« AnteriorContinuar »
However certain and definite evolution may be in the long run, it is at best a slow method of change. When it comes to a matter so closely intertwined with our religion, with the sacred ideals of marriage and family life, with our conceptions of morality, and with our secret passions, we must indeed expect that changes will come very, very slowly.
For centuries, the child of unmarried parents was considered as "nobody's child." It is so considered today in some of our states. The first step away from the conception of "nobody's child" was to make him the child of his mother and to give her certain responsibilities. To this has been added in many states the right of the child to inherit from his mother and the mother from her child. In the process of evolution it has become customary in some states to regard a subsequent marriage of the parents as legitimizing children born before marriage, provided they recognize the child as their own.
Within recent years, certain European countries, particularly Switzerland, Russia, Sweden, Norway and Denmark, have made changes in their laws favorable to the legal position of the child and tending to place more or less responsibility upon the illegitimate father for the support of his offspring and its mother. So far as I have been able to ascertain, the most progressive legislation abroad is that known as the Castberg Law, which became effective in Norway January 1st, 1916.
Recent Progressive Legislation
In America, the apparent aim of such laws as we have had on this matter has been to protect the community from any loss due to assistance given to the illegitimate mother and her child. Most of these laws are without even a glimmer of any human interest in either the mother or the child. As we became a bit more humane, the law was amended so that the mother might get a small sum through settlement with the child's father.
Up until 1917, when the Minnesota and North Dakota laws were passed, the best provision in this country for these children and their mothers, so far as I have been able to learn, was that contained in the Massachusetts law. This law makes the person adjudicated the father "liable to contribute reasonably to the support of the child during minority," and subject to all the orders of the court for the support and maintenance of the child as provided for in cases of non-support (1913— 563). The non-support law provides "the court in its discretion, having regard to the circumstances and to the financial ability or earning capacity of the defendant, shall have power to make an order, which shall be subject to change by the court from time to time as circumstances may require, directing the defendant to pay a certain sum periodically, for a term not exceeding two years" for the support of the wife or child. (1911—456.)
The year 1917 saw some very advanced legislation regarding this problem. The State Child Welfare Commissions in Minnesota and Missouri recommended to their respective legislatures bills relating to children of illegitimate parents that were very similar in purpose and results aimed at. Unfortunately none of the Missouri bills passed, but, with one exception, the Minnesota bills became law. At the same time a member of the House of Representatives in North Dakota introduced and secured the passage of the most advanced law existent in this country on this subject. It also has the merits of brevity, occupying but half a page in the proceedings. The North Dakota law declares:
Every child is hereby declared to be the legitimate child of its natural parents, and as such is entitled to support and education to the same extent as if it had been born in lawful wedlock. It shall inherit from its natural parents and from their kindred heir lineal and collateral.
This section shall apply to cases where the natural father of any such child is married to one other than the mother of said child, as well as where he is single. Provided, however, this law shall not be so construed as to give to said child a right to dwelling or a residence with the family of its father, if such father be married.
The mother of any child born out of lawful wedlock may, within one year after the birth of said child bring an action in the district court to establish the defendant to be its father. In such cases the parentage may be proved like any other fact. Provided, that the mother of said child shall not be considered a competent witness in any case where the alleged natural father of said child shall be dead at the time of the trial. Provided, that a statement in writing may be made by the parents of said child, admitting the parentage thereof, and upon which a judgment may be entered.
You will note that only two limitations are mentioned. The law is not to be so construed as to give a "child a right to dwelling or a residence with the family of its father, if such father be married," and the putative father must be living at the time of the trial. This law is the ne plus ultra in legislation respecting the points covered.
The Minnesota Plan
The Minnesota laws respecting children of unmarried parents were only a small but important part of the forty-three bills prepared and recommended for passage by the Minnesota Child Welfare Commission, thirty-five of which became law. To understand how the laws affecting children of unmarried parents were expected to function, we must know the fundamental idea underlying the whole group. This basic principle is "the proposition that the state is the ultimate guardian of children who need what they cannot provide for themselves and what natural or legal guardians are not providing." Theoretically, this sovereign right and duty on the part of every government has long been recognized. Practically, no state prior to this time has created machinery for exercising such guardianship, except as to limited groups. The first thing, therefore, that seemed necessary was to centralize so far as practicable the authority and duty of the state in an official body,—to personify, so to speak, the might of the state in an agency which could function for the state in the task of helping needy children. In other words, what we wanted to secure first was an effective piece of machinery to properly transform the strength of the state into action adequate to meet the need of any child under any circumstances and however obscure.
We have in Minnesota what is known as the State Board of Control, having general control and supervision of all state institutions. •
Fortunately, this board has the confidence of the citizens of the state, of the members of the legislature, and of social workers, to a remarkable degree. It was decided to centralize the state's authority and duty toward needy children in this board. Accordingly, the board was given powers of guardianship, not only of children committed to institutions under its management, but also of children committed to its care, and it was authorized, to quote the language of the law, "to make such provision for and disposition of the child as necessity and the best interests of the child may from time to time require," except that no child is to be placed in an institution for delinquents who has not been adjudged a delinquent. It was upon this board that the express duty was laid of representing the state in safeguarding the interests of children of unmarried and of illegitimate parents. When notified of an unmarried woman who has become a mother or who is about to do so, it becomes the duty of the Board of Control "to take care that the interests of the child are safeguarded, that appropriate steps are taken to establish his paternity and that there is secured for him the nearest approximation to the care, support and education to which he would be entitled if born of lawful marriage." In order to make more clear the responsibility of the board, the law specifically states that "for the better accomplishment of this purpose, the board may initiate such legal or other action as is deemed necessary" and "may make such provision for the care, maintenance and education of the child as the best interests of the child may from time to time require."
Not only this, but the girl away off in some corner of the state who finds herself in trouble, who flees away to some lying-in-hospita1 to hide her shame, wrecked in body and mind, about to bring a new life into the world,—this girl is no longer to remain without a friend, foi after laying upon the board the duties just mentioned, the law adds: "and may offer its aid and protection, in such ways as are found wise and expedient, to the unmarried woman approaching motherhood."
The possibilities in the service that may be rendered under this provision are simply beyond our comprehension. We do not know how it is going to work out. We have said to the board: "You shall do for her and her child that which needs to be done, in order that this child may occupy as nearly as possible his natural place in society." If that one power alone had been given to the Board of Control, with none of the others, it would have been a step in advance of anything else in our country today, and would have itself afforded a wonderful opportunity, calling for the very best that the board could give it.
Having thus created an agency to represent it in stretching forth the arm of compassion, having told the agency that it can initiate any action necessary to get results, even to the extent of furnishing help to the unmarried woman approaching motherhood, the state proceeded to outline further the methods by which these children are to be safeguarded.
It will be seen from what has been said that the state assumes that •
every child has a right to have two responsible, legal parents and that where necessary the state shall institute suitable action to ensure this. When a man has been adjudged to be the father, he immediately becomes responsible for the care, maintenance and education, of the child, and subject to all the penalties for failure to perform these duties that are imposed upon a legitimate father. Judgment may also be entered against him for expenses incurred by the county for the mother during her sickness. It is also made possible for the mother "to recover from the father in a civil action all expenses necessarily incurred by her in connection with her confinement, including suitable maintenance" for eight weeks before and after confinement, and for burial of the child.
In order to overcome the difficulty caused by the reluctance of many unmarried mothers to file a complaint against the alleged father, the State Board of Control, or any person appointed to perform the duties of this board relating to children, may take the initiative. When a physician is called as a witness concerning the probable date of conception, he may testify without the consent of his patient.
The action necessary to obtain support is made more simple through a new definition in the Juvenile Court Law of the term dependent child, which is made to include "a child who is illegitimate."
One of the important objectives to be gained in these cases is to protect the mother and child from unnecessary publicity. The law, therefore, provides that the judge "may at his discretion, and at the request of either party shall exclude the general public from attendance at such examination." It further provides that all records of court proceedings shall be withheld from inspection except upon order of the court.
Primary Purpose of Legislation
Toward the end of the chapter, there is a declaration of principles which, while referred to by some as merely a bit of rhetoric, will, to those of us in social work, convey a meaning seldom found in written law. It declares that the purpose of the chapter "is primarily to safeguard the interests of illegitimate children and secure for them the nearest possible approximation to the care, support and education that they would be entitled to receive if born of lawful marriage, which purpose is hereby acknowledged and declared to be the duty of the state."
After we had provided for an agency in which would be centered the authority, responsibility, and power of initiative in protecting children of illegitimate parents, and after we had placed upon the illegitimate father and mother the same responsibility for the care of their child as if he had been born in lawful wedlock, we realized that something more was still needed. There is an old recipe for rabbit stew which begins thus: "First, catch your rabbit." What were we going to do to enable us to apprehend the alleged father who absconds to another state? We could find no suggestions in the laws of other states, so we evolved a method of our own, which we hope will stand the tests of the courts. We provided that when issue is conceived of fornication, which is punishable as a minor offense, and the father absconds from the state with intent to evade proceedings to establish his paternity, he shall be guilty of a felony. This makes extradition possible.
Some of you are doubtless saying, "what becomes of the child whose mother goes to one of those private lying-in places that specialize in disposing of children undesired by their parents?" How is the state to know of his existence? Here again, everything is linked up through the Board of Control, which is required to license, supervise and inspect all such places.
The officer in charge of such a maternity hospital or infant home is required to keep careful records and to use due diligence in ascertaining whether a child is legitimate. "If there is reason to believe that he is illegitimate or will be illegitimate when born, such licensee or officer shall report to the State Board of Control within such time as the State Board may prescribe, the presence of such woman or child, together with such other information as the Board may require." The records are to be considered private and disclosed only to those having a legal right to the information. As these cases are reported, the Board is endeavoring to send a trained, tactful woman to interview the mother for the purpose of determining the steps necessary for the protection of the child. Offering to dispose of children or advertising a child for adoption is forbidden.
It was the belief of the Minnesota commission that careful supervision of lying-in hospitals with required reporting of every suspected case of an unmarried mother is essential to any proper handling of this problem. The commission also believed it essential that parents be deprived of their long enjoyed privilege of signing away their parental rights in a child without suitable court action. Prior to January 1st, 1918, it was possible in Minnesota, as it is in most states, to sign away a child with less formality than a piece of real estate. The new law provides that "no person other than the parents or relatives may assume the permanent control or care of a child under fourteen years of age unless authorized so to do by an order or decree of court." Supplementing this, the Board of Control is held responsible for seeing that proper care is given to every child permanently placed in a foster home by either a public or a private agency.
Another loophole through which many an unfortunate child has slipped away, for better or worse, with never a thought respecting his future on the part of the state, theoretically guarding his interests, is found in the usual proceedings for adoption. This opening was effectually closed by providing that "upon the filing of a petition for the adoption of a minor child, the court shall notify the State Board of Control. It shall then be the duty of the Board to verify the allegations of the petition; to investigate the conditions and antecedents of the child for the purpose of ascertaining whether is is a proper subject for adoption; and to make appropriate inquiry to determine whether the proposed