The American invention of child support:
dependency and punishment in early American child support law.
In modern American politics, 'child support' is almost
always mentioned in the same sentence as 'welfare reform.' When the Clinton
Administration dramatically overhauled the nation's welfare system during the
summer of 1996,(1) politicians from both parties
praised the new law's child support provisions. President Clinton hailed the
possibility that child support enforcement might shrink welfare rolls. "If
every parent paid the child support they should," he said at the news
conference following the signing of the bill, "we
could move 800,000 women and children off welfare immediately."(2) At the
parallel Republican press conference, Representative Jennifer Dunn pointed out
that nonpayment of child support was a major cause of welfare dependency.
Reminding her audience that over thirty billion dollars in court-ordered child
support payments goes uncollected, she asked: "What happens when that money is
not paid? The children and the mother go on welfare. And so the taxpayer
becomes in effect the parent of those children."(3)
The villain in the child support reform story is the 'deadbeat
dad' who does not pay child support. In a speech in Denver one week before he
signed the welfare bill, President Clinton assured his audience that nonpayment
of child support was a serious crime, comparing it to robbing a bank or a
7-Eleven store.(4) In a final cascade of warnings to 'deadbeat
dads,' the President said: "[I]f you owe child support, you better pay it. If
you deliberately refuse to pay it, you can find your face posted in the Post
Office. We'll track you down with computers.... We'll track you down with law
enforcement. We'll find you through the Internet."(5)
These remarks by President Clinton and Representative Dunn
illustrate two aspects of the modern American political discourse about child
support. First, child support enforcement is an anti-dependency measure.(6) Politicians want to enforce child support orders
because they are worried that the country is spending too much money on welfare
and because they think that increasing child support collections will lower
poverty rates among single mothers. Second, nonpayment of child support is a
serious crime that should be punished by the criminal law. Americans today
conceptualize child support in terms of preventing dependency and in terms of
punishing those who 'cause' dependency.
These preoccupations have important practical consequences
for the functioning of the American child support system. Consistent with a
focus on preventing dependency, child support awards in America are often just
high enough to enable a single mother to avoid welfare, but not high enough to
ensure that her children obtain an adequate standard of living.(7) However, one
need not think about child support solely in terms of preventing dependency.
One could imagine, for example, a child support system with a stated goal of
providing an adequate standard of living for children of any economic status.
The practical consequences of this shift in mindset might be the institution of
higher child support awards and the expansion of governmental supports for all
parents with young children perhaps something along the lines of the $500 per
child tax credit enacted in 1997.(8)
Similarly, a focus on punishing 'deadbeat dads' need not
drive the American understanding of how to make it easier for single mothers to
raise their children. Certainly, fathers should be made to contribute to their
children's upbringing; but some fathers do not have the financial ability to
pay more than trivial amounts of child support.(9) A
narrow focus on punishing nonsupporting fathers without any measures to make it
easier for poor fathers to make regular child support payments might be an
appealing symbolic way to enforce personal responsibility, but it does little
to promote the welfare of American children.
This dependency-punishment framework is not the only way
that we could think about child support. We could, for instance, take national
responsibility for child support in the way that we take national
responsibility for the care of the elderly through programs such as Social
Security and Medicare.(10) But while the United States government assists
families with childrearing costs in a variety of ways through the tax exemption
for dependents,(11) for example, and through the Earned Income Tax
Credit(12)--America lacks a serious national commitment to ensuring that all
children receive adequate economic support.(13)
Why do Americans think that child support should be
governed by concerns about dependency and punishment? In this Note, I argue
that our current dependency-punishment framework for understanding child
support is rooted in the invention of a legally enforceable child support
obligation by American courts in the nineteenth century.(14)
Early American child support law developed in two phases. In the first phase,
nineteenth-century American judges invented a civil child support obligation
because of their concerns about dependency among single mothers and their
children. The judges who created a child support obligation were motivated both
by a desire to help needy single mothers and by a belief in conserving the
poor-relief system's resources by shifting the responsibility for aiding these
families onto nonsupporting fathers. In the second phase, many states in the
late nineteenth century enacted criminal nonsupport statutes to force fathers
to provide for their wives and children. The twin discourses of dependency and
punishment drove both the civil and criminal regimes, and they eventually came
to dominate modern understandings of child support. In fact, one of the most
significant differences between the nineteenth-century child support system and
the modern one is not the general framework of dependency and punishment, but
the modern addition of a racially inflected blaming of African-American fathers
and mothers for welfare dependency.(15)
In Part I of the Note, I situate the American invention of
child support in the socio-legal context of the emergence of economically
vulnerable single-mother households and the growing inability of the
traditional poor-relief system to cope with these families' needs.
In Part II, I analyze the American invention of child
support. I trace the development of this body of law from its antecedents in
the 'natural duty' of child support at English common law to the self-conscious
legal creativity of the American courts that invented a child support
obligation in response to dependency among female-headed households. I end Part
II with a consideration of the child support issues faced by black families,
noting how both limitations on marriage among blacks and white Americans'
racist views of black children contributed to the emergence of distinct child
support issues in the nineteenth-century black community.
In Part III, I outline the beginnings of criminal
sanctions for nonpayment of child support. I trace the origins of these laws to
the English Poor Law of 1601 and its American counterparts. The failures of the
poor laws in
I. THE SOCIAL CONTEXT OF EARLY
AMERICAN CHILD SUPPORT LAW
Several social and legal transformations during the
nineteenth century led to an increase in single motherhood. In this Part, I
outline how changes in the legal regime surrounding divorce and child custody
interacted with social changes in the meaning of childhood to cause a rise in
the number of divorced mothers who were expected to nurture and care for their
children. During the same period, family desertion emerged as a major social
problem, as wage-earning men who could not access the courts to obtain divorces
simply left their wives. The colonial poor-relief system was breaking down at
the same time, making it difficult for towns to cope with the demands for
relief posed by this new class of single mothers and their children.
A. Transformations in Divorce and Child Custody in
Nineteenth-Century
During the nineteenth century, American society
witnessed a sharp rise in the number of single mothers with young children. The
rise in the divorce rate, the emergence of maternal preference in child
custody, and the new value placed on childrearing combined to make it difficult
for single mothers to support their children without relying on local
poor-relief.
1. Transformations in Divorce Law
Divorce was relatively rare in colonial America.(16)
The divorce rate increased steadily during the nineteenth century,(17) however,
in response to the liberalization of divorce laws in most states,(18) the
transfer of jurisdiction over divorce from the legislatures to the courts,(19)
and social changes such as industrialization and rising expectations of
marriage that led more Americans to take advantage of those laws.(20) The pace
of the rise in divorce varied by region, but by 1850 there was a clearly
observable national trend toward marital breakdown.(21)
Women often successfully sued for divorce in the
nineteenth century by charging their husbands with fault in causing the divorce.(22) The most common grounds for divorce among women in the
nineteenth century were desertion(23) or cruelty on the part of their
husbands.(24) By the end of the nineteenth century, divorce had become almost
as significant as the death of a spouse as a cause for marital dissolution.(25)
2. Transformations in the Role of
Children
The rise in divorces during the nineteenth century
created a problem for nineteenth-century courts: What should be done about the
children of divorced couples?(26) The transformation
in the role of children in American life that had begun around the turn of the
century complicated the problem. For most of the eighteenth century, children
were seen as small adults, valued mainly for their ability to contribute to the
household economy.(27) Beginning in the nineteenth century, this view of
children as economic assets began to give way to a more romantic, idealized
view of childhood among the middle and upper classes.(28) By the 1830s, there
was a clearly established idea among middle and upper-class American whites
that childhood was a distinct stage of life that required middle-class parents
and teachers to exert special effort to care for young children.(29)
As a result of these changing views of childhood,
child labor became less accepted in the American economy. As late as the 1810s,
many factories employed children, with little apparent public outcry.(30) But around the 1830s, many Americans began to question
the appropriateness of child labor.(31) Fourteen states passed some sort of
child labor restrictions between the late 1830s and the 1850s,(32) although
most of these laws were under enforced.(33) The combined force of the cultural
changes in views of children and legal restrictions on child labor was
considerable. Between the 1820s and the 1840s, most middle-class families
withdrew their children from the labor force and kept them in schools, even though
most children from working-class families still needed to work to supplement
their families' income.(34) These trends intensified
through the end of the century, such that one historian speaks of a 'sacralization'
of children's lives from the nineteenth to the twentieth centuries.(35)
3. Transformations in Child
Custody Law
The earliest American custody decisions were made
according to the traditional English rule of paternal preference.(36) Mothers
almost never won custody of their children in divorce cases from the colonial
era to the early nineteenth century.(37) Beginning in the first third of the
nineteenth century, however, the strict paternal preference rule began to
erode. American society in general became preoccupied with the "cult of motherhood,"(38) and this cultural construct influenced judges making
custody decisions as they became increasingly likely to award custody of the
newly valued children to the mother.(39) By the 1850s, the trend toward
maternal preference was well-established,(40) and by the end of the century,
the custody of children after a divorce was almost always awarded to the
mother.(41)
B. The Rise of Family Desertion in
Nineteenth-Century
The developments outlined in Section I.A primarily
affected those members of nineteenth-century society who had the resources to
take their marital problems to the courts. But for many wage-earning men,
family desertion served as a cheap, nonlegal divorce.
The strict colonial settlement laws(42) and harsh punishments meted out to
family deserters(43) had kept desertion rates low in the colonies.(44) In the
nineteenth century, however, several social and economic transformations made
it easier for men to leave their families. The breakdown of the settlement laws
resulting from urbanization and immigration prevented towns from keeping out
deserting husbands.(45) As population growth overwhelmed the colonial
poor-relief system,(46) towns could not keep up with individual cases of
desertion. The growth of large cities gave men who wanted to leave their
families many places where they could go with relative anonymity.(47) At the same time, the expansion of the shipping and
manufacturing industries made it easier for men to take their labor power from
one place to another.(48) By early in the nineteenth century, wife desertion
was starting to emerge as a major social problem.(49)
C. The Breakdown of the Early American Poor-Relief
System
The same social changes that had enabled more men to
leave their wives during the nineteenth century also eroded the personal,
individualized colonial poor-relief system. The colonists were usually able to
take care of paupers individually, often by taking them into private homes(50)
or by giving them food or firewood.(51) Population increases in the early nineteenth
century made it impossible for this colonial system to provide for all of the
needs of a town's poor.(52) A shift in the American economy's primary
orientation from agriculture to industry during the nineteenth century created
new classes of mobile laborers highly vulnerable to cyclical depressions, which
threatened to overwhelm the colonial poor-relief system.(53) During the 1820s,
many towns constructed almshouses and other institutions in order to contain
the growing numbers of poor people who lived in the community.(54) The colonial
relief system was being challenged and transformed at the same time that the
twin revolutions in divorce and child custody were combining with the rise in
desertion to create a new class of the economically vulnerable: single mothers
with dependent children whose husbands were still alive.
II. THE AMERICAN INVENTION OF A
COMMON-LAW CHILD SUPPORT DUTY
American courts in the nineteenth century addressed
the problem of dependency among single mothers and their children by creating a
legally enforceable child support duty. A legal child support obligation was
unknown to English law, a fact that was repeatedly noted by courts and
commentators skeptical of the new duty. But for the courts that supported the
new doctrine (which was the majority view by the end of the century),(55) the danger of dependency among single mothers seen
both as poverty and as dependency on the state(56)--was enough to justify their
departure from precedent. Courts early in the nineteenth century referred to
concerns about dependency in the first American child support decisions. From
mid-century to 1900, American courts consolidated the child support obligation,
reasoning in a discourse of fault and punishment as they addressed dependency
among single mothers.
A. The Child Support Duty at English Law
The American courts that dealt with cases of marital
breakdown in the early nineteenth century had inherited a common-law tradition
that did not provide for a child support action. Mainstream English law in the
eighteenth and early nineteenth centuries had held that a father had only a nonenforceable moral duty to support his children.(57) According to Blackstone, the duty of parents to
provide for their children was a "principle of natural law."(58) 'Natural' law
meant no more than that: There was no common-law action for the recovery of
support furnished to a minor child at English law.(59)
There were some hints by the middle of the nineteenth century that English
courts would imply a promise of reimbursement if a father refused to support a
child,(60) but these cases were clearly in the minority. Even the most generous
reading of English precedent left American courts confused as to whether a
father who deserted his family could be compelled to pay child support in a
legal action.(61) Most American courts read the English precedents as
forbidding a third party from recovering child support costs unless a father
had authorized such support by contract.(62)
B. Dependency and Punishment in Early American
Child Support Law
Despite the absence of a child support duty at
English law, American courts early in the nineteenth century began to assert
that a father had a legal duty to support his children. American judges in the
nineteenth century knew quite well that they were inventing a duty that had not
existed at English law.(63) In Eitel v. Walter,(64) for example, the New York
Surrogate's Court acknowledged that English courts did not allow recovery for
supporting a child who had been deserted or neglected by its father, but said
abruptly that "I think a more humane doctrine prevails here, and that the
father is held liable for necessaries, or, in other words, the law will imply a
contract on his part, if he refuses or neglects to perform his natural duty to
his offspring."(65) Those who questioned the new doctrine were astounded at the
readiness of most American courts to promote it.(66)
Even James Schouler, the author of a renowned treatise on domestic relations,
who accepted the new child support doctrine, admitted that it was "to be
justified rather by public policy than the well-understood liabilities of the
father, as defined by Blackstone."(67)
1. Dependency Among
Single Mothers and Children: The Earliest American Child Support Cases
What was the 'public policy' that justified the
invention of a child support duty in nineteenth-century
In
In Van Valkinburgh, which quickly became the leading
case for the proposition that a father was legally responsible for the support
of his children,(73) the
A parent is
under a natural obligation to furnish necessaries for his infant children; and
if the parent neglect that duty, any other person who supplies such necessaries
is deemed to have conferred a benefit on the delinquent parent, for which the
law raises an implied promise to pay on the part of the parent.(74)
In this case, they ruled, the father did not neglect his
duty to provide necessaries for his son and hence was not liable to the store
owner for the price of the coat.(75)
Both Stanton and Van Valkinburgh are notable for their
casual assertion of a legally enforceable child support duty in the face of
English precedent. But the opinions are also noteworthy for the grounds on
which they situate the new child support obligation. Both courts enunciated a
child support rule with an eye toward future factual situations in which the
children would be in more precarious economic circumstances than they were in
the cases at bar. The Connecticut Supreme Court in
Even after Stanton and Van Valkinburgh, American courts
felt so uncertain about the legal foundations of the new child support duty
that they occasionally resorted to lengthy descriptions of the penury of the
mothers and children involved in order to justify the courts' insistence on a
legal child support duty. The New Jersey Court of Chancery resorted to this
tactic in an 1858 decision, Tomkins v. Tomkins:(76)
If a case
can be suggested where the moral obligation of a father to provide for his
offspring can be enforced as a legal one, it would be difficult to find one
more apposite than this. The complainant left his child, about three or four
years of age, with its destitute and heart-broken mother. He abandoned them
both to the charities of the world.
The mother found
shelter in the alms-house. The daughter was forced upon its grandmother, a
woman then advanced in life, and of moderate means for
her own support. There is no evidence that, for the fifteen years the child was
under the care of its grandmother, the father ever made any inquiry as to its
whereabouts or welfare. Now, in view of all these facts, if there was any doubt
as to the legal obligation of the father to provide for his child, and of his
legal liability to such as should supply that child with the necessaries of
life, the moral obligation is so strong that a court of equity would feel but
little inclined to grant relief, on any such ground as that the moral
obligation had been converted into a legal one.(77)
There is a self-conscious act of legal creativity at work
in this opinion: "[I]f there was any doubt as to the legal obligation" (which
of course there was, at the time), the court would still grant relief "on any
such ground as that the moral obligation had been converted into a legal one."
The court refused to allow the defendant to evade his obligation to reimburse
the costs of caring for his impoverished child, and so it upheld a child
support duty even though none had existed at common law.
The imminent dependency referred to by the courts in
Stanton, Van Valkinburgh, and Tomkins recurred in almost every child support
case decided by American courts during the nineteenth century because newly
divorced mothers in nineteenth-century America almost always fell into
poverty.(78) Campbell v. Campbell,(79) decided by the Wisconsin Supreme Court
in 1875, provides one example: Mrs. Campbell obtained a divorce from Mr.
Campbell, won the custody of their only child, and secured a child support
order of one dollar per week and alimony of one hundred dollars per year from
Mr. Campbell.(80) By all accounts, the Campbells were
members of the middle or upper class. Chief Justice Ryan observed that they "appear
to be quite intelligent, and ... quite respectable."(81) After the divorce,
however, their fortunes diverged. Mr. Campbell "seems to have thriven, since he
escaped from the expense of maintaining the respondent and their child.... We
take his present estate [of about $13,500] to be in part owing to the economy
of the divorce to him."(82) Mrs. Campbell's story was quite different. Soon
after the divorce, their child fell sick, "perhaps dangerously so. Mother and
child seemed not unlikely to come to want."(83) Mrs. Campbell moved to Chicago,
where she lived with her sister until commencing the child support action.(84)
The fortunes of the Campbells were typical of many
divorced couples who were relatively well-off at the time of the divorce: The
man almost always profited; the woman almost always came close to
destitution.(85)
One reason for the divergent fortunes of men and women
after a divorce was that the transformations in the American conception of
children from wage earners to dependents who needed constant nurturing(86) and
the trend toward maternal preference in custody decisions(87) combined to require
divorced women to bear the burden of raising children who did not work.(88)
Another reason for the poverty of newly divorced mothers was the market that
they faced for their own labor: Most employed women in the nineteenth century
earned less than half of what employed men did, making it almost impossible for
a single mother to support a family without supplementary income.(89)
2. Dependency and Punishment:
American Child Support from 1850 to 1900
During the latter half of the nineteenth century,
American courts became more confident in asserting a legal child support duty
when they were presented with poor single mothers and their children. American
courts faced this situation in two related factual contexts. In the first, a
local benevolent individual had provided food and clothing to young children,
and he later sued the children's father for reimbursement. In the second, the
divorced mother had managed to support the children, and she wanted to recover
her costs from her ex-husband. In both cases, courts readily upheld claims
against the father, referring constantly to the pressing dependency of the
mother and children involved, and finding fault with the father who had caused
the marital breakdown and subsequent dependency.
Once the child support duty had been legally
established, many of the early child support claims were brought by individuals
who had provided food, board, or clothing to impoverished single mothers and
their children and wanted to recover their outlays from the present or former husband.(90)
In Reynolds v. Sweetser,(91) for example, the Supreme
Judicial Court of Massachusetts authorized John Reynolds's bid for recovery
from Stephen Sweetser when Sweetser's
wife and child had left him after he had physically abused them. The court reasoned
that Reynolds could recover because Sweetser had "made
no suitable provision, either at his own home or elsewhere, for the mother and
child" and had "utterly failed ... to relieve [his child] from the absolute
destitution to which by his neglect and misconduct it had been exposed."(92)
The keys to this decision are "absolute destitution" and the father's "neglect
and misconduct": The wife and child were destitute because of an abusive
husband and father; the court was quick to authorize recovery for the generous
individual who came to their aid.(93)
As the doctrine developed after the 1850s, courts
applied a two-part legal test in these types of situations. First, courts asked
whether the items provided by the plaintiff were 'necessaries.' Only those items
required for bare subsistence, such as food and clothing, qualified. Second,
courts asked whether the father had failed to provide the children with those
items.(94) This formulation of the child support obligation in the context of
third-party claims had the result of requiring both dependency (the items
provided were necessaries) and fault (the father had failed to provide them)
before a plaintiff could recover child support costs.
Before long, American courts applied the child
support doctrine to allow newly divorced mothers to recover directly from their
husbands for their outlays in supporting their children. As was the case for
third-party plaintiffs, divorced mothers had to prove that their ex-husband was
at fault in failing to support the children. However, courts usually placed an
additional burden on single mother plaintiffs that they did not place on
third-party plaintiffs. Single mothers who wanted to recover for child support
had to prove not only that their husband had failed to provide for the
children, but also that the husband was at fault for causing the divorce.(95) If the wife was at fault, she could not recover child
support.(96) As David Stewart explained in his 1884 treatise on marriage and
divorce:
[A] wife who is without
means and without fault may pledge her husband's
credit for necessaries for
children who are in her custody through his
fault or his consent, but
not if she is in fault, or holds the children
without fault on his part
and against his wishes.(97)
In claims for child support after divorces based on the
husbands' fault,(98) courts usually ordered divorced
men to support their ex-wives and children. If women could find their deserting
husbands, courts readily ordered the husbands to pay child support.(99) Similarly, courts often awarded child support to women
who had been divorced from their husbands on the grounds of their husbands'
cruelty.(100)
Even though women often prevailed in these suits, their
victories rarely resulted in economic stability for their families. If child
support was awarded, the father was "only bound for a bare maintenance."(101) A deserted wife was held to a stringent budget by courts who
said that her ability to recover depended on the "reasonableness and propriety
of her expenditures."(102) The child support awards were so low 'usually about
five dollars per week' that they did not approach full reimbursement for the
costs of maintaining a child.(103) One mother, for instance, received only one
dollar per week in child support immediately after the divorce.(104) In an
economy in which women earned less than half of men's wages,(105) these low
levels of child support combined with the expense of maintaining a child kept
single mothers just above the threshold of poverty.
Even though women were disadvantaged by having to prove
their husbands' fault, and even though the child support awards were low, the
child support obligation kept poor women and children off town poor-relief.
Hence, courts would often state that a father who paid child support fulfilled
his duty "to the public" to ensure that his children did not receive charity.(106) By the end of the nineteenth century, a legally
enforceable duty to support children was accepted in most American states,(107)
and philanthropic individuals and single mothers were able to recover from
nonsupporting fathers, keeping many single mothers from having to ask their
towns for relief.
C. Child Support for Black Families in the
Nineteenth Century
The child support system that developed in American
courts in the nineteenth century was open only to white families. Under
slavery, almost no blacks in either the Northern states that permitted slavery
or in the South were permitted to marry.(108) Because
black men under the slave system were not married heads of household with legal
rights and duties, child support was a moot issue. Black fathers had no legal
existence under slavery, and hence they were not liable for child support.(109)
Black children under slavery had no legal father, and hence they could not
claim maintenance from their parents.(110) Instead, the primary responsibility
for the support of black children under slavery belonged to the white, male
slaveholder, who often was described by proslavery advocates as the 'head' of a
'household' of black adults and children.(111) Also, the idealization of white
children that occurred in the 1830s did not affect black children at all. White
society throughout the nineteenth century continued to view black children
primarily as income-generating assets, usually as property for white slaveowners.(112)
After the Civil War, legal prohibitions on marriage
for blacks were lifted, and many black couples formalized the unofficial unions
that had developed under slavery.(113) Still, many
black couples rejected formal marriages, choosing instead to maintain informal,
unofficial marriages. At least half of all unions between blacks in
Even legally sanctioned marriages did not give black
fathers either the right to direct the upbringing of their children or the duty
to support them. Soon after the Civil War, most Southern states passed 'apprenticeship'
statutes as part of the Black Codes. These statutes allowed whites to indenture
black children, regardless of whether the children lived with their families or
whether their parents were working to support them.(115)
The statutes essentially reintroduced slavery for black children. As a result,
black men in the period after the Civil War were only under legal child support
obligations when their children could not be successfully indentured.(116)
These statutes did not last long. While the
apprenticeship laws were in force, many freed people managed to keep their
children from being indentured to former slaveholders.(117)
The freed people also deluged the Freedmen's Bureau with complaints about the
laws, forcing the Bureau to press for the laws' abolition.(118) By the late
1860s and early 1870s, the combined efforts of the freed people and the
Freedmen's Bureau had overturned most apprenticeship statutes.(119)
Although the evidence is scarce, it appears that the
main point of entry for black families into the nineteenth-century child
support system was through the so-called bastardy or illegitimacy
statutes.(120) Most American states early in the nineteenth century enacted
such laws, designed to compel a putative father to support his out-of-wedlock
children.(121) The American illegitimacy statutes were borrowed from similar
English laws that were intended (like the support obligation for divorced
fathers) to relieve towns from the burden of aiding poor children.(122) Perhaps
because of the unofficial nature of many black marriages in the late nineteenth
century, prosecutions against black fathers for nonsupport occurred under the
illegitimacy laws instead of through the common-law support obligation
developed for divorced mothers.
Direct legal action against nonsupporting fathers was
only one way in which single black mothers could obtain help in feeding and
clothing their children. Many black adults, especially in Northern cities,
boarded themselves out to other families to save on living costs.(123) Many black families also readily took in children
from other families for long periods of time.(124) These networks of mutual
self-help probably provided single black mothers with opportunities to support
their children without relying on child support payments from absent fathers.
III. THE TRANSFORMATION OF
AMERICAN CHILD SUPPORT LAW AND THE CRIMINALIZATION OF NONSUPPORT: STATUTORY REMEDIES
FOR POOR WOMEN
Although there was no common-law action for child
support in
A. The Elizabethan Poor Law and its American
Counterparts
Statutory
child support obligations to prevent the worst cases of absolute destitution
were well-known in Anglo-American jurisprudence. The first such statute was the
Elizabethan Poor Law of 1601.(128) The Poor Law required parents to maintain
both their minor and their adult children if the children were otherwise going
to become paupers.(129) This was mainly symbolic, however, as the penalty was
only a fine of twenty shillings per month. Children of any age were expected to
work so that they would not be poor, because, as Blackstone reasoned, "the
policy of our laws, which are ever watchful to promote industry, did not mean
to compel a father to maintain his idle and lazy children in ease and
indolence...."(130)
When American courts began to confront the problems
of marital breakdown and dependency among single mothers in the early
nineteenth century, one of the first places to which they looked for help was
the provisions of the state poor laws, lifted in many cases directly from the
Elizabethan Poor Law statute.(131) The American poor
laws continued to be a vital way for towns, rather than generous individuals or
single mothers, to recover child support from nonsupporting fathers.(132)
As
B. The Rise of Criminal Nonsupport Statutes
In response to the weaknesses of the poor laws, a
spate of new desertion and nonsupport laws were passed in the 1870s and 1880s.
The new laws, like the poor laws, were only triggered by absolute destitution.
But unlike the poor laws, they allowed for transfers of child support payments
to poor single mothers themselves. An 1886 compilation of American statutes
noted that eleven states had made it a penal offense for a father to abandon or
refuse to support his minor children.(138) By enacting
these laws, American states made nonpayment of child support a serious crime,
punishable by a criminal penalty.
This was exactly how the courts saw the new desertion
and nonsupport laws when cases began to be brought under them late in the
nineteenth century. Courts interpreted the laws as creating criminal sanctions;
for those who caused dependency. The aim of the laws was one typically
associated with the welfare state - the prevention of dependency. But the form of
the laws was based on a criminal justice model - the punishment of offenders
against public peace.
1. Dependency
The narrow focus of the new criminal nonsupport laws
on preventing dependency on the state can be seen in three ways: the role of
private charitable agencies in lobbying for and enforcing the laws, the
interpretations of the new laws in the courts, and the low levels of monetary
support awarded under the laws. In the 1870s and 1880s, private charitable
societies realized that deserted mothers and their children were a significant
burden on the charities' relief coffers.(139) These
societies actively lobbied state legislatures to enact desertion and nonsupport
laws.(140) Private charitable societies acted as quasi-public agents, bringing
complaints under the laws, collecting funds from deserting husbands, and
disbursing them to deserted wives. In 1895, the Humane Society of Cincinnati
investigated 937 cases of deserting or nonsupporting fathers, won arrests or
support orders for 654 of them, and collected and paid out $13,947.94 in child
support.(141) The United Workers of Norwich, Connecticut, arranged to collect
the wages of convicted deserting husbands. The United Workers disbursed these
sums to the families. They handled between 400 and 500 men in this way from
1890 to 1895.(142)
When the courts began to decide what constituted 'nonsupport'
under the new statutes, they usually said that the statutes applied only to
cases in which the mother and children would become a charge on the public if
the husband did not support them. In a prosecution under Indiana's desertion
and nonsupport statute, the Indiana Supreme Court sustained a quashing of an
indictment that charged that Isaac Rice deserted his wife without making
provision for her comfortable support, noting that if the prosecution were
allowed, "a worthless husband might be fined for deserting his wife, even
though she possessed a fortune amply sufficient for her support."(143) The New
Jersey statute, which allowed those who did not support their wives and
children to be adjudged disorderly persons and required to pay a weekly sum for
the support of their families, was interpreted in a similar manner. In 1896,
the Supreme Court of New Jersey overturned a conviction under the statute on
the grounds that there was no finding that the family of the defendant would
become chargeable to the city.(144)
The low levels of child support awarded under the
statutes also served to emphasize that the main goal of the statutes was to
prevent dependency on the state. Like the civil child support awards, the
statutory nonsupport provisions were intended to ensure only a 'bare
maintenance.'(145) Most awards clustered between two and five dollars per week 'hardly
enough to support a mother with a young child adequately, but just enough to
keep her from applying to the town for aid.'(146)
2. Punishment
The new nonsupport statutes displayed their criminal,
punitive intentions in both their statutory language and the courts'
interpretation of them. The early desertion and nonsupport statutes made the
criminal nature of the offense clear. The
When cases under these statutes entered the courts
late in the nineteenth century, courts almost always categorized nonsupport
prosecutions as criminal.(153) These decisions solidified
the connection between dependency and punishment by reasoning that those who
caused dependency on the state needed to be punished by the criminal law.
Courts justified the criminal nature of the new statutes by asserting as had
the courts inventing the common-law support obligation(154)--that
a nonsupporting husband violated his duty to the public to keep his wife and
children from going on poor-relief. The duty of supporting a minor child, said
the Supreme Court of Ohio, "is a duty which he owes to the state, as well as to
his children; and he has no more right to allow them to become a public charge
than he has to allow them to suffer for want of proper care and sustenance."(155)
The Rhode Island Supreme Court ruled that a nonsupport proceeding could go
forward even though the complainant was dead. This outcome would have been
unthinkable if the child support duty were merely civil. But the court held
that the proceeding could continue because it was a criminal action brought by
the state. "It is the peace and dignity of the state which has been violated in
the commission of any crime or offense," the court said, and hence no one but
the state can, in any true sense, prosecute the offender for such a wrong. (156)
The peace and dignity of the state, in nonsupport
prosecutions, was the peace of the states relief rolls and the dignity of the
states interest in keeping its residents off public charity. The idea that
desertion and nonsupport statutes punished an offender for his role in causing
dependency on the state was vigorously asserted by courts interpreting the new
laws. In these decisions, courts tied the dependency and punishment rationales
together, completing the move to the modern American way of thinking about
child support.
IV. CONCLUSION: DEPENDENCY AND
PUNISHMENT IN AMERICAN CHILD SUPPORT LAW
American courts in the nineteenth century invented a
parental child support obligation in the context of increasing concerns about
dependency among single mothers. Many of these courts also reasoned that child
support awards served as punishments for a wrongdoing parent, a line of
discourse expanded in the 1870s and 1880s in criminal statutes that punished
nonsupport. By the early twentieth century, the principal discourses of the
modern American child support systemdependency and punishmentwere already in
place.(157) As was the case with the motivations of the nineteenth-century
American courts and legislatures that invented a civil and criminal child
support duty, the modern child support system is centrally concerned with
saving public money.(158) As was the case in nineteenth-century America, child
support awards today continue to be quite low, often barely enough to keep a
single mother and children from destitution.(159) Consistent with the rhetoric
of nineteenth-century courts dealing with nonsupporting fathers, deadbeat dads
continue to be vilified in the national political discourse for their role in
forcing single mothers onto welfare.(160)
In fact, the most significant difference between the
early and modern child support systems is not in their intellectual
foundations, but in their racial politics. African-American families, formerly
excluded from the child support system, are now at the center of efforts to
reform welfare. The racial politics of Americas welfare system, in which
welfare is perceived primarily as a program for young African-American women,
who are demonized as welfare queens, are well-known.(161) What is less
well-known is the way in which young black men have become the unacknowledged
locus of efforts to reform welfare through child support collections. Large
proportions of black children are born out of wedlock, and high rates of
poverty among such families have led national welfare reform debates to focus
on establishing paternity and collecting child support from black men.(162)
Sometimes, an emphasis on paternity establishment is coupled with a realistic
assessment of the economic obstacles faced by young black men under child
support orders.(163) More often, commentators resort to a nineteenth-century
style of blaming black men under child support orders by assuming that these
men are simply unwilling to pay child support.(164)
This is not to say that personal responsibility has no
appropriate place in the child support system. The problem with the
dependency-punishment paradigm, however, is that the fathers of the children
who are most likely to receive welfare are usually the least likely to be able
to make regular child support payments.(165) In this situation, relying
exclusively on private sources of child support when it is not economically
realistic for some noncustodial fathers to pay it might satisfy politicians
desires to do something about the nonpayment of child support, but it does
little to ensure that children are provided with an adequate standard of
living.(166)
In most industrialized nations, private child support
payments are not a central way in which the community makes sure that children
are adequately supported. Instead, most industrialized nations have some kind
of child allowances financed by the public or by employers that go to all
families.(167) In England, for instance, families receive a universal Child
Benefit to defray the costs of raising children; and all single-parent
families receive an additional One Parent Benefit. (168) But although the
United States has generous, publicly funded benefits such as Social Security
and Medicare for elderly Americans, no comparable program exists for children.
The historical account of the origins of the American
child support duty in concerns about dependency and punishment allows for at
least a tentative sketch of a historical argument to explain why
(1.) See Personal Responsibility and Work
(2.) The Welfare Bill: Text of President Clintons
Announcement on Welfare Legislation, N.Y. TIMES, Aug. 1, 1996, at A24.
(3.) The Welfare Bill: The Republicans View, N.Y.
TIMES, Aug. 1, 1996, at A25.
(4.) See William J. Clinton, Remarks Made to the
Citizens of Denver (July 18, 1996), in U.S. NEWSWIRE, July 23, 1996, available
in LEXIS, Nexis Library, Curnws File.
(5.)
(6.) In this Note, I use the term dependency to
refer to both the economic condition of poverty and the sociological condition
of being dependent on public aid. See generally Nancy Fraser & Linda
Gordon, A Genealogy of Dependency: Tracing a Keyword of the U.S. Welfare State,
19 SIGNS 309 (1994) (charting the history of the term dependency and noting
its ability to impose moral connotations of unworthiness on recipients of
public aid).
(7.) See ANDREA H. BELLER & JOHN W. GRAHAM, SMALL
CHANGE: THE ECONOMICS OF CHILD SUPPORT 106 (1993) (analyzing Census Bureau data
on child support awards from 1978 to 1985 and concluding that not only does
the average level of child support awards seem to be too low, but increments to
awards with increases in the number of children due support are also too low to
meet the needs of most families ); Welfare Reform Proposals, Including H.R.
4605, The Work and Responsibility Act of 1994: Hearings Before the Subcomm. on Human Resources of the House Comm. on Ways and
Means; 103d Cong. 633 (1994) (statement of Nancy Duff Campbell, Co-President,
National Womens Law Center) (noting that the average annual award collected in
1989 among one-child families was $2995, while the average annual cost of
raising a child ranged from $4030 to $5520).
(8.) See Taxpayer Relief Act of 1997, tit. I, Pub. L. No. 105-34, 111 Stat. 788 (to
be codified as amended at 26 U.S.C. [sections] 24).
(9.) See JYL J. JOSEPHSON, GENDER, FAMILIES, AND
STATE: CHILD SUPPORT POLICY IN THE UNITED STATES 96-98 (1997); Harry D. Krause,
Child Support Reassessed: Limits of Private Responsibility and the Public
Interest, in DIVORCE REFORM AT THE CROSSROADS 166, 175 (Stephen D. Sugarman & Herma Hill Kay
eds., 1990).
(10.) Cf. The News Hour with Jim Lehrer (PBS
television broadcast, Jan. 13, 1997), available in LEXIS, Nexis Library, Curnws
File (interview with Professor Theda Skocpol) (describing Social Security as a shared security
program that embodies a national commitment to guarantee benefits to elderly
Americans).
(11.) See 26 U.S.C.A. [sections] 151© (West 1998).
(12.) See id. [sections] 32.
(13.) See Martha L.A. Fineman,
Masking Dependency: The Political Role of Family Rhetoric, 81 VA. L. REV. 2181,
2203 (1995) ( Unlike other industrialized democracies we have no well-defined
notion of collective responsibility for inevitable dependency.... In fact,
recent welfare reforms resort to the privatized solutions of marriage or child
support as the answer for myriad societal problems, including child poverty. ).
(14.) Throughout this Note, I will be referring to the
judicial and legislative invention of child support duties for divorced
fathers. The imposition of child support obligations on never-married fathers
occurred through the so-called bastardy or illegitimacy laws, a development
that I discuss infra notes 120-122 and accompanying text.
(15.) Because the primary focus of the Note is the
invention of a common law and statutory child support obligation in the 19th
century by American courts, a system open only to white Americans for most of
the century, the emphasis that I can place on the historical experience of
African-American families is necessarily limited. I have outlined the general
contours of the child support issues faced by black families in the 19th
century infra Section II.C as a backdrop to my consideration infra Part IV of
how racial attitudes have affected the modern child support system.
(16.) See, e.g., MARY SOMERVILLE JONES, AN HISTORICAL
GEOGRAPHY OF THE CHANGING DIVORCE LAW IN THE UNITED STATES 17-21 (1987) (noting
that Connecticut had 390 divorces between 1738 and 1788, that Massachusetts had
96 divorces between 1760 and 1786, and Georgia had 291 divorces between 1798
and 1835); Nancy F. Cott, Divorce and the Changing
Status of Women in Eighteenth-Century Massachusetts, in THE AMERICAN FAMILY IN
SOCIAL-HISTORICAL PERSPECTIVE 115, 118 (Michael Gordon ed., 2d ed. 1978)
(noting an increase in the, number of divorce petitions filed throughout the 18th
century in Massachusetts).
(17.) For a general history of divorce during this
period, see RICHARD H. CHUSED, PRIVATE ACTS IN PUBLIC PLACES: A SOCIAL HISTORY
OF DIVORCE IN THE FORMATIVE ERA OF AMERICAN FAMILY LAW (1994); and GLENDA
RILEY, DIVORCE: AN AMERICAN TRADITION (1991).
(18.) The pace of divorce law liberalization varied by
region. The northeastern states were the first to include more grounds for
divorce in their laws, with most states liberalizing their laws before 1850.
The mid-Atlantic states expanded their grounds for
divorce around 1850, slightly later than the northeastern states did. The South
remained basically conservative throughout the century. Beginning in the second
quarter of the 19th century, the settlement of the new states in the
West such as
(19.) By 1867, 33 of 37 American jurisdictions had
substituted judicial for legislative divorce. See MICHAEL GROSSBERG, GOVERNING
THE HEARTH: LAW AND THE FAMILY IN NINETEENTH-CENTURY
(20.) See CARL N. DEGLER, AT ODDS: WOMEN AND THE
FAMILY IN AMERICA FROM THE REVOLUTION TO THE PRESENT 167-77 (1980); RILEY,
supra note 17, at 55.
(21.) See RILEY, supra note
17, at 55. For divorce statistics after the Civil War, see id. at 79, which charts a 27.9% increase in divorce from
1867-1871 to 1872-1876 and a 30.3% increase in divorce from 1872-1876 to
1877-1881.
(22.) See id. at 79.
(23.) See JONES, supra note
16, at 50 tbl.4. From 1867 to 1886, 38.5% of all divorces in the American West
were based on desertion (45.7% of mens, 34.7% of womens), and from 1887-1906,
38.9% of all divorces were based on desertion (49.4% of mens, 33.6% of womens).
See RILEY, supra note 17, at 87.
(24.) In particular, the charge of cruelty was rapidly
becoming the ground of choice in mid-nineteenth-century
RILEY, supra note 17, at 81. See also Robert L.
Griswold, The Evolution of the Doctrine of Mental Cruelty in Victorian American
Divorce, 1790-1900, 20 J. SOC. HIST. 127 (1986) (documenting increased judicial
acceptance of the cruelty ground for divorce in 19th-century
America); Robert L. Griswold, Sexual Cruelty and the Case for Divorce in
Victorian America, 11 SIGNS 529 (1986) (same). From 1867 to 1888, 15.6% of
divorces nationwide were based on cruelty (5.4% of mens and 21% of womens),
and from 1887 to 1906, 21.8% of divorces were based on cruelty (10.5% of mens
and 27.5% of womens). See RILEY, supra note 17, at
89.
(25.) See J.E. GOLDTHORPE, FAMILY LIFE IN WESTERN
SOCIETIES: A HISTORICAL SOCIOLOGY OF FAMILY RELATIONSHIPS IN BRITAIN AND NORTH
AMERICA 43 fig.1 (1987) (charting the rise in divorces and the decline in
deaths as causes of marital dissolution during the 19th century).
(26.) See infra Subsection I.A.3.
(27.) As one historian notes: In labor-scarce
(28.) See DEGLER, supra note 20, at 66-72; MICHAEL B.
KATZ, RECONSTRUCTING AMERICAN EDUCATION 10-11 (1987); JACQUELINE S. REINIER,
FROM VIRTUE TO CHARACTER: AMERICAN CHILDHOOD, 1775-1850, at 72-73, 134-38
(1996); Jamil S. Zainaldin,
The Emergence of a Modern American Family Law: Child Custody, Adoption, and the
Courts, 1796-1831, 71 NW. U. L. REV. 1038, 1050-51 (1979). The changing
conceptions of childhood can be seen in the spread of the common-school
movement, which sought to help youngsters develop their capabilities and unlock
the potentials of mind and character. See 1 CHILDREN AND YOUTH IN
(29.) See Daniel T. Rodgers, Socializing Middle-Class
Children: Institutions, Fables, and Work Values in Nineteenth-Century
(30.) See, e.g., The Manufacturing Interest, NILES
WKLY. REG., Jan. 27, 1816, at 1 (advocating child labor in factories as a
national necessity), reprinted in CHILDREN AND YOUTH, supra note 28, at 180;
American Socy for the Encouragement of Domestic
Manufactures, Address to the People of the United States (1817) (calling
factories seats of health and cheerfulness for children), reprinted in
CHILDREN AND YOUTH, supra note 28, at 182.
(31.) See BOSTON EVENING TRANSCRIPT, Mar. 24, 1832
(reporting criticism of child labor by the New England Association of Farmers,
Mechanics, and other Working-men), reprinted in CHILDREN AND YOUTH, supra note
28, at 614; NEW YORK ASSEMBLY, REPORT OF THE COMMITTEE ON TRADE AND
MANUFACTURES, ON THE MEMORIAL OF SUNDRY INHABITANTS IN THE COUNTIES OF ONEIDA
AND OSTEGO, in 3 DOCUMENTS 1835, at 1-5 (1835) (noting that children in
factories are necessarily brought up in comparative ignorance, and are
unfitted to become valuable citizens ), reprinted in CHILDREN AND YOUTH, supra
note 28, at 617-18.
(32.) See CHILDREN AND YOUTH,
supra note 28, at 627 fig. 1,628 fig.2.
(33.) See, e.g., MASSACHUSETTS HOUSE, REPORT OF THE
SPECIAL COMMISSION ON THE HOURS OF LABOR AND THE CONDITION AND PROSPECTS OF THE
INDUSTRIAL CLASSES, in DOCUMENTS 1866 at 3-11 (1866) (detailing violations of a
Massachusetts child labor statute), reprinted in CHILDREN AND YOUTH, supra note
28, at 628-30.
(34.) See REINIER, supra note 28, at 138.
(35.) See VIVIANA A. ZELIZER, PRICING THE PRICELESS
CHILD: THE CHANGING SOCIAL VALUE OF CHILDREN (1985). Although the new
conception of children affected the middle and upper classes particularly strongly,
see, e.g., MASON, supra note 27, at 52-53 (noting the prevalence of new
conceptions of childhood among the urban middle class), the working classes
were affected as well, see DEGLER, supra note 20, at 69-71. Still, child labor
continued to be an important source of income for many working-class families
throughout the 19th century. See STEPHANIE COONTZ, THE SOCIAL
ORIGINS OF PRIVATE LIFE: A HISTORY OF AMERICAN FAMILIES 1600-1900, at 295
(1988); STEVEN MINTZ & SUSAN KELLOGG, DOMESTIC REVOLUTIONS: A SOCIAL
HISTORY OF AMERICAN FAMILY LIFE 90-91 (1988); ZELIZER, supra, at 58-61.
(36.) See JAMES SCHOULER, A TREATISE ON THE LAW OF THE
DOMESTIC RELATIONS 333 (1870); Zainaldin, supra note
28, at 1053 n.48.
(37.) Children were not even mentioned in the 50 legislative
divorces in
(38.) This term describes the new emphasis that
American society put on the role of the mother in raising children. See MASON, supra note 27, at 51.
(39.) See GROSSBERG, supra note 19, at 238-39, 281-83;
MASON, supra note 27, at 49-83; RILEY, supra note 17, at 52; Zainaldin, supra note 28, at 1047-52. Mothers were
especially valued under the tender years doctrine, in which custody of young
or ill children was presumptively awarded to the mother, who was thought to
have an innate ability to nurture and care for young children. See MASON, supra
note 27, at 51; Zainaldin, supra note 28, at 1052-59.
(40.) See GROSSBERG, supra note 19, at 242, 248; Zainaldin, supra note 28, at 1052-59.
(41.) See GROSSBERG, supra note 19, at 253, 281-82. At
the same time, courts retained considerable discretion over custody
determinations. See id. at 281-85.
(42.) Most colonies enacted settlement laws soon after
they were founded, restricting settlement in a town to persons who shared the
towns religious beliefs and who could contribute to the towns economy. See,
e.g., MARGARET CREECH, THREE CENTURIES OF POOR LAW ADMINISTRATION: A STUDY OF
LEGISLATION IN RHODE ISLAND 43 (1936) (describing the settlement laws in Rhode
Island); DAVID M. SCHNEIDER, THE HISTORY OF PUBLIC WELFARE IN NEW YORK STATE
1609-1866, at 49-50 (1938) (describing how New York settlement laws kept out
those of questionable character or economic standing).
(43.) See, e.g., DEMOS, supra note 27, at 92 (noting
the colonial practice of banishment as punishment for desertion); EDMUND S.
MORGAN, THE PURITAN FAMILY: RELIGION AND DOMESTIC RELATIONS IN
SEVENTEENTH-CENTURY NEW ENGLAND 38 (2d ed. 1966) (describing a deserter who was
fined and whipped); ROGER THOMPSON, SEX IN MIDDLESEX: POPULAR MORES IN A
MASSACHUSETTS COUNTY, 1649-1699, at 123-24 (1986) (describing the court order
to a deserting husband to maintain his family).
(44.) The town records of
(45.) See Raymond A. Mohl, Three Centuries of American
Public Welfare: 1600-1932, CURRENT HIST., July 1973, at 8.
(46.) See infra note 52 and accompanying text.
(47.) See LINDA GORDON, PITIED BUT NOT ENTITLED:
SINGLE MOTHERS AND THE HISTORY OF WELFARE 1890-1935, at 26 (1994). For a
discussion of the growth of cities in the 19th century, see
generally PAUL BOYER, URBAN MASSES AND MORAL ORDER IN AMERICA, 1820-1920
(1978).
(48.) See MICHAEL B. KATZ, IN THE SHADOW OF THE
POORHOUSE: A SOCIAL HISTORY OF WELFARE IN
(49.) Exact dates and statistics about the rise of
desertion in the early 19th century are almost nonexistent. One
reason for this lacuna is that sociological data collection about poverty only
began with the professionalization of public and
private charity work, which did not occur until the 1870s and 1880s. See
generally ROY LUBOVE, THE PROFESSIONAL ALTRUIST: THE EMERGENCE OF SOCIAL WORK
AS A CAREER, 1880-1930 (1965) (describing the professionalization of social work in the late 19th
century). Even as late as 1916, one sociologist complained that the data on
desertion was fragmentary. EARLE EDWARD EUBANK, A STUDY OF
FAMILY DESERTION 22 (1916). Social scientists in the early 20th
century blamed 19th-century social changes such as industrialization
and urbanization for the rise in desertion, arguingthough not providing exact
datathat desertion increased concomitantly with these social transformations.
See LILIAN BRANDT, FIVE HUNDRED AND SEVENTY-FOUR DESERTERS AND THEIR FAMILIES:
A DESCRIPTIVE STUDY OF THEIR CHARACTERISTICS AND CIRCUMSTANCES 7 (1905)
(providing a historical analysis of the rise of family desertion as a social
problem); EUBANK, supra, at 9-14 (same); see also CHRISTINE STANSELL, CITY OF
WOMEN: SEX AND CLASS IN NEW YORK, 1789-1860, at 12 (1986) (stating that
desertion in New York may have increased during the 19th century
because of the difficulties encountered by men trying to support their
families).
(50.) See WALTER I. TRATTNER, FROM POOR LAW TO WELFARE
STATE: A HISTORY OF SOCIAL WELFARE IN
(51.) See, e.g., Marcus Wilson Jernegan,
The Development of Poor Relief in Colonial Virginia, in COMPASSION AND
RESPONSIBILITY: READINGS IN THE HISTORY OF SOCIAL WELFARE POLICY IN THE UNITED
STATES 36, 45 (Frank R. Breul & Steven J. Diner
eds., 1980) [hereinafter COMPASSION AND RESPONSIBILITY]; David M. Schneider,
The Patchwork of Relief in Provincial New York, 1664-1775, in COMPASSION AND RESPONSIBILITY,
supra, at 64, 66.
(52.) See TRATTNER, supra note 50, at 47; Charles R.
Lee, Public Poor Relief and the Massachusetts Community, 1620-1715, 55 NEW ENG.
Q. 564, 584 (1982); Thomas A. McMullin, Overseeing
the Poor: Industrialization and Public Relief in New Bedford, 1865-1900, 65
SOC. SERV. REV. 548, 559 (1991).
(53.) See KATZ, supra note 48, at 5-6; McMullin,
supra note 52, at 559.
(54.) See KATZ, supra note 48, at
10-11.
(55.) See infra note 107.
(56.) See supra note 6.
(57.) See, e.g., Mortimore v.
Wright, 151
(58.) 1 WILLIAM BLACKSTONE, COMMENTARIES *435.
(59.) There was, however, a statutory action for recovery
of child support costs by local parishes under the Elizabethan Poor Law of
1601. See infra notes 128-130 and accompanying text.
(60.) See, e.g., Rawlyns v.
Vandyke, 170
(61.) See, e.g., Dennis v. Clark, 56
(62.) See, e.g., Finch v. Finch, 22
(63.) See 2 JOEL PRENTISS BISHOP, COMMENTARIES ON THE LAW
OF MARRIAGE AND DIVORCE [sections] 528 (5th ed. Boston, Little,
Brown, & Co. 1873) (stating that the child support duty in cases of
nonsupport is a popular opinion, which has found its way into the ranks of the
legal profession ); Donna Schuele, Origins and
Development of the Law of Parental Child Support, 27 J. FAM. L. 807, 815 (1989)
(noting the trend toward announcing a child support duty even when this
required courts to employ a sleight of hand or resort to judicial fiat in order
to arrive at such an outcome ). Even late in the 19th century,
American courts were defensive about imposing an obligation that was so clearly
absent from English law. See, e.g., Gilley v. Gilley, 9 A. 623, 624 (
(64.) 2 Bradf. 287 (N.Y. Sur. Ct. 1853).
(65.)
(66.) See W.R. Vance, The Parents Liability for
Necessaries Furnished His Minor Child, 6 VA. L. REG.
585, 590 (1901) (criticizing American case law supporting the child support
duty because it is rendered painfully uncertain by the rank growth of dicta,
which seem to spring up in unusual luxuriance from the rich soil of sentiment
and humanitarianism which surrounds such questions in a peculiar degree );
Note, Brow v. Brightman, 18 CENT. L.J. 469, 469
(1884) (observing a noticeable lack of authority supporting the proposition
that a father has a legal duty to maintain his children).
(67.) SCHOULER, supra note 36, at 328.
(68.) 3 Day 37 (
(69.) 13 Johns. 480 (N.Y. 1816).
(70.) See Stanton, 3 Day at 38-39.
(71.)
(72.)
(73.) Later cases citing to Van Valkinburgh as
authoritative include Tomkins v. Tomkins, 11 N.J. Eq.
512, 517 (
(74.) Van Valkinburgh, 13 Johns. at
480.
(75.) See id.
(76.) 11 N.J. Eq. 512 (
(77.)
(78.) This is the background of Bishops suggestion that
paternal preference in child custody cases often served the best interests of
the child by placing the child with the husband, who was after a divorce almost
always the only parent who could adequately provide for the child. See BISHOP,
supra note 63, [sections] 542; see also, e.g., Ostheimer
v. Ostheimer, 101 N.W. 275, 275 (Iowa 1904) (noting
that after a divorce the husband had substantially increased his holdings, and
[was] in much better condition to assist in the support of his children than he
[had been] at the date of the divorce while the wife was in straitened
circumstances, and needs assistance to adequately supply the wants of the
children ); Finley v. Finley, 2 S.W. 554, 554-55 (Ky. 1887) (stating that a
divorce had left the mother and child both penniless, and in a dependent
condition, requiring them to look to the charity of friends and relations for
maintenance and support but the father was engaged in business, and in a
moral, if not in a pecuniary, point of view, is fitted to take charge of his
infant daughter ); Nugent v. Powell, 33 P. 23, 24 (Wyo. 1893) (describing a
deserting husband as having left his family without money or means of support,
and in circumstances of extreme destitution while he was earning reasonable
wages ).
(79.) 37
(80.) See id. at 209.
(81.)
(82.)
(83.)
(84.) See id. at 222.
(85.) See supra note 78.
(86.) See supra Subsection I.A.2.
(87.) See supra Subsection I.A.3.
(88.) The claims from early child support cases provide
detailed examples of exactly how expensive raising a child was in the 19th
century. See, e.g., Pretzinger v. Pretzinger,
15 N.E. 471, 472 (
(89.) See Reva B. Siegel, Home
as Work: The First Womans Rights Claims Concerning Wives Household Labor,
1850-1880, 103 YALE L.J. 1073, 1128 n.186 (1994); see also McCloskey v.
McCloskey, 67 S.W. 669, 671 (Mo. Ct. App. 1902) (noting that a father has no
right to shift his duty to protect his children from want onto the mother,
often and almost always much less able to cope with the world and earn money
than he is ).
(90.) See, e.g., Cromwell v. Benjamin, 41 Barb. 558 (N.Y.
App. Div. 1863); Gill v. Read, 5 R.I. 343 (1858).
(91.) 81
(92.)
(93.) Sometimes, courts even allowed this common-law
action of recovery to towns that aided poor mothers and their children. See, e.g., Town of
(94.) See 2 JAMES KENT, COMMENTARIES ON AMERICAN LAW 162
(photo. reprint 1971) (1827) ( If the father suffers the children to remain
abroad with their mother, or if he forces them from home by severe usage, he is
liable for their necessaries. ); Smith v. Church, 12 N.Y. Sup.
(95.) As Joel Bishop stated in his 1873 domestic relations
treatise:
When the court pronounces for a divorce, pursuant to
the prayer of the wife, and gives her the custody of the children; then, in
respect to their support, the rule would apply to the husband, that no man
shall profit by his own wrong, and, to the wife, the corresponding rule,
recognized by good sense, if not so formally received as the other among the
maxims of the legal family, that no one shall suffer for doing right; in
pursuance of which, the husband should be charged with the full burden of
maintaining the children committed to the wifes care.
BISHOP, supra note 63, at [sections] 555; see Plaster v.
Plaster, 47 Ill. 290, 292 (1868); Gibson v. Gibson, 51 P. 1041, 1042 (Wash.
1898); THEOPHILUS PARSONS, 1 THE LAW OF CONTRACTS 295 (4th ed.
Boston, Little, Brown & Co. 1860) ( [W]here [the child] has been deserted
by the father, or driven away from him, either by command or by cruel
treatment, there the infant carries with him the credit and authority of the
father for necessaries. ); Schuele, supra note 63, at
824.
(96.) See, e.g., Fulton v. Fulton, 39 N.E. 729 (Ohio
1895); see also L.W.B., Annotation, Liability of Father for Support of Children
Awarded to Mother by Decree of Divorce Not Providing for Maintenance, 15 A.L.R.
569, 572 (1921) ( Since the rule that a father is liable for the support of his
children though he has, by a decree of divorce, been deprived of their society
and services, is based on the fact that his fault produced the condition, the
rule has been held to be inapplicable where the divorce is granted for the
fault of the wife. ). But see Holt v. Holt, 42 Ark. 495 (1883) (allowing a wife
to recover child support even though she was at fault in the divorce); Rankin
v. Rankin, 83 Mo. App. 335 (Ct. App. 1900) (same).
(97.) DAVID STEWART, THE LAW OF MARRIAGE AND DIVORCE
[sections] 405 (S.F., Sumner Whitney & Co. 1884) .
(98.) See supra notes 23-24.
(99.) See, e.g., Plaster, 47
(100.) See, e.g., Abele v. Abele, 50 A.
686 (N.J. Ch. 1901); Parker v. Parker, 42 A. 160 (N.J. Ch. 1899); Gibson, 51 P.
at 1041.
(101.) Cowls v. Cowls, 8
(102.) Holt v. Holt, 42
(103.) See, e.g., Bush v. Bush, 37 Ind. 164, 168 (1871)
(upholding an award of $100 per year per child after a divorce but admitting
that such an award will not pay for [the childrens] clothing and education );
Buckminster v. Buckminster, 38 Vt. 248 (1865) (awarding $50 twice per year for
four children, one of whom was ill).
(104.) See
(105.) See supra note 89 and
accompanying text.
(106.) Steele v. People, 88
(107.) See Vance, supra note 66, at 593-94 ( [I]t may be safely said that according to the American
authorities a father is under a legal obligation to maintain his minor child
irrespective of statute.... That such a legal duty of support is recognized in
the United States cannot well be called in question in view of the great mass
of authority, both of reported decisions and legal treatises that so state the
law. ); Ernest Watts, Porter v. PowellThe Right to Parental Support, 39 AM. L.
REG. 28, 55 (1891) ( The weight of the authorities would, however, seem to be
in favor of holding the duty to be one enforceable at common law as a duty cast
upon the father thereby.... ); see also Schuele,
supra note 63, at 815 n.34 (describing the shift to general acceptance of a
child support duty).
(108.) See GROSSBERG, supra note 19, at
129 (noting the infrequency of slave marriages in the North); id. at 130 (describing prohibitions on slave marriages in the
South); Margaret A. Burnham, An Impossible Marriage: Slave Law and Family Law,
5 LAW & INEQ. J. 187, 207-11 (1987).
(109.) See Burnham, supra note 108, at 208,
211.
(110.) See id. at
218.
(111.) See Jill Elaine Hasday,
Federalism and the Family Reconstructed, 45 UCLA L. REV. 1297, 1325-26 (1998).
(112.) See Burnham, supra note 108, at 216; see also JAMES
OLIVER HORTON, FREE PEOPLE OF COLOR: INSIDE THE AFRICAN AMERICAN COMMUNITY
99-100 (1993) (noting that slave children in the North were the property of the
slaveowner, increasing the economic value of female
slaves).
(113.) See GROSSBERG, supra note 19, at 133; Laura F.
Edwards, The Marriage Covenant Is at the Foundation of All Our Rights : The
Politics of Slave Marriages in North Carolina After Emancipation, 14 LAW &
HIST. REV. 81, 101 (1996).
(114.) See Edwards, supra note 113, at
107. After the abolition of slavery in the North, demographic evidence
suggests that the number of female-headed households in the black community
rose steadily during the 19th century, similar to the demographic
shift that occurred in the white community. See JAMES OLIVER HORTON & LOIS
E. HORTON, IN HOPE OF
(115.) See GROSSBERG, supra note 19, at 266; TERA HUNTER,
TO JOY MY FREEDOM : SOUTHERN BLACK WOMENS LIVES AND LABORS AFTER THE CIVIL
WAR 35-36 (1997); Sara Rapport, The Freedmens Bureau as a Legal Agent for
Black Men and Women in Georgia: 1865-1868, 73 GA. HIST. Q. 26, 35 (1989). The
(116.) As one historian has
concluded: Marriage, considered in light of the apprenticeship laws, did not
make African-American men household heads with the power to protect the
interests of their dependents. It simply obligated them to support their
dependents when it was inconvenient and unprofitable for white planters to do
so. Edwards, supra note 113, at 98. Many whites supported marriage for blacks
precisely because it would provide a fall-back system of legal obligationsincluding
child support obligationsthe breach of which could be legally prosecuted. See
id. at 94. If a black couple was not legally married,
it was even easier for their children to be apprenticed. See id. at 105.
(117.) See id. at
103-05.
(118.) See id. at
102-05; Hasday, supra note 111, at 1355-57.
(119.) See Edwards, supra note 113, at 119; Hasday, supra note 111, at 1355-57.
(120.) See GROSSBERG, supra note 19, at 226-27; Edwards,
supra note 113, at 108.
(121.) See 2 KENT, supra note 94, at 178 ( [R]egulations to coerce the putative father to maintain the
child, and indemnify the town or parish, have been adopted in the several
states. ). See generally GROSSBERG, supra note 19, at
196-233 (describing the illegitimacy laws in 19th-century
(122.) See 4
(123.) See JAMES OLIVER HORTON & LOIS E. HORTON, BLACK
BOSTONIANS: FAMILY LIFE AND COMMUNITY STRUGGLE IN THE ANTEBELLUM NORTH 16
(1979).
(124.) See id. at
18-19; HUNTER, supra note 115, at 37.
(125.) See TAPPING REEVE, THE LAW OF BARON AND FEMME 414
(photo. reprint 1970) (1862); SCHOULER, supra note 36, at 320 ( The stat. 43
Eliz. may be considered as having been transported to
the
(126.) See supra Section I.C.
(127.) By conceptualizing modern American welfare programs
as having two broad goalsencouraging work among aid recipients and saving as
much public money as possiblewe can see that the criminal law in the 19th
century served as a tool of the welfare state in both of these areas. Laws
against vagrancy forced working-class adults into exploitative labor contracts.
See Christopher L. Tomlins, Law and Power in the
Employment Relationship, in LABOR LAW IN
(128.) 43 Eliz. c. 2 (
(129.) See Jacobus tenBroek,
(130.) 1 WILLIAM BLACKSTONE,
COMMENTARIES *437.
(131.) See supra note 125.
(132.) See, e.g., City of New Bedford v. Chace, 71 Mass. 28, 30-31 (1855) (holding that towns could only
aid married women and their children through the poor law process); Hanover v.
Turner, 14 Mass. 227,230-31 (1817) (allowing the town of Hanover to recover
from Isaac Turner for aid rendered to his impoverished wife); see also tenBroek, supra note 94, at 291-306 (discussing poor law
child support provisions in New York).
(133.) 2 Grant 161 (
(134.)
(135.) See id. at
165. The poor law provisions were burdensome for working-class families, as
they required the father to impoverish himself completely before a town would
give any aid to his children. See, e.g.,
A mans wife and his infant children cannot become a
charge upon a town as paupers until he is a pauper. Sound policy requires that
it should be so.
For if the rule of law given to the jury in this
case were applicable to unemancipated children, every man in moderate
circumstances might throw his young children upon the town for support until
they became able to support themselves.
Hillsborough v. Deering,
4 N.H. 86, 96 (1827).
(136.) 2
(137.) See Chas. A. Bucknam,
Parent and Child, 15 CENT. L.J. 23, 23 (1882) ( [T]he statutes are
intended only for the indemnity of the public against paupers, and not for the
reimbursement of an individual who may have relieved the sufferings and
distress of needy persons.... ); Vance, supra note 66, at 593 ( [The poor law] can be invoked only in aid of the public,
and never for the benefit of the child. ).
(138.) See FREDERIC J. STIMSON, AMERICAN STATUTE LAW 751
(Boston, Charles C. Soule 1886). More states passed
desertion statutes around the turn of the century. In 1904, the
(139.) See Foundlings and Deserted
Children, in PROCEEDINGS OF THE EIGHTH ANNUAL CONFERENCE OF CHARITIES AND
CORRECTION 282, 282-84 (1881) (statement of Susan I. Lesley, Phil. Socy for Organizing Charity).
(140.) See, e.g., MASSACHUSETTS SOCY FOR THE PREVENTION
OF CRUELTY TO CHILDREN, SECOND ANNUAL REPORT 15-17 (1882); see also Martha May,
The Problem of Duty : Family Desertion in the Progressive Era, 62 SOC. SERV.
REV. 40, 43-44 (1988) (describing charity workers suggestions for legal reform
during the late 19th century).
(141.) See E.P. Savage, Desertion by Parents, in PROCEEDINGS
OF THE TWENTY-FOURTH NATIONAL CONFERENCE OF CHARITIES AND CORRECTIONS 317, 320
(1897).
(142.) See G.W. Swan, Remarks at the Twenty-Second
National Conference of Charities and Corrections, in PROCEEDINGS OF THE
TWENTY-SECOND NATIONAL CONFERENCE OF CHARITIES AND CORRECTIONS, 1895, at 519,
520 (1895).
(143.) State v. Rice, 5 N.E. 906, 907 (
(144.)
(145.) Leibold
v. Leibold, 62 N.E. 627, 627 (