Wednesday, October 29, 2014

Flourishing Fatherhood

Guest Blogger

Clare Huntington

For the book symposium on Clare Huntington, Failure to Flourish: How Family Law Undermines Family Relationships  (Oxford University Press, 2014)

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 and breadwinners.

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

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