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American Journal of Legal History

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adoption, family law, family creation adoption


Family Law | Law


The history of adoption law and practice has received scant attention from legal scholars and historians. Most of what little scholarship there is focuses on the history of adoption to the mid-nineteenth century, when the first adoption statutes emerged in the United States. Although the enactment of these statutes has been hailed as "an historic moment in the history of Anglo-American family and society" and "the most far-reaching innovation of nineteenth-century custody law," few scholars have made an effort to document the actual operation of adoption law following the enactment of these landmark statutes. This article does just that. Drawing from actual trial court records, orphanage reports, appellate court decisions, and other sources, we describe the law and practice of adoption in the late nineteenth and early twentieth centuries in Alameda County, California, and argue that the adoption statutes (at least the California statutes) made three distinct types of adoption possible: Family preservation adoption, which reflected a tie to past, informal "adoption" practices, enabled adopters to keep already-established families and family money together. Family creation adoption, which emerged as the dominant type of adoption in the late nineteenth and early twentieth centuries, gave childless couples a way to approximate the biological parent-child relationship. And family re-creation adoption, a precursor to the modal practice of adoption in the mid-to-late twentieth century, enabled stepfathers to remake families previously disrupted by divorce or death.

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