CASE 111: Self-Custody

D. 43.30.5 (Venuleius libro quarto Interdictorum)

Si filius sua sponte apud aliquem est, inutile hoc interdictum erit, quia filius magis apud se quam apud eum est, in quem interdicetur, cum liberam facultatem abeundi vel remanendi haberet: nisi si inter duos, qui se patres dicerent, controversia esset et alter ab altero exhiberi eum desideraret.

(Venuleius in the fourth book On Interdicts)

If of his own accord a child is living in a third party’s house, this interdict will have no place, because the child is more in his own custody than in that of the person against whom the interdict will lie, since he has a free choice of going or staying.

1.      Age Limit. The interdicts for producing and leading away a child-in-power can be used only against third parties, not against the children themselves (Ulpian, D. 43.30.3.3). What minimum age must children have reached to be able to decide the issue of custody on their own? Does this Case seem to pre­sume a fact situation somewhat like the following: because of a quarrel with his father, an adult child has gone to live with a friend?

2.      Character. Is the character of the father relevant to the child's ability to decide?

3.      Two Claims of Potestas.

4.      Custody without Potestas. Where potestas was not an issue, for example, when the paterfamilias was deceased, the praetor or provincial governor had great latitude in awarding custody, even to the point of disregarding the de­ceased fathers instructions as expressed in his will (see Ulpian, D. 27.2.1 and 5). Ulpian indicates that the magistrate in making his decision should be con­cerned to shield the child from possible sexual abuse. Why is there no men­tion of possible physical abuse by corporal punishment? See Case 94 above.

5.New Roman">      Coresidence. Do the Cases you have read on custody establish conclusively that coresidence is not important to the Roman legal concept of a familia? That is, in Roman law is the “family” (as we recognize it) fundamentally dis­tinct from the familia?