Merle Weiner’s A Parent-Partner Status for American Family Law is a marvelous achievement, well worth reading for anyone interested in family law and policy, and contemporary debates about marriage, parenthood, and child-raising. Prof. Weiner has read seemingly everything written in recent decades on marriage and parenting, across law, psychology, sociology, and policy science, and this learning is worked seamlessly into the present book. A Parent-Partner Status is also superb in the way that it consistently presents fairly the likely arguments against her proposals, objections Weiner then answers carefully.
The basic background for Weiner’s argument is well-summarized in the book’s early chapters: that both legal and social changes in recent decades have changed the way we understand family obligations. The earlier approach made marriage central to determining the obligations (or lack thereof) of adults to their children, and co-parents to one another. In the last 40 years, the Supreme Court held illegitimacy to be a suspect class under constitutional analysis, the Uniform Parentage Act made parental obligations largely independent of the parents’ marital status, and non-marital births have become both common and widely socially accepted.
A Parent-Partner Status is best understood as advocating two distinct but related objectives: the creation of a strong social norm of appropriate co-parenting and the creation of a legal status of “parent-partner.” The two are related, of course, not least in the ways that laws, even when un- or under-enforced, may still have value in expressing and reinforcing society’s approval or disapproval of different practices.
Weiner’s “parent-partner” status seems well-placed as a potential general social norm, in the sense that it is grounded on some fairly widely established views, while also going beyond those existing shared views. Starting at foundational matters: nearly everyone would agree that one should treat (all) others with respect and consideration. And there would likely be equally strong agreement that additional duties would apply to the co-parent of one’s child. Additionally, the idea that one is financially tied to one’s co-parent until the child is of age is the basic idea underlying the currently well-settled law of child support obligations. The difference between Weiner’s parent-partner status and current child support law is that the proposed co-parent obligation is (also) to the co-parent; and the differences from existing conventional social and moral thought come in the effort to articulate precisely what those duties to the co-parent are or should be, and in determining whether the government should be involved in advocating for or enforcing those duties.
Under Weiner’s analysis, parent-partners are to exhibit fondness, flexibility, acceptance, togetherness, and empathy to one another. They are subject to a (limited) duty to aid the other parent, a duty not to abuse the other parent physically or psychologically, an obligation of “relationship work” when first becoming parents and at the ending of the parents’ romantic relationship, a heightened requirement of substantive and procedural fairness in any agreement between the co-parents that purports to waive or alter their financial obligations to one another, and a duty of compensation for unfairly disproportionate caregiving (where the fairness of the caregiving arrangement would take into account multiple factors, including financial payments by the other parent).
Weiner recognizes that legislatures might make different choices about which duties to include in a parent-partner status, and that duties might be added or subtracted later based on experience with the status. Additionally, with the exception of the caregiver payments, Weiner generally recommends caution in the remedies courts impose. For example, the duty to do relationship work could be enforced only by an order to attend an informational session rather than by an order to go to relationship therapy; and the duty not to abuse would involve only a modest extension of existing domestic violence statutes (to cover parent-partners from conception. and to cover parent-partners even when they are not in an existing romantic relationship).
It is the duty of payment for unfairly disproportionate caregiving, where breaches would make the parent liable to court orders to pay compensation to the caregiver, that Weiner properly predicts to be the most controversial, and also the most difficult to implement. There are problems both in determining when a co-parent has breached the duty, and in determining the appropriate compensation. Weiner rejects the idea of trying to establish guidelines in advance, noting the wide range of fact situations (e.g., across divorced, cohabiting, or never-having-cohabited couples). Weiner recognizes that the alternative of wide judicial discretion may evoke bad memories of the unpredictability, uncertainty, and wide range of outcomes that occurred with child support orders before that area of law was overtaken by guidelines. However, the book argues that there may be no option but wide judicial discretion, with some borrowing from the (multiple and overlapping) theories now supporting spousal support (alimony), but with the hope that principles, standards, presumptions, or even guidelines might be developed over time by courts or legislatures.
As a prospective legal status, it is hard to predict how successful the parent-partner status would be, because of its relative novelty. One can speculate, of course, regarding how well it would work, and there are reasons to be cautious or concerned. There might be resistance to what could be seen as more intrusive government intervention in personal affairs (especially where the law goes beyond preventing abuse to requiring supportive behavior), and also reasonable concern that these sorts of rules (like many other family law rules) might come to have disproportionate effects on poor and minority communities (recall how the government came to pressure poor mothers to sue their partners for paternity orders and child support, or to have the ability to sue the fathers directly to reimburse the government for benefit payments; it is easy to imagine something similar happening with compensation rights for disproportionate caregiving).
Law in general, and family law in particular, are full of experiments that did not work out as expected – sometimes better than expected, sometimes less well than expected, and sometimes just different from expected. In this group, one could clearly include no-fault divorce, covenant marriage, and the French PACS (Pacte civil de solidarité). As with the early recognition in a handful of states of same-sex civil unions and domestic partnerships, and eventually same-sex marriages, and the recognition in Washington State of the status of “Committed Intimate Relationships,” there are clear benefits to having new family law norms, rules and practices tried in individual states, as (to use Justice Brandeis’ famous phrasing) “a laboratory [for] novel social and economic experiments”. Weiner’s “parent-partner” status is clearly promising enough to be worth a state experiment, or two or three or four, and then we can get a better sense of whether it can be structured in a way that allows its benefits to outweigh any costs.