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A feminist activist and scholar (and mother) writes:  "I would like to see you do a comparison between the laws about child custody (ownership) in the 19th century and what is being proposed now.  Then men owned the child and the wife/mother had no rights regarding custody.  Legitimacy was dependent on the man's willingness to claim the child -- not as it is today for a court to decide."

The key similarity between then and now is that women were, and still are, largely disabled from "legitimizing" children themselves.  One way or another, women have not been permitted to define, create and raise families on their own.  This has hampered women's choices and power both inside and outside of marriage, and is the source of women's overall subjugation and inequality -- even as to women who do not bear children.

Historically, marriage automatically legitimized the children of the wife, meaning that children of a wife automatically were (and generally still are considered to be) the children of her husband (regardless of actual biological parentage.)  It is unclear whether the law presumed biological paternity of husbands, or whether the law merely gave him chattel rights based on an economic theory of marriage with a conscious decision to disregard biology (since children were considered to be an economic resource), or whether it was a little of both.  Historically, women were under such overwhelming economic and social disabilities that women were put into the position, if they bore children out of wedlock, of hoping a man would freely acknowledge paternity and legitimize their "bastard" children, as men traditionally had the free choice to do or not.  Disabling women was further aided by social and economic detriments imposed on unwed women's children as well.  (Another way to control women is through punishing their children.)  And it went even further, in that ALL women were in general so socially, legally and economically disabled from functioning at large because of the child-ownership aspect, that women had to become married as a means to their OWN survival, including bearing children if they were capable of doing so, even when marriage and children were not otherwise wanted.

At any rate, it is only relatively recently that unwed fathers have been granted enforceable rights to children based solely on biology, and this development is largely a result of our rather recent ability to trace DNA.  But it threatens to set back the clock again on women's autonomy.  We never quite got to a moment in which women could bear and rear their children out of wedlock without some kind of social or legal or economic punishment for that transgression.  Since a panoply of laws traditionally disabled women's ability to create and support families on their own without a husband, and also stigmatized and legally disabled "illegitimate" children, this was historically a strong incentive for women to not bear children outside of wedlock.  Since once married, a woman would then have far fewer problems if she "fooled around," additional laws gave extraordinary power to husbands over their wives, intended to help make sure that she didn't stray from the marital bed.

What feminists need to do is to really see that it makes little difference whether women's rights and automony are being subject to attack directly or indirectly, frontally, or on the left or right flank, if the outcome is still going be the same.  If women gain certain rights, e.g. employment, or abortion, but lose them in another way, e.g. custody of their own children, or economic reality, or "the double shift," the outcome, on balance it is the same. Not equal.

Also important is for feminists to see clearly where women and men will always stand in different positions -- the area of reproduction directly -- and to recognize when pratter about gender-neutrality really is not that, but the denigration of women's efforts and lives.

"Your take on changes from common law, I think, would be beneficial to those who are only vaguely aware of the facts of mother's rights that were almost non-existent, even as late as the 1930s in many states... that the child was the sole property of the male who claimed it."

All true.  In addition, as late as 1981, men were defined in many states as head of the household, and e.g., in Louisiana had the sole right to manage all of the community property and income.  Most states didn't recognize marital rape, domestic violence was considered "disturbing the peace," and many states had no concept of equitable distribution of property post-divorce.

It also is true that in the early part of the 20th century, women started to be considered the post-divorce custodians of their children, in large part because of changes in the economy and child labor laws.  Children had become an economic burden rather than resource (see Mary Ann Mason.)  Divorce, however, remained very difficult for women to obtain even so, because of women's various economic disabilities, while men were largely free to leave their bad marriages. While women oftentimes were stuck without the ability either to get a divorce, or even if they succeeded, to get awards of appropriate amounts of marital property, alimony, or child support, men could simply leave.  With this kind of economic power, that men didn't more often insist on trading child custody for economic benefits to the mothers is telling of where men's interests overall really are (in relationships, first and foremost, their feelings are not for their children but for their current adult love-interest, and their relationships with their children are highly dependent on that relationship. See, e.g. Terry Arendell's writings.)  In fact, what men OFTEN did in this system (similarly to what we are threatened with now), is to permit women to keep their children provided they didn't make economic demands.  Now, what we are seeing, in light of post-feminist laws that have given women a much larger economic viability and rights in and to marital property, is the men's rights backlash pulling the same old tricks by demanding custody rights.  Again, it's: you want to keep your children, well then back off this demand for money from me -- that's mine.

"Today, under slightly different plumage, this old family values concept appears to be making a comeback -- aided and abetted by those "feminists" who have only a slight knowledge of history."

Yes.  Women have to get wise to motives and strategy that are merely a switching of tactics. The bottom line (and the comon thread in all of the subjugation of women and however women's rights have been disabled historically or currently) boils down to this:

Unless and until women have the absolute right to automony over their own bodies and lives, the ability (economically, legally and socially) to create families without the partnership of a man when they want to (and the corollary, to refrain from creating families at all), and with that even when they have done so, still to become educated and fully functional and able to support and care for the children they bear and the families they unilaterally create while participating in the society at large, then women will never be able to negotiate partnership marriages WITH men that come from a bargaining standpoint of equality. Conversely, if they can't do that, that itself in turn will insure that women as a group will never be able to maintain a full, unfettered and free equality in other arenas of life (e.g. employment) -- because the overwhelming most of their demographic cohorts (and would-be political allies) who do bear children will be politically and economically weakened as a consequence.

Every area of women's rights is tied inextricably to the others -- reproductive rights, employment rights, marital rights, child custody rights, education rights, etc.

The biology of reproduction gives women both a unique power as well as a consequent cost. Where women are made to suffer the costs without being permitted their natural rights to the power they also should have had, inequality results.  These must balance out.  It is not "equality" to pretend that men and women are equal when we legislate rights in the areas of reproductive and family law, while turning a blind eye to the FACT that women also invest higher human costs in creating families.

It always will be problematic for women to both bear and rear children and support them on their own, because the caregiving demands of children mean that a woman must have assistance either with child care (to enable her to produce economically) or economic assistance (to enable her to do the child care.)

It is argued, however, that the threat to patriarchy ("family values") is that women will choose arrangements other than marriage to men to solve the dual role problem, e.g. women together in communities, the mother-grandmother households, lesbian households, serial relationships, hired help, or "alpha male" polygamy.  In large part the fears are unwarranted. Most women are heterosexual, most women would like to have committed companions to share life with, a significant portion of marriages still do succeed, and the heterosexual partnership -- even if it is not a lifetime partnership, is not really all that threatened (except maybe as to marginal and abusive men, or men who would be unwanted in a "free marriage market economy".)  What's threatened are men's advantages and men's control.  Also threatened is a culture we have that is permeated with patriarchal religious values and notions -- and the threat to these religious ideals makes many persons very uncomfortable.

But if women had the power to say no to marriage altogether and to create families on their own, then they ALSO would gain the power (socially and legally) to negotiate and enforce truly equal partnership marriages when they wanted to enter into them.  (E.g. "If I bear the children and you are going to have equal claim to them and be a partner in this -- which I don't NEED, but which could have benefits for BOTH of us -- then I will expect... X, Y, Z ... from you in return in the way of contribution to child care, emotional support, help with the housework, contribution to family financial resources, etc.")

My theory is that patriarchy (for more complex reasons Ithan I can go into here) is in actuality a reducing of the "market value" of women and their reproductive abilities, their negotiating power, and what they have to offer via marriage, thereby forcing women into marriages "on the cheap" -- familial rights that historically were unliaterally granted benefits to men and rights to the children borne of women's bodies without a market-value bargained-for (or enforced) exchange of benefits and rights back to the women.  Instead of an equivalent negotiated exchange, rights are granted automatically to men (upon marriage, traditionally, and now merely upon impregnating a woman) by the STATE, without regard for the woman's intent or wishes.  Men are guaranteed certain rights and privileges by the state which were not the state's to bestow in the first place, and which were, in essence, stolen from woman. This insures men's loyalty to the state (traditionally, the soverign's patriarchy), and that men will look to the state (cf other men, the patriarch, patriarchal religion, the male leadership, the "father in heaven") for their rights, rather than to any woman. Thus, the state. and loyalty to the male-led group, rather than men's natural objects of attachment, becomes the actual and/or symbolic source of happiness, love, nurturance, children, family and purpose in life.  (Consider the historical treatment of prostitution, where women purport to contract with regard to even a little temporary bit of this.)

If men had to bargain equally in a truly equal world with women for access to their bodies, equal claim right to their children, families, love, and so forth, women would require men to exchange something in return commensurate in value with what the women are giving out of their lives.  But the patriarchal state injects itself as the bestower of rights, subjugating women and removing this power from them, in order to be the source which grants men families. This insures the loyalty of men to the sovereign patriarchy and not to women. This turns women into chattel bestowed on loyal warrior troops.

Over the past recent decades, women's activism has managed to make a number of dents in the hold of patriarchy, giving women freedom from bearing children if they so wished, or to plan when they will bear children; making women more economically able to support themselves and go it alone; loosening the both the controls that traditionally forced women INTO marriages, and also those which kept them there once married.

Since these all interrelate and work together and interconnect in effect in the course of a woman's life, if women lose power or rights in one area, it is as damaging on balance as if they lose in another.

Thus, it doesn't really matter if women have abortion rights and economic rights, if they do not have the rights to bear and rear their own children and still determine the course of their own lives when they DO have children (and most women do.)  Under such circumstances, women STILL cannot control their own lives and freely negotiate with men, and the balance of power shifts to men (choreographed by the patriarchal state), with women carrying far more burdens and having less freedom and autonomy over their own lives.  Achieving a superficial semblance of equality in one area while losing power in another isn't a gain.  It's status quo. Women's lives are not one-dimensional.  And having to trade power one has in order to gain power in another area isn't making more power, and it's not giving women equal power overall with men.

So, e.g., when the tender years doctrine was in force and granted women "custody" of children while women still were under disabilities to support them and leave marriages, the same result held.  Subjugation of women relative to men.   It doesn't really matter which aspects of women's control and choices over their own bodies or lives are removed, the result is the same, with women ending up with less on their side of the power equation.

Unless all women have the legal right and practical ability to use all of their own bodies, to create their own families as single mothers, and to even doing so fully function in society at large making their own choices as to how they will obtain either child care or economic assistance as needed, then even women who do NOT want marriage or children also will remain subjugated, because they will be in numbers far too small to insure their rights, and they will not be permitted to stand as irritating examples reminding women of alternatives.

Martha Fineman's theory is that the tracing of biological paternity and granting uwed fathers rights under the guise of making men "responsible" is the imposition back on women of the patriarchal marriage burdens and definition of what constitutes the patriarchal family.  Given that marriage is no longer a state of utter subserviency and obliteration of women's identity and has over time indeed progressed more and more toward a promise of partnership theory, the politics of unwed father's rights bodes even WORSE for women's rights than would be a falling back to some of the traditional marital inequities.  This new attack on women's autonomy and freedom essentially puts women's lives and families subject to the demands of men they have not EVER chosen to marry, and who have never undertaken -- even by a promise or commitment breached -- any obligation whatsoever to the mothers of their children.

Unwed father's rights are the state's grab once again of women's power, this time bestowing it on men in exchange for a paltry promise of "child support," while burdening women and the families they create with all of the detriments of marriage, absent ever having had ANY of the benefits from marriage or from these men.

Simultaneously, to the extent some men are disgruntled with the burdens being imposed on them by the state (that some men are inappropriately burdened does not translate necessarily to a corresponding equivalent benefit for the women involved), the father's rights movement is actively campaigning to take custody of women's children from them outright.  That translates to mothers being "valued" by the society as nothing more than chattel-childbearers.  Women's lives, efforts, time, emotions, bodies, children and labor are taken for free.  Impregnate a woman, and win rights in and to her body, the fruit of her body, her efforts and her life.

"There is, I think, a third solution that would be more in keeping with the realities of women's lives and not the comforts of the laws made for the convenience of men.  That would be an entirely new concept of parenting that would start with the mother being the primary custodian of the child instead of being RESPONSIBLE for the child without the primary authority."

Absolutely!  And this translates into more than merely a primary parenting presumption of custody.

A correct reading of our constitutional jurisprudence underlying concepts of family and parental rights is one that recognizes that families "in fact" which exist in the absence of laws and government, are entitled to be left alone and not meddled with.  Consistent with this is the "liberty interest" said to be underlying "parental rights."  That liberty interest also, and consistently, comports with other liberty notions, such as freedom of contract. Thus, absent law and government, in a "state of nature," the actual family as it functionally exists (and not by definition in the abstract) is what is free from government interference. That actual family will ALWAYS be the gestating mother and her offspring, or in a few cases, the actual de facto adoptive parents to whom that mother consented to yield her child or who otherwise replaced a deceased mother. That family also would include, when one actually is present, that mother's in-residence "partner" who is functioning as a contributing member of a family unit when a child is born, and who in fact establishes an attachment relationship with the children as a caregiving parent. This may or may not be a husband or biological father.  Further consistent with this is the traditional law that, until very recently, recognized that unwed mothers in fact were the natural legal custodians of their children born out of wedlock, and the sole legal parent.

Until very recently, until the backlash against women's rights gains, jurisprudential scholarship was consistent.  Instead of the patriarchy's attacking women's natural rights to and authority over the children of their very bodies, women were disabled and coerced into being controlled more indirectly, via the panoply of traditional economic and social controls imposed on them to get into and remain in marriages.  Now that those traditional disabilities have been significantly eased, we are seeing a direct attack (inconsistent with jurisprudential philosophy, and purely political) at the very foundation of family liberty rights, in the name of "family values."

An unwed mother no longer is her children's automatic sole parent; and she can no longer give a child up for adoption without a male biological gamete-provider's permission. Worse, the artificial concept of sperm-based "family" has created a shift in the law from enforcing men's obligations to the women they married and who have borne their children (at great detriment to the women) to a pretend economic obligation to and direct relationship of the men with the children (child support.)  Thus, women's abilities to enforce an economic marital bargain have become inappropriately tied to having custody of children post-divorce. This has resulted in a burgeoning increase in child custody litigation.

But far worse than this, and more subtle, is the slapdown to women's equality and rights. Instead of enforcing marital contracts, including recompense to women for the irrecupable physical, economic and opportunity costs they invested by agreeing to marry a man and bearing children he lays equally claim to, hoodwinked by the rubric and rhetoric of "equality" and gender neutrality, we instead have men given rights in and to families (and to control the lives of women and children) with NOTHING at all being recognized as being morally or legally owed back to the women who created those families.

Even where marriages occur, we have engineered divorce and custody laws which both favor men's chances at gaining child custody from women and then based on that, simultaneously enable them to avoid economic recompense. In fact, SHE may even be held liable to pay HIM child support. Handmaid's Tale, Handmaid's Tale. No value is recognized in the time, effort, and human costs women unavoidably incur in reproduction, or the reverberating lifelong effects of having done so. Women are devalued.

"An example, the case of the husband and wife who left (abandoned) their severely handicapped child at a hospital and are being prosecuted for child abandonment. Consider if the father ALONE had left the child.  Would not the social and legal ramifications been entirely different.  The poor guy, couldn't take it anymore."

Absolutely. We have inconsistent perceptions, illogical and erroneous legal trends that are not in accord with underlying jurisprudence, and we have a society that, unable to reconcile this, carries all these schizophrenic notions. At this point, we have got to a point where women are still perceived as socially and legally responsible for the direct care of children, but where women, to a greater and greater degree, are losing again the authority that should go along with that responsibility. In addition, where the custody laws favor men more and more, children's mothers themselves have become fungible and replaceable by "any woman." Mothers are even losing the right be to be "the" woman who is their child's caregiver.

Do not be fooled by the rhetoric that the pro-fatherhood movement is about making men responsible. There is no such thing as responsibility unless first there is an agreement to be lived up to, or an actual obligation to meet an actual existing NEED. Where there has been no agreement with the mother, and no agreement from her as to what her time and efforts are worth, and maybe no agreement even to enter into a parenting partnership; where there is no social or moral or legal obligation of the father to the mother, where all responsibilities for child care already are being discharged in full and there is no need of a child that in fact is unfulfilled (see Fatherhood: Myths and Facts), and where the mother may even be adverse to this redefining of her own family, there is no responsibility to be lived up to!

This is about forcing women to grant rights to men in the families women have created on their own, and removing from them again their marital bargaining powers. It's a worse position even than forcing them into marriage. The carrot held out to artificially socially and economically disabled women of a few measly dollars in child support that they have been rendered desperate for creates some really short-sighted and misguided "agreement" here with what I've called the "child support bandwagon" as to both individual women's immediate choices and also in the macrosphere. This is hardly recompense for the value of women's bodies and lives.  And then, when one layers over that, the vast numbers of children that are being taken away from women altogether, both by men via the custody laws and also the state... you've got one really, really big USE of women's bodies and lives.

Men can and do freely abandon their children.  Because of the nature of pregnancy and motherhood, however, women MUST be the one who is there at the point of birth, and don't have the choice of walking away from the newborn infant.  And usually, women do NOT want to abandon their children -- women who do are women in very difficult circumstances.  It's relatively rare.  For men, however, it's not rare.  But having sex doesn't bond men to children born nine months and however many miles away.  There ARE some biological differences between men and women, and not acknowledging them denigrates women and again, the value of their bodies and lives.

The unfair outcomes from this woman's responsibility are largely a result of the willingness to leave ONLY the responsibilities on women while taking from them the power, the autonomy and rights and freedoms that normally would accrue simultaneously with those responsibilities.

First, women must have the right to contraception and abortion.  Next, unwed mothers must be given BACK their absolute right to bear and rear children free of a partner, as a sole parent, including the right to place their babies for adoption if this is their free and unfettered choice (not the result of unwarranted social and/or economic disability.)  Finally, the case mentioned of the married couple abandoning their severely disabled child is unusual -- this is an older child and a married mother and father -- and is largely the outcome of a number of cuts in benefits provided to families of disabled children as a result of the very same political trends that have resulted in recent cuts in programs for single mothers, welfare, and so forth.  While an isolated father fell into the sinkhole on this one, what's going on in reality is all part and parcel of the same attack on women. Need help?  Get thee properly husbanded.  That is what is the governmental turning of social welfare back over to a theory of "parental rights and responsibilities" but with my caveat to you that in motive and reality, this mean's men's rights and responsibilities.

"But in this case, the MOTHER was involved and it smacks of horror in everyone's mind - -"

And, yes, absolutely, although again this was an unusual case, and probably made the big news in the first place because it was a couple.  Poor man.  But it was the mother still who bore the larger burden of caring for the child, and who is seen to have wrongfully abandoned the child. The man's involvement is prime to highlight that perhaps the law is overly harsh in its lack of assistance.

"Am I stretching?  Not hardly since every day hundreds of men walk away from their children and the authorities do not file "child abandonment" against them -- in fact, the destitute wife and hungry children are told it is a CIVIL matter..."

And if a mother takes too many business trips, or works a little too much, she is looked at as an abandoning parent, too, and at risk for losing custody of her children in a divorce, without regard to the actualities of who was the children's primary parent.  But let's be careful about laying blame on men for "abandonment."  It depends first on the existence of some kind of legal, social or moral notion of "responsibility."  When, where, and to whom was the undertaking. Gamete provision alone isn't sufficient to support a notion of male parental responsibilities OR rights.

It harms us to quibble with the reality and the fact that there are indeed biological differences in reproduction, as well as that for even more reasons, mothers are just not in the same kinds of positions father are vis a vis their families.  If we ignore these real differences, then a gender-neutral pretense puts women at a decided disadvantage in that the actual investments, time, risk, experience of their lives are discounted.  I think we have to acknowledge certain things, embrace them even, and then demand, not a pretense to equality, but an equality in fact that values women's bodies, women's time, women's efforts, women's experiences, women's risks, women's relationships, AND WOMEN'S CHOICES on a par with the values accorded to men's bodies, time, efforts, experiences, risks, and relationships.

liz

See RECONCILING MARRIAGE, MOTHERHOOD AND FEMINISM - One.