Category: Family Law

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Neither Freedom Nor Equality

Be careful what you wish for – that’s the clear warning that Katherine Franke gives the reader in her new book, Wedlocked: The Perils of Marriage Equality. In the book, Franke offers a far-reaching and incisive critique of marriage, based on the ways in which marriage was both sought after and suffered through by two distinctly different populations: newly freed slaves after the Civil War and same-sex couples in the wake of marriage equality. Careful not to make direct comparisons between the two populations, Franke presents the experiences of both groups side by side and draws out similarities that are always striking and often surprising. The intertwining stories of these two groups provide a window into “what it means to elaborate a new conception of freedom and equality through a form of state licensure.” (p. 11)

Freedom and equality frame the discussion and serve as touchpoints for Franke as she details the unintended consequence of access to marriage for both populations. What becomes clear, as the book progresses, is that the elaboration of freedom and equality through marriage is quite different than the reality of obtaining freedom and equality through marriage. Franke’s first overarching theme – marriage is not freedom – comes through sharply in the wide-ranging stories she tells about couples, both then and now. Marriage does not and cannot equate with freedom because it is a form of state control. This is not news, but the way in which Franke adeptly draws out the myriad ways in which marriage is used as a mechanism for domestication and governance is compelling. But Franke does not stop there. She deepens this argument by describing the peculiar genius of marriage which is that, despite its being a freedom-constraining relationship, the promise of equality that it offers is sufficiently tantalizing to make the trade-off not only acceptable but even desirable. As she presses on the idea of equality in the context of marriage, however, Franke develops her second, twin theme – that marriage rights do not necessarily produce equality. Not only is freedom illusory; equality is not guaranteed.

Beginning with freedom, Franke presses on this concept throughout and skillfully underscores how marriage operates as a “tactic of governance” (p. 62) that is both plastic and persistent. One particular loss of freedom that concerns Franke derives from marriage being deployed by the State as a technology of power that regulates sexuality, erasing all forms of “fantasmatic curiosity.” (p. 115) The embrace and imposition of marriage on both populations has placed alternative sexualities in service of hetero- and now homonormative ideals. Franke regrets in particular with the gay community that, under the yoke of marriage, “we have lost for now the opportunity to explore the possibilities of a ‘lawless homosexuality.’” (p. 115) Marriage is (as I have explored elsewhere) deeply implicated as a part of the “civilizing process.” As such, marriage demands that sexuality be confined to be legitimized and that individuals discipline their internal, sexual drives. Consequently, relationships that tolerate alternate sexualities – such as bigamy, informal marriage, and multi-party relationships – have been penalized, and might be again, in the rush to ensconce marriage as the one legitimate container for sexual intimacy and activity.

Marriage also entails another, related, loss of freedom because it demands not only sexual but also social conditioning. Marriage is a public-facing relationship that requires that families look and act a certain way: a husband and wife, several children, a well-ordered household. Measured against these perfect families, Franke’s “fluid families” come up short and are penalized for their different-looking, non-traditional forms. Women bear a particular burden of regulation and correction, because the picture-perfect form of marriage is a hierarchical and gendered one. “Fluid families” are therefore disrupted and disciplined not only because of their expressive sexuality but also because they do not conform to gender-based hierarchy. In the context of freed slaves, “female-headed households, or even matrifocal families, in many slave communities were pointed to as evidence of the dysfunction, or even the pathology, of slave family life.” (p.81) Even current marriage laws, however, “take matrimony to be a legal relationship that is fundamentally structured by gender inequality.” (p. 209) Accordingly, Franke worries about the effects of marriage on same-sex couples and how it might transform previously gender-fluid relationships into gender-filled ones. Whether or not same-sex couples will change marriage or marriage will change them, encouraging same-sex couples to reinscribe conventional gender roles in their relationships, remains to be seen. The sociology is in the making. Nevertheless Franke’s warning to monitor the impulse to gender within marriage is apt, especially given power imbalances that result in many couples due to asymmetrical earnings in a marriage.

Finally, marriage represents an immediately relevant form of state intervention and loss of freedom because it imposes default rules about money, resources, and sharing. Marriage economics are, as Franke points out, intimately related to the gendered nature of marriage and marriage as a form of “private welfare.” (p. 90) Because of legal assumptions about the specialization of household labor and marriage as an economic partnership, divorce laws mandate forced sharing, absent private contracting. Same-sex couples are not always aware of these rules (not unlike their different-sex counterparts) and, furthermore, divorce courts don’t always know what to do when confronted with couples who might have been married sooner than they were, had they been allowed to do so. Franke’s story of Ruth and Beth underscores these problems and highlight the possibility of unjust enrichment. (p. 211) Equally likely, however, is the possibility that long-term same-sex couples who have been economic partners for years will be dealt with unfairly by courts refusing to recognize those years of partnership upon divorce. That is to say, while backdating to the beginning of the dating period is one option courts have when constituting the marital estate, they also have the option of not taking into account anything that happened previous to the marriage and thereby artificially circumscribing the assets available to distribute at divorce. Given the reluctance of courts to accord property claims to unmarried cohabitants – and the almost complete rejection by state legislatures of the ALI principles (p. 156) – this may be the more likely danger. Either way, Franke establishes through an abundance of examples that freedom has little relationship with marriage.

Having deconstructed the notion of freedom with respect to marriage – the freedom to marry is really an invitation to relinquish personal freedom to the State – Franke goes on to suggest that the promise of equality through marriage may also be illusory. Marriage inequality operates on several levels. For starters, the right to marry for same-sex couples does not necessitate the right to equal treatment by a legal and societal culture still hobbled by bias and discriminatory desire. One noteworthy thread that runs through the book is that bias has an afterlife – it does not just disappear but rather gets channeled into new outlets and finds new modes of appearance. In the case of marriage equality, inequality may appear in the guise of reinvigorated enforcement of adultery and bigamy law with respect to same-sex couples. (p. 151) Laws that have been on the books for decades, never invoked, may be animated anew because of reconstituted homophobia. Gay men and lesbians, Franke remarks, “have long been accustomed” (p. 152) to outdated laws being selectively applied in order to penalize gay sex. Marriage equality may not change this. This bias may also find other ways to get into court. With same-sex couples having and adopting children, as well as divorcing, bias could easily show up in family court. It is, in fact, simple to speculate about how discrimination and stereotypes might find their way into judicial determinations about property division, spousal maintenance, and child custody. This is a matter, in many respects, of cultural change lagging behind legal change on certain issues and in certain locations. Franke does not have the space, nor is it necessarily a part of her project, to take on the question of how to move cultural change forward, to full acceptance of same-sex relationships and sexuality. The necessity of doing so, however, remains.

There are also other inequalities engendered by the push for equality. In fact, the larger problem with marriage “equality” may be that it creates inequalities within and between various communities. This is a major point in the book and one that weaves together the stories of the gay and African-American communities in the contemporary landscape. In short, the problem with the move to gain rights through marriage, thereby making marriage the standard by which other relationships are “both made legible and assigned value” (p. 112), is that it renders other relationships different and lesser. As Franke argues, “winning the right to marry should not result in making non-traditional families … even more vulnerable for their failure to take a nuclear form.” (p. 111) Perhaps one of the most damaging aspects of this bias “offloading” is that it penalizes and further stigmatizes African-Americans because of the high prevalence of non-normative families in African-American communities. (p. 61) The promise of equality is, consequently, tempered by competing claims to relationship legitimacy and the continuing legacy of racism.

Freedom is not free and equality is not equal. Looking at the possible losses rather than gains in freedom and equality that result from obtaining the right to marry, one is left to wonder two things. Why do we need marriage? And, if we do need marriage for certain purposes, how can and should we manage the technology of marriage so that it serves as a mechanism for enabling freedom and equality?

An answer to the first question is that we don’t need marriage for everything. Consequently, one way to reduce marriage governance is to stop provisioning goods and resources through marriage to the extent that we currently do. There are indisputably good instrumental and practical reasons to marry, given the structure of our current system. As Windsor winningly demonstrated, it is manifestly unfair to ask same-sex couple to be taxed when different-sex couples are not. And, on the flip side, if many different-sex couples count financial planning among the reasons for marriage, why shouldn’t same-sex couples do the same? The thousand-plus benefits that the government provisions through marriage constitute an extremely compelling reason to get married. This has led to a phenomenon of many same-sex couples “holding their noses” and getting married.

This argument, however, does not justify marriage on the merits. There is nothing inherent to marriage that makes it the right or only way to provision benefits. In fact, the answer to the benefits question may be to have the State provision them outside of marriage. Franke does not explore how else we, collectively, might choose to provision benefits or the responsibility of the State to do so in a more equality driven manner. She does, however, nod at the question of redistribution when she suggests that all “married queers” think about what it means to enjoy economic advantage through marriage and reshape their behavior accordingly. (p. 235) Actions like these will help decrease the marriage privilege and smooth out differences among the various types of intimate relationships. This will also prevent couples from being channeled into marriage without any real desire for it.

Another answer is that we need marriage for certain people because, for these couples, the substance of marriage is compelling. Marriage, for some, is a positive good. Consequently, a second strategy – compatible with the first – is to commit to making marriage more equal for those who choose to be in it for affirmative substantive reasons. Franke rightly critiques the fact that “marriage has been recharged as the most august holding environment for the elaboration of one’s mature and authentic self.” (p. 61) Trying to find the charm and charisma of marriage, however, it may be that marriage is deeply appealing because it is a site for making and maintaining a unique connection with another person. The modern ideal of companionate marriage reinforces this ideal and demonstrates how marriage is more than money. Marriage provides a way for individuals to commit to one another, offer continuing support, and receive both love and encouragement. Marriage is of course not required for this type of relationship to develop and flourish. Marriage does, however, serve a signaling function and provide a legal framework for resource sharing and caretaking of multiple kinds.

For these people, marriage is an unalterable part of the social landscape. For them, Franke offers valuable suggestions in her “Call to Action For Married Queers,” including asking spouses to monitor their economic privilege, be aware of gender, and resist offloading bias on other, various non-normative groups. The notion alone of queering marriage is a project worth pursuing in an attempt to help further change the nature of marriage. In this vein, one additional suggestion for Franke’s Call to Action is for married queers – and unmarried ones as well – to open and protect robust critical, queer spaces both inside and outside of marriage. Franke’s message about preserving queer spaces in the context of sexuality is equally important in the political context. Part of keeping marriage equality in play and in question is curating spaces of play and resistance – critical spaces in which divergent practices and personae can be explored. Franke laments that the push to marriage has foreclosed many of these spaces in the gay community. These spaces, however, can be perpetually reinvented through critical inquiry and activity, and they will be the sites of cultural as well as legal resistance.

Ultimately, Wedlocked deftly deconstructs the notions of both freedom and equality with respect to marriage. What remains is to think through how to counter marriage primacy, change marriage internally, and keep open the space for critical play.

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Submission Deadline Extended: Leading From The South: Politics Of Gender, Sex And Sexualities Proposal

DEADLINE EXTENDED: To be consCFPidered for participation, please send an abstract (500-600 words) and your contact info byMarch15, 2016 to: snx.latcrit@gmail.com.

The South-North Exchange on Theory, Culture and Law (SNX) invite you to submit proposals to participate from its 2016 Conference: Leading From The South: Politics Of Gender, Sex And Sexualities to be celebrated in Santo Domingo, República Dominicana from May 19-21, 2016.

We invite papers across disciplinary boundaries and from all constituencies, on how the global South has been leading current shifts in the politics of gender, sex and sexualities. Specifically, we seek to examine and explore past and present South-North relations regarding the legal treatment of subjects in terms of their sex, gender and sexual identities. We seek to establish a fruitful interdisciplinary dialogue that would proffer a holistic perspective on how certain policies have shaped and will shape the social and legal regulation of subjects based on their gender, their bodies and their desires. For that reason we seek papers on: Marriage, Families, Adoption, Labor, Violence, Child Rearing, Children’s Rights, Reproductive Rights, Poverty, Immigration, Discrimination, State Protections, State Criminalizing Practice, Emerging fields of State Regulation, and Health (among others).

The conference’s proceedings will be held in Spanish and English (with simultaneous translation). For more detail see the official Call for Papers attached.

Follow us on Facebook! (www.facebook.com/snxlatcrit)

If you have any questions, feel free to email me at: arosario-lebron@law.howard.edu.

Aníbal

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A Historian’s Comments on Katherine Franke’s Wedlocked

In Wedlocked: The Perils of Marriage Equality legal scholar Katherine Franke compares the African American experience with marriage in the wake of the Civil War, with the quest for marriage equality for queers. Relying on a wide variety of archival sources and the experiences of lawyers specializing in queer family law, Franke details the problems that African Americans faced in their first encounters with marriage, drawing vital conclusions about the care queer people should take when we consider the implications of our newly won right to marry. As Franke so astutely asks, why should queers, who only recently gained the right to be free of state criminalization of our sexual lives in Lawrence v. Texas (2003), immediately invite the state to regulate those newly gained sexual freedoms through the institution of marriage? This question seems especially important given the profoundly gendered nature of Anglo-American marriage. Why would a people, who, by the very nature of our desires, trouble the gender binary, sign up for an institution that has historically been premised on it? Marriage, as Franke states, has “its own well-entrenched agenda” and thus “is a particularly value-laden institution within which to lodge claims for full citizenship.” (143)

Franke frames each chapter with a discussion of African Americans initial experiences with marriage, and thus, with the state. Rather than freeing black families to organize their families as they pleased, she finds that marriage instead opened them up to new forms of white violence, domination and control. For example, in the wake of the Civil War, Franke demonstrates that many states automatically married African Americans who lived in relationships that appeared “marriage-like” without their consent, or at times, even knowledge. People who had been living together in a variety of arrangements suddenly found themselves actually married. This preemptory state move did have some positive effects. After all, marriage licenses cost money– money that most couples in desperately impoverished African American community did not have. However, this also resulted in couples who had no intention of marrying, or any knowledge of the legal requirements of marriage, ending up married.

These automatic marriages opened African Americans to state discipline when they violated the laws governing marriage, such as monogamy and the need for divorce when ending relationships. This proved particularly devastating when the state, often at the instigation of jilted partners, began to prosecute African Americans for crimes directly related to their status as married or unmarried people—bigamy, adultery and fornication. Franke speculates that southern state governments bent on maintaining white supremacy, might have deliberately used violations of marriage law to deprive African American men of the vote, as many states then and now, had laws that disfranchised felons. Even more pernicious, she also wonders if states may have been motivated to prosecute African American men to pull them into the convict lease system. Convict lease, the use of convicts as unpaid laborers for either private or state projects, became a virulently exploitative form of labor discipline directed against African Americans well into the twentieth century.

Franke’s second major point revolves around the formation of alternative structures of family in both the African American and queer communities. Slave law (which traced descent through the mother) combined with traditions brought from West Africa, made slave families broadly matrilineal and matrilocal. Furthermore, the pressures of slavery, particularly the need for abroad marriages (husbands and wives who lived on separate plantations) and forced separation through sale, produced both polygamy (also found in West Africa) and serial monogamy. Finally, the disruptions of slavery encouraged a commitment to much broader family ties among slaves than among whites in the antebellum period. Slave communities relied both on extended kin, particularly aunts and grandmothers, and on what anthropologists call “chosen kin,” people with no blood ties who nevertheless take on family responsibilities. Historians have argued that this diversity of family forms encouraged resiliency among both individuals and the broader African American community.

While feminist historians have rightly cast these differences in a positive light (feminist evolutionary biologists point out that matrilineality produces better child outcomes than other systems), Franke demonstrates how whites (then and now) used diversity in family forms as proof of African American’s racial inferiority. Because they did not or could not always follow the “ideal” nuclear family form with a breadwinning husband and an economically dependent wife, whites consistently denied African American humanity. Denigrating them as inherently “immoral” people who had disorganized and dysfunctional families, whites in the 19th century argued against African American claims for citizenship rights.

Like African Americans, queers have developed a variety of family forms and embrace a much broader definition of family membership. Historically, queer couples, particularly men, have negotiated rather than assumed monogamy, even in long term relationships. Queers also rely extensively on “chosen families” made up of friends and ex-lovers. Finally, when they have children, queers deploy a number of strategies that, Franke points out, stretch the boundaries of legal definitions of families. In addition to the more “homonormative” (to borrow Lisa Duggan’s apt term) choices like couples adopting children, or having a child through ART, some queer folk create families with more than two parents. A lesbian couple, for example, who ask a gay male friend to provide sperm, might also ask him to be a “duncle” (donor uncle) who maintains a relationship with the child that, while not like a father, still provides important support and love. There are a myriad of ways in which queer families strain the traditional legal definitions of family with alternative models that, like strategies among African American, increase our resiliency.

Given these shared characteristics, Franke cautions queers about the dangers that marriage may pose to these much broader family ties. First, she points out, marriage would not protect any of these relationships. The fact that a lesbian couple could marry, for example, would do little to solidify their gay donor’s relationship to their child, much less, say, that of his siblings who may well be functioning as a third set of aunts and uncles. Second, Franke points out that the marriage equality movement itself has cast families not based on marriage as inferior and dysfunctional in order to emphasize the harm produced by policies that restrict marriage to one man and one woman. In their attempts to win marriage equality, she argues, proponents for marriage equality have thrown the rest of our family forms under the married nuclear family bus.

Finally, the granting of marriage equality has, in many states, actually damaged the ability of people to protect family members through means other than marriage.   In many states that have granted gay marriage, legislatures and private institutions have eliminated with domestic partnership registries or benefits. This denies all couples the right to choose between marriage and other kinds of relationships. As Franke points out, some couples may not be interested in the full set of responsibilities contained in marriage, but may still want the more limited set of benefits that derive from domestic partnership. Among other things, while marriage is easy, divorce can be difficult and expensive. Many couples may want to be recognized as partners, but might not be ready for marriage and the attendant risk of spending a lot of money should they break up. All in all, Franke is absolutely right that marriage does not solve all of our complex family problems, and in fact, when not thought through carefully, it may increase them. She argues persuasively for more choices in our family forms, rather than fewer.

Since I have been brought on board as the pet historian, I do feel I must add a little historical context to Franke’s text. Her arguments about the dangers of marriage are apt, but she provides little explanation, beyond a desire for “equality,” as to why the queer community turned to marriage. This leaves the reader wondering why in the world we would pursue such clearly problematic strategy, especially since, as Franke rightly indicates, gay liberation and feminist activists of the 1970s rejected marriage as an oppressive institution. The answer, of course, lies in the very real family crises the queer community confronted in the 1980s. As historian George Chauncey argues, both the lesbian baby boom and the AIDS epidemic forced the queer community to confront the problems attendant to having no easy way to legally acknowledge our family ties. Issues of custody, medical decision making, benefits and inheritance compelled us to turn to marriage as a one-stop-shopping for family rights in the context of the life and death decisions we confronted. In fact, had U.S. law not attached so many rights and benefits to marriage, it seems unlikely queers would have pursued marriage as a goal. (Chauncey, Why Marriage, 87-136))

To me, the most interesting part of Franke’s argument lies in the discontinuities rather than continuities between African American experience in the wake of the Civil War, and contemporary queer experience. She expected, for example, that queers, like African Americans, would experience an upsurge in discrimination and hostile attention from the state upon marriage. But this has, she freely admits, largely failed to happen. Similar to African Americans who brought their spouses before the courts for adultery, some queers have used the rules of marriage (and particularly the assumption of monogamy) to disadvantage ex-partners in matters of child custody and property settlement. She also has found a revival of interest among conservative lawmakers to strengthen (rather than doing away with) state laws against sex crimes like fornication and adultery, which are rarely enforced but remain on the books. However, Franke did not find that states used these laws disproportionately against queer people in the wake of queer marriage victories, as states did against African Americans in the 19th century.

Franke attributes this difference to the way gayness, and by extension, marriage equality, have broadly been seen as white, even if, in fact, many people of color identify as queer. She points out that most of leadership of “big gay” organizations are white and middle class, as have been the majority of plaintiffs in gay marriage cases. This perceived whiteness has increased the respectability of the movement, perhaps to the detriment of African American families, who have been unable, as hard as they try, to shed racist stereotypes of family disorganization and dysfunction.

Second, Franke argues that seeking civil rights through marriage itself represents a “traditional,” perhaps even conservative path. Marriage equality advocates have argued that they should be allowed to participate in marriage as it is currently defined. They have not, for example, pointed out the myriad of ways having two men, or two women, marry might challenge the deeply gendered nature of the institution itself. As she explains, “when the conservatives sign up for marriage equality, they do so because it dawns on them that their interests in traditional family values, in the nuclear family, in privatizing dependency, and in bourgeois respectability are stronger than their homophobia.” (203). Gay marriage, she argues, has allowed gays to take the “sex” out of “homosexuality.” It has allowed us to make homosexuality about family, intimacy and caregiving, rather than various kinds of stigmatized sexual activities, which, she and I both agree, continue to be fun, and worthy of championing.

Franke then raises, but does not answer, the essential question of why blackness has continued to carry such negative valences, even as queers have been able to “rebrand” homosexuality as family friendly, all-American and not really about sex at all. Here, my work on the relationships between gays and family in the post-war period may provide us an answer. Very broadly, I argue that the gay community’s strategy for gaining social acceptance put family bonds to the work of destigmatizing homosexuality.

“Coming out,” first popularized with gay liberation in the early 1970s, asked queer people to tell family and friends about their sexual orientation. The idea was that this would liberate them as individuals, but that it would also liberate the community by challenging heterosexual family members to rethink long held negative stereotypes about homosexuality. Furthermore, once out, the lived experience of queers in America exposes our kin to the depth of hostility and discrimination we face. However, the intense racial segregation of most American cities, ensures that we continue to live, work, and go to school with our own racial groups. U.S. public policy in the 20th century, particularly the Federal Housing Authority, actively promoted segregation, denying both whites and racial minorities the opportunity to live and go to school together, and therefore to know each other in intimate and productive ways. This is one of the many forms of systemic racism white Americans continue to ignore. Deploying kin and the bonds of love in the service of liberation has been a tremendously successful strategy for queers, and it explains why we, as Americans have come so far in such a short period of time on issues of sexual diversity, but have, at the same time, failed to make much progress addressing race, racism, and profound racial disparities.

Franke’s text is a reminder to the queer community that we are at a political and moral crossroads. While we still face some forms of discrimination, particularly the violence directed at trans folk, the fortunes of gender normative queer people have risen substantially. Having engaged in so much creative work around family, equality, and liberty over the last fifty years, we must now choose whether to retreat with our (now) homonormative families to the white suburbs, or to continue the fight for greater equality for all Americans. We know the vicious sting of discrimination, and we know what it’s like to fight desperately for our families as we define them. The question is, will we take those lessons into the fights against poverty and racism? History will judge us in the alliances we make, and the battles we bring. Like Franke, I would like to see us to continue in our queer battle to support all families, not just the ones we can defend through marriage.

 

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Weiner’s Response to Comments about the Parent-Partner Status

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.

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Parent-Partners and Intimate Partner Violence

Professor Merle Weiner’s proposal for a parent-partner status in American family law is novel and intriguing, and her exhaustively researched book makes a persuasive case for seriously considering the adoption of such a status. But because my principal preoccupation is intimate partner violence, I have to admit that it worries me. Weiner’s status would obligate parents to refrain from abusing each other (an obligation that already exists by virtue of both criminal and civil law, but is still too frequently breached) while at the same time requiring them to engage in relationship work both at the start of the parenting relationship and at the time when the romantic relationship ends (which assumes there has been a romantic, rather than short sexual, relationship between the parties). I immediately began to have doubts: how would the non-abuse and relationship provisions coexist in relationships marked by intimate partner violence?

Because Professor Weiner has long been thoughtful about intimate partner violence, she anticipated my concerns. In fact, Professor Weiner contends, the parent-partner status will provide greater protection for people subjected to intimate partner violence, not less. She proposes changes to both criminal and civil law that she believes would better protect parent-partners. Moreover, she makes it clear that the relationship work requires only that a parent attend counseling or an educational program at the other parent’s request. She is careful to note, too, that in the case of a child conceived through rape, the obligations between parents flow only one direction: from the rapist to the victim.

Professor Weiner argues that including the duty not to abuse in the parent-partner status sends an important normative message, recognizing both that “abuse between parent-partners is more common and more serious than violence between others in intimate relationships” and that the legal tools currently deployed to address that violence are in many ways inadequate. Professor Weiner’s solution is to expand the reach of both the civil and criminal law. On the civil side, Professor Weiner would ensure that protection orders enjoining both physical and psychological abuse are available to parent-partners from conception onward. On the criminal side, Professor Weiner would specifically criminalize parent-partner physical abuse.

Professor Weiner’s proposal to expand the definition of abuse in the context of civil protection orders recognizes the harm that psychological abuse inflicts; as she notes, many people subjected to abuse find psychological harm much more damaging than physical violence. Some states already authorize the entry of protective orders for some forms psychological abuse, and many scholars have argued that legal definitions of domestic violence should include psychological abuse. Nonetheless, there is reason to be cautious about embracing the proposal, as Professor Weiner recognizes. Without carefully defining what constitutes psychological abuse, some fear that an expanded definition of abuse could fail to distinguish between coercively controlling psychological abuse and garden variety nagging or name-calling. Extending eligibility for protective orders too broadly could also create unnecessary family litigation and overwhelm the courts, leaving judges with even less time and patience with which to address cases of serious intimate partner violence. Professor Weiner has more faith than I do that state legislators can and will craft these definitions in a way that will target only the behavior she hopes to capture, without creating a tool that perpetrators of intimate partner violence can use to harass and abuse their partners.

Professor Weiner also proposes that states create a new crime of abuse of a parent-partner. Professor Weiner notes that there is an ongoing debate about the efficacy of the criminal justice response to domestic violence. Since 1984, criminal justice interventions have been the primary response to domestic violence in the United States, a policy choice bolstered by the passage of the Violence Against Women Act. Hundreds of millions of dollars of federal money have been poured into the criminal justice system since 1994. And rates of domestic violence have fallen since 1994. Between 1994 and 2000, rates of domestic violence fell in tandem with the decrease in the overall crime rate; between 2000 and 2010, however, rates of domestic violence fell less than the decrease in the overall crime rate, notwithstanding the money and effort dedicated to the criminal justice response. There is no social science evidence to suggest that the criminal justice response has had an appreciable impact on domestic violence rates or has deterred abusers from committing acts of violence. Moreover, some scholars have argued that criminalization does more harm than good, both in the way that the legal system imposes itself upon victims of violence and in the damage done to perpetrators, many of whom are low income men of color, and their communities.

While Weiner sidesteps the issue of the efficacy of the criminal justice response, stating that “the wisdom of making the parent-partner relationship more relevant to the prosecution of behavior that is already criminal is a separate issue from whether a criminal law response is appropriate at all,” the act of proposing a new crime shows Weiner’s faith in the power of criminal justice intervention. Expanding the criminal law gives credence to the idea that criminal justice interventions are effective in addressing intimate partner violence. But 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. Diverting time and attention away from developing alternatives to the ineffectual criminal justice response to intimate partner violence by putting that effort into passing new criminal laws is simply bad policy and will not benefit the parents or children that Weiner hopes to help.

The parent-partner status could significantly benefit one category of victims of intimate partner abuse, however. Recognizing a parent-partner status could decrease the stigma experienced by women who want to maintain relationships with their abusive current or former partners or who appreciate their partners’ parenting skills even if they don’t want to stay in relationships. Many people subjected to abuse want to continue to have some relationship with their partners—they simply want the violence to stop. Professor Weiner recognizes this reality, and her suggestion that all states provide protective orders that allow for continued contact between the parties while enjoining further violence is a good one.

The requirement that parent-partners engage in relationship work raises obvious concerns. Professor Weiner is careful to note that one parent cannot force the other to remain in the relationship, and that “the educators and counselors must ensure that batterers are not using the obligation of relationship work as a way t gain access to and control over the other parent.” But even the requirement that a parent attend an information session will feel unduly onerous to a victim of violence who does not want to have any contact with a former partner and who knows that the abuser is using the requirement to harass or harm or fears that somehow, the abusive partner will be able to establish contact through the relationship work requirement. Allowing victims of violence to opt out of the relationship work requirements seems to me the only way to ensure that people subjected to abuse are truly protected from the harm that this requirement could cause.

A consensus that American family law should be organized around children’s well-being, and that ensuring well-being requires strengthening connections between parents, seems to be emerging among family law scholars. Professor Weiner comprehensively lays out the case for taking this approach, and in many ways, her argument is persuasive. But there are downsides to this choice, and one of them is the relative lack of concern for the rights and interests of adults, particularly adults who have been subjected to domestic violence. Although we pay lip service to protecting parents who have been subjected to abuse, a number of recent child-centered developments in the family courts, including friendly parent provisions, custody evaluation, parenting coordination, and mediation, have been criticized as not sufficiently attentive to the needs of victims of violence. As Professor Weiner acknowledges, although most courts purport to screen for domestic violence prior to ordering these services, screening is often slipshod, and many people subjected to abuse choose, for whatever reason, not disclose to court personnel.
Professor Weiner urges us to move forward with her proposals although “[u]ncertainties remain and unanswered questions exist.” And she’s right that if we wait to answer every question, change will never be made. Nonetheless, however appealing the theory is, without some certainty as to the effectiveness of the measures Professor Weiner proposes to protect people subjected to abuse, it may be difficult for those of us concerned about these issues to seriously commit to the parent-partner status.

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The Limits of Relationship Work

Merle Weiner’s book, A Parent-Partner Status for American Family Law, is a tremendously important contribution to the debate about how to strengthen families and improve outcomes for children. At a time when families are rapidly changing and marriage is of dwindling importance in some communities, it is imperative to think anew about how to support a wide range of families. Weiner’s proposal for a new parent-partner status is a bold and welcome addition to this debate.

Weiner proposes five core legal obligations that would attach to the parent-partner status. Three of these obligations are incremental changes to existing law—a duty to aid regardless of marital status, a heightened duty of loyalty in contracting, and additional protections against domestic violence for parent-partners. These obligations strike me as reasonable and would seem to further Weiner’s goal of inculcating stronger ties between parents. A fourth obligation—financial compensation for a parent who does a disproportionate share of the physical caregiving—usefully builds on existing law as well as the proposals in the ALI Principles of the Law of Family Dissolution, which Weiner convincingly critiques. Together, these obligations would formalize a status that exists currently in the interstices of family law, which is itself a positive step forward.

It is Weiner’s final obligation that, at least at first glance, appears to be a major departure from existing law. She proposes that parent-partners have a legally enforceable obligation to engage in “relationship work”—counseling, education, and so on—both at the time a child is born and if the parents’ romantic relationship ends. The relationship work at the first juncture is intended to help parents navigate the stressful transition to parenthood. The relationship work at the time of dissolution contemplates reconciliation as a first measure. If, after considering the impact of the dissolution on the child, the couple still proceeds to break up, then the relationship work would focus on helping the couple remain friends while ending their romantic relationship.

This obligation would not be enforced by a third party, but one parent-partner could seek a court order to enforce the obligation against the other parent-partner. A court could not require a resistant parent to engage in the actual relationship work but could order the parent to attend an educational session touting the benefits of relationship work. Weiner believes creating an enforceable legal obligation does not necessarily mean parties will flock to the courts to seek enforcement but rather that it “should help couples internalize the value of relationship work and the social expectation of participation.” (p. 358)

Weiner claims that the “proposal is not as radical as it may sound” (p. 352). It is true, as Weiner notes, that both the federal and state governments are already involved in some form of relationship work: mandating mediation for custody and visitation disputes, requiring co-parenting education classes for separating and divorcing couples, and funding programs designed to strengthen family relationships, such as the federal Responsible Fatherhood program.

As I elaborate below, her proposal differs from these kinds of programs in meaningful ways, and therefore I think it is a significant departure. But audacity alone is not a problem. The real question is whether the proposal is good policy.

I am not so sure. In my own work, I, too, have argued that if the law wants to improve the vertical relationship between a parent and child, it needs to focus on the horizontal relationship between the two parents. Whether and how the parents get along deeply affects the ability of each parent to provide a child with the time and attention needed for healthy child development. Further, I have argued in favor of the kinds of programs that Weiner’s proposal builds on, particularly co-parenting classes for parents at the end of a romantic relationship. (I have also proposed a legal status that would attach at birth, which I called co-parent status, but whereas I dedicated a short section of a long law review article to the idea, Weiner has dedicated an entire book; therefore I want to focus on her proposed status, not mine.)

So why am I resistant to Weiner’s proposal while seeming to promote many of the same ideas? Read More

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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.