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Who Determines Children's Best Interests?
Published online by Cambridge University Press: 28 October 2011
Extract
Danaya Wright's analysis of English child custody law is thoughtful and thought provoking. Through an excursion deep into English legal history, she not only contextualizes the De Manneville case but also convincingly demonstrates that child custody has long been contested and that those contests have always contained an incendiary mix of policies and practices. Wright's article documents that the key elements of custody conflicts—property, children's needs, and paternal and maternal rights and claims—have distinct and collective histories and that both defy easy analysis. In doing so, her essay makes it clear that these cases have always been difficult because they involve changing and clashing interests and because common law tribunals are the setting for their definition and application. Consequently, her essay is a compelling example of the benefits of locating a case in its particular place and time.
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- Forum: Comment
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- Copyright © the American Society for Legal History, Inc. 1999
References
1. Wright, Danaya C., “De Manneville v. De Manneville: Rethinking the Birth of Custody Law under Patriarchy,” Law and History Review 17 (1999): 250.CrossRefGoogle Scholar
2. Ibid., 257.
3. deMause, Lloyd, ed., The History of Childhood (New York: Psychohistory Press, 1974)Google Scholar. For a compelling recent analysis of the history of children, see Cunningham, Hugh, “Review Essay: Histories of Children,” American Historical Review 103 (1998): 1191–1208CrossRefGoogle Scholar.
4. Cited in Wright, “De Manneville v. De Manneville,” 293-94.
5. Ibid., 302.
6. See, for example, Lieberman, David, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (New York: Cambridge University Press, 1989)CrossRefGoogle Scholar; Tomlins, Christoper, Law, Labor, and Ideology in the Early American Republic (New York: Cambridge University Press, 1993)CrossRefGoogle Scholar.
7. For an assessment of American family law in these terms, see Grossberg, Michael. Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1985)Google Scholar.
8. Wright, “De Manneville v. De Manneville” 249, 248.
9. Grossberg, Michael, A Judgment for Solomon: The d'Hauteville Case and Legal Experience in Antebellum America (New York: Cambridge University Press, 1996), 97–100CrossRefGoogle Scholar.
10. Wright, “De Manneville v. De Manneville” 253.
11. For an American version of this argument, see Zainaldin, Jamil, “The Emergence of a Modern Family Law: Child Custody, Adoption, and the Courts, 1796-1851,” Northwestern University Law Review 72 (1979): 1038–89Google Scholar. For a different reading, see Grossberg, Governing the Hearth, chap. 7.