Quote: “There is, in the first place, no doubt that when a father has the custody of his children, he is not to be deprived of it except under particular circumstances; and those do not occur in this case; for although misconduct is imputed to Mr. Greenhill, there is nothing proved against him which has ever been held sufficient ground for removing children from their father” ( Rex v. Greenhill 927).
Comment: After reading the caselaw of Rex v. Greenhill as they moved through the situation regarding Mr. Greenhill, his allegations of adulty, and the acts of Mrs. Greenhill resolved that she could not apply for habeas corpus to take the children out of the father’s custody. It is also interesting to note that the legal experience of married women means that they are one person; therefore, a wife could not make any motions in the legal system without her husband’s involvement. However, in the Custody of Infants Act, the motion now allows, if the mother has not committed adultery, “That after passing this act it shall be lawful for the Lord Chancellor…upon hearing the petition of the mother of any infant or infants being in the sole custody of control of the father…and if such infant or infants shall be within the age of seven years”(Custody of Infants, 1839) that she could obtain custody of her children. Looking back to Brontë’s novel, it reaffirms the need for this reform as all the previous case law does not see a man committing adultery as a reason for loss of custody. Still, if the mother has allegations of infidelity, her ability to even petition is lost. The novel deals with these ideas surrounding the double standard of women and men when it comes to extramarital affairs, and this seems to continue to be an issue in the legal system as well.
Question:
After the 1839 Custody of Infants Act, I wonder what the reality of this reform looked like, as it is the Judges in Equity that can make the order for the petition, was there still a fairly hefty fee? If the mother had to be of a certain virtue, could there be instances where she would be wrongly accused and lose that option to petition? Again, as we see in the novel, the reality of women and the law do not always correlate in ways that are advantageous to women. There are still the norms and social implications that dictate the actions a woman might take, even if the law was on her side, so to speak; there must have been a time of catching up socially to when she would be accepted for making that decision.
“there must have been a time of catching up socially to when she would be accepted for making that decision”–That’s an interesting idea about whether laws are in the vanguard of social change or come later after norms have already changed social behavior. There’s no doubt that the Custody of Infants Act makes a change. If you ever read Caroline Norton’s “A Plain Letter to the Lord Chancellor on the Custody of Infants,” you can see how she comments on some of the decisions we read and seems to lead the change. But Bodichon’s Plain Summary also told us that a lot of laws remain as relics in the Statute books long after “society” has moved on, in practice.