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On Judicial Agency and the Best Interests Test

Published online by Cambridge University Press:  28 October 2011

Extract

I am grateful to Eileen Spring and Michael Grossberg for their thoughtful comments on a study that has occupied my life for the past five years, and which has finally been produced in a more detailed form as my dissertation. Unfortunately, many of their comments point to gaps, in the best interests standard and comparisons with U.S. law for instance, that are taken up in the longer study. But if I could put my entire dissertation into a single sentence, it would be that a history of English custody law reveals profoundly different commitments on the part of judges to protecting mother's rights and to recognizing some form of a best interests test as social conditions changed, and that the patriarchal moorings of custody law remain with us today as we try to solve the deeply problematic issues raised for a legal system that still pits parental rights against children's welfare. Grossberg and Spring both point to the issue of judicial agency that I grapple with in my article and I will briefly address a few points on that topic. Then, rather than address their comments individually, I would prefer to suggest some of the conclusions I draw in the larger study and make connections to what is presented here.

Type
Forum: Response
Copyright
Copyright © the American Society for Legal History, Inc. 1999

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References

1. Wright, Danaya C., “From Feudalism to Family Law: Inter-Spousal Custody Disputes and the Repudiation of Mother's Rights” (Ph.D. diss., Johns Hopkins University, 1998)Google Scholar.

2. Spring, Eileen, “Child Custody and the Decline in Women's Rights,” Law and History-Review 17 (1999): 317CrossRefGoogle Scholar.

3. Twiss, Horace, The Life of Lord Chancellor Eldon (London: Murray, 1844), 1:477.Google Scholar

4. Ibid., 383.

5. Matrimonial Causes Act (1857).

6. Cooke v. Cooke, 32 LJPMA 187, 191 (1863).

7. Re Besant, 48 L.J. Ch. 497, 11 Ch.D. 508 (1878).

8. Session Cases, 8 M 821 cited in The Law in Relation to Women,” The Westminster Review 128 (1887): 705.Google Scholar

9. See Handley, Edwin Hill, “Custody of Infants Bill,” British and Foreign Review 7 (1838): 281Google Scholar. “What madness then and atrocious wickedness it would be to take away, not merely the least, not merely one out of a number, but the greatest, the last, the only remaining bar against the outbreak of ever-tempting lusts, and then hope that they will afterwards restrain themselves on account of your impotent good wishes, and unheeded sermons, and vain regrets! As well might you expect, when you have unbarred the cages of so many wild beasts, that they will remain quietly in them at the wish of their keepers!”

10. Hartog, Hendrik, “Marital Exits and Marital Expectations in Nineteenth-Century America,” Georgetown Law Journal 80 (1991): 97.Google Scholar

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