In a few states today you’ll still find Orphan’s Courts, but for the most part domestic matters such as guardianships and adoptions are handled in county courts. Genealogists should know, however, that the Orphan’s Courts were responsible for a variety of family-related cases.
What’s an Orphan?
The name sounds obvious – an Orphan’s Court would have handled the care and protection of orphans. Under earlier laws, however, an orphan was defined either as a child without parents, or a fatherless child. Since married women were often restricted from owning property, they did not necessarily have the resources to maintain their children after the death of the male parent.
Inheritance laws in the U.S. usually gave the widow only 1/3 share of her husband’s property, with the other 2/3 going to the children. Under the law, a guardian had to be appointed, either to provide for a child without other support, or to safeguard his inherited property. Custody of a fatherless (but not motherless) child generally remained with the mother, but either she or an adult male relative or friend might be named guardian. A child over 14 was often able to specify the guardian.
Why is it Called the Orphans' Court?
The original Orphans' Court was developed in London in the 17th century to protect the rights of minor children whose fathers had died. Settlers in America brought the court system with them; the royal governors of the Colonies were responsible for setting up courts to provide the same general protections that were available in England. While there were certainly some differences, the general structure of our judicial system has its roots in the mother country.
Other Responsibilities of an Orphan’s Court
In some states the Orphan’s Court oversees the administration of estates, ensuring that the rights of heirs are protected and that the provisions of a will are followed. If the court appoints a guardian for the property of minor heirs, that guardian must report to the court at regular intervals until the child comes of age.
Kathi Sittner, writing in “Orphan’s Court Records” in Ancestry magazine, outlines additional responsibilities of the county orphan’s court. “…lesser-known functions were that the court also bound-out poor children as apprentices, heard complaints of apprentices or hired servants against their masters, committed unruly children to a house of reform, and decided estate disputes between a widow and her children or among the children alone.” She notes that these records are of particular interest to genealogists because of the personal nature of such cases. The names of an orphaned child's parents may appear in the records, along with the maiden name of a wife, for example.
When the Child is Not an Orphan
One other thing should be noted when dealing with Orphan’s Court records. Guardians were sometimes appointed for minor children whose parents were still living. “The existence of a guardian, however, does not mean necessarily that either of the parents was dead but rather that the minor owned property personally (e.g., by inheritance from a grandparent),” states Helen F. M. Leary in North Carolina Research. In this case a father might be appointed guardian of his own children.
Guardians might also be appointed temporarily, such as if a minor were involved in a court case. Thus guardianship often involved money – either ensuring that a young child received necessary support, or protecting the inheritance of the minor. Guardianship might also enter the picture if some other sort of protection was required.
Using Orphan’s Court Records in Genealogy
Orphan’s Court records can break down brick walls when a minor child’s parents died (or father) died. Names of parents, guardians, neighbors, and of siblings and other close relatives may all be found in these records. Details about estates provide much useful information, as does a record of the property passing to the minor when he comes of age, thus giving a birth year. If a minor child inherited property, or his father died young, it’s definitely worthwhile to search for Orphan’s Court records.
For more information about court records and genealogy, see What are Chancery Court Records?
Greenwood, Val D. The Researcher’s Guide to American Genealogy. Genealogical Publishing Co., 2000.
Leary, Helen F. M. North Carolina Research: Genealogy and Local History. North Carolina Genealogical Society, 1996.
Sittner, Kathi. "Orphan’s Court Records," Ancestry Magazine, July/August 1994