An Overview of the Current ART, the Dilemmas They Surface, and the Role of DLPBA in the Positive Law

The last few decades have witnessed dramatic changes affecting the institutions of family and parenthood. If, in the past, the classic family was defined sociologically as a pair of heterosexual parents living together under one roof along with their children, different sociological changes have led to a rapid and extreme transformation in the definitions of family, marital relations, parenthood, and the relationship between parents and children. Dr Yehezkel Margalit explores whether and to what extent there is room, legally and ethically, for the use of modern contractual devices and doctrines to privately regulate the establishment of legal parentage. This book offers intentional parenthood as the most appropriate and flexible normative doctrine for resolving the dilemmas which have surfaced in the field of determining legal parentage. By using the certainty of contract law, determining the legal status of parenthood will be seen as the best method to sort out ambiguities and assure both parental and children rights.

Determining Legal Parentage: Between Family Law and Contract Law

Editorial for Transformative Works and Cultures, No. 10, special issue, "Transformative Works and Fan Activism."

Up, up, and away! The power and potential of fan activism

Marital Violence: Abbreviations and conventions

This book exposes the 'hidden' history of marital violence and explores its place in English family life between the Restoration and the mid-nineteenth century In a time before divorce was easily available and when husbands were popularly believed to have the right to beat their wives, Elizabeth Foyster examines the variety of ways in which men, women and children responded to marital violence For contemporaries this was an issue that raised central questions about family life: the extent of men's authority over other family members, the limitations of women's property rights, and the problems of access to divorce and child custody Opinion about the legitimacy of marital violence continued to be divided but by the nineteenth century ideas about what was intolerable or cruel violence had changed significantly This accessible study will be invaluable reading for anyone interested in gender studies, feminism, social history and family history

Marital Violence: An English Family History, 1660-1857

This article attempts to show that the inter-spousal custody cases of the nineteenth century created such a crisis in equity that they eventually demanded a new court structure and a new set of legal doctrines. The custody cases posed such a profound threat to the stability and authority of the Chancery courts that within fifty years an entirely new court system was required. That court system combined the tripartite jurisdictions of the law, equity, and ecclesiastical courts in matrimonial matters. While many scholars and historians have applauded that moment, I would suggest that the new court was merely a way to solve the legal and jurisdictional problems without improving the rights or status of women and children. We can see this by observing the arguments and wishes of the women reformers who wanted a complete separation of marital and maternal duties. Instead, by creating an interdependent court with interdependent rules, women were forced to adhere to traditional patriarchal patterns of behavior. Children became the reward, but at what cost? Women were expected to accept the sexual double standard, they still had to prove their husband's unfitness and their own fitness to defeat the paternal presumption, and they would lose custody if they deviated even slightly from the most subordinate and traditional behavior. By understanding the role played by child custody disputes in the creation of the unified family law courts, we can begin to unpack the way in which contemporary family law contributes to the subordination of women in our own day and age.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2682816_code1128191.pdf?abstractid=2673595&mirid=1

The Crisis of Child Custody: A History of the Birth of Family Law in England

In 1804 Leonard De Manneville, a poor French emigrant to England, forcibly entered his wealthy but estranged wife's house, wrenched his eight-month-old daughter from her mother's breast, and absconded with the naked child in an open carriage in inclement weather. When Mrs. De Manneville applied to King's Bench for a writ of habeas corpus, Lord Ellenborough affirmed what he claimed was the well-known rule—that a father was entitled by law to complete custody and control over the children of a marriage and could even prohibit all access by a mother to her children. Frustrated by the law courts, Mrs. De Manneville turned to the self-proclaimed champion of the oppressed, the equity courts, only to find that equity would not interfere with a father's right to custody unless the child had property and was in immediate danger of life and limb. Lord Eldon agreed that “the law is clear that the custody of a child, of whatever age, belongs to the father.” Because Mrs. De Manneville refused to sign over property in her separate estate or execute a will in his favor, her angry husband threatened to prohibit his wife from ever seeing the child again and even to remove the child to France. The law supported his right to carry out his threats.

De Manneville v. De Manneville: Rethinking the Birth of Custody Law under Patriarchy

This article looks at the period leading up to and immediately following the first inter-spousal custody case in England. The article attempts to explicate the legal and social context in which that case arose, and the legal and social responses to that case and those that followed. In particular, I found that the history of English custody law is a rather complicated one. In the late seventeenth and early eighteenth centuries people began challenging the heretofore unquestioned rights of fathers to absolute custody of their legitimate children. These challenges were uniformly made by third parties and in most instances the father lost because he was either failing to support his children, had physically abused them, or had voluntarily relinquished their custody to others. During the same period, mothers were gaining some recognized legal rights to their children in cases against third parties, usually testamentary guardians appointed by deceased fathers. Thus, when it came time for the first custody case between two arguably fit parents, the question was open as to whether mothers' rights would be recognized. As it turned out, a very conservative court effectively precluded any rights by mothers to custody of their children except where the child was in danger of life and limb, a standard that was even harsher than the one applied when third parties challenged fathers. This patriarchal backlash is the subject of the article. As I detail the handful of cases between 1804 and 1839 that litigated inter-spousal custody disputes I show that each time a mother was the plaintiff she lost. And each subsequent case reveals an attempt by litigants to correct what the court claimed in the prior case kept the mother out. So where the DeManneville court gives custody to the father on the grounds that the mother is still married and therefore, under coverture, cannot challenge her husband in a custody suit, in the next case the parties were separated. But in that case the court came up with a different reason why the mother should lose. And when that reason was resolved in a later case, the court would come up with an even different reason. What I conclude from these legal maneuverings is that the courts simply didn't want to open the domestic can of worms by allowing inter-spousal custody disputes. But in their efforts to discourage them, they created a law that was so rigid and unreasonable that parliament had to step in and ameliorate the situation of innocent mothers. Unfortunately, the parliamentary reform was not particularly effective and judges continued, between 1839 and 1857, to give custody to fathers unless they failed the life and limb standard. What we find in this legal history is a tension between the chancery's equity jurisdiction to ostensibly make decisions in the best interests of children and their deeply ingrained beliefs in the primacy of property and patriarchy in the legal doctrines they upheld. On one level I challenge the numerous histories that depict the nineteenth century as a period of improving status for women by showing that there appeared to be a patriarchal backlash in the first half of the century dealing with the laws of custody of children. But I am also interested in revealing how legal discourse subtly shifts to defuse the claims of the oppressed without, in reality, yielding any ground or viable legal rights. For a continuation of this history through the 1857 Matrimonial Reform Acts and the 1886 Guardianship Acts, see my dissertation: "From Feudalism to Family Law: Inter-spousal Custody Disputes and the Repudiation of Mothers' Rights," Johns Hopkins University, Nov. 1998.

DeManneville v. DeManneville: Rethinking the Birth of Custody Law under Patriarchy

Table of ContentsI. Introduction 1316II. The Colonial Context and Competing Legal Authorities 1320III. The British Feminist Reform Movement and the Civilizing Mission 1324IV. Reforms in Age of Consent Law 1326V. Widow Remarriage, Reversions, and Dower Reforms 1332VI. Abortion and Female Feticide in Post-Colonial India 1338VII. British Feminists, Colonial Authorities, and Native Elites Negotiate the Female Body 1345I. IntroductionPre-colonial India was characterized by a pluralistic and fragmented cultural, religious, and political structure in which there was no monolithic Hindu, Muslim, or Christian authority.1 Multiple tribes, castes, sects, and family groupings crossed religious and political lines, creating a heterogeneous population that may have had a definite notion of authority but no corresponding notion of legality.2 Much of the law of the period was customary, with adjudication within segregated communities, which gave rise to a common interpretation by outsiders that pre-colonial India lacked law altogether.3 When the East India Company acquired the right to collect revenue in Bengal, Bihar, and Orissa in 1765, the company had to devise a new political and legal structure for the newly-acquired dominions.4 British colonial rule in India began primarily as a political expedient through this quasi-private entity, the East India Company, to reap the benefits of imperialism without setting up a fully functioning sovereign state.5 Colonial rule changed dramatically after 1858, when the company's rule was replaced by the Crown as the legal sovereign.6 Throughout the Victorian period, colonial authority was largely premised on an ideology of the civilizing mission, both in Indian and English terms.7 Within India, the company claimed legitimacy through its mission of defeating and replacing the Mughal rulers, who had been the source of aristocratic power and succession.8 Legitimacy was gained for the English population at home through the self-proclaimed role of "civilizing" the natives by initiating reforms which represented the enlightenment spirit of the British, the harbingers of progress and modernity.9After the transfer of power to the English Crown in 1858, there were two competing groups vying for political and legal legitimacy within India: the British colonial authorities and the native male elite.10 In the ebb and flow of political bargaining, the colonial governors generally ceded authority in family law matters to the customary and/or canonical law ofthe dominant religions, which had already gathered together groups that, in pre-colonial times, might not have accepted the authority of a monolithic Hindu or Muslim creed.11 Negotiating those relationships and situations that would be governed by Hindu or Islamic law or would be governed by the secular (though clearly Christian) colonial law was a difficult task throughout the Victorian era.12 In somewhat simplified terms, both the British interpretation of India as a society driven by religion and their own description of its glorious past compelled the colonial authorities to accommodate traditional/religious laws of the religious communities within their efforts to secularize and "enlighten" Indian society. On the other hand, this glory of the ancient Indian past was utilized by the Indian elite to discourage the logic of the civilizing mission. The civilizing mission was deemed a way of emasculating Indian men by asserting that they were not capable of taking care of their own women.13This tussle over legal and political power between the native elites and the colonialists was fought on the backs of Indian women because it was the alleged degraded position of Indian women and the barbaric actions of Indian men that justified the colonial mission in the first place. …

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The Legacy of Colonialism: Law and Women's Rights in India

Ask--may the victim of a hasty vow Ne'er seek release nor remedy? Ah no! A maiden once enclosed in nuptial ties Must wear her fetters till she sins or dies; And suffer as she may, within these bounds, No cure for sorrows and no balm for wounds. Such finished torture England's code can boast; A formal framework, which at woman's cost, Flings a disguise o'er ruthless tyranny, And drugs men's conscience with a special tie. (1) Harriet Grote (1853) I. INTRODUCTION In 1856 the House of Lords engaged in extensive debates over the introduction of a bill that would reform the law of divorce in England. (2) Numerous critics of the law complained that the cost and complexities of jurisdiction foreclosed the remedy to the poor, while many women complained that the dual standards for obtaining a divorce were unfair to women. To get a divorce, a husband (and it was only husbands) had to bring a criminal conversation action against his wife's lover and get an award of damages, obtain a legal separation in the ecclesiastical courts, then petition both Houses of Parliament for a separate bill of divorce allowing him to remarry. (3) The total cost could easily surpass [pounds sterling]1,000. A woman generally could not get a divorce, nor could she sue her husband's mistress for alienation of his affections. (4) She could only obtain a legal separation in the ecclesiastical court that gave her no right to remarry, and any alimony order out of the ecclesiastical court was unenforcea ble without a petition for enforcement in the Royal Courts. It was not unexpected, therefore, that during a period of intense law reform, Britons would challenge the unwieldy and uneven laws of divorce. (5) In the 1856-57 debates, Parliament focused primarily on two issues: simplifying the process in order to make justice available to a wider class of litigants and equalizing the rights of husbands and wives to seek absolute divorce. In the end, a bill was passed in 1857, to take effect January 1, 1858, establishing a unitary court with jurisdiction over all matrimonial matters, thus expanding the court's availability to a greater percentage of the population, (6) though still not bringing justice to the poor who could not afford the fees or the trip to London where the court sat. Furthermore, in a compromise between those who wanted the law to imitate the Scottish law of divorce granting both husbands and wives equal rights to seek divorce, and those who wanted to entirely foreclose the possibility to wives, the final bill granted husbands the right to an absolute d ivorce upon evidence of mere adultery by their wives, but wives needed to prove aggravated adultery to petition for the same remedy. (7) This law stood relatively unchanged until 1937 when desertion, cruelty, habitual drunkenness, and incurable insanity were added as fault bases that stood alone. (8) The 1857 bill also included a provision granting the new court jurisdiction to make interim and final orders regarding the custody of any children of the marriage. The bill further provided that upon receiving a judicial separation, (9) a wife's property, wages, and inheritances would be held to her own private use as if she were a feme sole. (10) The bill effectively combined the jurisdiction of the ecclesiastical courts over marital disputes with the jurisdiction of the law courts over property, the jurisdiction of Parliament over absolute divorces, and the jurisdiction of the equity courts over custody of children and equitable estates, locating them all in a new court operating as a wing of the probate courts with appeal to a bench of at least three justices from the Court of Arches, the Queen's Bench, Common Pleas, the Admiralty Court, and the Chancery. (11) This divorce reform bill has been identified by scholars as critical in improving the status of women. (12) It has been credited with the institutionalization of domesticity and separate spheres. …

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Danaya C. Wright

Papers

The Crisis of Child Custody: A History of the Birth of Family Law in England

De Manneville v. De Manneville: Rethinking the Birth of Custody Law under Patriarchy

DeManneville v. DeManneville: Rethinking the Birth of Custody Law under Patriarchy

The Legacy of Colonialism: Law and Women's Rights in India

The Crisis of Child Custody: A History of the Birth of Family Law in England