Rhetoric, Divorce and International Human Rights: The Limits of Divorce Reform for the Protection of Children

• Author: Barbara Stark
• Position: Visiting Professor, Hofstra University School of Law
• Pages: 1433-1453

Visiting Professor, Hofstra University School of Law. I am deeply grateful to Professor Lucy McGough and the Louisiana Law Review for inviting me to participate in this Symposium and to the other panelists for their illuminating presentations and very helpful comments. Patricia Kasting, reference law librarian at Hofstra, provided invaluable research assistance.

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I Introduction

When I was very young and impressionable (about nine) there was a feral cat in the neighborhood who gave birth to four scrawny kittens, although she did not look much bigger than a kitten herself.Page 1434 Her nest was in the recess of a basement window of the garden apartment where we lived. A day or two later, there was a terrible storm and I ran home from school to see the kittens mewling in the rising water as their mother howled, distraught and clueless, nearby. After quite a bit of mewling and howling on my part, my mother agreed to let me bring them in the house. We could not catch the mother, but we placed the kittens on a folded piece of flannel in a basket, put them near a warm radiator, and tried to feed them with a dropper. They all died within twenty-four hours. Years later, a friend at college had a cat who had kittens and I saw what a mother cat actually did. It was only then that I realized that, without the mother, those earlier kittens had not had much of a chance.

This conference is grounded in a similarly deep, primal, intuitive understanding. We realize the terrible vulnerability of children. We realize that, in general, parents are their best hope for survival or, less melodramatically, for a decent life. These are dangerous times and we live in a dangerous world. It is the job of parents to protect their children from drugs, violence, disease, hunger, and child molesters, to provide them with nutritious meals and adequate healthcare.

Divorce often makes this job harder. Since it takes a parent out of the home, and often takes everyone out of the home, it reduces the number of on-site adults available to protect the child from whatever dangers are out there. At the same time, divorce may well increase the child's potential exposure to the storms of economic need as well as the predictable traumas of divorce itself, including anger, guilt, and emotional loss. As recent studies confirm, American children are increasingly at risk. Thus, a Symposium focusing on the protection of children is important and timely and I would like to thank Professor Lucy McGough, Alison Cain, and the Louisiana Law Review for inviting me to participate.

But like an ungrateful cur, to mix metaphors, in this paper I bite (or at least snap at) the hand that feeds me. "Divorce Reform for the Protection of Children" contains three premises that I would like to challenge. First, it tacitly assumes that divorce reform can protect "children" in general, rather than a relatively small, and quite demographically distinct, population of children in particular. Second, it assumes that divorce itself poses a danger to these children. Third, it assumes that the law should step in to avert, or at least manage that danger. This paper interrogates each of these propositions.

My project may strike some as painfully obvious. Of course there are bigger, broader threats to American children, but this conference is not about the top five threats to American children; it is about divorce. Surely we can make divorce less difficult and less painfulPage 1435 for children and surely that is worth doing. There is an impressive assembly of brainpower in this Symposium devoted to precisely that.

But my thesis here is that first, there are built-in costs and built-in limits to this particular approach. Second, both can be constructively addressed by re-situating the discussion of the protection of children in the broader rhetorical framework of human rights law.

This paper is divided into four parts. First, I want to ask, "Protect which children?" My second question is, "From what?" The third question is, "Is this a job for law?" Finally, drawing on the answers to these questions, I propose an alternative framework that protects more children, at greater risk of graver dangers, within a well-established legal framework. Specifically, any discussion of the protection of children should be situated in the broader context of international human rights law, starting with the Convention on the Rights of the Child (hereafter the "Children's Convention" or "CRC").¹

II Protect Which Children?

As Jacobus tenBroek noted forty years ago, there are two systems of family law in America, one for the rich and one for the poor.² Divorce is primarily for the former, welfare laws are entirely for the latter. This has not changed. As my colleague John Gregory recently noted in commenting on the ALI Principles on Family Dissolution, "They should be called 'the ALI Principles for the Rich and Famous.'"³

Situating the "protection of children" in the context of divorce assumes a pre-tenBroek world that fails to recognize that divide.⁴ By doing so, it begins by leaving out the most vulnerable children-those with no parent to protect them, including children in the foster care system. More than 125,000 children in foster care are waiting for permanent placements.⁵ By omitting these children,Page 1436 moreover, the damage caused by the foster care system itself is ignored. As Dorothy Roberts has recently pointed out, children of color are vastly overrepresented in this system.⁶ Black children comprise roughly one-fifth of the population, but two-fifths of the children in foster care.⁷ Children of color comprise one-third of the population, but sixty percent of the children in foster care.⁸ Professor Roberts cites sociologist Robert Hill for similar data on Native American children.⁹ Roberts painstakingly documents not only the devastating impact of the removal of these children on the children themselves, but on the communities they leave behind.¹⁰ This includes, of course, the children in those communities who are not removed, but learn that being taken away by strangers from your family and your home is always a possibility.

In addition, situating the "protection" of children in the context of divorce leaves out the growing number of children unlikely to ever be affected by divorce because their parents are not married. Currently, approximately thirty percent of American children are in this category.¹¹ These children are disproportionately poor, compared both to children in general and to children of divorce in particular. Thus, they are in greater need of protection from the risks posed by poverty, which, as discussed below, are among the most serious risks confronting American children.

III From What?

This Part analyzes the real risks affecting American children. Children are in danger. There is a storm, but it is neither caused by divorce nor limited to children of divorce. In fact, focusing on those children not only erases most of the children at grave risk in this country, but also distorts our basic understanding of those risks.

A Risks Facing American Children

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1. Poverty

As Abraham Maslow noted decades ago, the satisfaction of basic needs-food, shelter, healthcare-is necessarily the first priority.¹² It is only after these basic needs are met that we can function as productive, contributing members of society. The impact of poverty on children may be particularly damaging, physically as well as psychologically, because it impedes or precludes normal development. The earlier a child falls behind, the harder it will be for her to ever catch up. James Heckman, the Nobel prize-winning economist, suggests that if disadvantaged children fail to acquire life skills at an early age, it becomes increasingly difficult for them to do so.¹³

Poverty affects every aspect of a child's life and its impact in one area, such as substandard housing, is likely to exacerbate its impact in another, such as health.¹⁴ The examples provided below, accordingly, are merely intended to serve as illustrations. There are many other indicia of children's well-being affected by poverty, such as literacy, hunger, and access to mental health care. The multiple consequences of poverty interact with each other and are cumulative. Thus, the effects, such as poor performance in school, are over-determined and often resistant to piecemeal reform.

a Health

Although the United States boasts some of the best hospitals, research centers, and medical specialists in the world, it falls below most of the other industrialized democracies in terms of providing healthcare for the poor. The evisceration of social safety nets through "the end of welfare as we know it" in the mid-nineties¹⁵ and the BushPage 1438 administration's relentless campaign against social welfare programs¹⁶ has deepened the crisis, as shown in Table 1, Appendix A.¹⁷

b Education

The impact of poverty on education is similarly well-documented, as shown in Table 2, Appendix A.¹⁸

Some neoconservatives have argued that the relationship between poverty and low educational achievement is one of correlation rather than causality; i.e., that low native intelligence produces both.¹⁹ Although these arguments have been refuted repeatedly, and rejected by educators, the Bush administration has refused to provide the resources needed to upgrade schools in low-income areas. Instead, the...