Postmarital family law: a legal structure for nonmarital families.

• Author: Huntington, Clare
• Position: II. Children Outside the Law B. Long-Term Consequences for Children through Conclusion, with footnotes, p. 196-240

2. Long-Term Consequences for Children

   There are a number of different consequences that flow from the trend toward nonmarital childbearing, but the most important is the long-term effect on children. There is overwhelming evidence that children raised by unmarried parents have worse life outcomes than children raised by married parents. (165) Studies show that these children score lower on measures of academic achievement (166) and academic self-concept, (167) do not stay in school as long, (168) are more likely to show negative behaviors such as aggressiveness, (169) are more likely to use illegal substances and have contact with the police, (170) are more likely to have sex and begin bearing children at an early age, (171) have worse physical and mental health outcomes as adults, (172) and earn less in the labor market as adults. (173) Differential outcomes persist even when children live with two cohabiting but unmarried biological parents. Data from 40,000 nationally representative households reveal that children living with cohabiting parents fare worse than children living with married parents, as measured by a child's performance in school and behavioral problems. (174) In other words, the difference in outcomes is between marital and nonmarital families, not between single-parent and two-parent families. (175)

   At first glance, it seems this difference in outcomes must be attributable to the family form because family structure is such a strong predictor of child outcomes. It turns out, however, that much of the difference can be attributed to other factors that tend to accompany family structure, such as income level and parental education. In the study of the 40,000 families, for example, once the researchers controlled for poverty and parental resources, the differences between the groups were far less pronounced. (176) This is not terribly surprising given the clear connection between income and educational outcomes. (177)

   The question is whether the factors correlated with family structure fully explain the different outcomes for marital and nonmarital children or whether family structure is an additional causal factor. (178) The Fragile Families researchers are concluding that there is a causal relationship between family structure and child outcomes. The assessment of the two principal investigators, Sara McLanahan and Irwin Garfinkel, is that although the factors associated with nonmarital childbearing, including lower income, lower levels of parental education, and so on, certainly contribute to the worse outcomes for nonmarital children, these factors alone cannot fully explain the difference. (179) Instead, they believe that the new approach to family life discussed above--with young adults having a child early in a relationship without first deciding that the current partner is a suitable long-term mate--leads to higher levels of relationship instability and multipartner fertility, factors that themselves contribute to worse outcomes for children. (180)

   To appreciate how relationship instability and multipartner fertility affect child outcomes requires an understanding of the dynamics of the parent-child relationship and child development. (181) Attachment theory posits that for healthy child development, a child needs a consistent caregiver who can provide a "secure base" for the child's exploration of the world. (182) Recent neuroscience research confirms the importance of relationships during early child hood to brain development. (183) And studies have established that academic achievement has deep roots, beginning in the first few years of life and turning on the relationship between a child and a caregiver. (184)

   Relationship instability influences the parenting behavior of both mothers and fathers in ways that make it harder for children to get the attachment relationships and attention they need for healthy child development. Beginning with mothers, there is evidence that a transition in partners has a negative effect on maternal parenting. The transition is correlated with an increase in a mother's stress level. (185) This stress, in turn, affects the quality of her parenting, with mothers using harsher discipline and engaging in fewer literacy activities. (186)

   Family instability also affects parenting by fathers. The problem is that when relationships between unmarried parents end, fathers slowly disengage from the family. Children thus lose out; studies have found numerous benefits for children when nonresidential fathers maintain a high-quality relationship with their children. (187)

   Paternal involvement is particularly sensitive to the presence of the mother's new partner. When she has a new relationship, the biological father reduces both the quantity and quality of his contact with his child. (188) If the mother leaves the new partner, the biological father's involvement increases again. (189)

   And the mother's new partner is not necessarily an adequate replacement for the biological father. Earlier research indicated that mothers' new partners (whether married or unmarried) typically invested less in the children than the biological fathers. (190) More recent research, however, suggests that new partners may be doing more parenting than previously thought, (191) although many questions remain. (192)

   Multipartner fertility also affects the parenting of both mothers and fathers. When a mother has a child by a new partner, her family and friends are less willing to help out, especially financially, increasing the economic strain on the mother and making it harder for her to care for her children. (193) And when a father has children with multiple partners, the quality of his relationship with his current partner is diminished and the relationship is less likely to last, often because of jealousy of the father's other children and former partners. (194) When the new relationship does end, the poor quality of the relationship makes it harder for the father to co-parent the most recent child, meaning he is likely to disengage from this new family as well. (195)

   In sum, family instability and multipartner fertility are additional causal factors that influence child outcomes because both practices affect the quality of parenting, the kind of attention children receive, and the investment by fathers in the family.

   As the next Subpart demonstrates, marital family law is part of the problem, making it much harder for parents to get along with each other and provide their children with the relationships that are critical to child development.

3. Marital Family Law's Fundamental Mismatch

   As the narrative portrait makes clear, relationships that lead to nonmarital childbearing are tenuous from the start and unlikely to last. One problem with marital family law is that it fails to offer unmarried couples a legal status that might be more appealing culturally and socially (196) and that might, in turn, help solidify the relationship between the parents. But given the tenuous nature of the bond between the parents and the limited economic and social resources of the men, it is far from clear that family law should try to cement the relationship through marriage. The bigger problem with marital family law, then, is that it does not help unmarried parents develop a co-parenting relationship that would defuse conflict and enable both parents to provide children with the attentive, responsive relationships they need. Co-parenting outside of a committed relationship is challenging, but marital family law makes it particularly difficult for unmarried parents.

   As elaborated below, marital family law's legal rules encourage maternal gatekeeping and increase acrimony between parents. Marital family law's reliance on the court system to help families transition from a romantic relationship to a co-parenting relationship leaves many unmarried parents without an effective institution to help them negotiate this transition. Finally, marital family law's reinforcement of traditional gender norms casts unmarried fathers as failures in the eyes of children and mothers.

   1. Legal rules

      Marital family law's rules harm nonmarital families in two important ways. First, marital family law empowers mothers to determine whether and when fathers will see their children. This gatekeeping is a problem because of the developmental importance of strong relationships with caregivers. When fathers do not see their children consistently, it is much harder for them to provide their children with the time and attention necessary for child development.

      As explained in Part I, marital family law is solicitous of the relationship between married fathers and their children. The marital presumption ensures that married fathers are automatically considered legal fathers. The vast majority of married fathers live with their children at birth, so custody is not an immediate concern. And if marriages end, courts will issue legally binding orders determining exactly when and where fathers will see their children.

      Unmarried fathers have none of these protections. (197) They are not automatically granted parental rights at birth. (198) Instead, family law insists that an unmarried father prove his fatherhood by, for example, signing a "voluntary acknowledgment of paternity," (199) living with the child for two years and holding the child out as his own, (200) initiating a legitimacy action, (201) or, if he is unsure if a child even exists, placing his name on a putative father registry. (202)

      Even if a man is considered a legal father, this does not necessarily mean he has custody or a right to visitation. Marital family law assumes the child is living with both parents; therefore, most states do not have a default rule allo cating custody between parents at birth. (203) If a state does have a default rule, it strongly favors the mother: in fifteen states, when a child is born to unmarried parents, the mother automatically...