The following is an excerpt from Bax’s The Legal Subjection of Men (1896)
CUSTODY OF CHILDREN
It has always in England been laid down as a fundamental law based on public policy, that the custody of children and their education is a duty incumbent on the father. It is said to be so fundamental that he is not permitted to waive his exercise of the right by pre-nuptial contract. (See the Agar v. Ellis Case.)
This rule of the Common Law of England is of course in harmony with the policy of all Europe and Christendom, as well as with the historic conditions of the European social organisation, if not with the primal instincts of the race.
Nevertheless, fundamental and necessary as the rule may be, the pro-feminist magistrates and judges of England are bent apparently on ignoring it with a light heart. They have not merely retained the old rule that the custody of infants of tender years remains with the mother until the child attains the age of seven. But they go much further than that. As a matter of course, and without considering in the least the interests of the child, or of society at large, they hand over the custody and education of all the children to the litigant wife, whenever she establishes –an easy thing to do– a flimsy and often farcical case of technical “cruelty.”
The victim husband has the privilege of maintaining the children as well as herself out of his property or earnings, and has the added consolation of knowing that they will brought up to detest him.
Even in the extreme case where a deserting wife takes with her the children of the marriage, there is practically no redress for the husband if in narrow circumstances. The police courts will not interfere. The divorce court, as already stated, is expensive to the point of prohibition. In any case the husband has to face a tribunal already prejudiced in favour of the female, and the attendant scandal of a process will probably have no other result than to injure his children and their future prospects in life.
– Ernest B. Bax, The Legal Subjection of Men (1896 p.16)
The above passage describes the practice of child custody in England. For a comparison of American child custody law during the 1800s, see:
– The Maternal Preference
– The Maternal Preference in Nineteenth Century American Law
