Category: Family Law

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A Parent-Partner Experiment?

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.

 

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The Potential Harm to Low Income Families from the Parent-Partner Status

 

By Jane C. Murphy

In A Parent-Partner Status for American Family Law, Merle Weiner makes the case that strengthening the relationship between parents will enhance the well-being of children and benefit communities. She argues that the law should play a central role in fortifying parent to parent relationships by imposing legal obligations between parents that create the new status “Parent-Partner.” This new status is necessary, Weiner argues, because existing legal obligations created by marriage, cohabitation and the parent-child relationship are inadequate to create the kind of bond that is needed to sustain the strong relationship needed to co-parent healthy children. She demonstrates this by carefully and exhaustively examining all of the obligations the law currently imposes on adults who have children together, revealing in the process how limited the legal ties are between parents.

 

The book, like Weiner’s other scholarship, is beautifully and clearly written. Indeed, the first 300 + pages include such useful and enlightening analysis of existing law and scholarship about marriage, cohabitation and the parent-child relationship they would justify the book even before Weiner gets to the heart of her proposal—the five duties she proposes the law should create between parents. She cautions they are meant only to “provide a starting point for the conversation.” And I suspect this book will, indeed, start many conversations among scholars, lawyers, policymakers and parents.

The duties she proposes are: a duty to aid, a duty not to abuse, a duty to participate in “relationship work,” a duty of loyalty when contracting and a duty “give care or share.” She anticipates a wide range of objections to her proposals and responds to these objections thoroughly and, for the most part, persuasively. But, for me, questions remain about the efficacy of some of these duties and their potentially harmful impact on the low income parents and families who are becoming the majority demographic in today’s family courts.

 

As someone who both teaches Family Law and supervises law students representing parents in child access cases, I appreciate Weiner’s deep concern about the tenuous relationships between many parents. I also agree 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 nothing strengthens that bond. I have seen both the father who threatens to walk away “for good” if he doesn’t get joint custody and the mother whose control over access to the children discourages any paternal role beyond child support payments. While most parents fall between such extremes, we regularly see 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. As a result, I understand the impulse to look to the law for something beyond child support to connect unmarried or divorced parents.

 

But I worry that Weiner’s proposals will have the greatest impact on non-marital, low income families who will have few of the protections that marriage provides at break-up. I am concerned that enforcement of at least two of these duties will do more harm than good.

 

I have no problem with three of the five duties. The duty not abuse is hard to argue against. While some are beginning to broadly question the efficacy of legal remedies for those experiencing domestic violence, Weiner’s suggestions for modifying civil protection orders make good sense. Having a child in common with the alleged abuser (or being pregnant with his child) should be enough to make one eligible for an order of protection. And Weiner proposes two other changes to the typical protection order statute that would certainly benefit many, including parent-partners: including psychological abuse in protection order statutes’ definition of abuse and eliminating mandatory stay away orders.

 

Weiner also proposes making parent-partner physical abuse a specific crime. Acknowledging the concerns expressed by a number of scholars that strengthening the criminal response to abuse can disempower victims, she believes that it would ultimately benefit parents and children by conveying “a stronger message” about the particular harms to both the direct victim and her children when physical abuse is perpetrated against a parent-partner. This seems like an important message that still needs to be communicated to batterers, law enforcement and the community at large.

 

The duty to aid, requiring a parent to aid the other parent “when the parent-partner is physically imperiled and it is reasonable to lend aid,” would probably be, like the existing duty between spouses, largely a “symbolic measure.” Parent-partners, married or not, make other symbolic promises to each other in legal binding documents called parenting plans. These include promises to respect one another and act in ways that support the children’s relationship with both parents. It is hard to imagine lawsuits to enforce these promises or a future duty to aid between unmarried parents. But such a duty might have an important expressive value underscoring the “ethic of care” that we’d like to see exist between two people who share a child.

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The proposed duty of loyalty when parent-partners contract with one another also seems like a good idea and consistent with where the law is heading. Any good family lawyer will tell unmarried parties with assets and income who are contemplating cohabitation, having a child together or both, to enter into an agreement making clear each party’s rights and obligations. This duty is likely to affect only those with the resources and lawyers to engage in such planning. But, much like with prenuptial agreements, such a duty may provide grounds for vulnerable unmarried cohabitants to set aside unfair agreements negotiated without full disclosure or other protections.

 

But the duty to “give care or share” and, to a lesser extent, the duty to engage in “relationship work” may result in obligations and burdens that do more harm than good for low income families. My reservations about these duties stem from my concern that more low income families may be forced into court as a result. I have written elsewhere about the risks to poor families in today’s family courts. Most cannot obtain free legal services or afford to hire their own attorneys. They find themselves in courts that are increasingly outsourcing family cases to mediation and other informal decision-making. This results in a reduced reliance on legal norms in these courts and broad authority vested in non-legal personnel with little accountability. Moreover, the ambitious therapeutic goals of these courts leads to greater state intervention as the granting of legal remedies is tied to participation in “services and treatment.”

 

In contrast, families with the resources to hire lawyers and make choices about dispute resolution options reach agreements outside of court and bypass the range of interventions that come with any dispute between parents today. To the extent that these two new duties Weiner proposes will result in further state intervention that will disproportionately affect poor families, I worry that they will result in further loss of privacy and control that will be both destabilizing to the parents and children these duties were intended to benefit. While requiring such loss of privacy in exchange for legal remedies may not be unconstitutional, it strikes me as bad policy.

 

The duty to engage in “relationship work” at the time of the child’s birth or the end of the romantic relationship sounds a lot like, as Weiner acknowledges, child access mediation and/or parent education programs now offered or mandated in most state courts. In addition to the risks surrounding referrals of couples with relationships marked by domestic violence, which Weiner acknowledges, government sponsored “relationship work” may suffer from the same misplaced assumptions that make parent education and court-based mediation ill-suited for many low income parents.

 

A key assumption in these programs is that parents have established relationships with each other and with any children involved in the dispute. While the assumption of a shared past may be accurate for some parent-partners, it is much less likely to hold for others. Unmarried parents, in particular, often have little experience raising children together. Indeed, studies estimate that less than half of all unmarried mothers are living with the child’s father at the time a child is born. These never married couples who we are trying to engage in relationship work will face the daunting task of initiating their role as parents at the same time as they are attempting to define their own relationship. Weiner is probably correct that the number of actions to enforce this duty will be relatively few. But one can imagine that, social service agencies, therapeutic jurisprudence enthusiasts or others might just add a check box for “relationship work” education to form pleadings to establish paternity and/or child support, thus giving courts another set of obligations to routinely impose on the mostly low income fathers who end up in court in these cases. A sanction requiring attendance at a session explaining the value of relationship work may, as Weiner describes it, just be “a brief court appearance.” But going to family court without a lawyer is both risky and burdensome, particularly if you are a low income father of color and this appearance is added to the other interventions low income parents experience in today’s family courts.

 

The duty to “give care or share”– to pay compensation to the other parent for any disproportionate caregiving– raises even greater concerns. Again, my clinical experience representing caregivers who struggle, with or without child support, to raise children alone makes such a proposal appealing. But the likelihood that cash strapped mothers will seek to enforce this duty seems strongest here. As an increasingly large number of former TANF recipients get cut off from public benefits, one can imagine the pressure a single parent raising children will feel to look to the other parent for some financial relief, thus ending up in court as adversaries once again. An even scarier—and probably still remote—possibility is that the state may see this financial remedy as a vehicle for reimbursement for those few parents who still receive public benefits to support their children.

 

 

Weiner, of course, considers the plight of low-income families throughout the book. She recognizes that this duty may have the greatest impact on non-marital parents and that most of those parents are poor. She also recognizes that harsh sanctions threatened or brought by one parent against the other will cause damage in these relationships but believes the benefits outweigh any potential harm. She, in fact, identifies poor mothers as among those suffering the greatest “leisure deficit” and most in need of caregiver compensation by poor fathers who have left all the hard work of parenthood to the mothers.

 

But I fear unintended consequences. Just like the ill-effects few of us saw coming from aggressive child support enforcement, using courts to create “fairness” in caregiving may end up destabilizing rather than strengthening fragile families. One can imagine judgments for caregiver compensation that go unpaid driving parents underground, undermining any hope of future economic health, and resulting in sanctions like license suspension and incarceration that destroy family relationships.

 

Before we consider adopting another set of obligations that will force more poor families into court, we need to spend more time thinking about how to make our current dispute resolution system more responsive to the needs of all families. As long as the dispute resolution options that preserve privacy, limit state intervention and permit party control over the process are only available to the wealthy, creating new legal duties between parents will disproportionally harm low income families.

 

A Tribute to Marc Poirier

marc-poirier-176x220I want to mark the passing of a former colleague of mine, Seton Hall’s Marc Poirier. Marc was an exceptional scholar, teacher, and colleague.

Marc was a deeply learned man, conversant in areas ranging from the jurisprudence of interpretation to the science of global warming. He wrote on property, environmental law, and civil rights, and combined the fields in innovative ways. His “Virtues of Vagueness in Takings Law” was both widely cited, and elegantly argued. Essays like “Science, Rhetoric, and Distribution in a Risky World” were philosophically informed readings of fundamental controversies in environmental policy. Throughout his scholarship, there was a concern for the marginal: the victims of environmental racism, sexual orientation discrimination, climate change, and many other contemporary scourges. But there was also a wise awareness of the limits of law and the complexities of advocacy.

It is thanks to the efforts of people like Marc that marriage equality has come to America. I say this not only because an article like “The Cultural Property Claim in the Same-Sex Marriage Controversy” clarified the stakes of the term “marriage” so eloquently and empathetically. Marc’s service and faculty advising modeled, for all of us, a patient way of working for justice in slow-moving courts and agencies, and in institutions affiliated with a “church that can and cannot change.” Marc explored gender and LGBTQ equality in so many dimensions: legal, sociological, anthropological, economic. I have little doubt that his work will be consulted again and again, as scholars reflect on his illuminating efforts to balance liberty and equality, tradition and innovation, individual self-expression and institutional self-governance.

Marc was also deeply involved in the community. He devoutly maintained a meditation practice, both as a leader of group meditation sessions and a member of area sanghas. He offered his teaching to all at Seton Hall, and organized sittings and other opportunities for us to experience meditation’s compelling combination of relaxation and focus. While some might see meditation as an unlikely practice for lawyers, Marc helped us understand both professional judgment and spiritual practice as complementary ways of gaining a broader perspective on reality. Groups like the Association for Contemplative Mind in Higher Education have shown how important these opportunities can be for both faculty and students alike. I will always be grateful to Marc for bringing these practices to Seton Hall.

Marc was also a very committed teacher. He went above and beyond in his administrative law class to include extra material on state and local government that few other courses in the area covered. The standard for his seminars was exceptionally high, and he’d have frequent meetings with students to help them perfect their papers. He was available all the time, and always happy to talk.

Finally, I will always remember Marc as wonderfully effervescent. He was such a delight to have lunch or dinner with. And he would talk about just about anything: how to argue a difficult point in an article, how to navigate administrative mazes, or what were the best parks and beaches in New Jersey. He was such a good listener. I think this was part of his meditative practice: to open himself up to whatever colleagues or students wanted to chat about, knowing exactly when to inject a note of skepticism, a considered reflection, a guffaw.

I will so miss those conversations with Marc. There is some small sense of consolation in reading his articles, artifacts of a gentle yet meticulous intellect making connections among concepts that only someone of his deep understanding and learning could accomplish. But I wish we’d had more time to learn from him. I hope I can do some justice to his memory by trying to imitate the empathy, reflectiveness, and openness he showed to so many.

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Race, Love, and Promise

Sheena and Tiara Yates

Martha Ertman’s wonderful new book, Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families, is a must read for anyone concerned about families or law. Ertman’s core argument is that “contracts and deals” can play a critical role in “helping people create and sustain families.” In advancing this claim, the book – which reads like a good novel even as it maps the complex, shifting landscape of modern family law – primarily relies on Ertman’s own, very compelling story of love and parenthood. Along the way, however, it also communicates the stories of other “Plan B” families, those that Ertman describes as being formed in “uncommon” ways. In doing so, it clears important space for lawyers and non-lawyers alike to consider the experiences of all families. 

Ertman persuasively makes the case that formal and informal “exchanges . . . [already] define family life” in a host of ways, and that greater reliance on such contracts could support the formation and functioning of Plan B families, as well as their more “common,” Plan A, counterparts. As a family law professor,I am deeply sympathetic to this view.  Even more, like so many others, my personal life is comprised of a patchwork of formal and informal contracts. On one hand there is my almost twelve-year legal marriage and the enforceable post-adoption contact agreement — something Ertman would call a “PACA” — that provides for annual visitation with my younger son’s birth mother. Then, on the other hand, sit the unenforceable, but nevertheless important “deals” that I have made with family members. These include the parenting norms that my spouse and I follow in raising our two children, and the mutual vows that we made before family and friends – such as “to love your body as it ages” and “to support you in the pursuit of your dreams.” These promises both help to define and affirm the contours of our loving commitment as a couple and a family.

Nevertheless, I often found myself seeking more from the story that Love’s Promises tells about the place of contract in family life. Like the students I teach, I have some nagging questions about how well contract can work for those who, for example, lack the money to hire a lawyer to draft or defend their cohabitation agreements, or who, because of past experience with the legal system, might never think about contract as a potentially liberating force in their lives. Moreover, I wanted a more complex narrative about the operation of race and contract in the family context than the book attempts to communicate.

To be clear, Love’s Promises does not ignore the subject of race. Indeed, Ertman deserves high marks for examining topics such as Whites’ exclusion of Blacks from marriage during slavery; the forced sterilization of African American women; and the concerns about transracial adoption articulated by organizations such as the National Association of Black Social Workers in the 1970s in crafting her vision of what the rules concerning contract and love should be. But, as important as this past history is, what I most craved was deeper engagement with what increased reliance on contract would mean for issues of race and family in the future.

Laws pertaining to family have historically structured families, but also race – how it is defined, understood, and experienced — in very consequential ways. Think, for example, about antimiscegenation laws that helped to give content to the very idea of race, determining who would be regarded as black or white, slave or free. I am thus very skeptical about the notion that, without more, we can expect that a norm which encourages greater reliance on agreements — especially those that would be more than mere “deals” and thus enforceable in court – will always have an equality-enhancing effect. A newspaper article that I recently read about the efforts of a black, lesbian couple (their picture appears at the outset of this post) to expand their family helps to explain why.

Sheena and Tiara Yates, fell in love and, after their 2011 New Jersey commitment ceremony, decided that they wanted a child. They successfully had one child and later tried to become parents again. As they had the first time around, Sheena and Tiara, who legally married in 2014, used in-home insemination to conceive. To formalize their family unit and intentions, they also entered into a written contract with the known donor whose sperm they utilized. Their agreement contemplated the donor’s relinquishment of all parental rights in the new baby, something designed to permit Sheena and Tiara to parent the child they’d longed for as a unit of two.

Despite the contract, the donor subsequently brought a custody suit to challenge the agreement’s terms and, at least preliminarily, succeeded in doing so. In a decision that the Yateses are now appealing, a judge granted him parental visitation rights. In cases involving insemination, New Jersey, where Sheena and Tiara reside with their family, courts will only recognize a non-biological parent’s rights if the insemination process was carried out by a physician. Although Sheena and Tiara, according to news sources, met with a doctor and were prescribed prenatal vitamins, the actual insemination process was performed at their home, without medical assistance. Significantly, this is the second custody suit that the Yateses have had to defend. The donor for their oldest child challenged the agreement that they had with him on similar grounds and now has visitation rights with that child as well.

Race, gender, and class intersect in troubling ways in the Yates case. Admittedly, it is not contract per se that produces the potential inequality. In fact, Sheena and Tiara clearly saw contract as an important tool in growing their family. But they entered into the donor contracts described within in a particular context, one in which the medical and legal costs that attend physician-assisted fertility treatments generally remain out of reach for low and even some middle-income families, a group in which African Americans — perhaps LGBTQ Blacks most of all — are disproportionately represented. It is not hard to imagine that health care costs figured into their decision to inseminate at home or, for that matter, to use a known donor rather than an anonymous donor affiliated with a sperm bank. Add to this the potential effects of other factors, such as fact that, given past history, many African Americans mistrust doctors and medical facilities, a phenomenon that Kimani Paul-Emile discusses in her work. All of this troubles the story of contract’s ability to advance the aspirations of all families equally.

Significantly, my lament is not simply that Love’s Promises passes up an opportunity to discuss how the realities of race and structural inequality in this country might diminish the power of contract for African Americans and other groups of color in the family context. Ertman’s book also misses a chance to say something about the particular advantages that contract could offer such groups. Despite my earlier argument, my sense is that there may be some places where contract could be very effectively deployed to disrupt the effects of racial stigma and inequality, especially if paired with other tools.

Consider the example of nonmarital black families, especially those with children. Today, African Americans are the most unmarried group in the country. While the U.S. has seen declines in marriage among all groups, they have been steepest among Blacks. Interestingly, African Americans place a higher value on marriage than many other groups. Studies suggest, however, that considerations regarding financial security and other related issues may prevent them from seeing marriage as a viable option for organizing their lives. In a recent law review article in the Hastings Law Journal, I make the argument that, instead of investing in marriage promotion programs that too often ignore the structural racial inequality (e.g., poverty, school drop out rates, housing and food insecurity, and high incarceration rates) that often creates a barrier to marriage, we should work to honor and better support nonmarital black families where they stand.

When it comes to cohabiting couples, Ertman concludes that they “should be recognized as an ‘us’ in relation to one another through property-sharing rules,” such those proposed by the American Law Institute. She stops short, however, of saying that cohabitants should “be treated as an ‘us’ when it comes to institutions outside the relationship, like the IRS and the Social Security Administration.” As Ertman notes in addressing proposals advanced by other law professors, a focus on cohabitants alone won’t do much for African America, a community in which black “women . . . are three times more likely than white women never to live with an intimate partner and more likely than white women to center their lives among extended kin.” But contract might be a more effective tool if extended to nonmarital families with children, whether the parents reside together or not. This might be especially true if combined with changes in tax policy and the structure of benefits that Ertman is less comfortable making in the absence of marriage.

For reasons already articulated, I do not think that adults in poor, nonmarital black families will or should run out to find lawyers who can draft binding contracts for them. But I can still imagine a world in which a contract-based norm works to destigmatize such families by making it plain that they have structures and “deals” like many others, not just the “tangle of pathology” described in the Moynihan Report issued fifty years ago.   In such a world, even informal contracts could assist the adults in “fragile” families in negotiating the many challenges that they face and serve to reduce conflict. Further, such agreements, to the extent that they help reveal the precise terms of the negotiations in which such families already engage, might uncover the reasons that fragile black families seem to be able to navigate co-parenting better than their counterparts. They might also disrupt stereotypes about the contributions that fathers, in particular, make to such families. Despite the racialized trope of the “dead beat” dad, studies show that nonmarital African American fathers tend to be more involved with their children than nonmarital White fathers, and regularly contribute diapers and other goods as a way of providing support, even when dramatically reduced job opportunities make money scarce.

Love’s Promises helps us see the current realities of both “Plan A” and “Plan B” families, and to imagine what the future could and should be as a normative matter. I’m very grateful to Martha, the symposium organizers, and my fellow participants for helping me to think even more about the possibilities of contract in the family law context, especially where families of color are concerned. On this day, especially, when the U.S. Supreme Court has affirmed that LGBT couples are “Plan A” families in the eyes of the Constitution, I only hope that Ertman decides to write another book that builds on the important foundation that she has set.

 

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When Love’s Promises Are Fulfilled By the U.S. Supreme Court

Today, in a 5-4 decision, the United States Supreme recognized the fundamental nature of love’s promises. In Obergefell et al. v. Hodges, the Court held,  “the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.”  Referring to marriage as a “keystone” of the U.S.’s “social order,” Justice Kennedy declared same-sex marriage bans unconstitutional. Importantly, the case makes clear that forcing gay couples to go across state lines to marry only to deny them the franchise after returning home undermines fundamental principles of liberty.

It’s no surprise that Professor Martha Ertman’s powerful book: Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families on which she copiously and beautifully toiled while rearing her son debuts the summer that equality in marriage becomes a fundamental right for gay men and women. Nor should anyone be surprised if the book, along with the decision itself, becomes a central text at universities and beyond. In what David Corn calls a “love letter to marriage,” from the pen of Justice Kennedy, the Court reasoned:

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.“

With that, the Supreme Court overruled the prior judgement of the Court of Appeals for the Sixth Circuit and set in gear the reversal of centuries’ worth of stigma, shame and inequality, which may not erase overnight, but overtime will ease. Professor Ertman might also suggest that by the decision, the Court resituates contracts too. That is to say, if viewed from the lens of contracts, which serves as the core, theoretical foundation of Love’s Promises, this decision recognizes a fundamental right in contract for gay men and women. Further, the case expands the “contract” franchise to include gay women and men.

Some scholars approach gay marriage primarily from the constitutional liberties encapsulated in the 14th Amendment, upholding equal protection for U.S. citizens regardless of their status, others approach the issue as a matter of privacy. For Professor Ertman, contracts offer an additional lens and much to deliberate about on matters of marriage, parenting, and familial intimacy. Professor Ertman’s writings on contract (The Business of Intimacy,  What’s Wrong With a Parenthood Market?, and Reconstructing Marriage to name a few) precede the book, and presaged its birth.

Here for example, in a passage from Chapter Eight, she explains that “[i]t takes two more trips to the lawyer’s office to hammer out terms that satisfy Karen, Victor, the attorney, and me, from lawyerly technicalities to the emotional terms we call “mush.” From what started out as an addendum to Victor’s and my coparenting agreement has blossomed into a bouquet of wills and powers of attorney, alongside the amended parenting agreement.” She tells readers, “On the way downstairs, clutching documents still warm from the copying machine, Karen squeezes my hand, as if she too feels that signing all those dotted lines brought a family into being every bit as much as vows of forever that we plan to recite…” As she explains, “if you scratch the surface of marriage—straight or gay—you’ll find contracts there, too.”

Professor Ertman urges us to remember time and again that what builds relationships and sustains them are the formal and informal contracting that take place daily in marriage; they establish the foundation for marriage and what comes after. She works diligently in the book to demonstrate love too undergirds contracts. That is to say, she wants readers to reimagine contracts—not as the products of cold, calculated bargaining or business arrangements—though one must acknowledge contracts can be that too—even in marriage.  Often marriage is the product of love, intimacy, and warm innocence.  At other times, it is the product of business arrangements.  It was that too in the U.S. chattel system: contracts that gave legal sufficiency to the buying, selling, bartering, and even destroying of slaves, including children (among them the Black biological offspring of slave owners). In light of that history yet to be fully explored and appreciated in law, it is a formidable task to resituate or reintroduce contract in the space of families and intimacy. However, Professor Ertman rises to that challenge.

Like it or not, contracts pervade marriage and suffuse premarital agreements. Sometimes contracting in this regard attempts to resituate power and status expost marriage, providing the economically weaker spouse economic stability after the breakup. Martha highlights cases from that of Catherine Simeone who received a “raw deal,” to those of celebrities, including Michael Douglas and Beyonce. Who knew that Beyonce would receive $5 million for “each of their children,” if she and Shawn Carter (otherwise known as Jay-Z) divorced? Professor Ertman might argue that despite the businesslike nature of contracts, these legal arrangements and agreements make most matters clearer for everybody. Professor Ertman explains that contracts and even verbal agreements provide information, they can provide context, and they offer choice.

In Ertman’s life, it was a contract that bestowed her wife, Karen, parenthood of their child—not something biological, legislative, or derived from courts. And she offers multiple reasons for readers to consider the salience of contracts in intimacy, including voluntariness, reciprocal promises, and equal status. She offers an additional reason: love’s promises.

12

Involuntary Divorce

Here’s a question that I have about the upcoming same-sex marriage argument.  Suppose you are a same-sex couple that lives in one of the circuits that held that there is a constitutional right to same sex marriage and where the cert. petition was denied last Fall.  In other words, the judgment is final.  Your home state did not legalize same-sex marriage, but (relying on the circuit case), you got married.  In June, the Supreme Court holds that there is no right to same-sex marriage (unlikely, but humor me).

Would that decision means that you are legally divorced?  And if that is true, could one of the parties avail themselves of the state’s divorce law in, say, two years if the relationship breaks down?  How would that work?

0

Buffett on Family Business: Beat the Third Generation Curse

warren buffettWarren Buffett is very good at spotting great family businesses. What does he look for? How can his filters help family businesses prosper?

For one, they can mitigate one of the greatest dangers: the third generation “curse.” This refers to how few family businesses survive beyond the third generation, let alone prosper.

An under-appreciated fact about Berkshire Hathaway, the conglomerate Buffett built: virtually all its family businesses boast second or third generation descendants who rival or outshine previous generations. That is rare among family businesses.

So while every family and business situation differs, Berkshire’s two dozen family companies are a good place to look for insight about multi-generational prosperity in the family business.

Studying Berkshire’s family businesses, I found that they are united by the following values. These values are important factors in their success, in the founding generation and subsequent ones.

Family business members, and their professional advisors, whether in law, accounting, or other fields, would do well to ponder these points.

Read More

6

Law and the Marriage Gap

 

In his column this week at Al-Jazeera on inequality and marriage,  David Cay Johnston uses our recent book, Marriage Markets: How Inequality is Remaking the American Family, to show why marriage has become a class privilege. He suggests a variety of policies to promote investment in the next generation, policies that start to get at an issue we struggled with in the book (and that we thought would be an easy question): what role did the law play in the emerging class gulf in family formation, with the college graduates who have long been the leading champions of the sex revolution settling down into very traditional marriages while marriage seemed to be disappearing from working class communities that once espoused more conventional values?

Our initial inclination was to say not much. The first section of the book argued that the change in the economy and, particularly the disappearance of well-paying stable blue collar jobs for men, explained most of the shift in family form and, indeed, that the economic changes produced fairly predictable cultural changes that increased gender distrust and produced less reliance on marriage To be sure, we acknowledged Carl Schneider’s work two decades ago arguing that family law plays a “channelling function” in reinforcing shared notions of appropriate behavior. But, we also recognized that the class-based marriage divide is not about different norms; most Americans, regardless of race or class, expect to marry and value what marriage has to offer in similar ways. They differ primarily   in whether they expect to find a suitable partner and a point in their lives where marriage makes sense.

As we dug deeper into the research, however, we ultimately did come to a different conclusion: a conclusion that the law does matter and has something to do with the decision about whether it makes sense to marry a particular partner. Read More

5

Child Safety, Part III

How might tort law respond, if at all, to the preferences of parents and the general population to invest about twice as much in child safety as adult safety? (see this post for a summary of the data, and this post for a discussion of whether those preferences are normatively defensible).

Here’s my take, which you can read more about here:

Because the studies that I’m drawing from concern the allocation of safety-related resources, they have their most direct implications when we view tort law as (at least partially) a means to make people safer by deterring risky behavior. Those studies create two main implications, one for levels of care and one for damages.

Under a deterrence rationale, the standard of care in tort law reflects what we want potential tortfeasors to invest in accident prevention. The investment patterns from my first post in this series suggest that, at least as a prima facie matter, people want potential tortfeasors to invest twice as many resources in preventing accidents when children are the primary potential victims, even when both children and adults are equally vulnerable.  And if my second post in this series is right, we have reasons to respect those preferences. So when children are among the foreseeable class of victims, courts should require a heightened level of care. Although courts appear to respond to a child’s increased vulnerability to harms—they blindly run out into the street to reach ice cream trucks, for example—I have not found evidence that courts have picked up on the extra value that we appear to place on child safety. I’ve also looked at practitioner treatises, and so far I cannot find any mention that courts or juries are more likely to find a defendant negligent if the victim was a child. So, as a prima facie matter, there are reasons to question whether judges and juries are applying a sufficiently stringent level of care in cases involving children.

To motivate potential tortfeasors to take a heightened level of care for children, damages for child victims should be about twice as high as damages for adult victims. Currently, tort damages tend to exhibit child discounts or mild child premiums. This should not be a surprise. We ask juries to set damages in particular ways that constrain their discretion. For wrongful death, we generally ask them to set damages by looking at the economic contributions that the decedent would have made to her relatives. This puts a very small value on dead children, and results in child discounts even after we add non-economic damages. For permanent injuries, some back-of-the-envelope calculations suggest that juries tend to award children 20-25 percent more than adults. This is approximately what we would expect if juries were awarding damages based on the number of years that a victim will have to live with her injuries, and then discounting those future yearly payouts to arrive at a single lump sum.   But that child premium is significantly lower than the 2 to 1 ratio that a deterrence-oriented tort system might strive for. So, as a prima facie matter, there are reasons to question whether damages for child victims are high enough to generate the amount of deterrence that people appear to desire.

Of course, there is much more to say.

A fuller deterrence analysis would require examining a host of additional factors, such as whether regulatory agencies or market forces or the threat of criminal liability already provide extra protection for children, whether risk compensation or substitution effects operate differently for the adult and child populations, the differences between contractual settings like medical malpractice and stranger cases, how to handle “hidden-child” cases (which would be partially analogous to thin-skull cases), etc. I invite readers to offer their thoughts on these issues. But as a first cut, there are reasons to think that tort law does not offer the desired mix of protection for adults and children.

We could also ask what civil recourse and corrective justice accounts of tort law might contribute to the discussion. But I will leave that for another day.

7

Child Safety, Part II

In my last post, I introduced a set of studies that suggest that parents and nonparents alike prefer to invest about twice as much in child safety as adult safety. For purposes of this post, I want to take that descriptive claim as true and ask: What justifies that differential treatment?

One answer is simply that we should respect preferences (almost) regardless of their content. But that seems too quick.

Below are a few thoughts on how we could justify greater protections for children.
I invite readers to add to this preliminary list.

  • Children have more life years ahead of them to live with permanent injury, and lose more life years if they die. This is likely part of the story, but it is an incomplete defense of the data because focusing on life years would not justify providing children with extra protection for temporary injuries like spending one year in the hospital or catching the common cold.
  • Perhaps everyone deserves an opportunity to achieve certain milestones in life, like growing up and falling in love, that often occur during adolescence and young adulthood. To the extent that life years leading up to those milestones are more valuable, we might want to offer younger people more protection. We might also want to ensure that temporary injuries do not impede those opportunities. (Something like this view might be at work here, where one couple recently wrote up a bucket list for their terminally ill infant and went to great lengths to ensure that they checked off each entry.)
  • Children might deserve an open future.

Stay tuned for Part III, where I will discuss what these empirical patterns might mean for tort law …