare of the child are to determine its care and custody.”
A widely publicized custody fight in the 1840s between Ellen Sears, the daughter of a wealthy Boston manufacturer, and the Baron D’Hauteville, a Swiss nobleman, spelled out the implications of these legal developments. The pair parted over the wife’s dissatisfaction with her husband’s filial dependence and his refusal to spend part of each year in America with her family. Fearing that the Baron might try to seize his heir, a son born in Boston, the mother searched the Atlantic coast for a maternal custody haven. Eventually she chose Philadelphia because appellate court rulings in Pennsylvania favored mothers. The state bench vindicated her choice when it rebuffed her husband’s challenge to its jurisdiction over the boy, and then rejected his argument that paternal custody rights are paramount in the absence of clear proof of unfitness.
In a careful amalgamation of English and American decisions, the state supreme court argued that “the reputation of a father may be stainless as crystal, he may not be afflicted with the slightest mental, moral, or physical disqualification from superintending the general welfare of the infant . . . and yet the interest of the child may imperatively demand the denial of the father’s right, and its continuance with the mother.” Such was the situation with the two-year-old boy before them, the judges asserted. They concluded with a paean to motherhood: “[N]ot doubting that parental anxiety would seek for and obtain the best substitute which could be procured, every instinct of humanity unerringly proclaims that no substitute can supply the place of her, whose watchfulness over the sleeping cradle or waking moments of her offspring is prompted by deeper and holier feelings than the most liberal allowance of a nurse’s wages could possibly stimulate.” The court ordered the child to stay with its mother. John Cadwallader, the victorious woman’s attorney, aptly summarized the growing gender orientation of custody law: “Everyone knows that a father is unfit to take care of an infant; physically unfit and unfit by reason of his avocations.”
A Massachusetts lawyer published an anonymous pamphlet in protest. He attacked the contention that a wife could be granted custody without proving her husband had violated his spousal or fatherly duties. The unity of the husband and wife, he claimed, blocked such an outcome. Married women had no separate custody rights, just as they had none to sue or make a contract. Questioning the judiciary’s growing authority over child placement, the attorney charged that the Pennsylvania decision represented “nothing less than an assumption of power by a court . . . to determine the domestic arrangements of a man’s family.”
Joel Bishop’s 1852 treatise on marriage law took that judicial responsibility for granted. A father’s right, he explained, “is not an absolute one, and is usually made to yield when the good of the child, which, especially according to the modern American decision, is the chief matter to be regarded, requires that it should.” Parental rights were constrained by the new legal assumptions that “children are not born for the benefit of the parents alone, but for the country; and, therefore, that the interest of the public in their morals and education should be protected”; and that “children, though younger in years have themselves an interest more sacred than their parents, and more deserving of protection.” Bishop asserted in conclusion that “no parent has properly an interest in the mere custody of a child.”
Similar reasoning led post-Revolutionary judges and legislators to reassess guardianship. Fathers continued to be considered the proper legal guardians of children. Most states codified paternal guardianship with few alterations from English practice. Even Thomas Jefferson’s liberal revision of the Virginia statutes took paternal testamentary power for granted. Many men apparently appointed their wives, but the law’s longstanding premise was retained in the new republic: children should be distributed as men saw fit. Tapping Reeve made that point by noting that mothers “during coverture, exercised authority over their children; but in a legal point of view, they are considered as agents for their husbands, having no legal authority of their own. After the death of the husband, they often have this authority. Indeed, it is an immaterial inquiry whether they possess this authority in character of parent, mistress, or guardian.”
Even when a mother managed to secure the guardianship of her children, the law placed special restrictions on her authority. Compared to fathers, mothers had less claim to their children’s services, less control of their property, fewer defenses to removal from office, and inferior custody rights. The law made custody dependent on support, and the general assumption that widows lacked financial independence undermined their demands for guardianship, as it did many other feminine claims. Diminished guardianship merely echoed the plight of widows in early nineteenth-century America. More often than not they were viewed as objects of pity and feared as potential drains on community resources. Consequently, unlike in Colonial America, widows, to an even greater extent than other women, were seen as persons in need of protection rather than as individuals with valid claims for legal rights such as custody.
However, the new approach to child placement in custody litigation compelled judges and legislators to reformulate maternal guardianship. In 1835, when a New Jersey mother challenged the school selected by her son’s testamentary guardian, an equity judge pointedly reminded the woman of her legal impotence. After a father appoints a testamentary guardian, he lectured, “the natural right of the mother must yield to the will of the father. It is paramount and testamentary guardianship is considered a continuation of the father’s authority.” But his court did not suffer from such constraints. Expressing distrust of the guardian’s choice, he used his discretionary powers to act in the boy’s best interests, and in that way complied with the mother’s request.
Judges rewrote guardianship law not only by circumscribing paternal power but also by enlarging maternal authority. For example, the traditional common-law rule that remarriage extinguished maternal guardianship fell afoul of judicial sentiments. Their newfound faith in women’s child-rearing instincts led jurists to question the assumption that a remarried woman’s maternal responsibility would be superseded by the deference and affection she owed her new husband. In 1852 the Virginia Court of Appeals upheld the guardianship petition of a newly remarried woman against her former father-in-law. The state code allowed a mother to request the guardianship of her children after her husband’s death, and the justices decided that the “right was not lost by her remarriage, there being no legal guardian to the child; and the facts and circumstances disclose nothing which would induce the court, in the exercise of its discretion, to deprive her of the custody.” In issuing a similar ruling, an Alabama judge explained: “[I]t is safe to presume . . . that a mother . . . would be more careful of the moral, intellectual, and physical well-being of her children than any other person in the world.” Such instances of judicial rule making narrowed the gulf between maternal and paternal guardianship by placing both firmly within the bench’s ever broadening discretionary domain.
Judicially inspired custody and guardianship changes shifted the child placement authority to the courts more than they changed the subordinate legal status of married women. Post-Revolutionary egalitarianism, popular democracy, and capitalist individualism significantly enlarged the capacity of most white males, but relegation to a special feminine sphere excluded wives and mothers from many of those benefits. Within their sphere, though, married women’s legal prerogatives did increase. That was particularly true of child-related rights because the canons of domesticity demanded that husbands defer to their wives in household matters and submit to feminine moral guidance. Married women gained a foothold in the law primarily in the form of protection for their special domestic responsibilities in republican households. The rapid enactment in mid-century America of laws protecting married women’s property thus represented the demands to free all forms of wealth for use in the market and the desire to shelter women and children from dissolute husbands more than they did attempts to turn wives into independent legal actors. Many advocates of women’s rights acted from the same assumptions as did judges and legislators; they merely wanted to secure the tenuous and contingent new legal privileges by statute. Their demands embodied what Canadian historian Linda Kealey terms “maternal feminism”; that is, although these women protested the “private/female and public/male dichotomy that characterized much of nineteenth century middle-class life,” their critique of society did not include a total rejection of middle class values. Instead they advocated “a transferral of private/female ‘virtues’ into the public/male sphere.”
Declaration of Sentiments
” issued at the first women’s rights convention in 1848 assailed men for framing the law of child custody after separation and of guardianship in disregard of the “happiness of women — the law in all such cases going upon the false supposition of the supremacy of man, and giving all powers into his hands.” Thereafter, custody and guardianship figured prominently in every women’s rights meeting and political campaign.
An 1854 address to the New York legislature set forth the basic arguments advanced in support of equal custody rights. The petition pleaded for the special nurturing abilities of women: “There is no human love so generous, strong, and steadfast as that of the mother for her child.” It attacked the law for being “cruel and ruthless” because man, “in his inordinate love of power,” used it to defy nature’s command to give children to women.
Gamblers and rum sellers had more secure legal rights to their children than did mothers. “By your laws,” it concluded, “the child is the absolute property of the father, wholly at his disposal in life and at death.” Its authors demanded that the legislature give mothers a superior right to their children.
Unlike the incremental adjustments to parental custody and guardianship rights made by the judiciary, the mass campaign for maternal rights generated a mixed, often hostile reaction.
Demands for formal custody rights secured by statute often met a far cooler public response. When a woman demanded statutory custody and guardianship rights, she would be heckled.
Many opponents of women’s rights resisted all significant changes in the legal status of women, not just those such as suffrage that would have clearly extended feminine authority outside the home. Women’s rights advocates countered these charges with the twin themes of equity and motherhood. They demanded that the law consider motherhood the equal of fatherhood. In an 1877 address to voters and legislators, the New York State Women Suffrage Society denounced laws that treated married women “as criminals by taking from them all legal control of their children, while those born outside of marriage belong absolutely to the mothers.” Feminists were outraged by this disparity between the custody rights of mothers of illegitimate children and those of married women.
Little came of the feminist agitation for rights protected by statute. Indeed, the lure of judicial supervision was so strong that it eventually frustrated the movement’s early victories. New York, the seat of the most organized women’s rights effort, passed the first major reform act in 1860. It enlarged married women’s property rights and declared a wife to be the “joint guardian of her children along with her husband, with equal powers, rights, and duties in regard to them, with her husband.” The lawmakers retreated almost immediately, amending the act in 1862 to require that husbands had only to obtain their wives’ consent before appointing testamentary guardians or indenturing their children.
New York judges had much earlier integrated the legislation into their custody determinations so as to preserve, indeed augment, their own power to govern domestic relations. A state tribunal rejected a mother’s contention that the 1860 act gave her independent custody rights. The justices held that her rights could be exercised only in conjunction with her husband unless she proved him to be an unfit father and spouse. “The common law remains, except as modified by the joining of the wife with him.” Determining that she had failed to prove her estranged husband to be an unfit father, they denied her petition.
In 1900 only the District of Columbia and nine states gave mothers the statutory right to equal guardianship. Most American commonwealths continued to grant the father testamentary powers, though many had begun to insist on maternal consent to the choice. By refusing to formalize maternal custody privileges, legislators left the issue to the common law creations of the bench, ensuring that judicial judgments of parental fitness and child welfare, not statutes, determined custody rights. It was one more instance of a disposition to rely on judicial discretion to protect women. In an 1858 self-help manual, Every Woman Her Own Lawyer, attorney George Bishop explained that the law empowered the bench to “give custody to the party that, in the court’s judgment, is most competent to bring them up with advantage to the children themselves and benefit to society.” As Bishop’s explanation intimates, declining paternal rights were not automatically supplanted by maternal ones. On the contrary, the law reduced the rights of parenthood generally. Courts applied judicially created standards of child welfare and parental fitness in order to take the ultimate decision of child placement out of the hands of both parents. Those standards included the best interests of the child, tender years, established ties, and priority to the innocent party in separation and divorce proceedings. These rules often biased custody determinations toward mothers; as important, they made clear the extraordinary increase in the bench’s domestic authority.
The “tender years” rule is an apt illustration of the growing body of rules devised by the courts to enhance their new powers. It decreed that infants, children below puberty, and youngsters afflicted with serious ailments should be placed in a mother’s care unless she was proven unworthy of the responsibility. Under it, mothers gained a presumptive claim to their young children, as in an 1860 New Jersey codification of the judicial creation: “[T]he mother is entitled to the custody of her children under the age of seven unless it affirmatively appears that, in her custody, they would be exposed to either neglect, cruelty, or the acquisition of immoral habits and principles.” Nine years after the act’s passage it won the full endorsement of the state court of errors and appeals. The justices declared that “it is not the dry, technical right of the father, but the welfare of the child which will form the substantial basis of judgment.”
The tender years doctrine institutionalized Victorian gender commitments. After mid-century, courts extended the policy by insisting that daughters of all ages were best cared for by their mothers. An 1876 Alabama divorce decision explained the rationale for broadening the rule. A woman, whose name the court refused to divulge, sued for divorce charging cruelty. The court refused her petition, but accepted the fact that the pair would continue to live apart. Agreeing that the woman had sufficient cause to do so, and to have custody of her daughter, the justices proclaimed: “All must feel, that no greater calamity can befall an infant daughter, than a deprivation of a mother’s care, vigilant precept, and example. A mother’s sympathy and culture exerts an influence on her life and character, perceptible only in its results. Therefore courts are reluctant to deprive her of the custody of her infant daughter and but seldom if ever, do so, unless misconduct is imputable to her.”
The doctrine achieved, in part, what the feminist agitation for statutory reform had sought: the presumptive right of women (or at least, women judged to be fit) to the custody of children in need of maternal nurture. But it proved to be a double-edged sword for women, revealing the weakness of using the argument of maternal instincts as a foundation for women’s rights. Judges could, and did, award to fathers the custody of children deemed to need a “masculine” domestic environment. Courts often split custody by giving fathers the care of older sons and mothers that of daughters and younger children. The Virginia Supreme Court considered such an action necessary in one case because, after the “tender nursing period has passed,” it became time for the masculine duty of training a boy for life outside the home. Though the policy led to the separation of siblings, it was rooted in the widespread conviction that specific gender skills and responsibilities should be transferred from mother to daughter, from father to son.
The tender years doctrine required the courts to devise broad standards for maternal fitness, ones then used in all custody deliberations. Legislators thrust this role on the bench as well. An 1853 Pennsylvania act allowed judges to give women child custody when their spouses proved to be abusive or poor providers as long as the mother afforded the child “a good example.” Similarly, an 1895 code revision qualified equal child-care rights with the stipulation that a mother could exercise them only on the condition that she be “qualified as a fit and proper person to have the control and custody of said child.” Such acts not only put the issue back in the courts, but they indicated a wariness about maternal fitness that accompanied all legal extensions of married women’s sphere.
The courts resolved the question of what constituted a fit mother by relying on what had become a family-law fiction of the reasonable woman. The Supreme Court of Georgia used that standard in 1854 to refuse the custody demands of an adulterous mother. In response to her spouse’s petition for a writ of habeas corpus, she claimed that his cruelty and lack of financial support had forced her to flee with her daughter and take refuge with another man. The justices sustained a lower-court ruling that the child’s welfare would best be served by being returned to her father. They observed that while “there may be no difference in the sins of the man and woman who violate the laws of chastity,” in “the opinion of society it is otherwise.” Accordingly, when a man committed adultery, he did not automatically lose the respect of the community; his children would not necessarily be excluded from association with “decent people” and “may be educated to become good and useful members of society.” Adhering rigorously to the sexual double standard, the court reminded its audience that with “the frail female” the outcome was quite different. Having violated the marriage contract, the wife inevitably found herself reduced to “utter and irredeemable ruin, where her associations are with the vulgar, the vile and the depraved. If her children be with her, their characters must be, more or less, influenced and harmed by the circumstances which surround them.”
Economic dependency limited maternal rights under the bench’s fitness standards as well. legal changes that increased maternal rights could not overcome the economic reality of feminine dependence. Maternal preference consequently could be a hollow right or a ticket to genteel poverty. New economic rights, such as the married women’s property acts, only partially alleviated the plight of mothers intent on keeping their children.
Divorce and Custody Law
The most direct, and long lasting, impact of the refinements in custody law symbolized by the tender years doctrine came in divorce. The act itself became much more common for Americans of all classes during the latter part of the nineteenth century; horrified family savers considered it a primary source of household and thus social disarray. Tighter divorce codes, in tandem with more stringent marriage regulations, failed to stem the tide. During the last decades of the century, divorce rose at a rate of over 70 percent. By 1900 courts handed down more than 55,000 divorce judgments each year. No longer a mere partnership, over the course of the nineteenth century it became a bond based primarily on affection and thus one that would all the more easily disintegrate as feelings changed. By officially dissolving a marriage rather than informally separating, the parties freed themselves, in most states, to enter another union formally, and protected their property and domestic rights — including custody.
Divorce remained an adversary process in which one spouse sued the other claiming injury. The most widely used and sanctioned grounds were adultery, desertion, cruelty, and drunkenness. With the exception of adultery these generally were charges made by wives, and during the period women won a customary right to file for divorce. In the late nineteenth century, more than two-thirds of all divorces were granted to women; child-custody awards often accompanied those decrees.
By 1867, thirty-three of thirty-seven American jurisdictions had substituted judicial for legislative divorce. These grants of domestic authority to the bench included a large discretionary power to award custody. Though judges constantly reaffirmed their allegiance to paternal supremacy, they used assertions of equity and children’s welfare to equalize custody rights.
Fault became the major criterion for awarding custody. In an 1891 revision of his treatise, Joel Bishop argued that “because one who has done well or ill in the marriage relation will be likely to do the same in the parental, all courts lean palpably to the innocent parent in the divorce when determining the consequential custody of a child.” Because women had chivalrously been accorded a customary right to file for divorce, fault was a boon to maternal custody rights.
The Mississippi Court of Errors and Appeals articulated the rationale. Louisa Cocke had been granted a divorce after proving her husband John’s adultery, but no disposition of the couple’s three-year-old son had been made. Louisa remarried and John demanded the child, claiming a father’s paramount custody rights. The court denied his writ: “After divorce the welfare of the child is the governing consideration. By the misfortune of its parents, it must be deprived of the care and attention of both of them which were due it, and it generally must be committed to one of them. It would be most unjust both to the child and to the mother that it shall be committed to the keeping of an unworthy father, whose misconduct may have caused the divorce from the mother, thereby inflicting a double wrong upon her as well as an injury upon the child.” The legal right of the father was “at an end.” The “father should not be permitted, when his own violation of duty has produced a dissolution of the marriage tie, to deprive the mother of her child to which she was entitled by fidelity to the marriage vow.” Fault could also prevent men from regaining custody of their children in later hearings to modify divorce decrees.
As in all areas of family law, maternal rights deferred in divorce custody deliberations to the double standard. According to the Wisconsin Supreme Court, “a woman who has been guilty of adultery is unfit to have the care and education of children, and more especially of female children.” Jennie Crimmins had been divorced by her husband Thomas for adultery. In 1882 she sought access to her children, complaining that Thomas had not only won custody of their children, but also deprived her of visiting rights. A New York court piously proclaimed that by her act she had ceased to “have any right to the care, control, education, or companionship” of the children. It called the idea of forcing Thomas to admit her into the “purity of the family . . . repugnant to every assessment of virtue and propriety.” The judges lectured the now childless woman that a mother was usually granted custody rights on the “natural supposition that her virtues, and the affection which she has for children, qualify her for the discharge of this duty.” In her case, “the sins of her life” justly led to a denial of those rights.
However, Victorian morality sometimes yielded to judicial concern for child welfare. Another New York ruling awarded a mother custody in an adultery case: “[T]he right of the husband here to the custody of the child seems . . . to be absolute, unless the good of the children themselves requires some other disposition.” Judges could at their discretion invoke the tender years rule to nullify evidence of unfitness; the rule permitted the bench to distinguish a woman’s parental fitness from her marital errors.
Maternal Preference
By the last quarter of the nineteenth century, traditional paternal custody and guardianship rights had been superseded in America; judicial decisions and complementary legislation had established a new orthodoxy, maternal preference. The chances of mothers gaining control of their children were greatly enhanced, and late in the century they became even more secure as a result of the prolongation of childhood through compulsory schooling and the emerging concept of adolescence. However, within that modern law, the bench had the final authority to determine the fate of a child when its parents parted.
American custody law over the course of the nineteenth century thus had rearranged spousal rights. Mothers gained new powers as custody and guardianship rights became part of the new legal domain of married women. Through the best-interests-of-the-child doctrine and its off-shoots, women won the right to go to court, fight for and often obtain their children.
Custody, like many other legal policies, had rested on a view of the family as a community of interests governed by a male patriarch. The displacement of that ideal initiated many of the major domestic innovations of the century. Among other things, it ensured that parental fitness, not paternal rights, would be the focus of custody disputes and that judges would assume part of the paternal responsibility, formerly the province of the father.
Utah has its own divorce laws, and frequently each county within a state follows somewhat different procedures. For this reason, you would do well to get some straight legal information from an experienced Magna Utah divorce lawyer about how Utah laws and Magna court procedures may affect you personally. The visit will not obligate you to hire the attorney if you do not choose to.
No Gault Divorce
In January 1970, California became the first state in the nation to put into effect a “no-fault” divorce law. The concept of no-fault removed the traditional notion that one party is guilty and the other innocent in divorce. Either spouse could obtain a divorce without the consent of the other and without having to prove marital wrongdoing. Irreconcilable differences became satisfactory grounds in the eyes of the law. Since that time, virtually every state has passed some form of no-fault laws.
In general, continuing alimony (called spousal support or maintenance in many states) is also a thing of the past. Spousal support, when awarded, is usually temporary and designed to give a spouse time and opportunity to become self-supporting. Exceptions may be made in long-term marriages or when a spouse has poor employment prospects due to age or health. Each state has its own guidelines.
All states now have child support guidelines, which usually consider at least the parents’ incomes and necessary expenses. In most states, judges have discretion to consider other issues and modify the guidelines. States are now required by the federal government to take steps to enforce child support orders, and they are becoming increasingly aggressive in doing so. Wage attachments and parent-locator services are widespread. Some states withhold drivers’ licenses and professional licenses for failure to pay. Some states are prosecuting deadbeat parents. Although enforcement is improving, state laws are effective to varying degrees. The federal government is also getting into the enforcement business, now attaching income tax refunds.
How marital property is divided varies, once again, from state to state. Some states have community property laws, but the great majority have equitable distribution laws. Generally, in community property states each spouse is entitled to an equal share of the marriage assets, although in some states the court has discretion to consider other factors, such as marital wrongdoing, when dividing assets. Equitable distribution laws, at least theoretically, emphasize fairness rather than equality. Although these laws vary from state to state, common factors technically considered include the duration of the marriage, respective contributions to it, support awards, likely financial circumstances in the future, minor children, health, and age. In some states, marital misdeeds are also considered. Judges in equitable distribution states have a great deal of discretion, and there is wide agreement that the lower-wage earner generally receives far less than 50 percent of the marital assets in these states.
In most states, marital property includes assets acquired during the marriage up until the date of separation, regardless of who has legal title to the property.
The concept of the best interests of the child floats in meaning. In law it sometimes refers to the child’s right to basic nurturance and physical care or, at other times, the child’s right to economic and social capital. There is evidence, however, that law often narrows the child’s best interests to thin and one-dimensional affective intersubjective relationships. Contemporary American family law has overlooked how the integrative tradition helped to define the rights and best interests of the child in modern human rights law. An excellent case study is found in the CRC adopted in 1989 and ratified by all member states except the United States and Somalia and considered the definitive international document on children’s rights (including within the United States, a nation deeply involved in drafting the document although it has not ratified it).
The American Law Institute’s Principles of the Law of Family Dissolution reflects mainline legal thinking both in its approach to the rights of parents and children and in its alleged moral neutrality and commitment to family diversity. The report is famous for two salient moves relevant to parental rights and children’s rights and best interests. First, at the moment of family dissolution the report renders legal marriage and a range of cohabiting relationships equivalent before the law. Second, the report thinks about the rights and best interests of the child mainly from the angle of family disruption. Because of this, as noted previously, it views love and care largely as continuous of the child’s relationships with caregivers in order to minimize the stress to the child of family breakdown and change. To advance the best interests of the child at the time of family dissolution, the Principles promotes “predictability in the concrete, individual patterns of specific families.” In situations of family dissolution, the continued participation in the life of the child of parents by estoppel and de facto parents may be “critically important for the child’s welfare.”
This emphasis on the continuity of caretakers leads the Principles to formulate one of its strongest provisions: that dissolving families with children must file a “parenting plan” that outlines the role that parents (both biological and other caretakers) will take in the child’s life on legal rights, decision-making rights, visitation rights, where the child will live, and how to resolve conflicts.
There are, basically, two legal ways to end a marriage: divorce and annulment. Of course, there are also informal ways of ending a marriage. A man (less often a woman) can simply walk out into the night and never come back. This happens often enough; and it has a real impact on families. A couple that does not want to keep on living together can also decide, for whatever reason, to ask a court for a legal separation. In older sources, separation was often called “divorce from bed and board” (a mensa et thoro); and absolute divorce was called divorce “from the bonds of marriage” (a vinculis matrimonii). “Separation” is a better and less confusing term. A legally separated couple will live apart, still officially married, but often with the same kinds of arrangements a divorced couple might have, about custody, property division, and support for the dependent spouse.
Some couples separate, as a kind of prelude to divorce. They execute a separation agreement, to be incorporated into later divorce proceedings. Legal separation and annulment are substitutes for divorce— one quite feeble, the other quite powerful. Legal separations keep a thin version of a marriage alive. Annulments are hard to get (in theory). But if a marriage is annulled, both parties can remarry; indeed, this is usually the point of an annulment. Both annulments and legal separations appeal mostly to people with religious scruples against divorce—devout Catholics, very notably.
The legal story of divorce in the twentieth century was basically of how this dual system decayed—at first rather slowly, then, after 1970, in almost a helter-skelter rush. Change started with a bang, in 1970, when California enacted the first so-called no-fault statute. The statute got rid of the very word “divorce,” and changed its name to “dissolution of marriage.” It provided that a court “may decree” a dissolution if “irreconcilable differences” have caused the “irremediable breakdown of the marriage.” The reformers who drafted and lobbied for this law clearly intended that the court would not be a mere rubber stamp. The law defined “irreconcilable differences” as “those grounds which are determined by the court to be substantial reasons for not continuing the marriage.” This seemed to be asking the court to conduct some sort of hearing, and make some findings of fact. Indeed, the statute went on to say that “If from the evidence at the hearing, the court finds that there are irreconcilable differences,” it can order the dissolution of the marriage. The court could also continue the case for thirty days, if there was a “reasonable possibility of reconciliation.”
This is not really divorce on demand—at least not if you read the text literally. But as is so often the case, the text is no guide to what actually happened. Almost immediately, the hearings disappeared, the thirty-day continuances disappeared, the taking of evidence disappeared, conciliation disappeared. The statute came to mean simply this: if either party wanted out, and for any reason, the marriage was over.
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Utah divorce laws are complex. Although you can seek a divorce in Utah on no fault grounds, you need to submit the right forms to the court. Seek the assistance of an experienced Magna Utah divorce lawyer if you are seeking a divorce from your spouse. Besides the no fault grounds, Utah divorce law allows you to seek a divorce on various other grounds such as adultery, cruelty, abandonment, etc.
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If you have a question about divorce law or if you need to start or defend against a divorce case in Magna Utah call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with Divorce. Child Custody. Child Support. Alimony. Annulments. Prenups. Postnups. Guardianships. Conservatorships. Modifications of Decrees. Paternity Cases. And Much More. We want to help you.
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