Pattiann Ciaramella, Nineteenth Century America and the Passage of the First Adoption Statute in New York State (1987)

The New York legislature passed its first statute legalizing adoption in 1873 with surprisingly little controversy or debate. At the time, it was merely the natural next step as society and the courts sought to protect the best interests of children. The concept of adoption dates back to ancient civilizations. Early U.S. adoption cases refer to Roman law because adoption was unknown at common law. Unlike in Rome, where the purpose of adoption was to continue family lines, however, adoption in the U.S. was intended to give children homes. Before states enacted adoption statutes, adoption occurred, but it was not supervised or regulated by the courts or state legislatures.

Early "adoptions" were private legal acts much like contracts or property transfers. Parents or the state, for example, sometimes "put out" or apprenticed children to other families. The hope was that such children would be adopted, gain a new family and learn a trade. In reality many were exploited for their labor. A lack of judicial supervision made it impossible to ensure that apprenticed or put out children were living in good conditions. During the nineteenth century, population growth, immigration, industrialization and the rise in public education made the apprenticeship system impractical. There were more orphan children than could be apprenticed, many children went to school, and machines replaced apprentices. Public institutions took in some needy children, but they were often housed with criminals or lunatics, or neglected by their caretakers. Private agencies managed by churches, societies and corporations, such as the Children's Aid Society, focused on child care, education and placement. Such agencies did not always find good homes for orphans. They often lacked the resources to investigate adoptive families. As a result, there was still a need for protective mechanisms.

Despite awareness of a need for public control over adoption throughout the 1800s, no adoption statutes were passed until the end of the century. In the 1800s, women's legal rights began to increase; married women gained property rights and legal personhood. The concept of separate spheres for the sexes gave women and mothers a greater role in rearing their children. As parents gained domestic equality, the best interests of the child became the primary goal of family law.

This new priority first surfaced in child custody cases. While traditional common law courts held that fathers should have custody of children, American courts began to exercise more discretion in these cases by the middle of the nineteenth century. Starting with Mercein v. the The People in 1840, New York courts held that custody decisions were entirely within their domain. They fulfilled a child's wishes if the youngster's age and family circumstances allowed. In disputes over little children, the court rather than the parents claimed they would resolve such matters in the children's best interests. The changing attitudes toward motherhood sparked a judicial trend to give mothers custody, especially of young children. Judicial protection of voluntary transfers of custody, as in adoption settings, however, was still needed.

When the adoption law was passed in 1873, child welfare was already within the purview of the state through custody cases. A legal requirement for judicial supervision of adoption was needed. The statute required judges to investigate adoptive families and document the reasons for adoption. Taking a leaf from the custody cases, the task of the courts was to ensure that the adoption would be in the child's best interests. Both spouses in a married couple had to consent to the adoption, and any adult could adopt a child. The law was amended in 1887 to give adopted children equal rights of inheritance. The basic structure of adoption remains much the same to this day.

 

 

Revised July 23, 2003 (MD)