From Partners to Parents: The Second Revolution in Family Law.

• Author: Bix, Brian H.

FROM PARTNERS TO PARENTS: THE SECOND REVOLUTION IN FAMILY LAW. By June Carbone. New York: Columbia University Press. 2000. Pp. xv, 341. Cloth, $49.50; paper, $18.50.

INTRODUCTION

In From Partners to Parents: The Second Revolution in Family Law, June Carbone (1) offers nothing less than a whirlwind tour of the current doctrinal and policy debates of Family Law -- an astounding feat in a book whose main text (excluding endnotes and appendices) does not reach 250 pages. There seem to be few controversies about which Carbone has not read widely and come to a conclusion, and usually a fair-minded one: from the effect of no-fault divorce reforms on the divorce rate, (2) to the long-term consequences of slavery for the African-American family (pp. 67-84), to whether the Aid to Families with Dependent Children ("AFDC") program (prior to the recent reforms) influenced the number of nonmarital children (pp. 32-33, 96), just to name three. As it seems impossible to give a faithful overview in a few pages of a text which is already a remarkable work of concision, this Review will focus on three themes highlighted or implicated by the book: (1) the title theme -- the way family law has changed its focus from the behavior of adults within a marital or nonmarital relationship ("partners") to the behavior of adults towards their children ("parents"); (3) (2) the problems for legal reform when our choices are so deeply affected, and perhaps determined, by history and social norms; and (3) how an attention to history and culture can be used both to deepen and to oppose an economic approach to domestic relations. In connection with this third theme, this Review will also offer some brief comments on the modern hybrids of law and economics and family law scholarship.

1. FROM PARTNERS TO PARENTS

   There was a time when the common law (and society) created severe legal and socialhandicaps for children born outside of wedlock, with this being justified as a reasonable way to encourage marriage. (4) Starting in the late 1960s, the United States Supreme Court decided a series of cases holding that legal distinctions grounded on legitimacy were to be subject to heightened scrutiny. (5) Constitutional Law courses do not spend much time on this issue any more due to the fact that it is rare to come across cases, (6) in large part because the states have removed many of the laws that discriminate facially between what we now call "marital" and "nonmarital" children. (7) As a related matter, the Uniform Parentage Act, adopted by eighteen states, (8) has the purpose and effect of "providing substantive legal equality for all children regardless of the marital status of their parents...." (9)

   The removal of most legal disabilities for nonmarital children exemplifies the basic theme of Carbone's text: Within American family law there has been a growing doctrinal disconnect between the parents' relationship with one another and their rights and obligations regarding their children. (10) There was a time when one's rights and obligations towards one's children were defined in a large part indirectly, by one's relation to the children's other parent. Married parents had rights and obligations that unmarried parents lacked (p. 164), and one's chances of gaining custody after divorce (or even after the other parent's death) (11) depended on one's relationship with and behavior towards the other parent. Marital misbehavior, for example, would be "punished" by denial of custody (p. 181). The rights of nonmarital children, and the rights and obligations of unwed parents (especially unwed fathers) (12) to those children, are only the sharpest examples of this theme. Another prominent piece of evidence for the change of focus is the growing trend of courts to hold allegations of immorality by a parent irrelevant to a child custody decision unless and only to the extent that this alleged immorality affects the fitness of that person as a parent. (13) That approach has two apparent advantages: (1) it changes the focus more prominently to the interests of the child, rather than using the children as rewards for complying with societal norms; and (2) it reduces the number of times when courts must make controversial judgments about what is sometimes called "personal morality." (14) This approach, however, can also lead to problem cases: As Carbone notes (pp. 186-87), courts sometimes seem predisposed to ignore even bad acts that should be seen as evidence of parental unfitness -- most egregiously, domestic violence. (15)

   The growing legal disconnect between behavior to one's partner (the decision to marry, followed by proper marital behavior) and one's parental rights and obligations exemplifies a more basic shift in the way family life is structured, perceived, and regulated. There was a time when a combination of social norms and economic circumstances meant that a woman who was pregnant would either marry the father or give up the child for adoption; in an earlier era, such marriages lasted because divorce was difficult and often (especially for marital wrongdoers) expensive, (16) and because women, with limited prospects in the workplace and the legal disabilities under coverture, could rarely afford to leave a bad marriage (pp. 88-90, 95). Today, a man who gets a woman pregnant is less likely to feel obligated to marry her, and a woman will frequently be willing either to raise the child on her own or get an abortion (pp. 90-95).

   Carbone's attitude towards such changes in family life is implied more than expressed; it is a mixture of resignation and approval: resignation, in that the changes seem the result of our reaction and adaptation to other societal changes (for example, the greater equality of women, including greater workplace opportunities; and the greater availability of contraception and abortion); (17) and approval, in that the author, tacitly, seems to favor the greater autonomy and lower level of moral supervision and criticism of people's romantic, sexual, and marital lives. There is also a note of regret: however problematic the former approach to family life may have been in many ways (not least in its exploitation of women), it appears to have been largely successful in ensuring that children generally had the care of two parents, and that resources were passed from one generation to the next. Carbone raises reasonable doubts that our current approach to marriage, family, and children can work nearly as well (pp. 49-52, 126-27, 132).

2. THE IMPLICATIONS FOR REFORM

   Carbone gets to the heart of questions about family law reform and policy: "With the dismantling of the fault system [of divorce] that had championed the sexual division of marital labor, neither law nor feminism supplied what should be the core of family regulation -- the identification of the distinctive family values for the law to promote and protect" (p. 27). She is not referring to the "family values" of conservative political rhetoric, but simply the sense of having some vision of an ideal regarding how intimate and family life should be structured (and regulated) within society.

   In his dissent in Bowers v. Hardwick, Justice Blackmun wrote: "We protect the family because it contributes so powerfully to the happiness of individuals, not because of a preference for stereotypical households." (18) While that may be an accurate characterization of what the Constitution does or should protect, as a matter of policy it is dubious at best. We do have some notion as to the social benefits of marriage and families, even beyond their undoubted role in the happiness and fulfillment of individuals. Stable marriages and families may be valuable to society, not only as a good context in which to raise children, but also for the same reason that other intermediate institutions (whether volunteer organizations, social organizations, or religious institutions) are valuable to society's flourishing (pp. 38-40). However, even were we to have a clear sense of where we wanted to go -- which social institutions and family structures to strengthen and which to discourage -- it is far from clear how we can get there. As Carbone acknowledges, there are difficulties in "linking public policy concerns to individual behavior at a time when older norms have given way, and there is no consensus on their replacement" (p. 42).

   Carbone brings light and insight to many current family law debates by placing them in their larger historical context. She effectively uses history to undermine the arguments for certain current reform proposals, and to alter the way many family law issues are perceived. (19) However, her way of presenting our current social situation as the, perhaps inevitable, (20) result of long-term factors, factors largely beyond our control and more or less impervious to manipulation through law, works equally to undermine her own suggestions regarding legal and social reform. (21)

   If one goes back not just decades, but generations, even centuries, one comes across a family structure quite different from the one that predominates today: where the married couple and their children were very much a part of the larger community, and under the constant supervision of that community (pp. 100, 123-24). "The household was the basic unit of production and reproduction in a hierarchical society in which church, community, and family overlapped. Without clear boundaries between public and private, the individual never escaped supervision." (22) That family structure changed over time into one more recognizable to modern eyes. Borrowing a term from Milton Regan, Jr., (23) Carbone speaks of the "Victorian family" and describes it as developing around the eighteenth century in both England and America (pp. 99-100). Married couples gained separation from the community, with significant consequences: (a) the raising of children became the main responsibility of and, increasingly, the...