In modern family law, issues relating to the custody of children loom large, particularly in the aftermath of divorce.
In Roman law, as in most legal systems prior to the modern period, custody is often thought of in a way that seems strange to us; the primary issue is, more or less, to whom do the children “belong”? At Rome, the strongly patriarchal ideology represented by patriapotestas meant that, more or less inevitably, questions of custody were normally resolved in favor of the pater familias.
Accordingly, the praetor's Edict provided a paterfamilias with means whereby he could compel third parties to produce and hand over children in his power (see the Discussion on Case 108). We have already seen these legal mechanisms at work against a son-in-law when a father wished to break up his daughters marriage (Cases 104, 107), but, as this section shows, they could also be used against a wife or other relative. If, during these proceedings, a question arose about whether a child was in fact in the plaintiffs power, it was settled by a preliminary trial on this issue alone (see esp. Ulpian, D. 6.1.1.2).Although this patriarchal regime generally prevailed throughout the long history of Roman law, problems with it inevitably arose. From a modern perspective, the problems are not hard to understand. They stem from realization that children, particularly those of “tender years,” are often best raised by their mothers; that some parents may be unfit to act as custodians for their children; that children themselves may have a strong preference in the matter; and, above all, that the “best interests of the child” should be closely observed and are at times not satisfied by automatic preference of one parent over another—a powerful concept that refocuses attention on the child rather than the parents. These and other competing considerations make the modern law of custody complex and controversial.
But even when Roman legal sources acknowledge difficulties with the traditional Roman household regime, they allude to the underlying sources of the difficulties only in passing— and this despite the fact that such difficulties must have been considerably exacerbated by the continuance of paternal control into adulthood. Visitation rights for the noncustodial parent are not mentioned in legal sources, nor are arrangements for joint custody, though presumably informal agreements to this effect were not unknown.Closely related to custody is the issue of maintenance. As we have seen (Case 60), a husband normally had no legal duty to maintain his wife, although her dowry was often used for this purpose (e.g., Case 69). Originally, fathers also probably had no duty to maintain their children by providing food, shelter, and so on; nor, as it seems, were children obligated to support their parents. This changed, however, in the mid-second century A.D., when the emperors began to enforce duties of maintenance between linear ascendants and descendants; these duties were imposed, furthermore, without regard to the traditional boundaries and kinship ties of the agnatic familia, so that, for instance, not just fathers but mothers as well could now be ordered to support their children, and vice versa, regardless of whether the children had been released from patriapotestas through emancipation (Cases 155-158). No doubt the creation of a civil duty of maintenance substituted for the absence of governmental social programs; we have no real way of assessing how well the duty of maintenance worked in practice, and also no reason to be optimistic on this score.
Gaius, Institutiones 3.199
Interdum autem etiam liberorum hominum furtum fit, veluti si quis liberorum nostrorum qui in potestate nostra sint, sive etiam uxor quae in manu nostra sit, sive etiam iudicatus vel auctoratus meus subreptus fuerit.
(Gaius in the third book of his Institutes)
What is more, sometimes there can even be theft of free persons, for example, if one of our children who is in our power is stolen, or also a wife in our manus or also my judgment-debtor or sworn gladiator.
1. Just Like a Slave.
Gaius makes this striking extension of the delict of theft (furtum) in the context of his discussion of stealing slaves. Children-in-power are here ranked with wives married with manus, who with regard to their husbands are in a legal position somewhat analogous to that of a child (see Case 37). So are judgment-debtors, who have been condemned in a lawsuit and bound over to the plaintiff in order to work off their debt; and gladiators who, though nominally free, take a solemn oath (auctoramentum) that places them entirely at the disposal of their employer. Can you determine what these types have in common with each other? In what sense is it possible to “steal” such persons from someone? Does this rule effectively reduce them to the status of property, like slaves?2. The Suit for Theft. In Roman law, the victim of a theft is permitted to sue the thief not only for return of the stolen object or its value (by what is called a condictio furtiva) but also for a multiple of the value of the object, presumably in order to punish the thief and assuage the victim's outrage. How would the value of a “stolen” child be measured?
3. Procedure. Paul (D. 47.2.38.1) observes that although it is possible to sue on furtum for the theft of free persons, it is not permitted to bring the action for recovery of property (condictio furtiva). Does this make sense? In practice, however, it was more common for the father to ask for one or both of the two interdicts (orders issued by a praetor or other authorized official, such as a provincial governor) that require a defendant, who is allegedly detaining a child in the plaintiff fathers power, to produce that child and not to take the child away. For the wording of these interdicts, see Ulpian, D. 43.30.1 pr. and 3 pr. The child who is the subject of such an interdict might, of course, be an adult; see Case 107 for an example, where a father attempts to use the interdict in order to break up his daughters marriage.
Custody of a child is claimed on the basis of patria potestas. But the actuality of the patria potestas could, of course, be contested by the defendant, in which case a trial would ensue to determine this (see Case 110).D. 43.30.1.3 (Ulpianus libro septuagensimo primo ad edictum)
Si vero mater sit, quae retinet, apud quam interdum magis quam apud patrem morari filium debere (ex iustissima scilicet causa) et divus Pius decrevit et a Marco et a Severo rescriptum est, aeque subveniendum ei erit per exceptionem.
(Ulpian in the seventy-first book on the Edict)
If indeed it is the mother who retains custody—for the deified Pius has decided in a court case, and (the Emperors) Marcus and Severus have determined in rescripts, that sometimes a child should better remain with her rather than with the father, provided there is a very convincing reason—(then) it is fair that she be assisted by (being given) an affirmative defense (against her husband’s claim of custody).
Hypothetical Situation.
After a divorce, a father uses an interdict to sue his former wife in order to force her to surrender custody of their child to him. Under what circumstances can she resist his claim?
1. Maternal Custody. What would Ulpian regard as “a very convincing reason” for granting the mother custody? Is this issue clarified by the reference in Case 49 to the fathers “depravity”? Does either case seem to permit the mother to challenge a father who already has custody of a child? Probably not; compare Paul, D. 47.2.38 pr., who does not permit the mother to sue on theft of her child (see Case 108). Does this follow logically from general principles of Roman family law?
2. Losing Custody.
Does the denial of custody mean that the father loses patria potestas over the child? In Case 49, Ulpian says no: the mother obtains custody “without decrease in patriapotestas.” Is this any more than a legal fiction in deference to tradition?3. Rule Change. What was the law before Pius? What do you think this emperors motive was in making this change? This Case is an especially nice example of how legal change often occurred in classical Roman law: an imperial decision in a particular lawsuit (perhaps a “hard case”) is gradually extended by subsequent imperial rescripts, until the jurists finally generalize it as a legal rule.
4. Postclassical Law. After the classical period, judges acquired much greater power to allocate custody of children after a divorce; see, for instance, the rescript of Diocletian (C. 5.24.1; A.D. 294) quoted in the Discussion on Case 49. It is likely that this later law has influenced the reporting of earlier law in sources such as Justinian's Digest.
D. 43.30.3.4 (Ulpianus septuagensimo primo ad edictum)
Iulianus ait, quotiens id interdictum movetur de filio ducendo vel cognitio et is de quo agitur impubes est, alias differri oportere rem in tempus pubertatis, alias repraesentari: idque ex persona eorum, inter quos controversia erit, et ex genere causae constituendum est. nam si is, qui se patrem dicit, auctoritatis prudentiae fidei exploratae esset, usque in diem litis impuberem apud se habebit: is vero, qui controversiam facit, humilis calumniator notae nequitiae, repraesentanda cognitio est. item si is, qui impuberem negat in aliena potestate esse, vir omnibus modis probatus, tutor vel testamento vel a praetore datus pupillum, quem in diem litis apud se habuit, tuetur, is vero, qui patrem se dicit, suspectus est quasi calumniator, differri litem non oportebit.
si vero utraque persona suspecta est aut tamquam infirma aut tamquam turpis, non erit alienum, inquit, disponi, apud quem interim puer educeretur et controversiam in tempus pubertatis differri, ne per collusionem vel imperitiam alterutrius contendentium aut alienae potestati pater familias addicatur aut filius alienus patris familiae loco constituatur.(Ulpian in the seventy-first book on the Edict)
Julian says that whenever this interdict granting custody is at issue, or when a judicial investigation is under way, and the person whose status is in dispute is a child (impubes), sometimes the matter should be deferred until the child becomes an adult, and at other times it ought to be dealt with right away; this issue must be determined on the basis of the nature of the parties to the dispute and the character of the case. For if the person claiming to be a paterfamilias is someone of proven respect, judgment, and trustworthiness, he will keep the child in his custody until the day the lawsuit is decided; but if the man challenging his claim is a lower-class false accuser of known worthlessness, a hearing ought to be held at once.
Likewise, if the man who denies that the child is actually in someone else’s power is a man upright in every way, for example, a guardian appointed by will or by the praetor, he will keep his ward in his custody until the day of the lawsuit; but if, however, the person who claims to be a pater is thought to be making a false accusation, the suit ought not to be postponed.
If, to be sure, both parties are deemed to be of unsound or bad character, it will not be inappropriate, he (Julian) says, for an arrangement to be made that the child be brought up in the custody of a third party and that the dispute be postponed until his or her adulthood, so that a person of independent status (a pater familias) not be bound over to the power of another person, nor someone else’s son-in-power be granted independent status through collusion or the inexperience of either of the litigants.
Hypothetical Situation
A ten-year-old boy who feels that he is being abused by his father takes refuge with a relative. The father attempts to retrieve the boy by applying for an interdict. Will the father succeed?
1. Legal Majority. This Case does not concern a custody battle between a husband and wife after their divorce but rather deals with a more fundamental issue: the efficacy of the fathers claim to custody and how this claim was handled by Roman law when what we refer to as the best interests of the child may be fairly directly involved. What is surprising is the degree of flexibility that this Case permits. According to the jurist Julian, a contemporary of the Emperor Antoninus Pius, it was possible to defer a grant of custody under the edict de liberis ducendis until the child reached the age of majority, which was fourteen for boys, twelve for girls (see Case 6). At this age a child without a pater familias achieved in principle the same rights over his or her property that adults enjoyed (although until age twenty-five boys and girls often made use of a different form of guardian, called a curator, with responsibilities only for the child's property; see Chapter VA.2), and they also might legally marry. Why is this an opportune time for deciding the issue of custody?
2. Haste. According to the text, if the man claiming to be the father is a well-respected person, he may retain custody until the issue is decided at the time of the child's majority. But if not, and particularly if the man is thought to be making a false claim, the hearing should be held at once. On this set of facts, what outcome would you expect from an accelerated hearing? Why the need for haste?
3. style='font-weight:bold'>Usual Scenario. Ulpian posits a scenario where a claim of potestas is countered by a man who is acting as guardian (tutor) of the child. How likely a situation is this?
4. Tutor. If the man acting as tutor is well respected, Ulpian says the child can stay with him until majority; but if the man asserting potestas is thought to be making a false claim, the matter should be decided at once. Does this make sense?
5. Third Party. If both parties are deemed unsuitable for reasons of character, a third party must be found who will raise the child until determination of the matter at the child's majority. The justification for the delay is a concern that an erroneous decision on potestas might be made “through collusion or the inexperience of either of the litigants.” What does this suggest about the practical limits on the magistrates ability to acquire good information about a case before him? How does this justify the outcome? Are the child's interests adequately protected? It is unusual for the jurists to acknowledge frankly shortcomings in Roman judicial procedure. What influence might these shortcomings have had both on this and on other decisions you have read?