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Permalink to original version of “Mothers as wallets: legal history of child support” Mothers as wallets: legal history of child support

girl with bike

In U.S. law, motherhood outside of marriage implies the obligation to make substantial, recurring payments to the father (“child support”). These payments are based on the mother’s income, not the child’s need. Unmarried mothers’ obligation to pay money to fathers hasn’t been associated with the mother receiving any custody rights. In 1877, the Supreme Court of Minnesota in Olson v. Johnson made clear that unmarried mothers essentially have the legal status of wallets.

The story of Olson v. Johnson is shocking. In Minnesota in 1871, Olson was legally declared to be the mother of a child for which Johnson had the natural status of father. Under that legal determination, Olson was ordered to pay Johnson “for the support and maintenance of the child”:

certain sums, varying from $1 to $1.50 per week, to be paid semi-annually, and she was also adjudged to give a bond to the county commissioners of said county, in the sum of $800, conditioned for the faithful performance of the judgment. [1]

Olson fulfilled these legal obligations of mothers as wallets.

In 1875, Johnson married another woman in Iowa. He immediately abandoned the child he had with Olson. Olson then petitioned the court for custody of the child, return of her bond, and termination of her weekly payments to Johnson. Olson offered to make a new bond securing her support of her child. The court refused all three of these requests. It declared that Olson had no interest in ensuring that her payments went to support her child. It declared that Olson, legally established as the child’s mother, had no more legal right to custody of the child than had anyone else. These weren’t subtle aspects of the court’s judgment. In its brief opinion, the Supreme Court of Minnesota forthrightly declared:

The judgment in the bastardy proceedings, not having been appealed from, is conclusive. One effect of the judgment is to compel the plaintiff to pay to the father a specified allowance for the support and maintenance of the child, to the custody of which he, as father, is in law entitled. If he neglects to support and maintain the child, this is no reason why the plaintiff should be relieved from the payment of the allowance, nor from the obligation of her bond; and as for any proposition to substitute something else in the place of the allowance and her bond, there is no authority whatever for entertaining it. … As respects such remedies, the plaintiff would not be the real party in interest. As mother of the child she has, in law, no better title to its custody, and no more right to act for it, than any other person. [2]

This court’s judgment wasn’t aberrational. Child custody decisions in Britain and the U.S. have for centuries been justified on the basis of “the best interests of the child.” That abstract justification has enabled family law in action to be based on deeply entrenched gender stereotypes. A fundamental gender stereotype is that, compared to men, women are less important to children’s lives.

Family law is profoundly biased against women. A thinker who has extensively studied Massachusetts family courts has suggested, with detailed analysis, that women are better off not presenting their side to family court. That’s a travesty of justice. Marriage equality should extend to gender equality under family law. If that can’t be recognized as a matter of justice, it should at least be recognized as vital to women’s incentives and the long-run economic future of the U.S.

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[1] Tron Olson v. Mathea Johnson, Feb. 2, 1877, 23 Minn. 301, decided by the Supreme Court of Minnesota. The previous quote “for the support and maintenance of the child” is given in id. and apparently is from the district court’s judgment.

[2] Id. I’ve omitted the within-text citation “Tyler on Infancy, § 189.”

[image] Girl with bike in southern New Jersey in 1937. Photo courtesy of Elmer Galbi.