What do you think might happen if one spouse in a child custody battle used the fact that the other spouse allowed the child to go barefoot to try to regain custody?
What do you think might happen in a child custody battle if the spouse with custody allowed the child to go barefoot, and the other spouse tried to use that fact to regain custody? Well we know the answer for one specific case.
Unfortunately, it doesn’t tell us much about what would happen today because it happened back in 1939.
The case happened long ago in Los Angeles. Here is the story.
Remembering Cool Grass Between His Toes, Judge Rules For Boy
LOS ANGELES, Nov. 28 (UP). A heritage dear to the heart of a boy was perpetuated today by Superior Court Judge Clement L. Shinn who remembered the days when he could feel the “cool grass between my toes.”
He ruled that a mother’s prerogative, however great, did not include the right to chastise her boy for going barefoot with his shirttail hanging out.
Sought Custody
Mrs. Theba Chillenhouser so chastised her son, Eugene, 10, of whom she sought custody from her divorced husband, Howard Chillenhouser. She charged that because his father permitted it Eugene went barefoot and “in a slovenly state of semi-nudity to the detriment of his health and well-being.”
She said his shirttail seemed always to be hanging out and that once he had stubbed his toe on a rock, “injuring it badly.”
“A stubbed toe is the risk of a small boy takes when he goes barefoot,” Judge Shinn said after Chillenhouser had offered no defense against her specific charges. “But at the age of 10 a boy should have responsibility to shoulder the risk.”
Has Fond Memories
The judge leaned back and gazed at the ceiling. Finally his chair sniveled down and he added: “I have the fondest memories of the thrill of feeling the cool grass between my toes when my parents permitted myself and brothers to doff our shoes at the first sign of summer.”
He denied the mother’s claim of custody. Perhaps Eugene, he told the father with a smile, should be “encouraged” to keep his shirttail in.
One thing we can get out of this is that, even as early as 1939, in the big cities folks were starting to look askance at the idea of allowing a kid to go barefoot. Otherwise the mother would not have tried to use that fact in a child custody battle.
The boy also probably lucky to have Judge Shinn decide the case. Judge Shinn was born in 1879 in the town of Sullivan in downstate Illinois and probably grew up there. I have no doubt that bare feet were the norm for kids in the summer. (On the other hand, any judge on the court would probably have been about the same age and would also remember growing up barefoot, so maybe luck had nothing to do with it.)
Here’s another story that reports on the case.
Barefoot Boy Wins
For folks who are always howling about returning to the old ways of living, there should be comfort in the ruling of Superior Court Judge Clement L. Shinn of Los Angeles who put his judicial blessing on the barefoot boy.
The point came up in a custody case. The mother of the 10-year-old lad involved charged that her former husband, the boy’s father, permitted his son to run around in bare feet and with his shirttail hanging out. The judge thought maybe the shirttail might be tucked in hereafter, but as for the bare feet—that custom, he said, was still the heritage of every small boy.
Going unshod is not what it used to be in these days of concrete pavements. But it is nice to know the spirit of Tom Sawyer still persists among our effervescent small fry. It is nice to know there are still men with a Mark Twainish gleam in their eyes.
I found it interesting that this is headlined not as that the father won, but that the boy won. After all, technically, it was the father that won the case. But it was the boy who won his freedom to go barefoot (and with his shirttail out).
We also see the effects of big-city life, with the reference to concrete pavement. I can assure you that in rural towns all across the country kids still went barefoot. It was in the cities that it began to lose favor. I wouldn’t be surprised if concrete did have something to do with that.
We can also see that, at least in 1939, the bare feet were also approved by the person who wrote this article, and by all the papers that ran the story with its “Mark Twainish” approval. Of course, the newspaper editors were probably older and also remembered a barefoot childhood.
How would a similar case do today? I’m afraid to ask or find out. These days we see stories of Child Protection Services being called to houses when kids are seen outside barefoot, and we see stories where the term “child endangerment” is thrown about with reckless abandon.
All I can say is that, if we do see such a story today, we barefooters need to make ourselves available as expert witnesses so that a court can be informed that it is not endangerment to allow a kid to go about barefoot and that there is a long historical tradition of barefoot children.
Ahcuah 
Are any law persons reading this blog?
It would be nice to get the opinion of a judge on this.
It seems like questions such as going barefoot or how to wear a shirt are too small and irrelevant to fight custody battles over ….
But I have never been involved, directly or indirectly, in a custody lawsuit so I don’t know what’s really relevant there. I guess if there’s no blatant abuse or neglect, the seemingly small and irrelevant details come into play.
If there was a child seen barefoot in a lawn full of trash, a report *might* (I emphasize might, and I think it unlikely without an existing case file on the family) get a caseworker from Children’s Services to come and pay a visit, but their question would be “is it because there are no shoes in the home for this child?” I’d guess that if it were winter that might raise an issue, but a barefoot sighting alone wouldn’t even get a caseworker to open a file, let alone trigger a visit to an existing open case. They *might* use such a report to request permission to enter the home, but the adult could refuse; if permitted, they’d be looking at three things: a) major health hazards (electrical boxes open, sharps too accessible, food waste/pet feces etc.), b) a secure place to sleep (mattress on the floor with intact bedding would be checked “okay” but on the floor, or no designated sleep spot would at least start a further query), and c) presence of food fit for human consumption. That last gets controversial, but if you go into a home, and there’s an assortment of warning signs, and the only food is an open half-liter of soda and a grubby half empty bag of chips, c) would be marked “no” and further inquiry and/or filings could result.
So I’d say that barefoot kids might be part of an initial request for a visit, but would not be the basis for any further action on the part of Children’s Services unless there literally were no shoes available for the child, and/or the colder part of the year (Oct/Mar, basically). Just a hypothetical: if a call came in that “smelled” of an ex making havoc for the non-custodial spouse, and they said “the kid has no shoes, he isn’t even dressing them and it’s cold out” and on a home visit (again, you’d have to suggest more than that to trigger it, but let’s say there’s an open file for other reasons) you see a kid without shoes, ask them why, and they say “I only have one pair, and they’re wet” then there might be a write up telling the parent in charge to get them new shoes, even in the summer. But if the kids say “we like being barefoot, and it’s not cold at all” and there are shoes available for them on request in the home, it’s not going anywhere.
All of this is CS related: how Domestic Court handles claims during hearings for custody, visitation, and support payments (the latter of which is enforced by yet another body, CSEA, which doesn’t care about *how* the money is spent, generally), is very subjective. The guidelines are broad. Shoelessness could be used, but only in the context of a wider case of claiming neglect with many additional proofs.
It may depend on the particular agency?
I do know of at least one first-hand account where a neighbor reported a parent for having their kids playing barefoot outside. Child Services came and wanted to do a full work-up and interviews. In the end, though, Child Services did not find any problems but it was still traumatic for the parents. Is it the case the they have to investigate every complaint or report?
And I realize that you see a lot, and work with a lot of people who really are trying to take care of the children. And that most of it is pretty awful stuff. One wonders how any would find time for the situation I heard about.
Finally, in case you aren’t busy enough 🙂 , here’s an interesting blog called Free Range Kids, discussing how we’ve gotten so afraid to let our kids do so much of what we ourselves did as kids.
That story is here.
“If there was a child seen barefoot in a lawn full of trash”
I would think the lawn full of trash “should” raise more concerns than the bare feet…