The Fatherhood Crisis: Time for a New Look?

Policy Reports | Social

No. 267
Wednesday, June 30, 2004
by Stephen Baskerville


No-fault divorce was supposed to reduce litigation by simplifying the process of suing for divorce and eliminating the need for findings of fault. But for many couples with children, divorce leads to disputes involving lawyers, court proceedings, and intervention by state agencies. Divorced families may be supervised by officials until the children are grown. Initiating divorce proceedings is easier, but the system retains the adversarial aspects of fault-based divorce: The parties have no more incentive (or power) to settle issues without litigation than they did previously.

Contractual Arrangements. Parents might want to work out divorce arrangements that suit their circumstances through mediation, rather than going through adversarial court proceedings. But mediation takes places "within the shadow of the law,"64 which means that the terms of negotiation and the bargaining strength of the parties are circumscribed by law. And no rational party concedes in mediation what they know they can win in court.

If couples were able to make their own marriage or divorce contracts, they could increase the welfare of both parents (and the children), compared to the straight-jacket of court decrees or one-size-fits-all legislation.65 But for contractual solutions to work, the law must specify the parameters of agreements that the courts must enforce. One problem that has bedeviled private marriage or pre-nuptial agreements is precisely that provisions governing children are not enforceable under current law. And child custody has proved to be the most vexatious factor in most modern divorces. Thus we need to address the legal framework within which couples can negotiate. Under the current system, each aspect of the divorce settlement - such as child custody and the level of child support - is subject to dispute in isolation from all other considerations. The law does not assume that parents care more for their children than judges and are more likely than court-appointed ad litem attorneys to determine what is in their children's best interest.

The subject for debate, therefore, is what parameters should be defined by government, after which people may be left alone to arrange their private lives as they see fit. People need to know what they may expect in marriage and divorce. For example, laws could be changed to roll back "no-fault" divorce by making the traditional grounds of "fault" (which varied somewhat, but were generally adultery, desertion, and "cruelty" or violence)66 a standard or default condition for the dissolution of a marriage. Individual couples could choose to craft their own contractual marriage and divorce agreements to suit their own circumstances. The key factor determining the stability of the solution, whether in traditional fault grounds or private contracts, is that the agreement be enforceable in law.

"Parents can better determine their children's best interest than family courts."

Similarly, the "winner-take-all" child custody system could be reformed through joint custody or "shared parenting" provisions.67 By creating a presumption of roughly equal parenting time - all else being equal and absent wrongdoing by one parent - this would preserve the marital environment to the greatest extent possible, with children being raised by both parents and both sharing in decisionmaking. A presumption of equality between parents would also level the playing field in mediation or contract negotiations, giving each party an incentive to negotiate in good faith.

All these proposals have merit and deserve a full public airing and debate. However, because divorce and custody law in the United States is a province of the states, these proposals have to be debated and enacted state by state. Other principles are a more likely subject for national dialogue.

The Federal Role: Enforcing Constitutional Rights. On the national level, one option is to address the fatherhood/marriage problem less as an issue of family policy and more as one of constitutional rights. Guaranteeing the right of parents and their children not to be forcibly separated without cause carries few financial costs. It would also reduce the need for expensive and invasive federal programs that thrive on family destruction and address its symptoms rather than its cause.

Increasing the involvement of the federal judiciary in child support and domestic violence cases contributes to what some see as "activist" tendencies. On the other hand, if the federal courts squarely faced the constitutional implications of removing children from legally innocent parents, they might regain their place as defenders of the Constitution. This would require them to invalidate the "domestic relations exception" and all other barriers to due process in family law. Federal courts would then have to scrutinize family law cases for violations of constitutional rights. However, the federal judiciary is reluctant to engage in such a review.

"Government policies may exacerbate the problems of divorce and child custody."

The legislative and executive branches may be willing to exercise leadership. Federal legislation modeled on the Parental Rights and Responsibilities Act of 1995 could assist in reinforcing existing rights without necessarily establishing new ones. That bill declared that a parent's right to direct the upbringing of their children is a fundamental right which the government can curtail only for a "compelling interest." It stipulated "No Federal, State, or local government, or any official of such a government acting under color of law, shall interfere with or usurp the right of a parent to direct the upbringing of the child of the parent."68 However, the bill specifically exempted parents who lose their children through involuntary divorce. The justification for this exemption is unclear, but given the critical dimensions of divorce and custody today, it may be time to revisit the issue.

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