What should family law do about divorcing parents? "Teach them a lesson," a legislative wave sweeping through the United States has answered. (1) As a result of the legislation, growing numbers of divorcing parents are required to attend "parent education programs," (2) turning these programs from a fad in family courts into an established and mandatory stop on parents' path to divorce. This legislation mandates informational classes that focus on the harm children suffer as a consequence of divorce and on behaviors parents should change in order to reduce the damage. This Article is the first to analyze the enactment discussions accompanying the legislation and to explore judges' extensive role in promoting and securing its passage. It demonstrates that despite its child-oriented goals, the legislation is preoccupied with casting a negative judgment on parents' decision to separate and with blaming parents for the negative effects of divorce. (3) This Article argues that this preoccupation with blaming parents has resulted in laws that do little to help children and much to belittle the tangible negative implications that divorce holds for parents, especially mothers. Doing so, the legislation downplays the role that legal, social and economic forces play in producing the undesired behaviors that classes currently try to eradicate. (4) Moreover, by laying the full responsibility for possible harm to children of divorce in individual parents' laps, states have also shirked their responsibility for these children.
Parenting class mandates are of further interest because they embody two often conflicting trends in family law. (5) One is a shift to consider ties between parents and children, rather than relationships between adults, as the core sources of legal obligation. (6) The second is a lingering adherence to the autonomous nuclear family ideal] Unlike contemporaneous suggestions for anti-divorce measures, such as waiting periods and covenant marriage, parenting class mandates were not designed to create an impediment to divorce. Nevertheless, despite the legislation's focus on the parent-child relationship, it still reflects an underlying conviction that it is wrong for parents to break up the marital family unit. (8)
In this Article, Part I explores the characteristics of legally mandated parent education programs. The programs are generally short, educational interventions and their main goal is to improve children's wellbeing during and after a divorce by teaching parents how to better interact with children and with each other. This Part argues that the literature documents programs' scant success in achieving their stated goals. The Article then makes a brief interlude, in Part II, to contend that although mandatory parenting classes appeal to common sense, we ought to challenge such a reaction in order to allow for a critical analysis of the legislation.
Drawing on previously unexplored legislative materials, Part III explores judges' and lawmakers' inflated estimation of the harm caused by divorce and analyzes its influence on the resulting legislation. This Part relies on substantial empirical work, gathering and analyzing detailed minutes and recordings of committee meetings, public hearings, and floor presentations and votes. The choice of states for this study was therefore influenced by the availability of these primary sources. Still, the information represents diverse states and the analysis shows patterns common to all of them. The primary source data is complemented by public reports, news reports and papers written by key players in the enactment process: judges, parent educators, and lawyers.
Part III.A highlights the extraordinary involvement of judges in the legislative process, a fact largely unnoticed in earlier studies. It shows that judicial discontent with divorce litigation, combined with an exaggerated judicial view of the harm caused by divorce, has been the motivating force behind the legislation. Part III.B examines legislators' perspective that divorce is a threat to society's moral order and challenges their assumptions. Part III.C exposes the substantial gap between lawmakers' goals for parent education legislation and the rather limited means they provided to achieve them. It argues that notions of divorce, analyzed in Parts III.A and III.B, were instrumental in concealing this gap, and constituted one factor leading to legislation that is largely ill-equipped to serve its goals.
Part IV shifts the focus of the inquiry from lawmakers' estimation of the magnitude of divorce's harm to their understanding of its causes. Part IV.A shows that legislators perceive harm to children as arising from personal flaws or failures of divorcing parents, as evidenced by the parents' decision to divorce--specifically, parents' selfishness or self-involvement. This Part goes on to argue that legislators' interest in confronting divorcing parents with the results of their allegedly detrimental actions has severely undermined the potential of these mandates to achieve their declared goal of helping children. Part IV.B develops further the claim that parent education mandates downplay the extent to which social, economic and legal conditions shape parents' behavior after divorce, especially gender roles and gender inequality. To conclude, this Article argues that judges and lawmakers should see divorce as no different from other stressful life events. If we want interventions targeting individuals, we should focus them on helping parents make the transition from married to divorced, as rapidly and painlessly as possible by preparing them to the structural problems they are likely to face upon separation. More importantly, this Article suggests that lawmakers should focus on changing these structural conditions instead of denying them through parent-blaming.
LEGALLY-MANDATED PARENTING CLASSES
Forty-six states now offer parent education programs. (9) In most states, at least some parents seeking a divorce or involved in custody proceedings are legally required to attend these classes, either by state statute (twenty-seven states), by judicial rules (six states), by county and district based mandates (five states), or by individual judges' decrees (three states). (10) In eighteen states the mandate is universal and all divorcing parents, and sometimes all parties to custody or paternity suits, are required to attend classes. In addition, in some of the states where the statutory language is permissive, courts have created a de facto universal mandate by ordering all parents in their districts to take the classes. (11) The universal mandates signal a clear departure from the few voluntary court-affiliated parent educational programs that have existed in some states since the 1970s. (12) Courts around the country take compliance very seriously and failure to attend can cost parents their visitation rights, (13) influence custody decisions, (14) or even--in rare cases--land a parent in jail. (15)
This Part examines the structure and content of parent education programs and assesses their accomplishments. While some variation exists in programs throughout the United States, they tend to share goals and features. It then includes a review of existing evaluations of program effectiveness. After examining the possible grounds for the stark gap between positive and negative evaluations, the Part concludes that the literature documents programs' scant success in achieving their desired goals.
Class Contents: Child-Focused Information
As their name suggests, parenting classes provide education, not therapy. (16) While some have rigid curricula and require training sessions and licensing for presenters, programs are more typically created through local initiative, using materials developed by experts in the field. (17) Program presenters are overwhelmingly mental health specialists and social workers, though some programs also rely on lawyers, court administrators, and judges. (18) Most are paid, though some volunteer. (19)
Parenting classes provide information, especially child-focused information.
Most of the statutes mandating parent education in cases of divorce share, at minimum, the goal of educating parents about the impact of divorce on children and about children's reactions and needs during and after parental separation. (20) Past surveys have found that most programs emphasize the detrimental effects of exposing children to inter-parental conflict and most intensively explore topics like parental cooperation, "badmouthing," and conflict resolution skills. (21) Frequently, programs also review the adult experience of divorce, reassuring parents that they are not alone in their struggle with post-separation hurdles and anxieties. (22)
Programs typically do not dwell on the legal aspects of divorce.
Some programs provide information about the legal process and the resources at parents' disposal to resolve their disputes. (23) However, a review of program course materials indicates that content focused on the legal process is relatively rare, whereas child-focused and parent-focused materials are by far the most common. (24) A nationwide survey of court-connected classes has found that, on average, programs dedicated about forty-one minutes to children's reactions to divorce and thirty-four minutes to parental response to these reactions. (25) Custody issues or parenting plans were discussed infrequently. When classes did discuss these subjects, they spent an average of twenty minutes on either topic. (26)
Few programs touch on financial outcomes of divorce.
Some programs do remind parents of their financial obligations to their children, though only six states statutorily require that programs do so. (27) Generally, financial issues, even when mandated, receive only minimal coverage. One survey found that while child-support obligations might be mentioned, support...