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