Celebrating Women's History

Pennsylvania v. Addicks: 1813

Plaintiff: Commonwealth of Pennsylvania, upon application of Joseph Lee
Defendant: Barbara Addicks
Plaintiff's Claim: That Joseph Lee was entitled to the custody of his two minor daughters
Chief Lawyer for Defendant: Joseph Hopkinson
Chief Lawyer for Plaintiff: J. R. Ingersoll
Justice: Chief Justice William Tilghman
Place: Philadelphia, Pennsylvania
Date of Decision: July 10, 1813
Decision: The court refused to turn over a child to its father, although he had divorced their mother for adultery
Significance: This important trial introduced the principle of "the best interests of the child" in determining custody. Before this trial, children always belonged to their fathers. The idea that a child needs the care of its mother during its "tender years" slowly led courts to grant custody to an increasing number of women. In this instance a common-law court began to make law and expand its powers.

In early America, the common law gave fathers custody of their children when marriages dissolved. In practice, colonial courts might allow a very young girl to live with her mother, but they always acknowledged the father's primary custodial right. Commonwealth v. Addicks introduced the idea that the "best interests" of children should count as well.

On June 12, 1813, Joseph Lee divorced his wife, Barbara, because she had entered into an adulterous relationship with another man named Addicks. Barbara Lee and Addicks had a child together and later married. They ignored a 1785 law that prohibited a partner who was guilty of adultery from marrying his or her paramour during the lifetime of the spouse.

After Barbara remarried, Joseph went to court to gain custody of his two daughters, now ten and seven. His lawyer said that a father was the "natural guardian" of his children under common law. He also maintained that it would be improper to permit the children to remain with their adulterous mother.

Barbara saw the matter quite differently. As her lawyer explained, she was "at least as unfortunate as she was culpable." For four years before the divorce, Joseph had not supported the family. During this period, Barbara had kept a boarding house, and had educated the children, having had an excellent education herself in Canada. When she remarried, Barbara was ignorant of the 1785 law. She remained devoted to her daughters, whose young ages demanded care.

Joseph admitted that his financial problems had prevented him from supporting his daughters, but he felt he was now able to support them, as he had his son, who had always lived with him.

The court refused to decide who should win guardianship. Chief Justice William Tilghman said:

We cannot avoid expressing our disapprobation of the mother's conduct, although as far as regards her treatment of her children, she is in no fault. They appear to have been well taken care of in all respects. It is to them, that our anxiety is principally directed; and it appears to us, that considering their tender age, they stand in need of that kind of assistance, which can be afforded by none so well as a mother. It is on their account, therefore, that exercising the discretion with which the law has invested us, we think it best, at present, not to take them from her. At the same time, we desire it to be distinctly understood, that the father is not to be prevented from seeing them. If he does not choose to go to the house of their mother, she ought to send them to him, when he desires it, taking it for granted that he will not wish to carry them abroad, so much as to interfere with their education.

The court overlooked Barbara Addicks' adultery and changed the common law. It introduced the idea that children of "tender years" needed the special nurturing of their mother. In 1860, New Jersey turned the "tender years" doctrine into law, requiring prepubescent children to remain in the custody of their mother unless she was "unfit." In the 1879 Rhode Island trial McKim v. McKim (see page 300 of Women's Rights on Trial), courts began treating mothers as separate legal entities from their husbands, best able to care for the emotional needs of their children. At the turn of the century, most separated or divorced mothers received custody of their children -- though often not the funds to care for them.

For Further Reading
Hoff, Joan. Law, Gender, and Injustice: A Legal History of U.S. Women. New York: New York University Press, 1991.
Kerber, Linda K. Women's America: Refocusing the Past. New York: Oxford University Press, 1991.
Salmon, Marylynn. Women and the Law of Property in Early America. Chapel Hill: University of North Carolina Press, 1986.
Wortman, Marlene Stein. Women in American Law, Vol. I. New York: Holmes & Meier Publishers, 1985.

Source: Women's Rights on Trial, 1st Ed., Gale, 1997, p.312