Category: Symposium (A Parent-Partner Status for American Family Law)

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A Bold and Brave Proposal

Merle Weiner’s book, A Parent-Partner Status for American Family Law, is a brave and insightful effort to address a challenging issue, and to fill an important gap in American law and policy with respect to families. Weiner’s novel proposal responds to a sobering social development of the last half century.  The rise of extra-marital childbearing and high rates of divorce have resulted in unprecedented numbers of children who grew up without the on-going support and nurturance of both of their parents. This development is bad for children and, in turn, bad for American society. Child-rearing is tough work, and children have the best chance for fulfilling and productive lives when both parents are on the job.

Weiner’s effort is laudable because she avoids the pieties of liberals and conservatives alike. Unlike some conservatives, Weiner correctly recognizes that marriage promotion programs are unlikely to be effective. A wide array of factors leave couples less likely now than in prior generations to marry when they have a child. So too are divorce rates shaped by broad economic and social changes. Neither law reform not government initiative can take us back to the supposedly golden days of the 1950s.

Yet, Weiner also acknowledges, as liberals are sometimes disinclined to do, that parents matter. The expansion of autonomy for adults has harmed children. Proper respect for the rights of adults doesn’t dictate that the government abdicate its responsibility for children. Children are our nation’s most vital resource, and we must give them the best chance for  productive and fulfilling lives. That should be a matter of national policy, not individual parental choice.

Weiner’s response is to propose the creation of a legal status for people who share a child but not (or at least no longer) an intimate, committed relationship: Parent-Partner Status. The gist of her idea is to create a legal relationship between parents  that would survive the dissolution of their intimate relationship or marriage. Under current law, unmarried parents each have a legal relationship to the child, but not directly to each other. Weiner’s insight is that current law, even as it is animated by the notion of furthering the child’s best interest, fails to reflect the extent to which parenting crucially depends on the relationship between the parents. When the parents constantly bicker, or fail to communicate, and cannot work together, their ability to nurture their child is diminished.

The law has evolved in its treatment of unmarried parents.  Courts now recognize, as a result of constitutional and statutory change, that just because parents are unmarried, they are no less responsible for a child.  But the law hasn’t changed enough in Weiner’s view; it doesn’t recognize the need to facilitate the relationship of the parents for the benefit of the child.

The Parent-Partner Status is meant to address that issue. Weiner’s Parent-Partner Status would have five distinct elements. One is that co-parents would be required to render aid when the other parent is in distress (e.g. as in a medical emergency).  The second is that co-parents would have a duty not to abuse the other co-parent, and a third is that co-parents would have a duty of loyalty with respect to any contracts entered into between the two of them.  Fourth, Weiner would want co-parents to undertook co-parenting training—what she calls “relationship work”—both when they have a child and when their intimate relationship ends. Fifth, Weiner would endorse “caregiver payments” from one co-parent to the other to compensate for the payee parent’s assumption of a “disproportionate” share of child care.

Although these proposals create enforceable rights, Weiner’s goal seems to be more to change the social norms with respect to co-parenting. She relies more on the expressive function of law than its coercive role. The first three reforms, for example, would not have any substantial practical impact. The duty to aid arises rarely, applying only in very limited circumstances. Civil protection orders are already available, in most states, for couples who have a child together. And her proposal that contracts between co-parents be more easily voidable seems a bit askew to her project, given that most such agreements arise from a contemplated or existing marriage. The function of these proposals is not so much to reallocate rights, as to express meanings.  Weiner aims to transform the meaning of the relationship between unmarried parents, so that they come to see themselves as true partners, and, in turn, work together to further the best interest of the child. This is a laudable goal.

The question, of course, is whether the law can bring about that sort of cultural change in this context. In particular, I wonder whether Weiner’s proposal, at least in its emphasis on the expressive function of law, relies on a misplaced assumption about the challenge of co-parenting among unmarried parents. My own sense is that couples fail at co-parenting once their intimate relationship dissolves not because they don’t think it is important or valuable, but because it is difficult to do. Maintaining one home is challenging; two is even more daunting. The co-parents who have the most challenges working together are also the co-parents who are the most socially and economically disadvantaged. The same sorts of economic burdens that make it difficult to maintain an intimate relationship will make it difficult to sustain a functional co-parenting relationship. I suspect that what these parents need is less a different way to think about their co-parent relationship, than some concrete benefits that would help them and their children.  High quality, affordable child care; paid leave from work; enriching after school programs; attractive schooling options—these are some of the supports that would ease the strain on co-parents’ relationships, and bolster the well-being of children.

When Weiner does turn to concrete programs that might benefit parents and children, her approach is less coercive than it might be.  She proposes “relationship work” when a couple has a child or when their intimate relationships dissolves, but she doesn’t give the requirement much bite. The remedy for noncompliance would simply be that the recalcitrant partner be required to attend a session describing the benefits of such relationship work. One suspects that the parents most likely to do the relationship work are those who would need it least. For couples in which one of the parents is resistant, or in which the relationship has become oppositional, the requirement might either have no effect or actually make things worse. Still, for some parents (perhaps many), I think the relationship work would be beneficial.

Weiner’s most intriguing proposal is for “caregiver payments,” in which case one parent would pay the other to compensate for an “unfairly disproportionate allocation of caregiving.”  Typically, one imagines, the father would pay the mother some amount beyond the ordinary child support payment. This is a fascinating idea, which builds on the work of the ALI and others to compensate for the earnings or earnings ability loss that often results from devoting extended and substantial time to childcare.

Weiner  makes as persuasive a case for her approach as possible, yet, in the end, I still remain unpersuaded, for two reasons.  One: How would a court determine what is an inequitable allocation of caretaking responsibility?  Despite Weiner’s admirable attempt to delineate the appropriate factors, there is simply no determinate way to make that call. The implicit deals that couples fashion are complicated, perhaps even more so when the couple is living apart and trying to raise a child together.  I don’t share Weiner’s confidence that courts would get it right, or even, frankly, that we’d be able to determine what judgements are “right.”

The difficulty of that inquiry relates to my second concern: Assessing gains and costs, or benefits and detriments, is very tricky in this setting.  If my wife and I split up, and our children spend most of their time with me, is that a cost or a benefit?  Even if my earning potential diminishes because I begin to work part-time, my own calculus might be that I am gaining more from spending time with them than if I were working full-time.  And that relationship would likely yield economic benefits years later, as children of parents who are not together are probably inclined to provide more and better support to the parent to whom they feel closer. In the usual situation then, the caretaker mother might lose monetarily compared to if she had been able to work without any concern for child care, but she will also gain (or maintain) a relationship that the children’s father would lack. Many fathers, no doubt, would view that lost relationship as of no small value. Courts are ill equipped to make these sorts of judgements; one might think judicial competence is broad, yet still not believe it reaches this far.

One of the virtues of Merle Weiner’s book is not that it conclusively resolves the issues it addresses, so much as that it frames an inquiry in which others should join. In that way, she has performed a valuable service indeed!

 

Ralph Richard Banks

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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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Women’s Autonomy and the Parent-Parent Status

Women’s Autonomy and the Parent-Parent Status

Merle Weiner has written an extremely thoughtful and compelling book on just why we need to create a new legal status to recognize the relationship between two people who have a child together. Family law focuses on the adult-partner relationship, though marriage or contract, or the parent-child relationship, which may impose obligations related to custody or support on the other parent. No law, however, assigns obligations from one parent to another on the basis of the child they have in common. (pp. 54-56). Weiner attempts to remedy the matter by providing a legal status that would create binding relations between parents while their child was a minor.
Weiner’s proposal is a creative response to current efforts to resurrect the two-parent family without necessarily bringing back marriage as a compulsory response to pregnancy. As fewer couples choose to marry, many have fought for legal recognition of a continuum of relationships on terms of the couples’ choosing. And as women have achieved greater ability to raise children on their own, fathers have sought to make their custodial rights independent of their relationship to mother. See, e.g., Clare Huntington, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2513885 The challenge underlying all these efforts, however, have been the tensions between autonomy and equality. Even couples who consciously negotiated the terms of their union often intensely disagree on the terms of their parting. And as marriage has increasingly come to require an equal assumption of parenting obligations, parents who do not marry now fall on a continuum from those who have relationships equivalent to marriage to those who vehemently object that they want no such thing. In this context, most proposals to encourage stronger two parent relationships sacrifice unmarried women’s greater autonomy in an effort to encourage greater paternal involvement. Weiner’s proposals differ from others in her effort to simultaneously insist that parents acknowledge their obligations to each other and to rewrite the gender balance in these relationships.
The project of setting out obligations between parents to ensure that they act fairly with one another with respect to their joint child is admirable, and we applaud Professor Weiner for this effort to chart a new status. Weiner and others such as Solangel Maldonado, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=569363, seeking to involve both parents in caring for their children can help us change the focus from what’s wrong with the family to how can we move forward. We think her project is appealing – but not for all parents of all classes in every situation. Accordingly, we explore three questions. First is for whom will – or might — this new status work well? Second, how much harm might the status do to everyone else? The third is whether her proposal can be implemented so it provides support to those who need it, without coercing others into an unwanted new legal scheme?
As we have suggested elsewhere, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2434750 families in the United States have developed three diverging patterns (and Weiner discusses our work on this). The elite, who – roughly — constitute the one-third of the country who graduate from college and/or enjoy substantial incomes, has become, if anything, more likely to raise their children in committed two-parent families. The marginalized bottom third has largely given up on marriage, raising children in the context of single-parent families and contingent, rather than committed, relationships with a second adult. The middle is in flux, as it remains more likely to marry than the bottom, more likely to divorce than the top, and in the midst of an unresolved struggle to redefine the new terms for multiple parents, stepparents, and intimate partners.
As Weiner recognizes, elite communities continue to connect readiness for parenthood with the right choice of a partner. For the wealthiest and best educated, the unintended pregnancy rate has steadily fallen. And while this group has relatively few abortions because of its embrace of contraception, it ends a higher percentage of its unplanned pregnancies with abortion than any other group. This sets the stage for later parenthood in the context of more stable relationships. The only group whose marriage rates have not declined are the top ten percent of women by income, and for college graduates as a whole, divorce rates have declined back to the levels of the mid-sixties – before adoption of no-fault divorce and before the widespread availability of abortion and the pill. For those who marry, parenthood involves an equal assumption of responsibility for children, and the law increasingly seeks to insure the two parents’ equal involvement with the children if they divorce. Those college graduates who do have children outside of marriage often do so either with an agreement about the terms of their relationship with another parental partner, or with use of a donor whose parental rights have been severed. Implementation of Weiner’s proposals is easiest to imagine for this group.
While equal assumption of parental responsibilities has become the norm associated with marriage, those who do not marry often do not do so precisely because their relationships do not involve either mutual respect or the capacity for an equal assumption of parenting responsibilities. It will be for these communities that her proposals offer the greatest challenges. In the communities moving most decisively away from marriage, a majority of parental-partnerships end because of domestic violence and forty percent involve flagrant infidelity. EDIN AND KEFALAS, PROMISES I CAN KEEP: WHY POOR WOMEN PUT MOTHERHOOD BEFORE MARRIAGE 81 (2015). For these couples, unmarried fathers’ relationships with their children occur in the context of the contingent relationships they negotiate with the mothers. Studies indicate that the fathers overwhelming want a continuing relationship with the child, and the fathers believe that their ability to continue to see the child depends on how they manages the relationship with the mother. The mothers’ support in turn depends on the fathers’ contributions and her entry into new relationships. http://www.ncbi.nlm.nih.gov/pubmed/20355690. Race makes a difference in these patterns. Black mothers, who have a much longer tradition of co-parenting outside of marriage, report higher rates of effective co-parenting and more involvement from unmarried fathers than other races, http://crcw.princeton.edu/workingpapers/WP14-07-FF.pdf, though the norms in white working class communities are changing in ways that make paternal involvement less dependent on the continuation of the adult partnership. For all groups, as Weiner notes, fathers in fragile families initially offer formal and informal support to their children, but that amount declines as the parents’ cohabiting relationship recedes (p. 204).
It therefore makes no sense to impose the same system of obligations, regardless of marriage and adult-adult commitment and income, on all parenting arrangements. https://concurringopinions.com/archives/2015/10/the-potential-harm-to-low-income-families-from-the-parent-partner-status.html The elite already recognize the importance of the right partnership for raising children, whether or not they marry; those outside the elite often do not marry precisely because they do not believe that such a partnership is possible. The relationships that produce the pregnancy typically end because of behavior that makes the prospects for a continuing relationship based on cooperation and mutual respect unlikely.
To be sure, Weiner addresses the potential objections to her proposal. Indeed, she balances her call for greater recognition of parenting partnerships with calls for greater protection of those who might be disadvantaged by them. She accordingly calls both for placing greater emphasis on the existence of the relationship and calls for more resources to encourage good behavior within it. The result is an ambitious undertaking, one that hopes to recreate the norms that make healthier relationships ships possible.
Weiner’s most original proposals are those which seek to achieve greater respect between parents. She recognizes that parents who parent apart rarely assume equal responsibility for a child, and she therefore recommends that “[t]he primary breadwinner” may share income with a caregiver, which could rebalance parental contributions. (P. 437). She acknowledges the importance of domestic violence, both because of its role in undermining parental relationships and because of the harm it inflicts on children (p. 508). She accordingly recommends that parents who commit violence against another parent should be treated with harsher punishments than those who commit physical violence against other adults (p. 329), and that the definition of partnership abuse be expanded to include psychological as well as physical manipulation and harassment. Nor does she advocate joint custody; instead, she believes that her proposal for the new parent-partner status, caregiver compensation, and a change in norms to encourage positive co-parenting would mean that custody law would become less important (p. 506-07). And she advocates relationship classes that would underscore appropriate norms for parental relationships and help parents to achieve them. Her final chapter (before the Conclusion) which is titled “Possible Concerns about the Parent-Partner Status, briefly addresses whether the status would encroach on individual autonomy or disadvantage women and children. While she concedes that women might, in fact, lose some of their authority, this loss would instead show the success of this new status in creating new and positive co-parenting norms, complete with behavioral change.(p. 510).
Weiner’s central objective is to remake the norms that underlie parenting. She objects that too many couples have children without the ability to manage their own relationships and, if the effect of her proposals would be to compel greater use of contraceptives, she seems to welcome the result. What she does not fully address, however, is the heavy handed nature of the legal system. Mothers have won a measure of autonomy by their ability to stay out of court; Weiner would make it easier for parents to find their way back in. She is most eager to empower those who would embrace parenting education and those who seek protection from abuse; yet, she acknowledges that the courts have been willing to reward abusers who seek custodial rights rather than to protect victims. The subtext of her proposals, whatever their intentions, is to make the working class more like the elite in their ability to manage relationships. More enforceable relationship rights, however, may have the perverse effect of empowering those who would like to hang on to the shreds of a relationship that the other parent has ended for good reason.
Weiner’s proposals, in their focus on the legal system, do not and cannot address the greater economic inequality that has remade the family. To rebuild healthy relationships premised on a middle class model, it is necessary to rebuild the pathways into the middle class. Decreasing male economic inequality is critical and will do much to reinvolve both parents in their children’s lives.

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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.

 

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Online Symposium on Merle Weiner’s “A Parent-Partner Status for American Family Law”

9781107088085It is an honor to introduce Professor Merle Weiner and the participants of our online symposium on A Parent-Partner Status for American Family Law (Cambridge University Press). This week we will be discussing Professor Weiner’s provocative new book, which critiques the law’s reliance on marriage, domestic partnerships, and contracts to set the parameters of parents’ legal relationship to each other rather than looking to their status as parents.   Professor Weiner proposes creating a legal “parent-partner” status to guide parents to act as supportive partners and discourage uncommitted couples from having children together. Her proposed status would shift the focus from the adults’ romantic relationships to the parental partnership.

At a time when many adults are increasingly postponing or foregoing marriage, but not childbearing, A Parent-Partner Status raises many important and difficult questions. What are the risks of creating a legal parent-partner status?  Should the law be in the “relationship work” business? How would a parent-partner status affect non-traditional families?  What are its potential risks and benefits for families that have experienced domestic violence? Should the law attempt to discourage reproduction between uncommitted individuals?

To consider these and many other fascinating questions, we have invited a group of leading family law scholars: Professors Richard Banks, Brian Bix, Naomi Cahn, June Carbone, Leigh Goodmark, Clare Huntington, Jane Murphy, and of course, Professor Weiner.

Let the discussion begin.

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Upcoming Online Symposium on Merle Weiner’s “A Parent-Partner Status for American Family Law”

9781107088085During the week of October 26, 2015, we will be hosting an online symposium on Professor Merle Weiner’s provocative new book A Parent-Partner Status for American Family Law (Cambridge University Press). In this book, Professor Weiner critiques our current legal approach to parental relationships in which the birth or adoption of a child has little significance for parents’ legal relationship to each other. She argues that the law’s reliance on marriage, domestic partnerships, and contracts to set the parameters of parents’ legal relationship is outdated and requires a new legal and social structure to guide parents so they act as supportive partners and to deter uncommitted couples from having children together.  Drawing from psychology, sociology and biology, she proposes the creation of a “parent-partner” status within family law and shifts the legal framework away from the traditional focus on romantic relationships to the realities of parental partnership.

To discuss A Parent-Partner Status, we will be joined by an exciting group of scholars (including Merle Weiner): Richard Banks, Brian Bix, Naomi Cahn, June Carbone, Leigh Goodmark, Clare Huntington, Alicia Kelly, and Jane Murphy.

Mark your calendars October 26-31.