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.
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.