INTRODUCTION I. MARITAL FAMILY LAW A. Legal Rules B. Legal Institutions C. Gender Norms II. CHILDREN OUTSIDE THE LAW A. Nonmarital Families 1. A statistical portrait 2. A qualitative portrait B. Long-Term Consequences for Children C. Marital Family Law's Fundamental Mismatch 1. Legal rules 2. Legal institutions 3. Gender norms III. A THEORY OF POSTMARITAL REGULATION A. A Feminist Focus on Caregiving, Not Adult Relationships B. Marriage Primacy C. Neither Caregiving in a Vacuum nor the Marriage Cure: Centering Parental Relationships 1. The limits of the dominant discourse 2. An alternative model IV. POSTMARITAL FAMILY LAW A. Rules: Encouraging Co-Parenting B. Institutions: Assistance for Family Transitions C. Norms: Fathers as Breadwinners and Caregivers D. Anticipating Resistance 1. Harmful to mothers? 2. Harmful to children? CONCLUSION INTRODUCTION
There has been a sea change in family form in recent decades, with marriage no longer at the center of family life for increasingly large swaths of the American public. Nearly 41% of all children are born to unmarried parents, with even higher levels in some demographic groups. (1) This shift away from marriage has come quickly, with nonmarital births increasing from 18% of all births in 1980 and 33% of all births in 2000. (2) Nonmarital families tend to differ from marital families in important respects. Unmarried parents generally are younger, are lower income, and have lower levels of educational attainment than married parents. (3) Most are romantically involved at the time of birth but typically end their relationship soon afterwards. (4) Unmarried parents then often find new partners and have additional children, forming what sociologists call "complex" families. (5)
This trend began among low-income families and is still concentrated there, but nonmarital childbearing is starting to spread across class lines, with the largest increase in nonmarital childbearing occurring among middle-income families. (6) Marriage, particularly long-term marriage that does not end in di- vorce, is thus increasingly becoming an institution concentrated among the most privileged families. (7)
Children of unmarried parents fare much worse on a variety of metrics than children growing up with married parents. (8) Poverty and factors such as parental education explain much of this differential, but there is increasing evidence that family structure is an independent causal factor. (9) The connection between family structure and child outcomes is rooted in developmental psychology, particularly in a child's need for strong, stable, positive relationships. (10) The stress and distraction of managing complex families--particularly the jealousy of new partners and the challenge of sharing a biological father across families--means that many mothers, who are almost always the custodial parents, do not provide children with the attention critical to early childhood development and instead use harsh parenting strategies. (11) Complex family structures also lead fathers to disengage from their children. This dynamic is complicated, but it is driven at core by fractious relationships between mothers and fathers and the difficulty of maintaining ties with different households. (12) Children who grow up without supportive relationships are at a distinct disadvantage in a host of contexts, including education, the workplace, health, and future family formation. (13)
Family law is a critical but often unappreciated part of the problem, contributing to the differential outcomes for children born to unmarried parents. Family law places marriage at the very foundation of legal regulation. Indeed, the most fundamental divide in family law is between married and unmarried couples, and this schism carries over to how the law addresses nonmarital children. Legal institutions created to oversee the family, particularly upon divorce, are designed for married families that have been formally recognized by the state. And traditional gender norms, establishing economic support as the sine qua non of fatherhood and day-to-day caregiving as the hallmark of motherhood, still inform much of family law's approach to legal regulation, particularly in the conception of legal fatherhood. Together, this amounts to what this Article calls "marital family law."
Marital family law is hardly ideal for the married families it governs, (14) but it wreaks havoc on the nonmarital families it excludes. (15) Drawing on a growing body of sociological research, this Article argues that the fundamental mismatch between marital family law and nonmarital family life undermines relationships in nonmarital families. First, marital family law's doctrine fosters what sociologists term maternal "gatekeeping," (16) where mothers control fathers' access to shared children. Unlike when a child is born to married parents, when a child is born to unmarried parents the mother automatically gains sole custody (17) of the child under many state laws. Without rights to custody, fathers see their children only if they are able to stay on good terms with the mothers of their children. (18) Marital family law also exacerbates existing acrimony between parents. Child support laws, which are relatively effective for divorcing families, impose unrealistic obligations on unmarried fathers, many of whom have dismal economic prospects. (19) The failure to satisfy child support requirements fuels animosity between unmarried parents, many of whom are already experiencing difficulty co-parenting. (20)
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 postdivorce family life. Although the court system is open to unmarried couples, they do not need the state to end their relationships, and most cannot afford to go to court to formalize issues such as custody. (21) This means that 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. Thus, unmarried parents do not have the benefit of clearly estab- lished expectations for their rights and responsibilities following a breakup. As a result, mothers generally continue as de facto gatekeepers to shared children, and parents fight about who should do what for the children. (22)
Finally, marital family law's reinforcement of traditional gender norms, while anachronistic for many married couples, is starkly at odds with the reality of nonmarital family life. Most unmarried fathers struggle to support their children economically, and most unmarried mothers are both full-time caregivers and breadwinners. (23) Marital norms thus deem unmarried fathers failures, undermining their place in the family by telling mothers and children that fathers are not acting as they should. In all these ways, marital family law weakens the already tenuous bonds that tie nonmarital families together.
It is essential to develop a more inclusive family law, better suited to the needs of both marital and nonmarital families. There are two dominant frameworks for responding to the decline of marriage, both unsatisfying. Some feminist legal theorists, such as Martha Fineman, have long criticized the hallowed place of marriage. In lieu of marriage as a legal category, these feminists argue that the state should focus regulation and support on parent-child relationships. (24) By contrast, other commentators argue that the state should restore the institution of marriage to promote social cohesion and ensure that children are cared for by their parents. To do so, these commentators argue, the state should provide incentives to marry, eliminate disincentives to marry, and make it harder to divorce. (25) Given the strong social norms that accompany marriage, this marriage primacy perspective favors marriage over other types of relationship recognition. (26)
Both approaches, however, fundamentally misunderstand the reality of nonmarital families. The feminist argument described above fails to recognize that the relationship between parents is central to the functioning of the family and the well-being of children. And the marriage primacy argument fails to appreciate that marriage alone cannot address the multiple structural challenges nonmarital families face that also drive child outcomes. It is unsurprising, then, that marriage promotion programs are largely ineffective. (27)
Aligning family law with contemporary family life is more normatively attractive than decentering parental relationships or quixotically trying to recapture marriage. Accordingly, this Article proposes a new theoretical framework for the regulation of nonmarital families. This new understanding begins with the premise that although we are increasingly witnessing the separation of marriage from parenthood, we cannot separate relationships from parenthood. Whether unmarried parents get along deeply affects how they parent their children. If they do get along, both parents are better able to provide their children with the relationships necessary for healthy child...