Judith Flanders: The legacy of Susan Chilcott is more than just our memory of a soprano

The opera singer Susan Chilcott died 10 days ago, and, apart from her glorious lyric soprano, she will probably be remembered for two things. First, when her dress caught fire on stage at Covent Garden she carried on singing while a crew member doused her with a fire extinguisher.

Second, and far more important for our changing ideas of the nuclear family, she gave legal guardianship of her four-year-old son not to his father, nor to her ex-husband, but to her best friend, the pianist Iain Burnside. The word "guardian" carries heavy Victorian overtones. We have been conditioned to think of guardians as uncaring at best: in The Secret Garden, Mary Lennox is sent like a parcel to her guardian, an unknown uncle. And in Henry James's The Turn of the Screw, when the orphaned Miles and Flora are sent to their uncle, he all but hands them on to the governess like left-luggage. The epitome of the bad-guardian/child relationship is the sadistic Mr Murdstone, who became David Copperfield's guardian on his marriage to David's mother.

For it is only in the last 100-odd years that the mother had any rights over the fate of her children. The father could, in his will, name a guardian, and she had no right to contest it. She could be deprived of all access to her children by her husband's will and the new guardian's wishes, and she had no legal redress: children owed all their duty to their father; their mother was an adjunct. In 1886 mothers won the right, on the death of their husbands, to become guardians to their children without the husband's say-so - although they still had to accept any further legal guardian whom their husband appointed as well.

Before this, children had few rights against the weight of a guardian. Sarah Waters, in her novel Fingersmithdisplays what might happen to women who stepped out of line: her heroine's mother decides to marry out of her social class, and is promptly incarcerated in a lunatic asylum by her husband and brother, her legal guardians. When her daughter is born, she is raised by a man she knows only as her guardian: she can stay in his house and live his way, or she can leave and starve. No other choices are available. And Wilkie Collins in The Woman in White - along with other sensation novelists - followed this same path: women who wanted different lives for themselves or their children could conform, or be judged insane, and locked up.

The freedoms we have today are so great, it is hard to remember what it took to acquire them. It was only in 1839 that women could finally, at law, get custody of children who were not yet weaned. It was 1878 before an act was passed that gave them custody of children under 10 if - and only if - their husbands had been convicted of assault.

There were many guardians who were good, patient and loving. Kind Mr Brownlow in Oliver Twist takes in the starving street child, and treats him as his own. Jane Eyre is cared for by the St John Rivers family. But by a series of coincidences, Mr Brownlow turns out to be Oliver's grandfather, and St John Rivers is Jane Eyre's cousin. The subtext of these melodramatic revelations is that no one can love you as your family does.

Ms Chilcott had surviving parents, an estranged husband - the father of her child, although the child had never had any contact with him. And yet she chose an unmarried man with no children of his own, a man who was not a blood relative. By this decision she indicated just what it was she hoped for for her child. Her parents are elderly, and would be able to give the boy love, but not the physically active life he needs; they would not be there to see him through to adulthood. She also ruled out her ex-husband. So, in the post-Dickensian world we are fortunate enough to live in, she chose the person she felt was best qualified, not the person the law felt she should have chosen.

Judith Flanders is the author of 'The Victorian House' (HarperCollins)