Family Law and Nonmarital Families

• Date: 01 April 2015
• Published date: 01 April 2015
• Author: Clare Huntington
• DOI: http://doi.org/10.1111/fcre.12142

FAMILY LAW AND NONMARITAL FAMILIES

Clare Huntington1

Despite the sharp increase in nonmarital childbearing, family law still places marriage at the very foundation of the legal

regulation of families. Family law’s doctrine draws clear distinctions between married and unmarried couples, which then

carries over to the treatment of children. Familylaw’s legal institutions created to oversee the family,par ticularlyupon divorce,

are designed for married families that have been formally recognized by the state. And traditional gender norms still inform

much of family law’s approach to legalregulation, particularly in the conception of legal fatherhood. After establishing that this

“marital family law” undermines relationships in nonmarital families, this article proposes reforms to integrate nonmarital

families into family law.

Key Points for the Family Court Community:

• Identifies legal distinctions between marital and nonmarital families

• Demonstrates how family law harms nonmarital families

• Provides a blueprint for reform

Keywords: Child Support;Custody;Family Law;Nonmarital Families;and Unwed Fathers

INTRODUCTION

As this special issue of Family Court Reviewmakes clear, nonmarital families are the new normal,

particularly in some communities. Family law, however, has not caught up. Family law’s legal rules

still place marriage at the very foundation of legal regulation, with a deep dividing line between

married and unmarried couples. Family law’s legal institutions are designed for married families who

have been formally recognized by the state. And family law still draws on and reinforces traditional

gender norms, establishing economic support as the sine qua non of fatherhood and day-to-day

caregiving as the hallmark of motherhood. Together, this amounts to what this article calls “marital

family law.”

Marital family law is hardly ideal for the married families it governs,2but it wreaks havoc on the

nonmarital families it excludes. A fundamental mismatch between marital family law and nonmarital

family life undermines relationships in nonmarital families, to the great detriment of nonmarital

children. First, marital family law’s legal rules foster what sociologistster m maternal “gatekeeping,”3

where mothers control fathers’ access to shared children, making it harder for fathers to maintain a

relationship with their children. Further, child support rules exacerbate existing acrimony between

parents. Relatively effective for divorcing families, child support rules impose unrealistic obligations

on unmarried fathers, many of whom have dismal economic prospects. The failure to satisfy child

support requirements fuels animosity between unmarried parents, many of whom are already expe-

riencing difficulty co-parenting.

Second, because only the state can dissolve a marriage, marital family law presumes that couples

will go to court at the end of relationships. The court system is designed to establish co-parenting

structures for a couple’s post-divorce family life. But unmarried couples do not need the state to end

their relationships, and although they could seek a custody order, many do not do so.This means that

in most states unmarried parents are left without an effective institution to help them transition from

a family based on a romantic relationship to a family based on co-parenting.

Correspondence: chuntington@law.fordham.edu

FAMILY COURT REVIEW, Vol. 53 No. 2, April 2015 233–245

© 2015 Association of Familyand Conciliation Cour ts