|
Today
the marriage rate is at its lowest point ever, the divorce rate
is near its highest, and more children are living without their
fathers than at any time in American history. Yet the
prestigious American Law Institute, which exercises great
influence on American jurisprudence, has just released a series
of family law recommendations that would exacerbate these
problems by trivializing the importance of marriage, encouraging
divorce and accelerating fatherlessness.
The marriage rate has dipped 40% over the last four decades and
over a million couples divorce each year. A record 1.3 million
babies were born out of wedlock in 1999, marking the first time
in American history that a full third of all US births were to
unwed mothers. Sociologists, economists, and child-welfare
advocates agree that too many children are living without a
father in the home, and the public echoes these sentiments.
According to a 1996 Gallup poll, 79 percent of Americans believe
that "the most significant family or social problem facing
Americans the physical absence of the father from the home."
Where have all the fathers gone? Maybe we should ask the family
court system. Millions of decent fathers who have faithfully
loved and supported their children have been downgraded to
noncustodial parent status by courts that have stripped them of
their natural right to the custody, care, and nurture of their
own children. These fathers and the children who love them are
victims of the greatest and least recognized problem in American
family life today--the epidemic of access and visitation denial
which family courts often permit.
Rather than addressing these issues, the ALI's just released
report, The Principles of the Law of Family Dissolution,
instead proposes weakening marriage and families by giving
incentives to spouses to leave their marriages and replace their
children's biological parents. Courts would reward this behavior
by granting "de facto parent" status to the cohabiting partner
of a legal parent who has lived with that legal parent's
children for two years and has performed caretaking functions.
Thus noncustodial parents--usually fathers--could be forced to
share legal custody of their own children with their ex-spouses'
new boyfriends or girlfriends.
Under this proposal a parent could cohabitate with several
partners over a period of years and each of these partners could
be granted shared custody and visitation rights. At every step
the noncustodial biological parent's relationship with his or
her children would be diluted in favor of a "de facto parent"
who never made the marital commitment the biological parent did.
Beyond the damage to children caused by this merry-go-round, one
cringes at the emotional toll on parents and children (not to
mention the legal costs) involved when custody is contested not
simply between biological parents but also between biological
parents and "de facto" parents.
The ALI notes that it is "increasingly implausible to attribute
special significance" to a couple's decision to marry and
equates "domestic partners" ("two persons of the same or
opposite sex, not married to one another, who for a significant
period of time share a primary residence and a life together as
a couple") with married couples in many aspects of family law.
This trivializes the serious, lifelong commitment which marriage
demands and the stability for children which it provides.
Research establishes that children fare best in a married, two
parent home, and that the largest single predictor of whether a
student will graduate high school, attend college, become
involved in crime or drugs, or get pregnant is a fathers'
presence in that home. Family researcher Judith Wallerstein,
co-author of The Unexpected Legacy of Divorce: a 25 Year
Landmark Study , found that the effects of family breakdown
stay with children long after their childhoods, as they are less
likely to marry, have successful marriages, and have children
than adults who grew up in intact families.
Family courts have hurt children and families by failing to
recognize the importance of ensuring that both biological
parents can remain integral parts of their children's lives
following a divorce. The solution is to replace the sole
physical custody norm with shared parenting--the presumption of
joint legal and physical custody. Judges could deviate from this
egalitarian arrangement only if there is clear and convincing
evidence that one of the parents has committed acts that render
that parent unfit, such as child abuse or neglect. If divorcing
parents are unable to agree on a shared parenting plan, the
courts would develop a plan that would afford both parents
equitable custody and parenting time.
Shared parenting may also help keep families together. In a
study examining people's motives for filing for divorce,
economists Margaret Brinig and Douglas Allen analyzed 46,000
divorcing couples and found that most divorce petitions are
filed by women, and that they do so in part because they know
they can expect to obtain sole custody of their children. This
expectation sometimes leads them to conclude that giving up on a
struggling marriage is more appealing than attempting to save
it. Brinig and Allen's research indicates that a shared custody
norm may be the best way to reduce divorce rates.
There is also evidence that many struggling couples can
resuscitate their marriages and find happiness if they are
committed to doing so. In The Case for Marriage, Maggie
Gallagher explains that in a broad survey of what married
couples described as "very unhappy marriages," five years later,
six out of seven couples who stayed together described their
marriages as "happier," with a majority claiming that they were
currently "very happy."
The ALI claims that its proposals are "innovative" and
"responsive to the enormous changes in society that have taken
place over the last century." Yet their proposals ignore
fundamental principles that will never change: children need,
want and deserve the emotional, physical and financial support
of both biological parents; the best place for children is in an
intact, married family; and men and women are happiest when they
are in a loving, committed marriage.
This column first appeared in
Human Events (1/27/03).
Glenn Sacks writes about gender issues from the male
perspective. He can be reached at Glenn@GlennSacks.com. Dianna Thompson is a founder and executive director of the American Coalition for Fathers and Children (www.acfc.org). She can be contacted by e-mail at DThompson2232@aol.com.
|