Family law

“ Live no longer to the expectation of these deceived and deceiving people with whom we converse. Say to them, O father, O mother, O wife, O brother, O friend, I have lived with you after appearances hitherto. Henceforward I am the truth's. Be it known unto you that henceforward I obey no law less than the eternal law. I will have no covenants but proximities. I shall endeavour to nourish my parents, to support my family, to be the chaste husband of one wife, —but these relations I must fill after a new and unprecedented way. I appeal from your customs. I must be myself. ”

“ Let us apply these principles to adultery. The state can no more prohibit it or punish it by law than any other illegitimate satisfaction of the sexual impulse. ”

“ The integrity of the family bond must be constantly considered, and the rights of the individual members must not be transgressed. The rights of the son, the father, the mother—none of them must be transgressed, none of them must be arbitrary. Just as the son has certain obligations to his father, the father, likewise, has certain obligations to his son. The mother, the sister and other members of the household have certain prerogatives. All these rights and prerogatives must be conserved, yet the unity of the family must be sustained. The injury of one shall be considered the injury of all ”

“ Yet who doubts that among the rich as well as among the poor such judicial protection and care of the children, whom the broken family leaves without true parental care, is needed? To give children into the hands of either parent alone is in many such cases no fitting substitute for the normal home influence. In any case, there should be an external 242conscience and an external solicitude enlisted in the interest of every child whose parents have made such a failure of marriage and the home that the divorce court is the only refuge. ”

“ The property of both husband and wife is equally liable for the expenses of the family and the education of their children, and neither is liable for the debts of the other contracted before marriage. By the code of 1873, now in force, it is declared that the parents are the natural guardians of their children, and are equally entitled to their care and custody; and either parent dying before the other, the survivor becomes the guardian. ”

“ Prior to 1860, the husband could by will take the custody of his infant children away from the surviving mother, and give it to whom he pleased—and he could in like manner dispose of the control of the children's property, after his death, during their minority, without the mother's consent. In most of these respects the state of the law has undergone great changes within the last twenty-five years. The property, real and personal, which a woman possesses before marriage, and such as may be given to her during coverture, remains her own, and is free from the control of her husband. ”

“ Philanthropic Tendencies Respect Legal Marriage.—These tendencies, however, are not in the direction, intentionally at least, of making legal condition and status in respect to name, inheritance of family property from a father whose parental relationship is not legally established, and public recognition of parenthood, identical in the case of children born within and without the legal family circle. ”

“ But however we settle the question, we must make the parent justify his custody of the child exactly as we should make a stranger justify it. If a family is not achieving the purposes of a family it should be dissolved just as a marriage should when it, too, is not achieving the purposes of marriage. ”

“ If a marriage was clandestine or both parties knew of an impediment, or it was within the prohibited degrees of consanguinity, the children would be illegitimate. According to church rules, a man could bequeath his personal property subject to certain family rights. These were that if only the wife survived, she received half the property. Similarly, if children survived, but no wife, they received half the property. When the wife and children survived, each party received one third. ”

“ Instead of being left in quiet possession of what is rightfully her own, to use and guard with all a mother's care and watchfulness for the benefit of her children, the law comes in and claims the right to appoint administrators and guardians—to require bonds and a strict accountability from her, and to set off to her a certain share of what should be as wholly hers as it is the husband's when the wife dies. ”

“ And by the statute 4 & 5 Ph. & M. c. 8. whosoever marries any woman child under the age of sixteen years, without consent of parents or guardians, shall be subject to fine, or five years imprisonment: and her estate during the husband's life shall go to and be enjoyed by the next heir. The civil law indeed required the consent of the parent or tutor at all ages; unless the children were emancipated, or out of the parents power [o] : and, if such consent from the father was wanting, the marriage was null, and the children illegitimate [p] ”

“ All the reciprocity of rights and duties which have bound together the parent and child from infancy is considered to end with the consummation of her marriage; nor does the stain of any subsequent female backsliding ever affect the family of her parents; it can affect that only of her husband, who is held alone responsible for her conduct. ”

“ This makes it easy for men and women to repair an injury if they can marry after the birth of their child. In any case the recommendations for uniform State laws make it clear that the tendency is strong to bring legal pressure to bear upon the father of a child by an unwedded mother to pay the expenses of her confinement, to support the child under the laws requiring "support of poor relatives" or under statutes specifically obligating recognition of parental responsibility outside the marriage bond ”

“ A father's right to the custody of his own children being founded in law on the right of guardianship, this being taken away, they may of course be severed from him, and put by the authority of the court, into more orthodox hands. ”

“ Legal separations and divorces have come to modify the quality and logical consequences of the bond. The rights of parent over the child have been even more completely qualified. The State has come in as protector and educator of the children, taking over personal powers and responsibilities that have been essential to the family institution ever since the dawn of history. ”

“ What the State may not do is legislate on the generalized assumptions that a parent in an intact family will not act in his or her child's best interests and will fail to involve the other parent in the child's upbringing when that involvement is appropriate.↑ See, e.g., Brief for American Psychological Association et al. ”

“ A married woman having separate property is, under the Married Women's Property Acts 1882 and 1908, liable for the support of her parents, husband, children and grandchildren becoming chargeable to any union or parish. At common law the father was entitled as against the mother to the custody of a legitimate child up to the age of sixteen, and could only forfeit such right by misconduct. ”

“ If they do not, they must bear the consequences in respect to property and other matters which may concern them, from their misconduct. But as regards their children, as they are legitimate according to the lex loci of the marriage for all purposes and to inherit that portion which the law gives them of the estate of deceased parents, they cannot be affected in any way by their parents' concealment of their marriage, if it shall be proved to have been valid where it was contracted. ”

“ On the other hand, the wife has no legal claim in a similar case in regard to the husband. The father may by deed or will appoint a guardian for the minor children, who may thus be taken entirely away from the jurisdiction of the mother at his death. Where both parents are dead, the children shall be given to the nearest of kin and, as between relatives of the same degree of consanguinity, males shall be preferred. ”

“ In resolving the conflict of decisions, we must determine whether the word 'brother,' as used in this federal statute, restricts the policyholder's choice of beneficiaries to brothers of the blood. We are persuaded by the policy against drawing such a distinction in the family relationship. Contemporaneous legal treatment of adopted children as though born into the family is a manifestation of that policy. ”

“ If, in further addition, the Domestic Relations Courts were changed with the supervisory care of all children whose parents were legally separated, and the well-being of those children made the chief legal concern even if it required the complete separation from both father and mother, more fathers and mothers would hesitate to place themselves where their parental control and their parental influence would be so minimized. ”

“ Unmarried women are, as we shall see hereafter, under the control of their parents; married women under that of their husbands. Hence, the parents or husbands will be the plaintiffs in such cases. In the former instance, if the parents should refuse to prosecute, the woman might do so herself, but not if the husband should so refuse; for women are submitted to their parents only conditionally, but to their husbands unconditionally. ”

“ The husband's interest in the life of the child his wife is carrying does not permit the State to empower him with this troubling degree of authority over his wife. The contrary view leads to consequences reminiscent of the common law. ”

“ Sons or daughters less than twenty-one years of age, who have no parents or grandparents, or only such as are in a condition which renders them incapable of giving consent, cannot marry without the consent of a family council. ”

“ It is an attack which, however mistaken, is ostensibly, and often honestly in intent, a movement for the protection and improvement of the family order. It is the effort to turn the history of that institution back upon itself and make the family again, as in the past, a legal unity with one representative, the husband and father, through whom alone the 39wife and children have distinct relationship to society-at-large. ”

“ There are also those, more serious in intent, who claim that the family as an inherited institution is by virtue of its inmost quality inimical to the personal freedom of its members, and hence that the state, which is now standardizing child-care, must undertake the practical duties involved and leave both parents free to change marital relationship at will before or after the birth of children and maintain their separate bachelor or spinster freedom. ”