E-mail:
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Mary Dudziak mary.l.dudziak at emory.edu
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Deborah Pearlstein dpearlst at yu.edu
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Richard Primus raprimus at umich.edu
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Alice Ristroph alice.ristroph at shu.edu
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David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
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Adam Winkler winkler at ucla.edu
Solangel Maldonado is right that family law is too quick to
devalue low-income, unmarried fathers, especially those who do not live with
their children and who have a history of incarceration. In the book, I talk a
lot about low-income, unmarried “parents” but do not separate out fathers. After
I finished the book, I felt this deficit and so starting exploring the place of
unmarried fathers in family law.
The resulting article, which will be published
this winter, argues that there is a fundamental mismatch between family law,
which is still based on marriage, and family life, which increasingly is not. Unmarried
fathers bear the brunt of this mismatch. I had not realized until I started
researching the article that fifteen states grant sole custody to a mother when
a child is born to unmarried parents. And no state has a default rule awarding
custody to both parents upon birth. Instead, family law assumes either that
parents are living together and so do not need to divide custody or that the
child is living with the mother. These kinds of rules foster what sociologists
term “maternal gatekeeping,” where mothers control fathers’ access to shared
children.
Fathers could go to court to protect their right to
visitation or even gain a portion of custody, but most low-income fathers do
not, for a combination of financial, cultural, and practical reasons. This
means that unmarried parents are left without an effective institution to help
them transition from a family based on a romantic relationship to a family
based on co-parenting. Thus, the parents do not have the benefit of clearly
established expectations for their rights and responsibilities following a
breakup.
Finally, family law reinforces traditional gender norms of
mothers as caregivers and fathers as breadwinners. Anachronistic for many
married couples, the norms are starkly at odds with the reality of nonmarital
family life, where most unmarried fathers struggle to support their children
economically, and most unmarried mothers are both full-time caregivers andbreadwinners.
The question, then, is what to do about this. I agree with Maldonado
that a flourishing family law would encourage both mothers and fathers, across
a wide range of family forms, to maintain relationships with their children. In
the article, I advocate for family law reforms, on both a theoretical and
practical level, that will cultivate a norm of shared parenting and cooperation
between unmarried parents who are no longer romantically involved. I advocate
for this kind of change because research has shown that a high-quality
relationship between children and a nonresidential father benefits children and
because unmarried fathers deserve the same presumption of involved fatherhood that
married fathers enjoy.
Maldonado argues that such efforts will likely fail because
the norm of economic fatherhood is too sticky, society will continue to devalue
these fathers and so will not treat them as real contenders for shared custody,
and that fathers will not be able to afford a home where a child can visit and
so, as a practical matter, will not be able to assume partial custody.
These are significant concerns, but I am more sanguine than
Maldonado. First, I believe it is possible to broaden the norm of economic
fatherhood to include caregiving. The federal Access and Visitation Program, for example, helps fathers secure parenting time with their children. It has
been shown to increase child support payments and parental engagement.
And New York State has implemented an earned income tax credit for noncustodialparents who have paid their
child support in full. This kind of
two-pronged policy—facilitating visitation and boosting men’s income—would go a
long way to broadening the norms of fatherhood. Second, it is true that laws encouraging
courts to allocate custody more evenly between parents have been far more
beneficial for divorcing, higher-income fathers than low-income, unmarried
fathers, but these laws have helped move the needle for all fathers and may do more in
the future. Finally, the loss of the economies of scale has always been the
cruel math of divorce and separation. It is possible, however, that if a father
moves in with a new partner, as many are wont to do, together they would be able
to afford the rent on a home where a child could visit.
Garnering political support for these kinds of reforms
raises the issue Elizabeth Scott identified in her post about the
need to frame the problem as immediate and concrete and the frame the solution
as targeted and effective. But, as I
argued in response, I think this is possible.
In short, I agree with Maldonado that some fathers are left
out of the family more readily than others. Family law needs to correct this.
Clare Huntington is Professor of Law at Fordham Law School
and may be reached at chuntingtonatlaw.fordham.edu