The court, child custody, and social change: The rhetorical role of precedent in a 19™ century child custody decision

Abstract

In the late 19^th century the United States experienced a shift in presumption from paternal custody following divorce to maternal custody. This paper examines one child custody decision in the midst of this shift and finds that, ironically, rhetorical appeals to precedent and tradition were used to change precedent and tradition. More specifically, social change was grounded in the court's implicit gender hierarchy and rhetorically justified by appealing to precedent and tradition in particular ways, demonstrating that precedent is a rhetorical device that has force when used persuasively.