Sacred Trust or Sacred Right?

Some natural tears they dropp'd, but wip'd them soon;
The World was all before them, where to choose
Thir place of rest, and Providence thir guide:
They hand in hand with wand'ring steps and slow,
Through Eden took thir solitarie way.

—John Milton, Paradise Lost

Edward Walker was a minor when, in 1838, he went to work at sea. Upon his return, his father, Joseph Walker, claimed Edward's wages for his own use. Joseph made what charitably might be called a private settlement with the owner of the Etna, the ship on which Edward had served. Edward disputed the settlement, claiming the wages as his own. The federal district court made note of the general proposition that a father was "entitled to the earnings of his child by virtue of his paternal power." On this ground, Joseph had the right to settle matters on such terms as pleased him. The general proposition, however, was not as legally dispositive as he would have hoped.

The court distinguished between the rights and duties of a father. While a father's duties were "indissolubly attached to the paternal relation," the same could not be said of a father's rights. The rights of the father, according to the court, are given to him by the state to enable him to fulfill his parental duties ("to provide for his child a home, to protect, to maintain, and to educate him according to the measure of his ability"), and, as a more concrete compensation, the father is allowed "to take the fruits of his child's labor." But this paternal power is not a "sovereign and independent authority." It is not, to use the court's comparison, like the patria potestas enjoyed by the father in ancient Rome, "whose law held children to be the property of the father, and placed them in relation to him in the category of things instead of that of persons." This sovereign paternal authority, the court declared, "has never been admitted by the jurisprudence of any civilized people." Rather, the father holds only a contingent authority, "subject to the restraints and regulation of law," contingent because it is "inseparably connected with the parental obligations, and arises out of them." In short, paternal power rests on the fulfillment of paternal duty. Relying on a deep pool of legal theoreticians, treatise writers, and jurists, including "[t]he soundest and most esteemed commentators upon the common law," the court affirmed what, by the time of this dispute, was a well-settled legal precept: The power of the parent, because it derives directly from the duty to benefit the child, is limited in scope and duration. It is only as great as is needed to secure the child's welfare: "It is not a power granted to the parent for his benefit, but allowed to him for the benefit of the child, and it ceases when the faculties of the child have acquired that degree of maturity, that it may safely be trusted to its own resources. When, therefore, the parent abuses this power, or neglects to fulfil the obligations from which it results, he forfeits his rights."

For, at bottom, the child does not belong to the parent. The court stressed that Edward, like all children, was endowed with a social nature and was destined for the enjoyment of a social life. As a member of what the court called "the human family," Edward was invested — endowed by birthright, as it were — with all the rights that belong to other members of this universal family. The court explained,

The Creator of man, in giving to [the child] a social nature and endowing him with those qualities which fit him for the enjoyment of social life, has imposed upon the parent, as one of the conditions of his being, the obligation of providing for his offspring while they are incapable of taking care of themselves. But his children are not on that account born slaves. They do not become the property of the parent. As soon as a child is born, he becomes a member of the human family, and is invested with all the rights of humanity.

Thus, when the parent fails to fulfill his duty, when he fails to honor the human rights and social nature of the child, the "protecting justice of the country" will interpose and deprive him of his authority. The court was "not aware of any doubt" that the state could take children from their parents and place them "under the care of persons proper to have the control of them, and to superintend their education." Indeed, it was the legal and moral responsibility of the court "to remove a guardian who is unfaithful to his trust."

It is commonly assumed, by academic and lay audiences alike, that parents have long enjoyed a fundamental legal right to control the upbringing of their children, but this reading of the law is sorely incomplete and anachronistic. Cases like that of Edward Walker suggest that if by "fundamental" we designate rights with a deep historical pedigree, the right to parent free from state interference cannot be numbered among them. What is deeply rooted in our legal traditions and social conscience is the idea that the state entrusts parents with custody of the child, and the concomitant rule that the state does so only as long as parents meet their legal duty to take proper care of the child. Whether custodial authority was called a power or a right, it was made contingent on the welfare of the child and the needs of the state. "[T]he right of parents, in relation to the custody and services of their children," Joseph Story wrote in 1816, "are rights depending upon the mere municipal rules of the state, and may be enlarged, restrained, and limited as the wisdom or policy of the times may dictate." Custodial authority, maintained the nineteenth-century libertarian treatise writer Christopher Tiedeman, "is not the natural right of the parents; it emanates from the State, and is an exercise of police power."

These assertions of the ordinariness of parental authority are not isolated instances. Reviewing the case law of the nineteenth century, Lewis Hochheimer, whose treatise on the law of child custody was a familiar reference for courts in the late nineteenth and early twentieth centuries, concluded that "[t]he general result of the American cases may be characterized as an utter repudiation of the notion, that there can be such a thing as a proprietary right of interest in or to the custody of an infant." It is true of our legal past—as it is true today—that claims of right (natural and civil) were advanced in support of parental power. But, as Hochheimer tells us, the prevailing legal current, driven by the equitable force of trust principles, swept away such "narrow contentions": "The entire tendency of the American courts is, to put aside with an unsparing hand all technical objections and narrow contentions whereby it may be attempted to erect claims of supposed legal right, on a foundation of wrong to persons who are a peculiar object of the solicitude and protecting care of the law."

Traditionally, for both legal scholars and...