with the closest relatives who were willing and able to take onrnthe responsibility. In a case of separation or divorce, the assumptionrnof Anglo-American law was that the child should remainrnwith the legal head of the family, that is the father.rnIn one sense the tradition of paternal custody, especiallyrnwhen strengthened by statute and ideology, is a reflection ofrnthe Anglo-American patriarchy that was buttressed and shoredrnup in the centuries following the Reformation. More fundamental,rnperhaps, was the legal identification of the family withrnits head. In refusing to recognize the mother’s claim to herrnchildren, judges were not so much siding with the father as theyrnwere declining to intervene. In the second half of the 19th century,rnhowever, American legislatures and judges began to reversernthis tradition, granting women, first, equality in mattersrnof custody and, later, superiority.rnThere are several reasons for the change. Social and economicrndevelopments had led to the creation of a “separaternspheres” doctrine, which held that men were competitive, aggressivernwarriors who entered the marketplace to earn incomesrnfor the family, while women, endowed with a caring and nurturingrnnature, were better suited to rearing children, cultivatingrnthe gentler and finer arts, and nursing the sick and infirm.rnIn this view, children naturally belonged with their mothers, tornwhom they are typically more attached.rnOn the other hand, state laws tended to emphasize thernrights of women. The Kansas constitution of 1859 providedrn”for the protection of the rights of women” in matters of propertyrnand “for their equal rights in the possession of their children.”rnOregon’s equal custody statute of 1880 bore the significantrntitle “An Act to Establish and Protect the Rights ofrnMarried Women.” The effect of these laws—and the spate ofrncourt cases that ended up awarding children to mothers—wasrntwofold. The mother—so long as she was not an adulteress—rnwas routinely regarded as more fit to serve as guardian of a couple’srnchildren, while the father was expected to pay for the supportrnboth of his children and of his divorced wife. But a morernimportant change had also taken place. From now on, the staternwas in a position to judge the fitness of parents and to selectrnone as the guardian. The putative “best interests” of the childrnbecame the standard, rather than a rule of blood or even a rulernof law, since the rights of the parents would no longer be thernbasis on which custody was determined.rnIn the absence of a clear, inflexible rule, the courts are freernto apply the highly subjective notion of “best interests,” notrnonly in choosing one of two parents but even in choosing betweenrnnatural parents and an alternative. Of course, there arernlimits to what the state can do. It is not yet possible, for example,rnto transfer custody from a pair of merely adequate naturalrnparents to a socially superior couple who wish to adopt arnchild. This was the significance of the Baby Jessica case sornwidely misreported in the popular press.rnAn unmarried Iowa woman, Cara Clausen, gave up her babyrnfor adoption to a Michigan couple, Jan and Roberta DcBoer.rnThe mother, unmarried and estranged from the child’s father,rnDaniel Schmidt, who was never told the facts, induced arncurrent boyfriend to resign paternity rights he did not in factrnpossess. Reconciled and married, Daniel and Cara Schmidtrnsued for restoration of their child on the obvious grounds thatrnthe father had been unjustly deprived of his rights.rnThe facts of the case were simple, and the courts should haverngiven an immediate judgment to the natural parents. This decision,rnhowever, took two years to reach, during which time thernadopting couple was able to win a decision in a lower Michiganrncourt on the basis of the child’s “best interests”—a rulingrnunanimously overturned on appeal.rnJustice, albeit delayed, was done in this case, but that cannotrnbe said for the “Home Alone” case in which an Illinois couplernwere prosecuted for leaving their daughters at home whilernthey went on vacation. The parents were admittedly callousrnand imprudent, but they broke no law, and the children, whornwere to all appearances healthy and well brought up, had notrnbeen harmed. Many children today are routinely left at homernwhile parents are working, and in earlier periods of Americanrnhistory farm families were sometimes compelled to leave youngrnchildren at home for days and even weeks. The case was eventuallyrnsettled by plea bargaining, the details of which have notrnbeen made public. The couple, in return for getting their childrenrnback, agreed to a term of probation and 200 hours of communityrnservice, as well as electronic home monitoring. In thernevent, the couple preferred to give up their daughters.rnIn other words, for committing offenses that were not evenrncriminal, the parents were hounded and blackmailed into surrenderingrntheir children. Ironically, one key argument usedrnagainst the parents was that the girls had been traumatized byrnthe experience, but it was the experience not of being left atrnhome but of being forced to testify against their parents in arntrial that was the object of as much media attention as a Stalinrnpurge trial.rnBig cases, once they have been vulgarized in the Chicago Tribune,rnlead to hasty lawmaking, and Illinois legislators, in thernwake of the “Home Alone” case, rushed to criminalize shorttermrnabandonment. The same lawmakers, overreacting to arnhighly publicized case of a mentally defective mother whornmurdered her child, hastily amended the Illinois Juvenile CourtrnAct and the Children and Family Services Act to make it easierrnfor the state to remove children from the custody of parentsrnsuspected of abuse. In Illinois—as in most (perhaps all?)rnstates—the burden of proof has been on the state, because thernfundamental assumption was that it was in the child’s best interestrnto live, wherever possible, within an intact family or atrnleast with a natural parent.rnThat assumption appears to have been weakened or evenrneliminated, and Illinois’ child protection czar—the “inspectorrngeneral”—will possess special powers to insure the best interestsrnof Illinois children, and it is “the best interests”—a phrasernrepeated like a drumbeat throughout the new act—that takernprecedence over family integrity or parental rights.rnParens patriae has not gone unchallenged in the courts, andrnthe doctrine was dealt an apparently lethal blow by thernSupreme Court’s decision In re Gault. This famous case concernedrnthe misdemeanors of a 15-year-old boy, Gerald Gault,rnwho was accused of making obscene telephone calls to a neighborrnlady. Since Gerald was already on probation for accompanyingrna friend who snatched a purse, the Arizona juvenile authoritiesrnacted quickly to declare Gerald a delinquent minor.rnIn their appeal, which went all the way to the U.S. SupremernCourt, the Gault parents argued that they had not receivedrneither sufficient notice or due process.rnThere is no doubt that both in this case and in many otherrncases, the juvenile courts run roughshod over their youngrnclients. The parents were not even informed of the nature ofrntheir son’s supposed delinquency and were given no time tornprepare a defense or hire counsel. In a far-ranging decision, thern12/CHRONICLESrnrnrn