Beyond economic fatherhood: encouraging divorces fathers to parent.

• Author: Maldonado, Solangel

INTRODUCTION I. LAW AND SOCIAL NORMS II. CURRENT NORMS OF POST-DIVORCE FATHERHOOD A. Ambiguous Expectations B. Paternal Disengagement C. Paternal Involvement and Children's Development 1. Educational and Societal Benefits 2. Emotional and Psychological Benefits 3. Child Support III. REASONS FOR PATERNAL DISENGAGEMENT A. Custody Law B. Gender Bias: Reality or Perception? C. The Visiting Father 1. Vanilla Visitation and Disneyland Daddies 2. Emotional Pain 3. Conflict With the Child's Mother IV. CHANGING THE NORM: ENCOURAGING PATERNAL ENGAGEMENT A. Presumption of Joint Legal Custody 1. Symbolic Function and Paternal Involvement 2. Why Not Joint Physical Custody? B. Creating a Norm of Nurturing Fatherhood CONCLUSION INTRODUCTION

"[F]atherhood is in vogue." (1) Married fathers are dedicating more time to their children than ever before. (2) As a result of mothers' increasing presence in the workforce and a developing cultural emphasis on fathers as nurturers, (3) married fathers are assuming a larger share of child-rearing responsibilities than their own fathers ever did. (4) The mass media has embraced this nurturing and emotionally attuned "modern father" (5)--a sharp departure from the traditional father of the 1950s, whose role was primarily that of breadwinner and authority figure. These new generation fathers are present in the delivery room when their children are born, (6) change diapers, (7) take paternity leave, (8) prepare their children's meals, and take time off from work to take them to the doctor and nurse them back to health. They attend parent-teacher meetings, school plays, and soccer/basketball/Little League games, and they know the names of their children's teachers and playmates. A small but increasing number of these modern fathers place child-rearing responsibilities above career advancement--seeking employment with flexible or reduced schedules--so they can dedicate more time to their children. (9) A few have even exited the workplace completely to assume primary responsibility for their children's care, while their wives assume the traditionally male role of economic provider. (10) In short, modern fathers--although still relatively unusual (11)--are assuming many of the child-rearing tasks traditionally performed by mothers.

When one compares this new generation of married fathers to divorced fathers, however, the contrast is rather bleak. There are approximately 1.1 million divorces in the United States each year. (12) About half of these divorcing couples have minor children, resulting in approximately one million children each year experiencing their parents' separation or divorce. (13) Within three years of divorce, fifty percent of fathers have either ceased contact with their children or see them quite infrequently. (14) The irony of married fathers becoming more involved parents as an almost equal number of men become "absent fathers" (15) has not been lost on commentators, who note that "[m]en today are better fathers when they're around--and worse when they're not." (16) For many children, their parents' divorce is the beginning of their fathers' gradual divorce from them. (17) Why do so many divorced fathers disengage from their children? (18) Are children worse off when their fathers disappear from their lives? Some studies, many commentators, and most Americans, believe so.

Absent fathers are frequently blamed for many of their children's social, emotional, and behavioral problems. Commentators have argued that children who grow up without fathers are more likely than children who grow up in marital families with both of their biological parents to use drugs, perform poorly in school, drop out of high school, become teen parents, be idle (out of work and school), engage in antisocial or criminal activity, get divorced themselves, or commit or attempt suicide). (19) These commentators further assert that fathers are essential to children's emotional and mental development, and they propose that the law should encourage parents to stay together--for example, by abolishing no-fault divorce. (20) If parents stayed together, they posit, many of society's problems could be solved. (21)

Child development experts and social scientists, however, debate whether the absence of a father is a significant cause of these negative outcomes. In contrast to the studies relied upon by fathers' advocates, some studies have found no correlation between paternal involvement and children's well-being. (22) When studies have found a positive correlation between paternal absence and an increased risk of behavioral, mental, and social problems among children, some commentators have argued that such correlation results from fathers' failure to pay child support, not father absence per se. They point to the substantial decrease in residential mothers' and children's standard of living after divorce as the cause of children's emotional and behavioral problems. (23) In other words, fathers are not essential to children, but economic support is. Accordingly, these scholars advocate stronger enforcement of child support awards and governmental support of

children and mothers to prevent poverty after divorce.

Even if it is true that what matters is economic support and not paternal involvement per se, absent fathers are still a cause for concern because fathers who maintain significant contact with their children after divorce are more likely to pay child support than fathers who do not maintain contact. (24) Children whose fathers pay child support generally experience fewer emotional and behavioral problems than children whose fathers do not. (25) Although the federal and state governments spend billions of dollars each year to enforce child support awards, their efforts have been only marginally successful. (26) Thus, society and the government may wish to consider encouraging paternal involvement as it may lead to the payment of child support.

Children consistently report that they wish they had more contact with their fathers and that they feel abandoned when their fathers are not involved in their lives. (27) Thus, independent of any correlation between paternal disengagement and children's educational, social, and behavioral development, children's emotional well-being in and of itself may be sufficient reason to encourage paternal contact. Unfortunately, because society and the law have traditionally treated fathers as primarily economic providers, paternal disengagement has not been perceived as a cause for alarm. Indeed, paternal absence following divorce has been accepted as almost normal. In light of the evidence suggesting that paternal disengagement is harmful to children, I argue that it is crucial that fathers not abandon their children after divorce.

In recent years, legal scholars have produced a significant body of scholarship devoted to the law's effect on social norms. (28) Norms theorists have argued that the law can and does influence social norms of marriage and divorce, (29) parenting, (30) sex and race discrimination (31) and even norms of smoking, littering, recycling, and cleaning up after our dogs. (32) This Article uses social norms theory to explore how the law may have contributed to fathers' disengagement after divorce, and how it can and should facilitate a norm of involved fatherhood, thereby encouraging nonresidential fathers to remain actively involved in their children's upbringing. (33)

This Article proceeds in three parts. Part I illustrates the law's ability to influence social norms in the family context. This Part surveys how the law's treatment of no-fault divorce and child support has changed social norms of marriage, divorce, and parental responsibility.

Part II begins by exploring current societal expectations of postdivorce fatherhood and the law's role in maintaining these expectations. It then analyzes the empirical evidence of paternal disengagement after divorce, and both the literature suggesting that fathers' presence is important to children's development and the literature arguing that economic support is what matters. It is well established that raising children is a challenging undertaking and that two people sharing the responsibilities of parenthood are generally better than one. To the extent that the second person will be the father in the majority of cases, (34) I argue that the father is important not only for his economic contribution, but also because, in most cases, he will be the logical second person to participate with the residential parent in child rearing. (35)

Part III examines the reasons some fathers nurture their children while others, including fathers who were very involved in their children's upbringing during the marriage, disengage from their children after divorce. This Part summarizes current custody approaches and analyzes assertions that child custody laws are biased against fathers. It also addresses divorced fathers' complaints that "visitation" itself deters them from exercising a parental role after divorce.

Part IV examines the role of social norms in encouraging or deterring nonresidential fathers from parenting their children, and it proposes that the law adopt a presumption of joint legal custody and require that nonresidential parents participate in their children's upbringing. Drawing on norms theorists' analyses of how social norms arise, this Part argues that--even with minimal or no legal enforcement--these legal reforms can trigger a norm of paternal involvement after divorce.

1. LAW AND SOCIAL NORMS

   Norms theorists have defined social norms as "social attitudes of approval and disapproval, specifying what ought to be done and what ought not to be done." (36) Because people "care what others, even strangers, think of them," (37) social norms give community members the power and authority to punish those who engage in undesirable behavior by expressing disapproval or shaming them. (38)...