The most common case of custody we think of is when a family is splitting in a divorce and the parents are in dispute over who the child(ren) should live with. These battles are pleaded in a way that illustrates views on who the child belongs with. Both parents, if biologically related have equal claim to the child, but a person’s life, in the modern age, is unownable in that one person cannot be the legal property of someone else. Inevitably the child will group up and have custody of their self when they become 18 years old. Until then we use this word custody to describe who is in charge of making decisions on behalf of the child until they can make them for themselves. In cases where protection and safety are in mind, there are some objective criteria we need to consider with regard to whom the child might fair best with. If we take this idea an examine this paradox we see that custody is a thinly veiled euphemism for property. Beneath the surface though we find insight to a new paradigm for custody that is not based on ownership.
First, we have to look at the basis for which something can belong to some in the modern era. Objects can be owned. People are not objects, they are subjects. Subjects are capable of disputing their ownership, but this is not a universally accepted concept. The idea of subject ownership has been expressed as slavery and lordship in the past. The idea here is that person who is providing the economic resources to continue the life of someone else has authority over their life. Applied to royalty over their followers, fathers over their children, and husbands over their wives it affects the economic agency. An individuals economic agency is directly related to the individual’s ability to be self-determinant because without it there is no visible proof of ability to be self-determinant. Simply put, if an individual is self-determinant they cannot belong to another person, but this ability is based on the individual’s ability to provide food and shelter for themselves. This definition has since changed to some extent.
After the 1948 U.N. Human Rights Declaration the more contemporary idea is that ALL people (with some exceptions) are presumed capable of being self-determinant provided their access to resources are unencumbered. One of these exceptions is children particularly in America they do not have legal right to take jobs or enter contracts, nor are they held to the same legal standards for criminal behavior. Children must defer to their legal guardians for resources and almost all major decisions. Still, these exceptions do not imply ownership in the legal sense, but they do indicate that children are dependent on support from their legal guardians to reach this stage of maturity, and that assistance is to be provided by guardians entrusted by the state. If the biological parents are deemed unfit guardians they can legally be taken away from them and put in the custody to foster parents. The irony is that these foster parents are paid by the state to take care of children who do not have biological parents, the term is to describe this is they become wards of the state. The state’s payment of contracted guardians prove their investment in the welfare of children and since the biological parents are the default guardians, they retain custody of the children until conditions are presented that challenge their qualifications to be capable guardians in the eyes of the court or, in the case of a divorce, if there is a dispute. The state then comes in as supreme to make a determination on behalf of the child as the state has interest in the child’s well being.
The way we talk about people belonging to someone else may have changed but it hasn’t entirely changed the way people are treated. Still, people who are not yet 18 years old (in the United States) must be under the custody of someone, and with that custody comes rights to determine what the person eats, the geographic area they live in, and their living conditions in nearly all ways. Not until a person becomes a legal adult are they seen as capable of being economic agents and proving themselves to be self-determinant, whats more we do support the personal cultivation of self-determinacy.
The paradox at play still seems to be that the right to be self-determinant is tied to the ability to be one’s own provider/protector. When it comes to children, their independence is withheld as they are not legally able to participate in the functions that would allow them to be economic agents, so they must be kept under the charge of someone who has economic agency. What we see is that the philosophical relationship between self-determination and agency has not changed where a person’s level of entitlement is directly correlated to their ability to operate independently of a higher authority. In this case, the child’s higher authority is the parent, and parent’s higher authority is the state, who reserves the right to revoke custody of the child should the parents not meet the standards set by the state. Whether democratically or otherwise determined this structure maintains the state’s ability to set priorities for the individual as opposed to the state being a vehicle to support the individual setting their own priorities.
Within this paradigm, entitlement hinges on there being no greater force of opposition than the individual’s agency and custody, or ability to determine where a person belongs, hinges on the ability of the individual to satisfy the conditions of the higher authority. While rhetorically we recognize subjects as self-determinant based in the underlying principle of individual autonomy, the practical exercise of law that we use to govern our behavior is but subtly different than the way we govern objects. This is illustrated when a legal minor, who is presumed to be incapable of self-determination does something that proves their ability to be self-determinant thus disrupting the notion of childhood. In the economic sense, a minor can file to become legally emancipated upon showing their ability to care for themselves. Criminally, there are conditions when a minor is tried as an adult given the court’s ability to show they are capable of making moral decisions associated with adulthood.
Operating from this framework an individual belongs to their parents and the state can revoke this right by deciding who they belong with. A self-determinant individual is capable of both choice to decide where they belong AND economy to secure their own place which proves they do indeed belong to themselves and consequently belong wherever they see fit. Economic or physical agency does not prove cognitive maturity moral acuity.
Here we find a window into a relational definition of both custody and ownership where entitlements are protected and not endowed. If we are to truly live up to the presumption that people are capable of self-determination we must adjust the philosophical criteria for proof from the state-backed right to be an economic agent. If we have an economic mechanism in place to support individual appraisal of physical agency and a criminal mechanism to appraise moral acuity the numeric criteria for adulthood is arbitrary. This set up keeps people inhibits mature young adults under the age of 18 from being self-determinant and grants immature people access to rights they may not be prepare for. Furthermore, this idea reinforces the idea that self-determination is a physical activity alone, when we upon basic investigation the ability to move, does not prove the ability to choose a destination. Age does not always equal maturity.
With two-fold criteria for self-determination we are able to more accurately identify subjects versus objects, and honor the full autonomy of all the individuals in our society without regard to age, gender, class, and education level. Custody can then be tied to the ability to support the individual’s presumed moral autonomy via economic means.