Introduction
As the date for this symposium drew near, I grew both excited and terrified. The excitement stemmed from the fact that seven insightful and well-respected family law scholars were going to read and comment on my book. Not only would my book have an audience, but the audience would be composed of people whom I knew and respected! That excited me. The terror came from my fear that those readers might hate the book. I confessed to one of my Oregon law colleagues that the fear kept me up at night. He reminded me that academics are supposed to be critical, test ideas, and engage in discussion. He warned me that no blog post would simply say, “I completely agree with the book.” While I knew this fact even before he spoke, his words brought me some peace of mind. Our job is to discuss and to question. In fact, I myself had critiqued some of my co-participants’ work in my book.
When the blog posts started emerging (and the first four appeared quickly in succession on Monday), I felt a great sense of appreciation that the participants had taken the time to read my book, and had shared their thoughts about it with the world. I, of course, was also relieved that people found the book interesting and provocative. The participants did not always agree with me, but I found each blog post fascinating, cogent, and deserving of a response. The symposium had instantly achieved my own personal goal of providing a starting point for a conversation.
After reading and pondering all of the blog posts, I was struck as much by what the commentators did not say, as what they did say. While I will engage with each of the author’s comments later, it is notable that no one took issue with the idea that a status might offer great benefits for children and society. No one disputed that too many children are disadvantaged because of suboptimal parental relationships, including a failure of the parents to work together as a team for their children’s benefit. No one disagreed with my claim that it was unfair that society had not given a name to the relationship of so many children’s parents, let alone a structure that might foster supportive behavior between the parents. No one questioned the law’s ability to create a social role, and the effect that a new social role might have on ill-advised reproductive behavior and detrimental parental behavior. The reviewers also left untouched the claim that the status might foster love and civic virtue.
I don’t want to read too much into the silence surrounding these and other topics, for the reviewers understandably focused on the issues that most concerned them. Their silence may not signal agreement with my analysis. Nonetheless, I am going to take it as a positive sign that the book’s basic argument was not challenged. Instead people mostly raised questions about various obligations (e.g., was the content of relationship work appropriate) and potential disadvantages to specific obligations (e.g., would the obligation to give care or share disproportionately impact low-income or minority communities). People’s comments also suggested that they were receptive to the general idea. One participant thought the book “makes a persuasive case for seriously considering the adoption of such a status,” another said the status “is clearly promising enough to be worth a state experiment, or two or three or four,” a third participant concluded, “I fully support Weiner’s larger project of inculcating a stronger tie between parents to promote the well-being of children,” another stated, “I have no problem with three of the five duties,” and yet another indicated that the book was “compelling…on why we need to create a new legal status.” As I said at the end of Chapter 8, “[T]he legal obligations are just the details and details about which we might reasonably disagree. They should not detract from the conclusion that flows from the foregoing analysis: a parent-partner status is warranted.” (p. 318). It seems as if my co-participants might agree; if so, we should work together in the future to identify other inter se obligations that might better constitute the status than those that they disliked. Of course, this future project might become unnecessary if I can convince them here that all of the obligations are warranted.
Before I address each participant’s comments, I want to thank the organizer of this wonderful symposium, Solangel Maldonado. Professor Maldonado has written with great insight about the discrimination that nonmarital children still face as well as the importance of the relationship between divorced fathers and their children, among other things. I feel honored that she chose my book as the centerpiece for a conversation about the future direction of family law. If it weren’t for Professor Maldonado’s initiative and organizational skills (e.g., identifying participants, getting materials out in a timely fashion, and instructing us how to blog), this symposium would not have happened. So, thank you, Professor Maldonado. I have enjoyed the symposium immensely and have learned a lot from my co-participants.
Professor Bix Kicks Off the Conversation
Professor Bix posted early and did a splendid job of summarizing the book’s argument. His concise but accurate description laid a nice foundation for the other participants’ comments. His narrative also allowed others to follow the discussion even if they had not read the book. Overall, Professor Bix conveyed a cautiously optimistic response to the proposal. In the end, he even suggested that a state “or two or three or four” experiment with the idea.
Professor Bix did raise two concerns, however. Professor Bix wondered if some might view the status as “intrusive government intervention in personal affairs” and if the proposal would have “disproportionate effects on poor and minority communities.” Others in the symposium echoed these same concerns. For example, Clare Huntington raised the prospect of intrusive government intervention in the context of relationship work. Naomi Cahn and June Carbone discussed the impact of governmental regulation on women’s autonomy. Jane Murphy voiced concerns about how the obligation of “relationship work” and the obligation “to give care or share” might disproportionately affect low-income and minority couples. Leigh Goodmark queried if government regulation might make things worse for domestic violence victims. While I will address each author’s specific comments seriatim, I start with some general points that are responsive both to all of the other participants’ comments.
Intrusive Government Intervention in Personal Affairs
Chapter 12 of my book predicted that the government’s incursion on autonomy would concern many, including those on both the left and the right. The reactions of the symposium participants suggest that my prediction was accurate.
It is useful to consider, at least for a moment, whether the concern about intrusive government intervention in personal affairs stems from the novelty of the proposal or from the actual obligations themselves. After all, family law by its nature addresses personal relationships. The automatic, multiple, and varied legal obligations between parents and children, for example, are rarely thought of as intrusive government intervention in personal affairs. I believe that it is just a small step for society to impose some core legal obligations between the two parties who produced that child, especially because interactions with each other can affect their child and cause injustices between them. Perhaps the feeling of intrusiveness, if there is such a feeling, would dissipate over time.
Our natural inclination is to resist legal obligations that society might impose on us without our explicit consent, but consider what life would be like if many common inter se legal obligations did not exist. Such obligations exist not only in the parent-child context, but in other contexts too. If I drive a car, I am obligated to any person I injure by my negligence even if I would prefer it otherwise. If I am an employer, I must pay my employee a certain minimum wage even if I would rather not. Society decides that certain legal obligations are appropriate between individuals because those legal obligations serve justice and further policy goals. In the parent-partner context, most parents can already obtain a civil protection order against the other parent to stop physical abuse, whether or not the parents are married. No one today thinks that this inter se legal obligation is unwarranted governmental interference. We need to recognize that it is appropriate to impose other legal obligations between parents with a child in common, as those can address other harms or unfairness and further policy goals.
Finally, it is worth observing at the outset that governmental inaction also affects people’s lives. The absence of inter se obligations between parents with a child in common already affects their parental relationship, often sending that relationship in a direction that neither parent ideally wanted, and causing harmful repercussions for the parent-child relationship. The lack of a parent-partner social role makes it more likely that people will reproduce with others (both inside and outside of marriage) who would not make good parent-partners, that people will engage in behavior that harms their relationships with their parent-partners, and that children will experience suboptimal outcomes if their parents’ romantic relationship ends.
Let me now make four additional quick points about the topic of governmental intrusion in personal affairs.
First, the book argues that the status would actually enhance autonomy in many ways (see pages 480-83). The key inquiry is whether on balance the status is autonomy enhancing or restricting and whether the status, even if autonomy restricting, is still more beneficial for society than the status quo. I hope that any future conversation between participants considers the overall effect of the status.
Second, people will need to take note of the status and identify as parent-partners if the status is to influence people’s behavior fully through both legal and social norms. Consequently, there may be a direct association between the speed with which a parent-partner social role is established and the intrusiveness of the parent-partner obligations. While none of the obligations that I proposed are strictly necessary to create a status, the more controversial obligations may best grab people’s attention and help achieve the status’s overall purpose (as well as provide a remedy for certain behavior). That benefit must be factored into any assessment of the merit of a particular obligation.
Third, the status would only apply to couples that have or adopt a child at least ten months after the effective date of the law. That fact should make the new legal obligations seem less intrusive, and therefore more politically acceptable.
Fourth, the parents themselves are the only ones who could enforce the inter se obligations (with the exception of the crime of physical abuse of a parent-partner). Consequently, no court order would issue absent one parent’s request for a remedy. If a remedy were warranted, the other parent’s autonomy interest is greatly reduced because the behavior has little social value. (In the next section, I will address the government’s ability to condition benefits on the enforcement or assignment of an inter se obligation).
Disproportionate Effects on Poor and Minority Communities
As we consider the potential impact of the status on people of all economic strata as well as different minority communities, we should include the possibility that the status would have a disproportionately positive effect instead of a disproportionately negative effect. Such would be the result, for example, if the parent-partner social role improved the number of supportive parental relationships among unmarried parents more than married and divorced parents, or delayed ill-advised conception more among unmarried couples than married couples. In addition, to the extent that the new legal remedies would be invoked more by members of low-income or minority communities than members of other communities (and I have no reason to think that this would necessarily be the case), then the status would also impact certain members of those communities in a disproportionately positive way. (I will discuss Professor Murphy’s concerns about family court processes, below).
The specific possibility raised by Professor Bix, i.e., that the government might require a parent to enforce an obligation as a quid pro quo for a governmental benefit, is a very legitimate concern. The government has already done this in other areas. For example, the government requires TANF recipients to assign their rights to child support and spousal support to the government. Therefore, the government might seek a parent’s caregiver compensation as a source of revenue. Professor Murphy also raised this possibility, and while admitting that it was “remote,” described a scenario in which the government’s initiative would, at worst, “driv[e] parents underground, undermin[e] any hope of future economic health, and result[] in sanctions like license suspension and incarceration that destroy family relationships.” Professor Murphy similarly thought the government might ask the court to order the couple into “relationship work” if the government were seeking paternity and child support orders.
It would be unfortunate if the government conditioned benefits on the enforcement or assignment of any of the proposed inter se obligations. The government’s action is highly invasive in such a situation: it removes from parents the decision whether or not to enforce their own inter se legal obligations. It is a clear and direct assault on the parents’ autonomy. In the caregiver compensation context, the government’s interest in the public fisc would be a weak reason to seek an indigent caregiver’s right to compensation, as scholars have convincingly argued with respect to the child support. See, e.g., Tonya L. Brito, Fathers Behind Bars: Rethinking Child Support Policy Toward Low-Income Fathers and Their Families 15 J. of Gender, Race & Justice 617 (2012). A state would arguably have less justification for requiring the assignment of caregiver compensation than child or spousal support because caregiver compensation is not support, but compensation. Caregiver compensation, however, might be included as part of a household’s earned or unearned income when the government determines eligibility for benefits, just like other income, although states could presumably exclude all or part of it. If the income were included, a person entitled to caregiver compensation would have to decide whether the value of the remedy outweighed the potential loss of public benefits, and in most instances, the remedy might not be worth it. As for relationship work, some states might try to use the inter se obligation of relationship work to obtain the other parent’s attendance at an informational session about relationship work. Yet if the recipient of public benefits herself is uninterested in relationship work, then the efficacy of any order would seem minimal at best.
Because the disturbing scenario described by Professor Murphy could occur, it seems sensible to include in any legislation establishing the parent-partner status an express provision to address the situation. The provision should prohibit the government from conditioning the receipt of benefits on a parent’s agreement to enforce a status obligation or on that parent’s assignment of the obligation to the government. That explicit prohibition would certainly be consistent with what I have said in the book. I said the status would not “impose obligations on the parties for the benefit of the government or third parties.” (p. 143). I noted the following: “for reasons of symmetry, it seems unwise, and potentially unfair, to impose burdens on parent-partners for the benefit of third parties or the government before third parties or the government are obligated to provide benefits to parent-partners.” (p. 150). I also warned, “Before the status should ever affect the complex system of social welfare…a probing evaluation by experts of any proposal is necessary.” (p. 145)
Professor Huntington’s Concerns about Relationship Work
Clare Huntington and I have been working along parallel paths, with a similar vision, for some time. For those who haven’t read her wonderful book, Failure to Flourish: How Law Undermines Family Relationships, I highly commend it. The book recently received a well-deserved honorable mention for the PROSE prize in Law and Legal Studies. Professor Huntington’s book focuses on a broad variety of laws and policies that impede the flourishing of families. She classifies “structural family law” to include zoning laws, employment law, and the entirety of the criminal law, and she encourages society to address these topics with an eye to their impact on the family. She also discusses many aspects of classical family law, such as the definition of parent, adoption, and custody, as well as family court processes that impact family flourishing. She highlights social programs that seem to make a positive difference for families, such as the Harlem Children’s Zone and Nurse-Family Partnership. Overall, her book gives one a sense of the tremendous amount of work that is needed to help families flourish.
Professor Huntington’s reaction to my book was largely positive, although she raised some pointed concerns about one of the five obligations: the “obligation of relationship work.” She provided an excellent summary of that proposal. The resolution of some of her specific concerns will necessitate the involvement of experts in the relationship work field. I certainly don’t consider myself an expert in that area and I doubt Professor Huntington would consider herself one either, although we both undoubtedly have read a lot of the relevant literature. To resolve our disagreements, we should get answers from those who design, study, and implement relationship work programs. I am talking about people like Philip Cowan and Carolyn Pape Cowan, John and Julie Gottman, Bill Doherty, Robin Dion, and Don Gordon, among many others. It would also be useful to involve relationship scholars, such as Brian Ogolsky. Until we can do so, however, I will do my best to answer her critique.
Professor Huntington usefully identified three disagreements that she believes we have; they relate to “the content of the work, the timing of the work, and the setting of the work.” Some of her other concerns were freestanding (like the cost of the relationship work), but her structure allows me to discuss those other concerns within it. My overall reaction is that our disagreements are minor because we both want more couples to experience professional help at the end of their relationships so that they can be great co-parents. We diverge in that I put a lot of emphasis on the importance of relationship work at the transition to parenthood and also embrace the potential value of reconciliation counseling at the romantic relationship’s conclusion.
In terms of the content of the work, Professor Huntington prefers to have relationship work focus on the “mechanics of co-parenting,” but not on the “emotional work.” She finds “something viscerally troubling about government-mandated emotional work,” although she acknowledged that “to work effectively as co-parents surely involves some level of emotional work.”
First, I want to clarify that I do not propose any “government-mandated emotional work.” As Profession Huntington noted elsewhere, the only remedy proposed for a violation of the relationship work obligation is attendance at an informational session on the benefits of relationship work. If a parent ultimately decided against it, it would not occur.
Second, I am not entirely sure what Professor Huntington meant by “emotional work,” but I assume she was referring to reconciliation counseling at the conclusion of the relationship as well as some types of friendship counseling. “Relationship work” spans a range of programs and approaches and these differ at the transition to parenthood and at the end of the romantic relationship. At the transition to parenthood, relationship work may involve mostly skill building. For example, the Prevention and Relationship Enhancement Program (PREP), a very popular and apparently effective program, “teaches couples (premarital and marital) how to communicate effectively, work as a team to solve problems, manage conflicts without damaging closeness, and preserve and enhance commitment and friendship.” It “addresses topics such as communication, affect management, conflict management, commitment, fun and friendship, sensuality and sexuality, problem-solving, forgiveness, and emotional supportiveness.“ My book discussed other programs at the transition to parenthood, such as Bringing Baby Home and Becoming a Family, and none of them required people to recline on the psychologist’s couch.
At the end of the relationship, I did recommend both “reconciliation counseling” and “friendship counseling.” The various programs and counseling approaches within both categories are diverse, and parents should be informed about the range of options so that they could select that which is most appropriate for them.
In terms of reconciliation counseling, one potential option is discernment counseling. It is short-term (one to five sessions that are under two hours long), and helps couples figure out if their problems can be solved. Since couples would select their own providers, the government would not be choosing the type or content of the “intimacy work,” if that is what they needed. Discernment counseling, as well as other options, could benefit many couples. A lot of people regret their decision to break up and wish, in retrospect, that they had tried counseling. A study by Bill Doherty, mentioned in the book, indicated that at least one party is interested in reconciliation counseling in 45 percent of divorcing couples (p. 374). Estimates vary, but it appears that only between 10 percent and 33 percent of divorcing couples seek counseling before calling it quits, and the number is undoubtedly lower for cohabiting couples (p. 383). Divorce lawyers rarely mention the option (p. 384). If one parent who had interest in it could get the other parent to hear about its potential benefits, or if lawyers had to mention this option to divorcing clients, or if the stigma of relationship work were removed by making it an expectation and allowing parents to experience the benefits of relationship work at the transition to parenthood, then this type of relationship work might become more common. Because there are real disadvantages to children when their parents end their romantic relationships (assuming that the relationship is not high conflict), it seems sensible for society to expect parents to at least consider reconciliation work and to give parents a tool to help that occur.
In terms of “friendship counseling,” which seems to be the type of relationship work that Professor Huntington focused on, the precise content would have to be determined by the professionals. Empirical evidence suggests that the best co-parenting occurs, both during the romantic relationship and afterwards, when the overall relationship between the parents is healthy and positive (p. 194-210). Two examples illustrate how poor parental relationships negatively affect co-parenting. First, while parallel parenting after breakup is a great arrangement for highly conflicted couples (it allows parents to cooperate while being disengaged from each other), it is not as good as a supportive parental relationship when the parents are capable of one (p. 201). Unfortunately, disengaged parenting has now become the most popular form of co-parenting among even cooperative parents (p. 201). Second, the amount of contact children in fragile families have with their fathers over time differs dramatically depending upon whether the mothers and fathers are friends. In the Fragile Families and Child Wellbeing study, researchers found that three-fourths of the mothers who were not romantically involved with the fathers five years after the child’s birth described their relationship with the father as “fair, poor, or non-existent.” Only 12 percent called their relationship quality excellent or very good. This lack of parental friendship had devastating implications for the children’s relationships with their fathers. For parents with a non-romantic relationship, only 43 percent of the children had seen their fathers in the last month, although 74 percent of the fathers reported seeing the child in the last month if the parents remained “friends,” compared with only 17 percent of fathers who had no relationship at all with the mother. Because children benefit tremendously when their parents have a healthy and positive relationship, it seems appropriate for society to signal that such is the aspirational standard after breakup and to help a parent who wants to achieve that outcome.
With respect to content, Huntington has a deep suspicion of these programs, believing that they may ignore the “individual values of the parents.” She suspects that they might represent “yet another way to find that low-income families and families of color are falling short of the expected bar in familial relationships.” She said, “It is critical that the relationship-work obligation will tolerate diverse conceptions of parenthood and relationships.” Of course, professionals engaged in relationship work should always be respectful of their clients’ diverse family arrangements and values. The programs they produce should do the same. Nothing that I said in the book is inconsistent with this objective. What seems disrespectful, in my view, is for society to fail to give any signal that it expects two parents with a child in common to have a supportive and cooperative relationship.
As to the timing of the work, Huntington’s critique solely focused only on relationship work at the demise of the romantic relationship. The recommendation for “relationship work” at the transition to parenthood has great promise for making the relationship between the parents stronger, and must not be forgotten. The latest word on these programs’ promise came from Ron Haskins, who reviewed the state of the science in his recent article for the Future of Children. He quoted the Cowans, who after reviewing these types of programs, reached three conclusions: “First, that without intervention ‘average couple relationship satisfaction declines’; second, that including fathers in the programs ‘results in value-added contributions to family functioning’; and, third, that eight of the nine studies of couple relationship programs that include child outcomes show benefits for children.”
At the demise of the romantic relationship, Professor Huntington suggested that the goal should merely be to teach parents “to negotiate child care drop off and pick up duties” and not “to become friends at that moment.” She argued that “once parents get in the habit of cooperating, they are able to build on this skill in the future.” This criticism overlaps with her concern about “content,” as she acknowledged. Again, relationship work professionals are the best positioned to say what the exact content of friendship counseling should be at the demise of the romantic relationship. Yet from my perspective, it seems important to set expectations as early as possible that couples should be friends and then help them accomplish that goal. Recent evidence from Australia (the place where one finds the Family Relationship Centers that Huntington likes) suggests that couples’ relationships do not necessarily get better over time. See Australian Institute of Family Studies, Post-Separation Parenting, Property, and Relationship Dynamics after Five Years (2014). In fact, 26 percent of parents who described that their relationships as positive at first survey reported that they had become distant or negative five year later. Almost 62 percent of couples whose relationships were distant at first survey stayed distant or grew worse over the next five years. (p. 15, tbl. 3.1). Sixty-seven percent of parents with considerable conflict and fear at first survey remained distant or negative five years later. In addition, almost 60 percent of all mothers and fathers reported less frequent communication between themselves over a five year period. (p. 19 fig. 3.3) Too many couples’ relationships do not improve over time.
Most “friendship counseling” would probably entail, at a minimum, the dissemination of information about the mechanics of co-parenting and non-litigation options to resolve their disputes (p. 382). Consequently, couples who went through parent education as part of a divorce or paternity proceeding might not need to invoke the obligation of relationship work for friendship counseling (p. 381). Yet for a parent who sees value in working on relationship issues earlier (prior to a court proceeding but after serious problems have arisen), and for parents who want to try “emotional work” before co-parenting patterns (like parallel parenting) become entrenched, the law would give them a tool. Similarly, this remedy would provide a tool to parents who are not involved in custody litigation at the end of their romantic relationships, and therefore have no mechanism to encourage the other parent to engage in the sort of co-parenting classes that are now fairly common when there are court proceedings. Finally, parents who go through the court-connected “nuts and bolts” co-parenting courses may need help thereafter in convincing the other parent that it is time to work on their friendship, and the relationship work remedy would be available to assist. As described on page 386, cooperation can be very difficult during the first two years after separation. Ultimately, however, the most appropriate type of relationship work would be decided upon by each couple and their professionals.
In terms of the setting, Huntington wants to “take this out of a therapist’s office and instead put it in a community-based mediation center, much like Australia’s FRCs…. They are government funded and thus are free or very low cost to the couple.” I have no set view about where relationship work should occur, and would prefer to leave it up to each couple to make the appropriate choice. FRCs do not themselves provide “emotional” work, but primarily refer parents to relationship counseling or services. So, strictly speaking, relationship work could not occur there. Ultimately, while FRCs look promising in many respects, and while Professors Murphy and Singer highlight many of the FRCs’ positive aspects in their 2015 book Divorced From Reality, these scholars noted, “It is still too early to assess the success of the FRCs in any compressive way.” (Divorced From Reality, p.116)
That leads me, finally, to what Professor Huntington believes is a “major flaw” of my relationship work obligation. She notes that I do not propose government-financed relationship work. To be clear, I am not opposed to government-funded relationship work, and I note that without it relationship work might not be available to low-income couples. Government-funded relationship work might be an incredibly cost-effective investment given the high social costs of family instability. However, I have not done the sort of economic analysis necessary to conclude such is the case. The Australian Family Relationship Centers were the “biggest investment in Australian family law ever.” (Murphy & Singer, p. 112, citing Moloney). Moreover, for pragmatic reasons explained in my book, the parent-partner status would not trigger public benefits or require large public expenditures (p. 143-44).
I did say, as Professor Huntington noted, and I do believe, that “[r]elationship work need not be financially accessible to all before the obligation of relationship work is imposed on parent-partners.” The government imposes uniform inter se obligations on people of different economic classes all the time. The spousal support obligation does not evaporate when two low-income people marry. The child support obligation does not disappear even if one parent has few economic resources. Moreover, it is certainly possible that charitable institutions, employer insurance, and/or the market would make services available once it became an inter se obligation. Courts might be able to accommodate some services within their existing budgets. Certain lower-cost options, like programs utilizing group counseling or technology, might become more common. Moreover, the obligation would still benefit families for whom cost was not an issue, and it would send a normative message to all families that they should try to work to keep their relationship strong (and, at least, friendly) for the benefit of their child.
All in all, Professor Huntington and I agree that the parents’ relationship with each other is important. She stated, “Whether and how the parents get along deeply affects the ability of each parent to provide the child with the time and attention needed for healthy child development.” Because I think providing an inter se remedy is a “soft” way of expanding the amount of relationship work between parents and would convey society’s expectation that all parents engage in it, I would recommend its inclusion as part of the status.
Professors Cahn and Carbone’s Concerns about Women’s Autonomy
The comments of Cahn and Carbone were nuanced and varied, but they are perhaps adequately summarized by the title to their blog post: “Women’s Autonomy.” These commentators said that my proposal is “appealing,” “but not for all parents of all classes in every situation.” Their concerns appeared to focus mainly on the autonomy of women who are not “elite.” The authors framed their comments with data from their informative book, Marriage Markets, which described divergent family patterns between “the elite,” “the marginalized bottom third,” and “the middle.” Cahn and Carbone find it easiest to imagine the implementation of my proposal for the “elites,” where “the equal assumption of parental responsibilities has become the norm associated with marriage,” but they claimed the proposal will raise implementation challenges for the unmarried, who have relationships lacking “mutual respect or the capacity for an equal assumption of parenting responsibilities.” Noting the high rate of breakup among unmarried parents because of domestic violence and infidelity (citing Edin and Kefalas), and the higher rates of effective co-parenting outside of marriage among Blacks, they concluded, “It therefore makes no sense to impose the same system of obligations, regardless of marriage and adult-adult commitment and income, on all parenting arrangements.” They punctuated their critique by saying the “subtext” of my proposals “is to make the working class more like the elite in their ability to manage relationships.”
Before I explain how my proposal would potentially increase, not decrease, the autonomy of non-elite women, I need to clarify something. Cahn and Carbone said that my final chapter “briefly” addresses whether the status would encroach on individual autonomy or disadvantage women and children. However, I devote fifty pages of discussion to the topic of autonomy and another twenty-five pages of discussion to the topic of the possible disadvantages to women and children. That detailed treatment is in addition to the discussion of those topics throughout the book, such as the five pages specifically discussing caregiver compensation’s impact on women (p, 455-59). I would hate for a symposium observer who has not read my book to think that I gave these important topics short shrift.
As I just suggested, my proposal would arguably increase the autonomy of non-elite women in various ways. Let me focus here on the “the marginalized bottom third.” First, many of the births among fragile families result from unplanned and unwanted pregnancies. Joanna Reed’s qualitative interviews with Fragile Family participants revealed that only 20% of those interviewed wanted a child at the time of the conception. Many of these pregnancies happened early in the couples’ relationships, with over one-third of the pregnancies occurring within three months of the relationship’s beginning, and 60 percent occurring within nine months of the relationship’s start. The pregnancies were largely unplanned. Consequently, a legal status and social role that deterred ill-advised conception should increase the autonomy of these women.
Second, in comparing the status’s effect on people of different economic classes, we must focus on what most people want in their relationship with the other parent. This analysis shows that the status is not elitist, but rather reflects the desires of most parents. That is, most people, regardless of class, race, and gender, desire a supportive relationship with their child’s other parent. Most people want the other parent to exhibit fondness, flexibility, acceptance, togetherness and empathy toward them. Similarly, almost all parents, regardless of class, race, and gender, want their children to flourish and succeed in life. When we start our comparison of parents from this perspective, we see that the status and social role, by helping couples have stronger and more supportive relationships, furthers the goals of a wide swatch of society, and not merely the elite.
Joanna Reed’s article, referenced above, shows how the parent-partner status might better help fragile families obtain what they desire. Fragile family cohabitants often move in together because of the pregnancy. The couples’ cohabitation “shows that shared children are very important in how these same couples define their relationships.” (p. 1128). She explained, “shotgun cohabitation suggests that the two-parent family is still valued….[T]here is a strong cultural script at work here as well.” (p. 1128). Within a few months of the childbirth, most of these couples plan to marry. But cohabitation is defined by “flexibility in roles and expectations,” easy exit, and a lack of formal commitment (p. 1127). It provides no structure or social expectations that help the couple’s relationship succeed. In fact, couples “rarely mentioned pregnancy when speaking about how couples should ideally approach cohabitation.” (p. 1126). Undeniably, there were serious problems in many relationships that caused their breakups, including infidelity, mistrust, arguments, substance abuse, incarceration, and domestic violence (sexual mistrust and infidelity were the most common). But the norms of the new parent-partnership might help deter these behaviors and allow couples to tackle some of these issues more successfully. For example, relationship work at the transition to parenthood can help couples build trust and improve relationship quality. The parent-partner status might also cause couples to love each other, and this too may affect behavior, including by reducing problematic behavior (Weiner, p. 275-298).
Of course, the parent-partner status doesn’t require parents to marry, prevent them from leaving a bad cohabiting relationship, or anything of the sort. As I say in the book, “So much is left unaffected by the status that a complete recitation of those topics is impossible. Those areas would include a parent-partner’s ability to have different romantic partners, to enter parent-partnerships with more than one individual, and even to treat the other parent in a manner inconsistent with the status’s norms in areas not subject to the five legal obligations.” (p. 488-489) The status merely sets some expectations and puts society’s imprimatur on the very desires that most couples already have for their own relationships after their children’s births. It tells them that society hopes they succeed, and success requires work. It tells them that even if they are merely friends, society expects that they will show each other support as well as flexibility, fondness, acceptance, togetherness, and empathy. And that, in turn, may help couples achieve their own goals, including by acting in ways that are best for their children.
Cahn and Carbone’s critique seems largely related to the general idea of a status, for their critique of specific legal obligations is thin at best. Yet, as I suggest in the book, “The strength of any autonomy argument depends on the details.” Exactly which legal obligation would, as Cahn and Carbone claim, “empower[] those who would like to hang on to the shreds of a relationship that the other parent has ended for good reason?” Are they thinking of the “relationship work” obligation, even though it has a very limited remedy (to hear of the benefits of relationship work)? The book explains that the norms of the status, particularly acceptance and flexibility, mean that “each parent must ultimately come to accept the other parent’s decision about the future direction of the parents’ relationship, even if he or she thinks that the decision is wrong. Forcing a party to hear the benefit of relationship is as far as compulsion should go.” (p. 362) Yet if Cahn and Carbone dislike the relationship work obligation, do they deny that parents who breakup must still parent together, and that parenting apart works best if the parents are at least friends?
Cahn and Carbone are concerned about “the heavy handed nature of the legal system.” They see mothers’ autonomy coming from “their ability to stay out of court,” and avoid misapplications of the law. But isn’t this view an odd way to think about autonomy? To the extent that the mothers have breached one of the five core obligations, why should they be able to avoid the legal consequences of their acts if the other parent suffers harm or injustice? Moreover, some mothers can only have their autonomy interests vindicated by securing a legal remedy. What sort of autonomy exists, for example, for someone who is subject to psychological abuse by the other parent if she gets no assistance to stop it? If the law is misapplied to women’s detriment, then that problem, of course, needs fixing, but the misapplication of the law should not be held against the parent-partner status.
Cahn and Carbone’s decision to focus on the autonomy of adults, and women in particular, in isolation from the status’s benefits to others, is problematic. The book argued, “Once two people become parents together, there is an interdependence and a third party (the child) that narrow a parent’s entitlement to autonomy.” (p.493) Consider how children’s interests really change the weight of the parents’ autonomy interests by exploring a study cited by Cahn and Carbone in their critique. This study looked at co-parenting after the demise of the romantic relationship. Cahn and Carbone said, “Black mothers who have a much longer tradition of co-parenting outside of marriage report higher rates of effective co-parenting and more involvement from unmarried fathers than other races,” and then suggested that the norms among working class whites are changing to become comparable. The subtext was that the status (and social role) is unnecessary because some mothers can co-parent fine without it.
While the study by Ellerbe, Jones and Carlson found that African American mothers and fathers were co-parenting better than others when the parents had never been co-resident, it also found that the levels of Black nonresident father involvement after a non-marital birth for all fathers (including couples who had cohabited) was lower over time than for Whites. So, while at one-year after the child’s birth, nonresident Black fathers spent a mean of 12.60 days per month with their children and White fathers spent 6.68 days, by the child’s ninth birthday, Black fathers saw their children 5.93 days per month compared to 7.15 days for White fathers. In addition, Hispanic children only saw their fathers 2.67 days per month, and Hispanic fathers were “less engaged on every aspect of paternal involvement” in their analysis. No matter how much better never-co-resident Black fathers co-parent with their children’s mothers compared to other fathers, much improvement could be made in increasing the amount of time all fathers spend with their children and in maintaining that level of father-child contact over time.
Just as it is wrong to assume that the status would necessarily decrease the autonomy of women who are not among the “elite,” or at least to an unacceptable level, it is also wrong to characterize my position as one that holds up the elite as a model worth emulating. There is too much ill-advised reproduction in marriage, there is too much behavior in marriage that is unhealthy and not good for children, there is too much divorce, there is too much suboptimal co-parenting after divorce, there are too many spouses enforcing unfair prenuptial agreements, and there is too much freeloading on caregivers’ labor post-divorce. Examples of all of these behaviors are given in the book. Therefore, a status with the same core legal obligations should be imposed on all parents in order to create the strongest possible social role and to send the clearest possible message about the nature of the parent-partnership for parents of all classes.
Certainly race, class, and gender are issues that will cause the status to play out differently in people’s lives. Some of the obligations may have little practical significance for the poor (for example, the rules about premarital agreements are unlikely to touch the lives of the poor). The status should, however, benefit people of every social and economic class in various ways. Cahn and Carbone do not suggest which obligations they find most inappropriate for those outside the elite, but it seems wrong to make categorical assumptions and then vary the inter se obligations based on any of these factors. In fact, such a proposal reminds me of the different legal obligations that used to exist between children and their parents depending upon the parents’ marital status. Why would we want to reintroduce a form of discrimination against couples with a nonmarital child when we create a brand new status from scratch? Assuming a class-based distinction would survive even rational basis scrutiny, who am I to deny an unmarried mother the right to obtain a judgment for the economic harm she experiences from disproportionate caregiving when the father abandons her? Who am I to deny low-income couples the same sort of incentive system to consider fairness in their relationships? As Cahn and Carbone recognize, the obligation to give care or share is meant “to achieve greater respect between parents.”
Ultimately, the authors echoed their Marriage Markets argument about the importance of efforts to “rebuild the pathways into the middle class.” They correctly noted that my proposals “do not and cannot address” the economic inequality. Efforts to open up economic opportunities for more people are, of course, very important. We know that “[p]aternal employment and earnings are positively associated with relationship quality and union stability.” Sara McLanahan & Audrey N. Beck, Parental Relationships in Fragile Families, 20 Future of Children 17 (2010). Shelly Lundberg and Robert A. Pollack recently suggested that without parents’ ability to envision why and how their child might benefit in the future from joint parental investment and effort, parents may not undertake joint efforts because they don’t see why these joint efforts are necessary. See Shelly Lundberg and Robert A. Pollack, The Evolving Role of Marriage: 1950 – 2010, 25, 25 Future of Children 29 (2015). If this is true, and it rings very true to me, then a social role may become even more important because it can guide parents to make those joint investments and efforts even before the public increases the financial investments that seem essential. A social role is also important because, as Daniel Schneider recently noted, “the relational factors [such as relationship quality, gender equality, etc.] often play a bigger role than economic factors do in people’s decisions about forming family relationships.” Daniel Schneider, Lessons Learned from the Non-Marriage Experiments, 25 Future of Children 155, 173 (2015). We cannot focus solely on any one avenue to the exclusion of the others. Multiple approaches are essential if we seek to enhance the well-being of children. On that point, Cahn, Carbone, and I agree.
Professor Murphy’s Concern for Low-Income Families
Jane Murphy wants low-income families to thrive. Professor Murphy, however, worried that imposing inter se obligations between unmarried parents, specifically the duty to “give care or share” and the duty to engage in “relationship work,” will do “more harm than good” because they may “force[]” “more low income families…into court.” Professor Murphy’s concerns are based on her experiences with family court. She supervises students who represent parents in child access cases. She referenced her insightful scholarly work (Divorced From Reality: Rethinking Family Dispute Resolution (co-authored Jana Singer)), as that book discussed the problems low-income families face in family court, including the lack legal counsel, requirements to mediate, subjection to the authority “of non-legal personnel with little accountability,” and mandatory participation in “services and treatment” as a condition of accessing their legal remedies. In contrast, wealthier families with lawyers can settle cases outside of court, often avoiding the “range of interventions that come with any dispute between parents today.”
Professor Murphy’s observations about the current problems in family court, especially for low-income families, are worth heeding. However, even if one accepts Professor Murphy’s characterization of the problems in family court (such as the loss of privacy and risks of entering court without a lawyer), it does not follow that society should forego the creation of substantive rights until we “spend more time thinking about how to make our current dispute resolution system more responsive to the needs of all families.” The adequacy of the substantive law is a separate problem from the adequacy of the procedures to enforce those substantive rights, although admittedly they are interconnected. Just as we would not abandon certain substantive legal obligations (such as property distribution at dissolution) because of family court shortcomings, so too we should not forego the development of substantive legal obligations when they are warranted. Otherwise, we are essentially throwing the baby out with the bath water. Moreover, if we reject those legal obligations that might best create a parent-partner social role or that might beneficially guide parental behavior before an adjudication, then we risk denying fragile families a family law structure (and social role) that they could find helpful. This outcome would further compound the disadvantage fragile families already experience from the two-tiered procedural system in family court. The hope, of course, is that the parent-partner status and social role would channel parental behavior in a direction that is supportive without people ever needing to enter a courtroom.
Even for those parents who would need to enter a courtroom to remedy their injustices, the new legal obligations would at least give them a choice to do so. They could consider for themselves whether the disadvantageous court process outweighed the benefits of a remedy. They might find some remedies, like a restraining order for psychological abuse or caregiver compensation, are too invasive of their privacy. People forego remedies all the time because the process is to invasive, cumbersome, or expensive. For example, people routinely decide to forego their tort remedies because of the discovery process. But the enforcement of some parent-partner inter se obligations would require that little personal information be divulged, such as when a party seeks an order of relationship work at the demise of the romantic relationship. That parent would simply have to say that the relationship was in serious trouble, similar to what divorce litigants say today about the irretrievable breakdown of their marriages. And while the respondent may not feel comfortable in family court (because being there without a lawyer can be “risky and burdensome”), that alone is not a reason to deny the other parent a remedy for an injustice or wrong.
Professor Murphy raised some specific questions about the two obligations she dislikes. Professor Murphy saw “relationship work” as being problematic (and Professor Goodmark concurred) because it “may suffer from the same misplaced assumptions that make parent education and court-based mediation ill-suited for many low income parents.” In particular, those procedures assume the “parents have established relationships with each other and with any children involved in the dispute.”
To be clear, I do not assume that the parents who might seek relationship work will have had a romantic relationship. The book recognized that there will be some couples who end their romantic relationships before or just after the birth of their children. (p. 386) The book suggested that the “details [of relationship work] are best left to those who do the work,” but the “professionals” will undoubtedly have to combine the material that would normally appear in a transition to parenthood program and the material that would normally appear in a program at the demise of the romantic relationship (e.g., friendship counseling). These classes or sessions might still cover techniques to cope with conflict in positive ways, methods of establishing or strengthening friendship, basics of co-parenting, communications, and information on why a cooperative and supportive relationship is important. While Professor Murphy worries about the “daunting task” unmarried couples will face in “initiating their role as parents at the same time as they are attempting to define their own relationship,” these two tasks should not be disconnected. Even parents without a romantic relationship should be expected to work together at all times to obtain the best outcome for their child, even if their coordination occurs loosely and from a distance. Professor Murphy made some excellent suggestions in her book about the need for divorce education to become more responsive to family diversity (for example, by recognizing that there might be other caregivers not before the court) and to include education about financial information (p. 135-36). While these recommendations should be reflected in relationship work programs, they should not become a reason for rejecting them.
The duty to “give care or share” raised the greatest concerns for Professor Murphy. She mentioned that mothers may feel like they want to look to the other parent for financial help especially as they lose public benefits. This would make them “adversaries once again.” This may end up “destabilizing rather than strengthening fragile families.”
In my view, it is much too paternalistic to deny women a remedy for the other parent’s freeloading. If the fathers of indigent women have resources and have not carried their fair share of the caregiving or compensated the women for their efforts, then those women should be entitled to a remedy. Of course, women can elect to forego enforcement of the obligation, and I suspect that most low-income women would. After all, the father may be judgment proof, the mother may lack an attorney, or the mother may want to avoid becoming court adversaries. But, as I say in Chapter 11, “It is one thing for a caregiver to waive compensation voluntarily because she feels that she does not need or want it, but it is quite another thing to make her a ‘volunteer’ by denying her any legal claim to compensation.” (p. 416). Low-income women, just like other women, deserve to make their own decisions about which legal obligations they want to enforce. In a world with a parent-partner status, their decisions will be informed by the importance of a friendly parental relationship for their children and the need to work together with the other parent to afford their children as many advantages as possible. This context may make both the number of claims few and the desire for enforcement rare.
Professor Murphy’s most persuasive criticism related to the prospect of governmental enforcement of a parent’s inter se obligations. That criticism was dealt with in the context of Professor Bix’s similar concern. As suggested there, it would be wise to prohibit the government from enforcing a parent’s inter se obligation or requiring its enforcement as a condition of benefits.
In the end, Professor Murphy’s own statement about her clientele gives us reason to move forward with a parent-partner status. Professor Murphy “regularly sees couples who have had children together who are strangers to one another or mistreat each other in ways that sever any bond that ever existed between them.” She also agreed “that the strength of the bond between parents affects the welfare of children (and their parents) and that, despite this, the law does little or nothing to strengthen that bond.” Consequently, the law should do more both to discourage reproduction among couples who are likely to become strangers or mistreat each other and to strengthen the bond of people who have a child in common.
Professor Goodmark’s Concerns about Domestic Violence
Professor Goodmark would have disappointed me if her blog comments discussed anything other than the status’s potential impact on domestic violence victims. After all, Professor Goodmark has been a tireless advocate for survivors, and her scholarship has focused on this group in enlightening ways. Her book, A Troubled Marriage: Domestic Violence and the Legal System, explained why scholars and law makers must take an anti-essentialist perspective if the legal system is to better respond to domestic violence.
I will not repeat Professor Goodmark’s excellent summary of my proposed reforms to the law of domestic violence. Those proposals are described fully in Chapter 9 for those who want to read more. Instead, I will focus on her three principal concerns with my proposal.
First, Professor Goodmark and I disagree about whether the law should afford protective orders for psychological abuse. We both recognize the difficultly of defining psychological abuse, but I believe a statute can be drafted that differentiates between coercive control and garden-variety rudeness. “Abuse” is a social construct that describes the type of behavior that exceeds what society thinks the other parent must tolerate. We are fortunate that psychologists and researchers have given us many tools and concepts that should allow us to draft a tight statute. We also have the laws and decisions from states that already provide restraining orders for psychological abuse and from countries in Europe that criminalize emotional abuse. I find some comfort in knowing that if unintended consequences arise, we can revise the law further.
The effort to craft a good statute seems worth it because psychological abuse can be so devastating and it is so antithetical to a parent-partnership. Professor Goodmark herself recognized the devastation from psychological abuse in her book. She stated, “But emotional/psychological abuse is far more than just the harassment/stalking covered by most domestic violence laws. The majority of the states fail to capture the relentless belittling, the degradation of being made to beg for money or having to ask for (and be denied) a new towel, and the torrent of verbal abuse that women like Patricia Connors endures, abuse that is as, if not more, painful than much of the physical violence to which women are subjected.” (Goodmark, p. 42). Consequently, the law should allow a court to enjoin it.
Second, Professor Goodmark called my proposal to criminalize the abuse of a parent-partner “bad policy” because it will “divert[] time and attention away from developing alternatives to the ineffectual criminal justice response to intimate partner violence.” She argued that “there is no reason to believe that creating a new crime based on the parent-partner status will be any more of a deterrent than the prospect of incarceration for the many intimate partner violence crimes currently on the books has been.”
Professor Goodmark’s view of the criminal law is more pessimistic than mine, although I fully acknowledge that the best criminal law response to domestic violence is unclear and complicated. For example, mandatory arrest appears to interfere with some women’s willingness to call the police, yet other women want their batterers’ arrested and prosecuted. Victims seem particularly dissatisfied when a criminal response leads to “(1) adverse personal outcomes (victim arrested, child protection agency called), (2) the police ‘made assumptions or did not listen,’ (3) the police took sides (against her), and (4) nothing happened (a strong court sanction was absent).” NIJ Special Report: Practical Implications of Current Domestic Violence Research for Law Enforcement, Prosecutors and Judges 34 (2009). “A number of studies” do suggest that the criminal law has a deterrent effect, see NIJ Special Report, supra at 47 (citing studies), but the high case loss in the criminal justice system must certainly undermine the law’s ability to deter. In one study, less than 2% of perpetrators served any jail time. See David Finkelhor & Heather Turner, A National Profile of Children Exposed to Domestic Violence: Police Response, Family Response, and Individual Impact 25-26 (2014). It is unclear to what extent the case loss reflected an attempt to respect victim autonomy or a failure of the system.
Despite the complexity, the answer can’t be that society shouldn’t criminalize the commission of domestic violence. I don’t think Professor Goodmark would favor a repeal of the law criminalizing domestic violence and a return to the situation of the early1800s, see Reva B. Siegel, “The Rule of Love”: Wife Beating as Prerogative and Privacy, 105 Yale L. J. 2117, 2130-31 (1996), but Professor Goodmark does seem reluctant to put any resources into making the substantive law better in light of these problems. Professor Goodmark believes that an effort to improve the substantive law is akin to an expansion and endorsement of the criminal law response. I disagree, and expressly said, “The recommendation here is not to pile on, but rather to tailor the criminal justice response so that society sends the most powerful normative message possible through the proper framing of the crime.” (p. 344). As Professor Goodmark acknowledged, I specifically differentiated between “the wisdom of making the parent-partner relationship more relevant to the prosecution of behavior that is already criminal” and the question “whether a criminal law response is appropriate at all.” In fact, I see nothing inconsistent with revising the substantive criminal law and acknowledging that the criminal response is at times ineffective or harmful. Even the ACLU, who last week issued a report that detailed yet more harm that survivors experience from police intervention, did not suggest that society forego a criminal law response. Instead, it suggested ways to address the shortcomings of the criminal system. In my view, any improvement to the system is “good policy.”
What I tried to convey in the book is that our criminal law approach, whatever that is, should take account of the parent-partner status for a number of reasons. Most obviously, making the parent-partner relationship an overt element of the crime contributes to the visibility of that relationship and the establishment of norms around it, regardless of whether deterrence is furthered by criminalizing the abuse of a parent-partner. The more that the parent-partner relationship is made visible and relevant to the law, the more that people will see it as a special relationship with norms attached to it. Domestic violence against a parent-partner does have unique harms, including the victim’s fear that the violence will harm her children and the potential for the violence to harm the children (both from witnessing and from harming their caregiver). That reality is worth making more visible. As Professor Murphy said in this symposium, “This seems like an important message that still needs to be communicated to batterers, law enforcement and the community at large.” While many states currently criminalize child witnessing, the crime of child witnessing has its drawbacks (p. 344). I suggested that it might be better to criminalize the abuse of the parent-partner, at least when parent-partners are involved. Whether the child is present can be happenstance, and the harm from witnessing varies tremendously by child (Naomi Cahn, Child Witnessing of Domestic Violence, in Handbook of Children, Culture and Violence (2008)). In addition, the child protection system too often blames abuse victims for “child witnessing,” and public agencies may have more appropriate intervention strategies if we focus more on the fact that the mother is also a victim. A reframing of the crime might also help batterers appreciate better that when they harm their children’s mother, they are also harming their children, regardless of whether the children witness the abuse.
Professor Goodmark’s third criticism related to “relationship work.” She ultimately was unsatisfied with the measures that I recommended to protect domestic violence victims. On this point, Professor Goodmark was probably right. While I tried to suggest ways to minimize the potential that domestic violence survivors would be coerced into relationship work or forced to remain in the relationship because of relationship work, a better solution might be to permit domestic violence survivors to opt out of relationship work. I am not sure if this concession will provide Professor Goodmark with enough assurance to “commit” to the parent-partner status, but I hope so.
Professor Goodmark recognized that domestic violence victims might find the status has a lot to offer them. Professor Goodmark specifically mentioned that it “could significantly benefit” women who want to maintain a parent-partnership with the abuser after the violence stops. Permitting protective orders that allow continued contact between the parents, while they also enjoin the violence, would be best for some parent-partners. What Professor Goodmark did not mention, but is worth emphasizing here, is that the social role created by the status may help deter the type of domestic violence that we all abhor. Parent-partners are supposed to be supportive, fond of the other, and flexible. Domestic violence is at odds with the very idea of a parent-partner. As I said in the book, “At this point, it is simply unknown whether the new status would deter certain men’s bad behavior, cause women to terminate relationships with bad men, or cause women to refrain from having children with such men, but all three outcomes are possible.” (p. 223).
Finally, as I also said in the book, the status must take account of domestic violence and try to get the law right, but we must not forget that domestic violence exists in a subset of all parent-partnerships. We must not let the tail wag the dog when we decide upon the merit of the parent-partner status. “The fact that some fathers will commit socially deviant acts should not halt legal reform that would benefit most people. Rather, the deviance itself must be addressed.…” (p. 224)
Professor Banks’ Observations about the Parent-Partner Status
I appreciate Professor Ralph Richard Banks’ thoughtful response to A Parent-Partner Status for American Family Law. We start from a place of agreement. Professor Banks described my effort to structure the law to help parents “see themselves as true partners, and, in turn, work together to further the best interest of the child” as a “laudable goal.” He also recognized that “[c]hildren are our nation’s most vital resource, and we must give them the best chance for productive and fulfilling lives. That should be a matter of national policy, not individual parental choice.”
While Professor Banks agreed with the project’s goals and the ascriptive nature of the status, Professor Banks, like other participants in this Concurring Opinions symposium, raised excellent questions about the two most novel obligations that I proposed: the obligation of relationship work and the obligation to give care or share. He also voiced skepticism about the ability of the law’s expressive function to change the co-parenting interactions of low-income parents after the demise of their romantic relationships.
Let me start by addressing Professor Bank’s skepticism about the “cultural change” that a new status might trigger for all parents, including low-income parents. According to Professor Banks, the true challenge for “socially and economically disadvantaged” unmarried parents is primarily resource related. He suggested, “[C]ouples fail at co-parenting once their intimate relationship dissolves not because they don’t think it is important or valuable, but because it is difficult to do. Maintaining one home is challenging; two is even more daunting.” He claimed that parents need “concrete benefits that would help them and their children” more than “a different way to think about their co-parent relationship.” He specifically mentioned high quality child care, paid leave, and good after-school programs as benefits that could help.
Insufficient economic resources are undoubtedly an important part of the story for some families. Financial stress makes everything more difficult for socially and economically disadvantaged parents, including maintaining a cooperative parental partnership after a romantic relationship ends. Much more can be done to help these parents address their economic burdens, and my book mentions some of the same reforms recommended by Professor Banks (p. 218, 503), albeit in passing since the book is focused solely on private inter se obligations.
Yet the challenges faced by low-income couples are not all economic. For example, a very recent article suggested that maternal co-residential and dating transitions after breakup are associated with co-parenting difficulties, even after controlling for the mother’s poverty level. These sorts of transitions are fairly common, with only 22 percent of fragile families surveyed having experienced neither type. See Carey E. Cooper, et al., Mothers’ Partnership Instability and Coparenting Among Fragile Families, 96 Social Science Q. 1103 (2015). While the reason partnership transitions affect co-parenting is not entirely clear, it may be because the parents lack a role that encourages their ongoing relationship. Id. at 1113. The parent-partner status could provide such a role, and thereby help parents maintain a strong relationship even as one or both parents repartner (p. 205). Parents in fragile families who are no longer romantically involved typically end up with quite poor relationships (as already described in my response to Professor Huntington’s comments), and the absence of even friendship between the parents dramatically affects fathers’ contact with their children. More can be done to encourage friendship between parents with a child in common, apart from providing economic support. After all, the dysfunctional co-parenting relationships among many wealthy couples suggest that money does not necessarily eliminate couples’ problems after breakup.
Moreover, a parent-partner status might help low-income families address some of their economic challenges. While the status itself would not deliver more economic resources to parents, the status might promote economic cooperation that could benefit their children. To be clear, my claim “is not that the new status would be the only way or the best way to attack the problem” of poverty, p. 218, but that the status might be an additional way. The status could affect multiple pathways that impact families’ resources, including the obvious possibilities described next.
First, if the status encouraged reproduction among people with higher quality relationships (p. 237-263), caused parents to love each other more (p. 275-298), or helped couples improve their relationships during the transition to parenthood (p. 365-371), more unmarried parents might live together, either because of cohabitation or marriage. “A one standard deviation increase in relationship score is associated with a ten percent increase in nuclear partnerships, from 44% to 49%.” See Fragile Family Research Brief No. 7. Parental cohabitation involves financial efficiencies that can impact the economic well-being of children. Isabel Sawhill said that if the numbers of female-headed households had not risen from the level in 1970, and everything else remained the same, the poverty rate in 2013 for children would have been 16.4% instead of 21.3%. See Ron Haskins, The Family is Here to Stay—or Not, 25 Future of Children 129, 131 (2015).
These same forces (i.e., a higher percentage of reproduction among people with better quality relationships, more love between parents, or the maintenance of relationship quality during the transition to parenthood), might also affect other pathways that impact families’ economic resources. For example, men’s criminality is associated with the quality of men’s romantic relationships. See Torbjørn Skardhamar, et al., Does Marriage Reduce Crime?, 44 Crime & Justice: A Review of Research 385, 424 (2015) (“Irrespective of the formal status of the union, the evidence on relationship quality is fairly consistent. Virtually all of the studies that include measures of “good” marriage or cohabitation report significant effects in the expected direction.”) (citing studies). To the extent that a better relationship causes desistance (and the direction of the potential effect is not entirely clear, see id. at 432), a supportive parent-partnership, even if nonmarital and noncohabiting, might have a similar effect. Paternal incarceration dramatically affects the father’s annual earnings and employability (see Fragile Families Research Brief No. 38) and negatively impacts his children (for example, children’s homelessness increases dramatically with paternal incarceration, see Fragile Families Research Brief No. 48).
Second, apart from the ways in which a parent-partner status might improve parental relationships prior to their demise (and perhaps ward off their demise too), the parent-partner status might also encourage parents to cooperate after the end of their romantic relationship in order to enhance their child’s economic well-being. Co-residence isn’t required. Instead parents might help each other meet school or employment goals, such as by coordinating schedules to allow the completion of homework, attendance at classes, or more job training. These activities should eventually increase a parent’s resources, which should then inure to the benefit of their child. Supportive relationships should also make more probable the noncustodial parent’s financial and in-kind contributions to the child (p. 203-04).
As Professor Banks recognized, I argued that the expressive value of the law (in addition to the specific legal obligations) would contribute to parents’ supportive behavior. Yet the results would not come from a traditional understanding of the expressive value of the law. Rather, the status would create a powerful social role (p. 224-32). As I said in the book, “When the adjudicatory system alone is used to disseminate the law’s message, the law’s expressive function is often ineffective. Any one law can easily get lost in a world overrun with law. The parent-partner status, in contrast, would not rely solely on the adjudicatory system to get out its message, but would become known through a variety of mechanisms related to the new social role….” See p. 232. If society expected more of parent-partners, and if parent-partners expected more of themselves, then identity theory suggests behavioral change should occur. In addition, one particular obligation — the obligation of relationship work at the demise of the romantic relationship — is meant to increase the parents’ capacity to act supportively. Currently some states do not require unmarried parents who are litigating paternity or child support to participate in the parenting education that is regularly required during divorce actions. The legal obligation would convey an expectation that all parent-partners should engage in relationship work and might thereby increase the amount of participation.
On another level, a legal status might make more likely the adoption of the sort of social programs that low-income families need. The polity is generally wary of providing resources to families before those families have tried to satisfy their own needs. While cooperative economic behavior alone will never be able to lift many economically disadvantaged children out of poverty, parental teamwork should increase public sympathy for the plight of these families. Legal obligations and a social role that conveyed the expectation that parents should act as a team to benefit their child would make parental cooperation more likely and more visible. Moreover, as the penultimate paragraph of this response will suggest, the parent-partner status might also make more obvious irrational gaps in public benefit programs.
In terms of the first of the two obligations that Professor Banks critiqued, Professor Banks rightly observed that the remedy for relationship work is quite weak. The remedy was motivated by my desire to create a politically feasible proposal. In fact, the symposium participants’ focus on that obligation suggests that my approach may have been appropriate. Even with a weak remedy, Professor Banks recognized that “for some parents (perhaps many), I think the relationship work would be beneficial.”
Viewing the status holistically makes it easier to imagine that many parents might voluntary participate in relationship work. For instance, if the status deterred conception among parents who were unlikely to be supportive parent-partners, then most new parents might participate in relationship work at the transition to parenthood (p. 358-59), and their positive experiences in that context might encourage them to participate in relationship work at the end of their romantic relationships. Also, if the status increased co-parenting during the romantic relationship, then parents’ interest in co-parenting after the end of the romantic relationship should increase (p. 208). Consequently, it is impossible to predict accurately people’s response to any obligation, including the obligation of relationship work at the demise of the romantic relationship. The status will have multiple and synergistic effects.
Professor Banks found that the obligation to give care or share was the “most intriguing proposal,” but he raised two concerns. First, he worried about the administerability of the proposal: could a court figure out whether the allocation of caregiving and sharing had been “fair”? As Professor Banks noted, “The implicit deals that couples fashion are complicated, perhaps even more so when the couple is living apart and trying to raise a child together.”
Without a doubt, Professor Banks identified the main challenge of caregiver compensation. What exactly makes a caregiving arrangement unfair? Although the determination would be complicated, it does not pose a polycentric problem that is unfit for adjudication. Some unfair situations are easy to identify: when one parent abandons the other or when one parent breaks a clear written agreement that the parties had about caregiving compensation. The difficult cases are when neither of these facts exist and the parents share some resources because they are married, unmarried but cohabiting, or sharing but living apart. Yet many couples are not living together or sharing resources, and one parent is doing a disproportionate amount of the caregiving. This unfair arrangement often exists after divorce, when the clean break philosophy causes the primary caregiver to receive no economic return for his or her disproportionate caregiving efforts. Unmarried parents who live apart may also experience minimal resource sharing, especially after the romantic relationship ends (p. 438). Parents in these situations (as well as others) should have the opportunity to prove that a caregiving arrangement is unfair.
Of course, it would be best to have a set of rules to determine “unfairness” and the appropriate amount of caregiver compensation. But we cannot yet formulate rules that would confine discretion and produce just results. While developing rules should be our goal, we should not shy away from a discretionary standard before we get there. In fact, family law has always conferred considerable discretion on adjudicators. In 1991, Carl Schneider wrote, “[I]n many of the field’s most central parts some of the most basic decisions are presently made in a highly discretionary way. And within the last several decades, that statement might reasonably have been applied to virtually every other basic area of family law.” Carl E. Schneider, Discretion, Rules and Law: Child Custody and the UMDA’s Best-Interest Standard, 89 Mich. L. Rev. 2215, 2231 (1991). The same reason discretion existed then explains the need for discretion now in the caregiver compensation context. Professor Carl Schneider noted, “Family law tries to regulate people in the most complex, most emotional, most mysterious, most individual, most personal, most idiosyncratic of realms. It is absurdly difficult to write rules of conduct for such an area that are clear, just, and effective. The history of family law is the history of attempts to solve this problem. . . .” Id. at 2217.
Schneider thoroughly discussed the advantages and disadvantages of discretion, but ultimately approved of a system like the one that I proposed: courts should use the common law method to “deriv[e] rules from discretion” after patterns emerge from the cases. Discretion in this context is appropriate because varied and complex fact patterns give rise to “rule-failure,” id. at 2243, courts need “rule-building discretion.” id. at 2244, and courts need “flexibility to do justice.” Id. at 2248. Because discretion is not “khadi-justice,” id. at 2242-43, and because many factors would cabin judicial discretion, including “cultural, social, political, psychological, institutional, and doctrinal forces.” id. at 2260, we should not fear discretion.
Professor Banks’ second point was that caregiving is not just a burden, but also a benefit, and therefore a remedy may not be needed. There are, as Professor Banks suggested, two types of potential benefit: economic and noneconomic. The book addressed why we should discount the noneconomic benefits associated with the task. Because caregiving involves both noneconomic costs and benefits, it seems sensible to assume that these noneconomic factors cancel each other out, especially because valuation is so difficult and because economic and noneconomic benefits are incommensurable (p. 436-437).
Professor Banks, however, also suggested that the future economic benefits from caregiving offsets its economic costs. He argued that the caregiver receives compensation when the child later returns and cares for that parent. This is a fascinating possibility, and a point that I had not considered. It raises several interesting factual and theoretical issues.
As a matter of fact, we need to know the extent to which this pattern exists and the reasons for this pattern. While Professor Banks is probably correct (i.e., the parent who does most of the care probably receives care from the child in the parent’s old age), I am not certain that the custodial parent is the sole recipient of an adult-child’s care. The noncustodial parent typically pays some child support, and gives some care, and the adult-child may feel a sense of obligation to that parent too. Patterns of filial caregiving may also depend more on the amount of time parents lived with the child before the parents’ romantic relationship ended than the amount of care a parent provided to the child after the romantic relationship ended. It is also possible that there is a correlation, not causation, between a parent’s caregiving and the adult-child’s care for a parent. Patterns of caregiving by an adult-child are gendered (female children tend to provide care to their mothers); the adult-child’s caregiving may simply reflect gender roles instead of a response to earlier caregiving.
We also need to compare the value of any child care provided (and the time value of money) and the value of any elder care received. Empirical data would help assess whether the two are equivalent.
Apart from the factual questions, there is a larger theoretical issue. Should filial caregiving absolve the other parent of liability for freeloading? Stated differently, if the mother and the father have a joint obligation to provide care to their child and the mother fulfills that obligation alone involuntarily, why should that unfairness be ignored because of the child’s future caregiving to the mother? Future caregiving would be relevant if the father provided the elder care to the mother, but Professor Banks suggested that the child’s efforts would satisfy the father’s obligation to the mother, thereby providing the father with a windfall.
Of course, the adult-child’s care of the parent is highly contingent and may never materialize. The adult-child may refuse to perform, or the parent may never need the child to give elder care because the parent has another caregiver or the parent has died before the care was needed. Or the adult-child may be legally required to give care (or its financial equivalent) to a parent regardless of the parent’s prior level of direct caregiving, if the a state has a filial responsibility law. See Katherine C. Pearson, Filial Support Laws in the Modern Era: Domestic and International Comparison of Enforcement Practices for Laws Requiring Adult Children to Support Indigent Parents, 20 Elder L. J. 269 (2013) (noting twenty-nine states have filial support laws, and the adult-child generally has a legal obligation to support an indigent parent unless there is substantial evidence that the parent deserted, neglected, abused, or willfully failed to support the child). In such a state, the legislature did not impose the adult-child’s obligation as a substitute for the father’s obligation of caregiver compensation. Why then should it be used that way?
Moreover, caregiving compensation would provide certain social benefits that go beyond making things fair between the parties. For example, this remedy should make caregiving during a romantic relationship more gender balanced, and this outcome should have beneficial effects for gender equality more generally.
While I am not convinced that a child’s potential provision of elder care obviates the need for caregiver compensation, I did find Professor Banks’ discussion of elder care compelling for another reason. It illustrated, albeit inadvertently, just how socially and legally insignificant the parent-partner relationship is today. While we can envision that children might care for their elderly parents, we do not expect parent-partners to care for each other in their old age, unless they are married. Why not? Because we do not conceptualize the parent-partnership as a long-term, loving, family relationship. As a result, the Family and Medical Leave Act does not define a “parent-partner” as someone entitled to FMLA leave if the other parent-partner has a serious health condition and needs assistance. California, which has a “broad definition” of “family member” for purposes of defining who qualifies for paid sick days to care for a family member, excludes a co-parent, even though it includes child, spouse, parent, parent-in-law, grandchild, grandparent and sibling. See Susan C. Reinhard, et al., Valuing the Invaluable: 2015 Update. Undeniable Progress, but Big Gaps, p. 12. While my book makes clear that the parent-partner status would not alter public benefit programs (p. 153), the book does suggest that policymakers ask a “parent-partner” question to evaluate the rationality of any lines drawn. (p. 492). How rational are policies that encourage children to care for their elderly parents (even though the children are typically in their peak working years and will incur real economic loss), but leave unrecognized the possibility that a “parent-partner” could do the work instead? I am not suggesting that an inter se obligation of parent-partner elder care be adopted; rather, I am simply pointing out that when family law ignores parent-partners almost entirely, society makes it harder to see the broader possibilities for that relationship in the public benefit realm.
Professor Banks recognized that my book does not “conclusively resolve[] the issues it addresses, so much as that it frames an inquiry in which others should join.” Thankfully, Professor Banks has joined and enriched that conversation.
Conclusion
I imagine that my co-participants will have responses to my comments, and I look forward to discussing these issues with them in the months and years to come. I hope this symposium has piqued the curiosity of onlookers enough so that they will read the book. I would love more people to become part of the conversation. Thanks again everyone (including Professor Maldonado) for your participation in this symposium! I have really enjoyed it!
