Roman Law and the Legal World of the Romans

Roman Law and the Legal World of the Romans

that exposure was not thought of as a use of the theoretical and specially Roman “power of life and death” (Chapter 10); it remained legally uncontroversial long after execution of grown children was finally banned outright. The same kind of thinking made questions of custody mostly trivial. At least originally, no court was needed to make fine judgments about the “best interests of the child.” Legitimate children were their father’s, and in the case of divorce he had the power to assign them as he saw fit. This, inci dentally, may have discouraged women from seeking divorces to which they were legally entitled. Interdicts (see Chapter 13 on property) were available to make other parties, including the mother, produce the children. Stepmothers were important (and feared) figures in the world of the Roman imagination; the generic stepfather barely exists. As a matter of practice it may have been common to leave children, especially very young ones, with their mothers, but this was at the father’s suffer ance. Illegitimate children would in theory have been largely under the control of their guardians until reaching the age of majority, though our knowledge of actual practice here is weak. An Imperial decision of the mid second century ad did per mit material custody, but only in extreme cases of bad paternal behavior and only (apparently) if the mother already had prac tical custody. This was perhaps originally a special case, but in the Empire, maternal custody became somewhat more com mon. Notwithstanding the general rules just stated, however, it should be noted that even asking about “custody” probably distorts the question somewhat. Roman law was probably more

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