“In the Best Interests of the Child”: The Failure of Judicial Discretion in Child Marriage Cases
Child marriage, the legal union where at least one party is under the age of 18 years, is an extremely common practice in the United States. Contrary to common belief, child marriage does not only occur in developing countries, nor is it only performed in extremely rural areas of the U.S. or by religious sects outside the bounds of the law. In the U.S., child marriage is legal in 44 states. In 20 of those states, there is no set minimum age requirement for marriage as long as the underage petitioner receives parental and judicial approval [1]. Marriage petitions filed in Probate and Family Courts across the country are heard by judges granted discretionary powers with little to no legal oversight. In this unique intersection of marriage, guardianship, and child welfare, the court’s role is to decide what is in the “best interests of the child,” but by allowing for judicial discretion, American courts undermine protections of state law for the very persons whose interests they allegedly seek to protect.
Nationally, 300,000 children were married between the years of 2000 and 2018 [2].The institution of child marriage cannot be attributed to any specific decade, state, demographic, ideology, or situation. It is not propped up by social norms alone but is consistently supported by the legal foundation and allowance of the practice. Although the legal framework, which supports and perpetuates the practice of child marriage, varies by states, the damaging effects on its victims are all the same. In the largely metropolitan Massachusetts, for example, which has one of the most educated populations in the country and one of the highest nationwide per capita income for residents, the child marriage crisis has worsened due to the state’s discretionary judicial framework. Although Massachusetts is just one of many states that sets no minimum age requirement for marriage with parental and judicial consent, I will examine the Commonwealth to take in-depth look at the perpetuation and ramifications of child marriage in law and society, which I would not be able to capture in a general analysis of nationwide data.
Massachusetts General Law Chapter 207, Section 24, establishes that a clerk or registrar may not receive marriage petitions from persons under the age of 18; however, it provides that judges are to utilize discretion to determine whether or not a minor shall be permitted to marry [3]. Despite the requirement that “parental consent” be given in order to validate the petition of a minor, this aspect of the statute has been invalidated under case law set by Parton v. Hervery (1854). Parton demonstrated that even without parental consent, the marriage of a minor is considered only “voidable,” not void under Massachusetts law. In Parton, a 13-year-old girl was married without parental consent and her mother later filed to prevent her young daughter from cohabitating with her new husband. The Supreme Court of Massachusetts ruled that, although the performance of the marriage had been illegal, it was not considered void as a “matter of law” and thus was upheld on the basis that the minor was above the “age of consent.” This case defined the state’s age of consent on the standards of English Common law: 12-years-old for girls and 14-years-old for boys [4]. Parton may be treated as an antiquated relic of the 19th Century judiciary by some, yet it was again upheld by Baird v. Attorney General (1977). Although, in the modern day, the state of Massachusetts may now recognize the de facto age of consent as 16 years [5], Baird successfully upheld Parton on the basic premise that a marriage ceremony involving “freely assenting minor(s),” even without parental consent, is to be held valid, despite the nature of its illegal performance [6]. Thus, in the state of Massachusetts, and others like it, the responsibility of approving petitions and allowing child marriage falls squarely upon the discretion of the court.
Judicial discretion, as a principle, allows the court system to respond directly to individual circumstances under the guidelines of law, but with independent judgment. Discretion is crucial for judges to deal with tough decisions and issues of equitability in their rulings that cannot easily be accounted for by a rigid application of the law [7]. Although this principle is most often thought of in its significance to criminal cases and sentencing, it is necessary for family court proceedings. Massachusetts family law, which governs child guardianship and parental rights, adheres to the “best-interests standard” of child welfare. Under Massachusetts General Law Chapter 208, Section 31, “the happiness and welfare of children” are paramount in family court proceedings, especially in matters of custody, in regards to the child’s “physical, mental, moral, or emotional health” [8]. Although this legal standard is a discretionary principle which takes a holistic account of the many circumstances at play in a family court case, the court ultimately defers to what the judge decides is in the “the best interests of the child.” Judicial discretion can be used to uplift children and their families for their ultimate best interest. In cases involving child marriage, however, judicial discretion fails not only to serve a child’s best interest, but to ultimately protect them from emotional, physical, and sexual harm.
But how does a child even reach a point of filing a petition and being approved? Why would a parent, nevermind a judge, allow a union of this sort? To best understand the continuation of this practice and the legal response, one must look to its root cause: why does child marriage occur?
The answer is not “love”. Although it is incorrect to totally dismiss the existence of marriages between two teenagers, the romanticized idea of child marriage as two minors in a Romeo-and-Juliet-esque relationship is a myth. Of the more than 1,000 children married in Massachusetts between 2010 and 2014, 85% were girls mostly married to older men. State records indicate that 15-year-old girls and 17-year-old girls were approved to marry men as old as 25 and 39, respectively [9]. 92% of marriage petitions involving a minor were approved during this time period. Ultimately, the largest drivers of these dubious unions in the United States have been the impact of repressive traditional views on marriage coupled with the coercive influence of would-be spouses and parents.
Prior to the practice’s outright ban in New Jersey, in 2017, Governor Chris Christie infamously vetoed a measure to end child marriage in fear that a ban would encroach on the “sensibilities and, in some cases, religious customs” of the state [10]. By not directly referencing which religions or specific New Jerseyan sensibilities would be endangered by such a ban, Governor Christie demonstrated that the government often defers to a general ascetic approach to sex and relationships forwarded by social notions of taboo and purity rather than faith groups. The most common justification of child marriage, in traditional moral spheres, has been to legitimize a sexual relationship or encounter between two people by legally binding them. In cases of pregnancy especially, marriage is used to validate –consensual and nonconsensual– sexual relations, between minors and, more often, minors and adults.
Although Massachusetts in particular does not provide a martial exception to statutory rape offenses, the legal principle of the martial exception can be found in federal law and the legal codes of 14 states [11]. Statutory rape is defined as a sexual activity between two parties, one of which is below the age of consent. 18 U.S. Code Section 2243(a), on the Sexual Abuse of a Minor, applies when statutory rape is committed by a person who “knowingly engages in a sexual act with another person” who is between the ages of 12 and 16 and is at least four years younger than them [12]. 18 U.S. Code Section 2243(c)(2), however, outlines a martial exception to the this crime: “the persons engaging in the sexual act were at that time married to each other” [13]. This federal defense to statutory rape presents an incentive for rapists to marry their victims and recieve a “get out of jail free” card [14].
There are thousands of scenarios that could lead a minor to petition for their own marriage. However, despite the notion that a minor could consent of their own free will to be married, it is clear that child marriage is inherently coercive. A parent pushing a child to protect their reputation in their moral community or a rapist and would-be-spouse hoping to avoid jail time by marrying imbue each petition with an element of coercion, even if it is filed with the minor’s assent. Yet, these causes are some of the very circumstances judges look to in order to render a decision.
Each judge is not provided structured guidance on how to render a decision to permit a marriage, nor are they trained in the identification of coercion. Thus, when faced with a parent and two would-be-spouses claiming that marriage is desired by all parties and would be in the best interest of a child for their “physical, mental, moral, or emotional health,” time and time again, judges across the United States approve the union and transfer legal guardianship from parent to spouse in the supposed best interest of the child.
The case of New Bedford-native Tammy Monteiro is a textbook example of spousal-coercion that can go unchecked by the court system and ultimately trap minors in underage marriages. In 1999, after only months of knowing each other, Monteiro,15, petitioned to marry Will, a member of the extremist Black Hebrew Israelite group, and was approved without question. Although religious doctrine and statutory rape laws prevented the couple from having sex prior to marriage and her 16th birthday, it took only a month afterward for Monteiro to fall pregnant. In subsequent years, she has described her married life to Will as a “daughter-wife” to a “father-husband.” She was a wife under her husband’s legal custody, who changed her name, separated her from her family, and forced her to adhere to strict religious doctrines of submission and silence. After 10 years of marriage torment, Monteiro fled across state lines to safety leaving her eight children behind [15]. If she were to have tried to escape as a minor, she would have been denied from domestic violence shelters and unable to begin legal proceedings to receive a divorce due to her age [16]. At worst, she would have been returned as a teenage runaway to her legal guardian: her abusive husband. As an advocate, Tammy Monteiro has shared her story hundreds of times through her work with Unchained At Last, but there are still hundreds of unheard stories like hers across the country.
Only in 2018 did Delaware move to ban child marriage without exception. It was the first state to do so. Since then, five more states have followed suit: Minnesota, New Jersey, Pennsylvania, Rhode Island, and New York [17]. Although Massachusetts has made many attempts to emulate Delaware and failed, as of May 2022, there is once more hope for change in the Commonwealth. During the 2017-2018 session, State Senator Harriette Chandler (D-Worcestor) first introduced a bill to ban child marriage, but saw it tabled indefinitely. Chandler and State Rep. Kay Khan (D-Newton) reintroduced the bill in January 2019, but although the second version passed unanimously in the State Senate, it died due to inaction –without a hearing– within the House. Time and time again, Rep. Chandler and Rep. Khan, along with the many activists and lawmakers who have worked for years to end child marriage across the country, have blamed the lack of action on the inability for legislators to comprehend the reality of child marriage and its continuance within their own state [18]. But, during the current 192nd Legislative Session, the Massachusetts House of Representatives has successfully passed a FY2023 budget amendment to ban child marriage outright [19]. This amendment will be debated in the Senate in the weeks to come, but Massachusetts is not where the struggle ends.
Even if Massachusetts were to enact an absolute ban on child marriage tomorrow, 43 more states would still have to resolutely act to end, not just limit, the practice nationwide. Thus, I propose the simplest way to end child marriage and protect the nation’s child is to pass a federal law repealing 18 U.S. Code Section 2243(c)(2) and raising the minimum age for marriage to 18 years without exception. A federal protection would not only benefit all American children, but align the United States with the United Nations 2030 Sustainable Development Goal of ending “child, early and forced marriage” internationally [20].
Child marriage is a crisis across the United States. To maintain the status quo is to endanger thousands of children currently at risk for abuse. The legal allowance of child marriage is not only a matter of legal protection, but of social benefit. Judicial discretion may provide for situational exceptions, parental consent, and the hypothetical assent of a minor, but it ignores the reality: it is never within the best interests of a child to be married.
References
[1] Equality Now. “Child Marriage in the United States.” https://www.equalitynow.org/learn_more_child_marriage_us/.
[2] “United States’ Child Marriage Problem: Study Findings (April 2020),” Unchained At Last (blog), https://www.unchainedatlast.org/united-states-child-marriage-problem-study-findings-april-2021/;
[3] MGL c.207, s.24
[4] Parton v. Hervey, 67 Mass. 119. (1854)
[5] MGL c.265, s.23
[6] Baird v. Attorney General, 371 Mass. 741. (1977)
[7] Legal Information Institute. “Judicial Discretion.”https://www.law.cornell.edu/wex/judicial_discretion.
[8] MGL c.208, s.31
[9] Hamilton, Marci A. “A National Overview of Child Marriage Data and Law,” n.d., 38.
[10] “Ban on Child Marriages Conditionally Vetoed by Christie.” https://www.politico.com/states/new-jersey/story/2017/05/11/ban-on-child-marriages-conditionally-vetoed-by-christie-111987.
[11] “Child Marriages Violating Statutory Rape Laws in Many U.S. States - McGill University.” https://www.mcgill.ca/newsroom/channels/news/child-marriages-violating-statutory-rape-laws-many-us-states-337728.
[12] 18 U.S. Code Section 2243(a)
[13] 18 U.S. Code Section 2243(c)(2)
[14] Bailar, Schuyler. “END CHILD MARRIAGE IN THE U.S.” Pink Mantaray. https://www.pinkmantaray.com/resources/childmarriage.
[15] “‘I Was Not His Equal Partner’: What It’s Like to Be a Child Bride in Massachusetts.” https://www.globalcitizen.org/en/content/child-marriage-survivor-tammy-massachusetts/.
[16] “Child Marriage - Devastating Consequences,” Unchained At Last (blog), https://www.unchainedatlast.org/child-marriage-devastating-consequences/.
[17] UNICEF USA. “Ending Child Marriage in the U.S.” https://www.unicefusa.org/stories/fight-continues-end-child-marriage-us/38893.
[18] “‘I Had to Flee by Night’: Massachusetts Child Marriage Survivor Says Many Were Coerced, Endured Years of Abuse - Masslive.Com.” https://www.masslive.com/boston/2019/03/i-had-to-flee-by-night-massachusetts-child-marriage-survivors-say-many-were-coerced-endured-years-of-abuse.html.
[19] “Massachusetts House Approves Budget Amendment To Outlaw Child Marriage - NewBostonPost | NewBostonPost.”https://newbostonpost.com/2022/04/27/massachusetts-house-approves-budget-amendment-to-outlaw-child-marriage/.
[20] “Child Marriage and the SDGs.” https://www.girlsnotbrides.org/learning-resources/child-marriage-and-sdgs/.