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Mama as guardian

Yesterday’s blog about the man being named guardian of his sister’s children sparked the inevitable flurry of “but… but… but…” comments from folks who had seen cases where women had in fact been named as guardians of their children.

exceptionYup.

There are always exceptions.

To just about every legal rule you can imagine.

That’s why The Legal Genealogist‘s favorite answer to almost any question about genealogy and the law is “it depends.”

And whether there would be an exception in a particular case, and a woman would be named as guardian of her children, rather than some man from her or her late husband’s family, depended on a number of factors.

The most common reasons why you might see an exception include:

• the time. Women’s rights first began to be acknowledged by the law with the passage of the first married women’s property acts in the 19th century.1 So the later the guardianship was required, the more likely it would be that the law’s preference for male actors would be lessening.

• the place. Local views towards women and their roles in the community influenced the choice of guardian as well. The more patriarchal the community, the less likely it would be; the more liberal the community was in its views on women, the more likely it would be.

• the age of the child. Particularly when at least one of the children was over age 14 — the common law age at which a child could choose a guardian2 — it wasn’t uncommon for that oldest child to choose his or her mother as guardian. If there was no compelling reason not to honor the child’s choice, then Mama would be allowed to serve as guardian … and would often be named guardian for any younger children as well.

• the type of property involved and its value. Where the property involved was going to require a great deal of management, as in the case of land or slaves, it was more likely that a man would be selected. But if there was only a little management required, as in the case of pension money being received, or where the value of the property was small, the more likely it was that Mama would be chosen.

• the availability of a male guardian. Sometimes the key issue was whether there was a man around who could serve. If all the menfolk were off at war, or out to sea with the fishing fleet, there might not be a male available — and that tended to favor Mama’s appointment.

• the woman’s connections. Don’t ever underestimate the power of the women to be heard, and recognized, especially if they had powerful kin. The well-educated daughter of a member of the local gentry would have a lot less trouble getting a guardianship approved than a poor woman without connections.

So while the legal norm was for a man to be named guardian of children, don’t ever be surprised to see the exceptions.

After all…

It depends.


SOURCES

  1. See generally Law Library of Congress, “Married Women’s Property Laws,” American Women (http://memory.loc.gov/ammem/awhhtml : accessed 2 Mar 2015).
  2. See William Blackstone, Commentaries on the Laws of England, Book I: The Right of Persons (Oxford, England: Clarendon Press, 1765), 451; digital images, Google Books (http://books.google.com : accessed 2 March 2015).
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