ABSTRACT
Although family law has traditionally focused on marriage as the framework for supporting children, the modern family is increasingly developing outside of marriage. As such, we must consider whether family law does enough to support the children of nonmarriage, who have less resources available to them, receiving less parenting time and less child support and suffer poorer outcomes on a range of wellbeing indicators. A wave of suggested reforms has posited that the way to customize family law to the context of nonmarriage is to focus on solidifying co-parent relationships through recognizing a co-parent legal status and awarding rights and imposing obligations as between biological parents more fairly, thereby placing ‘marriage-like’ trappings on unmarried parents. In this article, I argue that this approach misses the opportunity to focus on the needs of children first and directly instead of expecting benefits to trickle-down from stronger relations between co-parents. Given the different circumstances involved, I caution against the impact of potential negative side effects of such reforms for children. Instead, I focus on how children of nonmarriage can be supported directly, by supplementing biological parents’ care with additional parental figures – stepparents, birth parents, grandparents, and functional parents, who together can create a web of care that improves children’s wellbeing. The parental web I envision is inclusive and stratified, allowing room for both biological parents in addition to other functional and third-party caregivers, but doing so in a manner the preserves the dominance of the primary caregiver. This framework focuses on the way the law can support cooperation among a variety of parental figures, perhaps idealistically, leaving aside concerns about fairness and equality in adult-centered disputes. Such idealism, however, reflects the reality of how care is provided and is perhaps more practical than legal mechanisms that impose the trappings of marriage on those who are unmarried.
Laufer-Ukeles, Pamela, The Children of Nonmarriage: Towards a Child-First Family Law (January 20, 2022). Yale Law and Policy Review, 2022.
First posted 2022-01-28 14:00:16
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