As part of a post-revolutionary revision of Virginia’s laws in 1785, led by Thomas Jefferson, the state’s lawmakers transformed the law of illegitimacy. The new laws gave illegitimate children family status for the first time in Anglo-American law by creating legal bonds between mothers and their offspring. Judges then cemented those bonds by granting unwed mothers to right to custody of their children. The innovation quickly spread around the new republic, spurred by the conviction that the law should not punish children for the sins their parents.
Changes in American child custody laws like this one continued long after the fervor of the revolution faded. They did so because a dynamic relationship emerged between the law and shifting conceptions of childhood, parenthood, and the legal regulation of the families. That relationship can best be understood by chronicling key periods of change in Virginia and other states.
Creating Custody Law for American Children, 1780-1860
Americans inherited British custody laws dominated by patriarchal rights and aristocratic interests. However, as the Virginia revision of illegitimacy law suggests, child custody law was transformed across the expanding United States after the revolution. Under American federalism, states had primary jurisdiction over children and families so transformation took place state by state. It also occurred principally in courtrooms as parents battled over their children. Instead of a envisioning the family as a miniature domestic state led by a patriarch, as did British and colonial law, these custody fights revealed a new understanding of the family as a private haven for marital fulfillment and child nurture. Within that family ideal, the twin belief in: 1.) children as more autonomous beings with their own needs and interests; and 2.) mothers as naturally endowed child caretakers undermined the foundations of existing custody law, particularly the traditional superiority of paternal custody rights.
As parental fights over children erupted in courtrooms around the country, state judges took the lead in changing custody law to express these new understandings of women and children. Their most important creation was a new legal doctrine or governing principle: the “Best Interest of the Child” rule. This standard became the foundation for child custody law into our own time. The new rule gave legal recognition to the rising belief that children has separate interests recognizable by law and that a judicial determination of their welfare should determine the outcome of custody clashes.