Foundling fathers: (non-)marriage and parental rights in the age of equality.

• Author: Mayeri, Serena
• Position: II. The Emergence of a Feminist Dilemma: Parenthood, (Non

3. "The Cart Before the Horse": Divorce, Fathers' Rights, and the New Nonmarital Bargain

   Although unmarried fathers did not organize in large numbers during the 1970s, divorced fathers did. Legal historian Deborah Dinner has uncovered a robust and influential mobilization of fathers' rights activists intent on shaping a new "divorce bargain" in the wake of the no-fault revolution. (179) As Dinner describes, rising divorce rates and feminist self-assertion threatened the patriarchal ideal to which many fathers' rights leaders subscribed. (180) At the same time, economic recession, wage stagnation, and rising unemployment combined with increasingly vigorous child support enforcement efforts to put financial pressure on divorced fathers. (181) Fathers' rights activists capitalized on the rise of formal sex equality to argue for their own brand of gender neutrality at divorce. Divorced fathers sought to minimize their financial obligations to ex-wives and children, arguing that sex equality meant women should support themselves post-divorce. (182) Ex-wives, they argued, had no claim on their former spouses' income since they were no longer providing the homemaking services that underpinned the marital bargain. Moreover, fathers' rights advocates challenged maternal preferences in child custody as unjust sex discrimination that deprived fathers of cherished relationships with children. (183) Many feminists, too, scorned the maternal preference, but for very different reasons. As Dinner recounts, "[f]eminists argued that the [maternal] presumption entrenched gender ideologies that maintained mothers' primary responsibility for caregiving." (184)

   Since at least the late 1960s, some feminists had expressed misgivings about the no-fault revolution's consequences for women and children. Fault-based divorce, they believed, gave wives a valuable bargaining chip: the ability to withhold consent if their husbands did not agree to fair financial and custody arrangements. Easier divorce, they worried, would not liberate women so long as courts did not ascribe value to wives' homemaking and caregiving labor when distributing property and fashioning alimony awards. Instead, men would be free to discard their wives, abandon their children, and start life anew while newly single mothers with few marketable job skills languished in poverty. The decline of the maternal presumption in child custody decision malting also seemed to undermine women's bargaining position. Whereas maternal preferences placed the onus on fathers who genuinely desired custody, the "best interests of the child" standard apparently penalized the parent who most feared losing custody, pressuring her to trade away financial support in exchange for uncontested custody rights. (185)

   Anti-feminist activism also pushed more feminists to address the plight of women who had devoted their lives to homemaking and motherhood, only to find themselves in dire economic straits when their marriages ended. Phyllis Schlafly's campaign against the ERA excoriated the amendment's proponents for abandoning homemakers to the penury of divorce on demand, which, in the colorful rhetoric of opponents, allowed husbands to abandon their wives and children with impunity. (186) Schlafly's core constituency included women who had counted on the traditional marital bargain, only to feel that feminists had pulled the rug out from under them. ERA opponents argued that egalitarian marriage threatened financial and existential insecurity for women who had already chosen to specialize in caregiving. As the ERA ratification battle wore on, proponents increasingly emphasized how fragile the traditional marital bargain had been under the old regime of title-based property distribution and unpredictable alimony awards. They framed the ERA as a tool for equalizing the financial consequences of divorce by valuing homemakers' contributions to the marital household and enforcing divorced fathers' child support obligations. (187)

   By the mid- to late- 1970s, some had begun to question whether feminists had put the cart before the horse, as ACLU Juvenile Rights Project director and self-described feminist Rena Uviller suggested. "If sex-neutral custody laws presently either reflected a reality of pervasive shared child care during marriage or helped eliminate persistent sexual stereotyping in the job market, they would be a legitimate feminist objective," wrote Uviller. (188) But the economic and social reality of the late 1970s and early 1980s was no egalitarian utopia. "The practical fact remains that the male-dominated working world is not yet prepared to receive women on equal terms. Nor are fathers in meaningful numbers assuming equal child care responsibilities during marriage." (189) Fathers' rights organizations might couch their arguments in terms of sex neutrality and children's best interests, but Uviller detected "misogynist[ic] overtones" in their "excoriat[ion]" of wives as "blood-sucking parasites" and alimony as "an undiluted evil." (190) In light of severe and persistent inequalities in the workplace and at home, maintaining the maternal presumption was more like affirmative action than invidious discrimination. [A]t this point in history'," Uviller concluded, "the law should recognize a woman's option to keep the children whose daily care she has so disproportionately assumed." (191)

   Rising divorce rates converged with nonmarital childbearing to increase the number and visibility of single mothers and female-headed households in the 1970s, plunging even formerly middle-class women and children into poverty. Some feminists argued that for many poor women shared parenting was a pipe dream. "[T]he vast majority of mothers below the poverty line are single: either never married, separated, or divorced," Uviller wrote in 1978. "For them, the notion of shared child care ... is sheer abstraction." (192) Others doubted that paternal involvement in nonmarital families would benefit mothers, and resented the state's attempts to privatize dependence by forcing mothers either to identify their children's fathers and seek child support from them, or to lose public assistance. Feminists such as Aleta Wallach and Patricia Tenoso challenged the premise that women and children should be dependent upon men for sustenance, insisting that mothers should be "treat[ed] ... as an economic resource." (193) The focus on ascertaining paternity obscured alternatives, such as "adequate governmental support of all unmarried mothers and their children." (194) Increasingly aggressive measures to secure child support for poor children reduced welfare expenditures but provided paltry financial benefit to mothers. For mothers, the old nonmarital bargain of full parental rights in exchange for sole responsibility was eroding, and some feared that any expansion of nonmarital fathers' rights would come at their expense.

   In the context of marriage and divorce, feminists largely agreed on the end goal: to promote gender-egalitarian marriages and fairness at divorce. Their internal disagreement mostly concerned means: how best to achieve the legal and social changes required to transform the gendered division of family labor so that women and men alike could participate fully in breadwinning and caregiving. Feminists' disagreement about unmarried parenthood arguably ran deeper, and the feminist objective was less clear where a mother and father never consented to a legal bond with one another. Should the law encourage paternal involvement in nonmarital child rearing, or merely financial responsibility? Was unmarried mothers' primary responsibility for the care of their children inevitable, or malleable? What role should individual mothers' preferences about paternal involvement play in decisions about a father's rights and responsibilities? Was adoption by a two-parent family, if desired by the mother, a better outcome than giving custody to an unmarried father over the mother's objection? And to what degree should mothers be able to rely on the state for support in the absence of paternal involvement? By the mid- to late-1970s, internal feminist dissension over strategies and priorities in the fight for family equality had just begun to surface in public discourse; these disputes influenced litigation strategy in unwed fathers' cases in ways that would only later become visible.

   3. UNMARRIED FATHERS VS. HUSBANDS IN THE SUPREME COURT, 1978-79

   Stanley v. Illinois raised serious questions for established adoption law and practice. (195) Most states had long allowed adoption of illegitimate children without notice to the natural father, and some read Stanley's infamous footnote nine to require a dramatic expansion of unmarried fathers' procedural rights. (196) States scrambled to comply, implementing a patchwork of requirements reflecting the idiosyncratic regulation of parental rights generally. Almost half the states enacted statutes requiring notice only to fathers who were "either known, identified by the mother or ha[d] acknowledged the child." (197) A few states removed formal distinctions between legitimate and illegitimate children for adoption purposes, but in practice procedures developed to bypass paternal consent. In California, for example, a biological father could not object to an adoption if he did not "receive the child into his home and openly hold out the child as his natural child. (198) Adoption expert Ruth-Arlene Howe wrote that despite the initial panic and temporary halt in adoptions post-Stanley, by the end of the decade "the vast majority of states" placed on the unmarried father "the burden ... to affirmatively assert his paternal interests in the child" to earn the right to notice and a hearing. (199) Still, Stanley broke ground by giving many unmarried fathers the opportunity to have a say in their children's future.

   The prospect of enhanced rights for unmarried fathers troubled many...