Tuesday, October 28, 2014

Helping Families Flourish: Committing to Children, Mothers (and Fathers)

Guest Blogger

Solangel Maldonado

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

When I tell people I teach family law, I brace myself for the negative reaction.  Everyone knows someone who has been treated unfairly in a divorce, has been ordered to pay more child support than he could afford, or has a child in foster care due to poor housing or inadequate child care arrangements.  Individuals who have had contact with the family courts often say that “the system made things worse.”  In Failure to Flourish, Clare Huntington demonstrates how the law’s adversarial approach has failed to help families resolve disputes without aggravating conflict and recommends numerous legal reforms to help individuals repair family relationships that the law deems broken.  These proposed reforms are comprehensive, ambitious, and far-reaching.  They range from changing the rules that govern how parental responsibility for children and parenting time is allocated after parental separation to adopting alternatives to litigation such as collaborative divorce and family group conferencing.  Importantly, Huntington demonstrates how lawyers often exacerbate family conflicts and challenges law schools to teach future lawyers to help their clients focus on the need to repair family relationships.

While tackling the law’s tendencies to exacerbate family conflicts would be a daunting undertaking for most scholars, Huntington does not stop there.
 She debunks the myth that families are autonomous and shows how all families, regardless of income, rely on the state for support. She also shows how policies that we generally do not associate with family law -- such as zoning, urban planning, education, tax, and employment laws -- all influence families’ opportunities and choices.  While some conservatives may fear that we are creating a welfare state, Huntington argues that because the state relies on families to raise the next generation, a task that the state cannot itself undertake, the state must help families foster strong and stable relationships from the start instead of waiting until families are in crisis to intervene.  These reforms include recognizing and supporting a broad range of family forms such as same-sex and nonmarital families.  While acknowledging the studies showing that children raised by single or cohabitating parents have worse outcomes than children raised by married biological parents, Huntington demonstrates that marriage alone is unlikely to improve outcomes for children.  She argues that the state should encourage long-term commitment between parents and provide economic and other supports to parents as they raise children.  In addition, the state should alter the physical environment of cities and neighborhoods, including zoning laws, to facilitate family interaction, extended family support networks, and social connections.

Huntington acknowledges that these reforms will be costly but cautions that if the state does not invest in families now, society will surely bear the cost—a much higher cost—later.  These reforms are sound and many have been implemented in other countries or U.S. cities on a limited scale with much success.  However, while many of these reforms seek to help low-income children in particular, I worry that we will not be able to help the children most at risk until the state supports low-income fathers, including those who have been involved with the criminal justice system and may not be particularly sympathetic figures.  For example, as Huntington points out, the strongest predictor of whether a father will invest in his children is whether he lives with them.  However, the majority of children born to unmarried parents, and who are disproportionately African-American and Latino, do not live with their fathers. 

Maybe the state can encourage unmarried parents to commit to the joint work of raising a child together even if they are no longer romantic partners, but this is unlikely for several reasons.  First, society and the state expect fathers to, above all, provide for their children financially.  Fathers are encouraged to nurture their children too, but they are expected to meet their financial needs first and foremost.  Consequently, mothers are likely to reject low-income fathers’ efforts to play a significant parenting role if they are not able to fulfill their role as economic providers.  In turn, fathers who have internalized the social norm that fathers will provide for their children are likely to avoid their children because they are ashamed of their inability to support them.  Second, while states increasingly encourage divorced parents to maximize the amount of time the child spends with each parent, low-income unmarried fathers have not been encouraged to do the same, in part because they are perceived as irresponsible and we may not be convinced that children would benefit from close relationships with them, especially if they have been involved in the criminal justice system.  Third, shared parenting is expensive, as parents must maintain two households that can accommodate children for extended periods of time.  Low-income parents simply cannot afford to maintain dual households, which means that unmarried fathers are unlikely to have opportunities to join mothers in the day-to-day task of parenting. 

Professor Huntington has provided us with a road map that, if adopted, will go far in helping to foster strong and positive family relationships.  But in order for families to fully flourish, the state may have to commit not only to children and mothers, but to fathers as well even when they do not live with their children.

Professor Maldonado teaches at Seton Hall Law and may be reached at

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