Child custody determinations have had a roller coaster history, reflecting the jagged evolution of the American family. Virginia custody law rode on the same roller coaster, with some distinct regional differences.

The Colonial Period and the New Republic

Indentured Servants, Orphans and Slaves

In 1620 the Virginia Company complained to Sir Robert Naunton, principle secretary of James I, that London street children were unwilling to be sent to Virginia colony as apprentices.

“The City of London have by act of their Common Council, appointed or hundred children out of their superfluous multitude to be transported to Virginia: there to be bound apprentices for certain years, and afterward with very beneficial conditions for the children. . . . Now it falleth out that among those children, sundry being ill disposed, and fitter for any remote place than for the city, declare their unwillingness to go to Virginia, of whom the City is especially desirous to be disburdened, and in Virginia under severe masters the may be brought to goodness.”

In response, the English Privy Council granted the Virginia Company permission to do whatever necessary to force the children into the ships.

“And if any of them shall be found obstinate to resist or otherwise to disobey such directions as shall be given in this behalf, we do likewise hereby authorize such as shall have the charge of this service to imprison, punish, and dispose any of those children . . . and so to ship them out for Virginia with as much expedition as may stand with conveniency.”

This exchange of letters between the Virginia Company and the Privy Council suggests several important facts regarding children and custody in the colonial era. First, the Virginia Company was desperate for child labor and went to great lengths to import unwilling youths. Second, while it is not clear whether or not they had parents, these children certainly emigrated without them and were placed in the custody of the masters to whom they were apprenticed. And third, neither the Virginia colonists nor the English showed any concern for the best interests of these children, nor, for that matter, for basic due process before punishment—rights guaranteed adults but apparently not children.

Children who came to America as indentured servants without parents were an important part of the story of the colonies’ settlement. More than half of all persons who came to the colonies south of New England were indentured servants, and, most of these servants were less than 19 years old. The average age was between 14 and 16, and the youngest was six.

By contrast, most children who came to the New England colonies did so as a member of a family. While most children were not forcibly imported to the New World without parents, separation from parents and forced labor were common in all the colonies. Children were critical to the colonial labor force; often children of 10 were employed like adult workers, and many, if not most, did not remain in the custody of either parent until adulthood.

While some came to the colonies without parents, many others lost both parents through death or abandonment. Parents very often apprenticed or sent out their children to serve another family around age 10. Children born out of wedlock were routinely separated from their mothers upon weaning and “bound out” to a master. Slave children, who comprised about 20% of all children by the end of the 18th century, could be sold away from their parents at any time. Sentimentality about children and childhood, which bloomed in the 19th century, was nearly absent in this practical, struggling era.

In the hierarchical structure of the colonial household the relationship between child and father overlapped the relationship between slave and master. The harsh manner in which colonists treated children reflected the English tradition. Colonial family law and employment law were still firmly tied to their English origins. Common law relating to indenture contracts for children, custody following divorce or the death of a parent, and the disposition of orphans and children born out of wedlock traversed the ocean virtually unchanged. Sometimes these laws were modified in practice by the colonists. For the most part, however, these laws were well suited to the New World experience, where the demand for labor exceeded the available supply of adult workers. These laws did not formally change until the 19th century.

Only the unique experience of slavery created custodial arrangements for children that were unknown to common law. Slave children could be bought and sold, not merely apprenticed for a fixed period of time. In several southern colonies in the 18th century slaves, comprised half or more of the population. On large plantations, slave children comprised the great majority of children.

In the 17th century, however, New England and the Chesapeake colonies were similar in many respects with regard to family. Both performed the same dual functions of socialization and economic production, and both were most likely to be nuclear rather than multigenerational. Yet, they were demographically quite distinct. New England was settled mostly by families, who, with the exception of a few notable epidemics, enjoyed good health and relatively low infant mortality. The New England household, therefore, was more likely to comprise a mother, father, and several biological children, with the addition of one or two servants or apprentices.

By contrast, the Chesapeake colonies were settled mostly by single people, usually male and under 21. More than half of the settlers came as indentured child servants without parents. These colonies were a “death trap” for early child immigrants and were not conducive to infant survival. By one estimate as many as one-fourth to one-third of all children died before their first birthday, and 45% to 55% died before their 20th birthday.

Most children who survived could expect to lose one or both their parents by the time they reached adulthood. These factors contributed to smaller, and less stable, households that could include orphans, stepbrothers and sisters, half-brothers and sisters, as well as children who immigrated as indentured servants. The head of the household may have been an uncle or stepfather, not necessarily the biological father of any of the children.

As a production unit, the household in both the New England and Chesapeake colonies was arranged in a system of hierarchical mutual obligations. The father/master, clearly at the pinnacle of the hierarchy, was obliged to provide adequate sustenance, vocational training, and, with some variation between the colonies, rudimentary education and religious training to all children (except slave children) in his custody. The mother was obliged to assist him in these tasks.

Children were obliged to be obedient and to provide labor as fit their age and legal status. The labor of a child, even a non-slave, was a commodity that could be sold or hired out by fathers and assigned by masters. Slave children, like their natural parents, were sold as a chattel. All children were looked upon as current or potential economic producers. In the labor-hungry colonies, small hands could not be idle.

Mothers: Reverence and Respect

While religion preached reverence and respect for mothers, they had almost no rights under the law. If the father died, the child was considered an orphan. He or she could be sent by the Orphans’ Court to another family member or to a stranger who could support the orphan if the mother or her family could not. Divorce in the southern colonies was not recognized. Blackstone stated the English common law simply: the father had a natural right to his children and the mother “was entitled to no power [over her children], but only to reverence and respect.”

The Best Interests of the Child—1870-1950

The Rise of Mothers

The second major historical era, which introduced the doctrines of “best interest of the child” and “maternal preference,” held sway roughly from the last half of the 19th century through the first half of the 20th century. This drastic swing in the status of mothers and children was precipitated by a shift in the household economic structure during the 19th century. America gradually changed from a self-sufficient farm economy into an industrial nation. The “modern” family evolved as fathers moved out of the house to work in factories and offices and mothers took their place as heads of the domestic scene. Some children who 100 years earlier would have been put to work as soon as possible, now, for the first time, experienced a childhood as we have come to know it, focused on school and play.

The Invention of Childhood

Children at this time were no longer slaves or indentured servants. While some children were sent to work in factories and many children still worked on farms, but for growing numbers of young people, childhood became a way of life. Children who lost their parents were now placed in what was considered a great leap forward, the orphanage. In these institutions, they were schooled and treated as children, rather than being placed in a poorhouse with adult vagrants or recycled back into the labor force as apprentices.

Children and childhood were not actually invented in this era, but they were thought of quite differently than before. Children were now seen as tender creatures that required nurturing, rather than creatures whose innate evil tendencies must be curbed with a strong hand or a stick. And it was the mother, at home alone now with the children, who was seen as the nurturing parent, the parent who most determined a child’s development.

Although divorce was still rare, with some slight regional differences judges in all parts of the growing nation shared the same emerging middle-class values about the role of the family, the need for child nurturing, and especially, the moral and religious capacities of women as mothers.

As a judge pronounced in People ex rel. Sinclair v. Sinclair (91 App. Div. 322, 325 (N. Y. 1904):

“As Nature has devolved upon the mother the nurture and care of infants during their tender years … At such periods of life courts do not hesitate to award the care and custody of young infants to the wife as against the paramount right of the husband where the wife has shown herself to be a proper person and is able to fully discharge her duty toward her child.”

The Modern Family (1950-present)

In consideration of the new emphasis on children and childhood, the term “the best interests of the child” has been used continuously from the mid-19th century to the present in relation to children and custody. Its interpretation, however, has reflected frequently shifting public values. During the last third of the 20th century and the first two decades of the 21st century, this term has taken several distinct turns in how Americans perceive a child’s interest in the event of the breakdown of the family.

In this era, Virginia, along with many other states sometimes took a different interpretation on the “best interests of the child” than did states who began to recognize new family configurations.

Divorce

In the 1950s and early 1960s, it was common wisdom that children were almost always best off in an intact family. Parents, it was believed, must sacrifice their own happiness and avoid divorce in “the best interests of the children.” By the 1970s it became accepted dogma that children were happy only if their parents were happy and that divorce was preferable to an unhappy marriage. Divorce became far easier with the addition in many states of a “no-fault” divorce option, but with regard to child custody the maternal preference was still largely intact.

Beginning in the 1980s, joint physical custody began to be promoted as a way of giving children access to both parents while allowing the parents freedom of divorce. Social scientists played a key role in validating the shift. Joint custody became the new standard of what was considered “in the best interests” of the child. Custody guidelines and public attitudes turned rapidly turned in this direction.

New Family Configurations

By the advent of the 21st century, other family configurations began to challenge the “best interest of the child” standard. As the percent of children born out of wedlock edged toward 40%, the rights and obligations of unwed fathers drew increasing attention. Gay and lesbian couples, now politically active, vied for recognition of their family status, promoting new psychological investigations into what “healthy families” looked like, and what rights a non-biological parent could claim. Non-biological parents also fought for recognition as stepfamilies, relatives, and other caretakers began to advocate for custody and visitation.

These custody issues were difficult for all states, but generally the southern states took a more conservative approach. A case that drew national attention originated in Virginia in 1993. A court awarded custody of a child to the grandmother instead of the mother, primarily because the mother was a lesbian. In April 1993, Kay Bottoms sued her daughter, Sharon Bottoms, for custody of her son, Tyler Doustou. On April 5, 1993, judge Buford Parsons ruled that, since homosexual sex was illegal in Virginia, Sharon Bottoms was a criminal because she “admitted in this court that she is living in an active immoral relationship.” Parsons wrote that “the mother’s conduct is illegal. . . . Her conduct is immoral and . . . renders her an unfit parent.” The appellate court reversed the ruling, but it was re-instated by the Virginia Supreme Court. (457 S.E.2d 102 (1997)).

Conclusion

Times change quickly and attitudes toward child custody generally reflect the changing culture. The roller coaster of child custody determinations will no doubt continue in Virginia and elsewhere.


Further Reading

W. Beales, “The Child in Seventeenth-Century America” in Joseph M. and N. Ray Hiner, eds. American Childhood: A Research Guide and Historical Handbook (Westport CT: 1985).

Robert Bremner, Children and Youth in America.(Cambridge: Cambridge University Press, 1970).

Mary Ann Mason, From Father’s Property to Children’s Rights: The History of Childhood in the United States (New York: Columbia U. Press, 1994)

Mary Ann Mason, The Custody Wars (New York: Basic Books, 1999)

Mary Ann Mason, “Whose Child? Parenting and Custody in the Postwar Period,” in P. Fass and Michael Grossberg, eds. Re-Inventing Childhood After World War II (Philadelphia, PA: University of Pennsylvania Press, 2012)

Richard B. Morris, Government and Labor in Early America (New York,1946)


Mary Ann Mason is professor and co-director of the Center for Economics and Family Security at the University of California, Berkeley, School of Law.

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