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Postmarital family law: a legal structure for nonmarital families.

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 development. Postmarital family law, then, recognizes that relationships between parents are critical to caregiving and child well-being even if parents are not romantically involved, let alone married. Thus, the state's goal should be to strengthen functional parental relationships in order to foster co-parenting. This, in turn, would help fathers remain engaged with their children and would enable mothers to better meet their children's needs. (28)

This approach reflects two principles. First, children benefit when they have a high-quality relationship with both parents. (29) Second, the law should not assume that unmarried parents, and especially unmarried fathers, are categorically different from married parents. In an age of declining marriage rates, the law should not use marriage to determine which fathers are committed to their children. Instead, the law should treat both marital and nonmarital families as a whole (two parents and a child), in contrast to its current approach to nonmarital families (mother and child with the father on the side).

To instantiate this theory of postmarital family law, this Article proposes critical reforms to family law's legal rules, institutions, and social norms. First, it is essential to have a new regulatory and doctrinal landscape that defuses maternal gatekeeping and decreases acrimony between parents after their romantic relationships end. This Article thus recommends several changes to family law, most importantly a new legal designation of "co-parent" that underscores the enduring nature of parents' connections to each other through parenting. It similarly argues for the decoupling of marriage and parental rights, with new default custody rules that give both parents an automatic right to legal and physical custody upon birth as well as reforms to child support to smooth fractious relationships between parents. (30)

To address the problem that nonmarital families do not have effective institutions to help forestall conflict and transition from romantic relationships to co-parenting, this Article proposes the creation of alternative dispute resolution structures. A promising example is Australia's use of family relationship centers, which offer free, readily accessible mediation services in the community, not the courts, to help unmarried parents move into co-parenting relationships and get into the habit of cooperating. (31)

Finally, to develop new norms that do not paint unmarried fathers as failures, and instead broaden their roles to include both caregiving and breadwinning, this Article proposes changes to the child support system. Recognizing that many unmarried fathers want to play a larger role in their children's lives, and that they are unlikely to become meaningful breadwinners on their market earnings alone, postmarital family law would supplement the wages of unmarried fathers and also ensure that fathers have custody orders in place so that their ability to maintain relationships with their children is secure. (32)

The shift toward the nonmarital family is the most important challenge facing family law today, and it is essential to think critically about how to occupy the legal space left open by the retreat of marriage. Yet existing literature does not adequately address this phenomenon. Scholars recognize that marriage is at a crossroads and that marriage rates are declining, (33) and some scholars have focused on discrete questions such as the role of the child support system in driving fathers away from their families. (34) But legal scholars are only beginning to engage in a larger debate about how family law as a whole--on both a theoretical and a practical level--should respond to the decline of marriage and the rise of complex families. (35) This Article is thus a crucial step in preparing family law for a world in which marriage is in retreat.

To be clear, this Article is not proposing a complete dismantlement of marital family law. For those couples who do marry, the basic goals of marital family law--reinforcing relationships to prevent breakdown and helping parents transition to a co-parenting relationship if a marriage does end--are not inher- ently problematic, although perhaps imperfectly realized. (36) The difficulty is the mismatch between marital family law's rules, institutions, and norms and the particular needs of nonmarital families.

Accordingly, this Article's proposals are not postmarital in the sense that they assume marriage will or should completely disappear. Rather, family law should be postmarital in the sense that marriage is no longer a major dividing line in the regulation of families and in the sense that family law responds to the needs of both marital and nonmarital families.

The Article proceeds in four Parts. Part I explains the genesis and continuing pull of the deeply entrenched marriage-based paradigm for family law. Part II explores the sea change in family form, the consequences of this shift, and the causal role of family form in contributing to unequal outcomes. It then illuminates the role that marital family law plays in this dynamic. Part III critiques the reigning theoretical approaches to legal regulation and proposes a new theory of postmarital family law that focuses on the relationship between the parents as a means of promoting child well-being. Part IV offers several illustrative reforms that embody this new theoretical framework, focusing on the relationship between mothers and fathers. (37)

I. MARITAL FAMILY LAW

Marriage is so ubiquitous in family law that it is easy to overlook its presence. (38) Our legal system, however, has always used marriage as the focus for the regulation of families and continues to do so today. Since the creation of the United States, individual states have held a monopoly on the entrance to and exit from marriage, and the state largely organizes its approach to family through this binary of married and unmarried adults. (39) Rules about marriage, moreover, have always been more than simply a regulatory regime; they reflect prevailing views on both morality and theology. (40) And marriage laws have also been a means for social experimentation, with the state using regulation of the family form to change society. (41)

Family law today is still largely centered on marriage. With a few exceptions, the law no longer directly penalizes children born to unmarried parents (42)--formerly, "illegitimate" children--but the marital family remains the paradigm. The legal rules governing the family draw a sharp line between married and unmarried couples, and this distinction carries over to doctrines governing parental rights. Legal institutions governing family dissolution are designed for, and primarily used by, marital families. Further, family law reinforces gender roles associated with traditional married families, with fathers as breadwinners and mothers as caregivers. This Part describes this framework, arguing that family law as it exists today should be understood fundamentally as marital family law. (43)

A. Legal Rules

Beginning with the legal rules governing the family, the central dividing line in family law is marriage. As the marriage equality movement highlights, legal marriage is a powerful institution that comes with a host of tangible benefits and deep emotional resonance. (44) Moreover, family law insists on legal mar- not its functional equivalent. Thus, couples who live together but are unmarried--cohabitants--are not treated the same as married couples. Individual states have different rules, but the dominant approach draws a clear distinction between married and cohabiting couples, with the latter receiving far fewer of the rights and obligations associated with marriage. (45) If a marriage ends, for example, courts may grant spousal support to the less economically stable spouse and will divide property equitably, without regard to who paid for it, thus imposing a strong norm of economic sharing. (46) By contrast, courts treat unmarried cohabitants as separate economic units, with claims for spousal support possible but rarely granted and property typically retained by whoever paid for it. (47)

This privileging of marriage carries over to the parenting context. The doctrine of parental rights is skewed strongly in favor of marital families. Most states have some version of the marital presumption, (48) which provides that any child born to the wife of a married man is presumed to be the child of the husband as well as the wife; thus, the father does not need to take an additional step to establish parental rights over his child. (49) Additionally, family law assumes that parents live together--as most married couples do--and thus that there is no need to determine custody at birth. In most states, then, the law is silent as to the custody of newborns. (50)

In these ways, the legal rules tend to use marriage as a proxy for a meaningful family relationship. In the case of certain rights and privileges, legislatures and courts believe marriage is a necessary condition for receipt of benefits. In the case of parenting and the marital presumption, legislatures and courts consider marriage a sufficient condition to presume commitment and closeness, regardless of actual family circumstances.

B. Legal Institutions

Family law's institutional response to familial conflict flows from the marital framework. Married couples need the state to dissolve their legal relationships, and the state uses one formal mechanism for this process: the court system. (51) Through courts, the state helps divorcing couples restructure their lives, and one of the state's central goals is to ensure that those couples will continue in their roles as co-parents.

When a divorcing couple goes through the court system, they leave with custody and child support orders in place. Often the couple will have a detailed, legally binding parenting plan that specifies how they will address myriad co-parenting issues. (52) The significance of the custody order cannot be overstated. As a practical matter, it gives the nonresidential parent (overwhelmingly the father) the right to see the child at specified times, rather than leaving this to the discretion of the residential parent. (53) On a symbolic level, the custody order reinforces the importance of the child's continued relationship with both parents. (54) Additionally, the parenting plan is an important mechanism for forestalling conflict, helping a couple think through tricky issues before they arise.

There are also court-related resources to help parents adjust to their new roles as co-parents. Court-appointed parenting coordinators, for example, work with parents to develop concrete plans for parenting and then help parents resolve the disputes that often arise. (55) Similarly, some courts offer parenting programs to help parents learn how to work together after the divorce. (56) These programs have been effective at decreasing conflict between divorced parents. (57)

There are numerous problems with the court system, (58) and it can introduce or exacerbate acrimony, but it does provide an institutional platform for families to adapt to new circumstances and establish clear and legally enforceable rights to custody and support.

C. Gender Norms

Finally, family law draws upon and reinforces traditional gender norms based on the marital family, with mothers as caregivers and fathers as bread-winners. (60) Historically, one of the goals of marriage was to facilitate "specialization," with wives caring for children and husbands earning a family wage. (61) Today, even though married couples increasingly share the breadwinning and caregiving roles, (62) family law still reinforces, or at the very least reflects, these norms.

The implementation of child custody rules is an example of the continuing force of gender norms. Although these rules are facially gender neutral, in practice mothers are far more likely than fathers to have either sole physical custody or a disproportionate share of physical custody. (63) This does not necessarily mean that the system is biased. The discrepancy could be explained by an unequal division of labor before the divorce, with the custody order simply reflecting the predivorce division of labor. (64) Alternatively, it could be explained by fewer men seeking sole or primary physical custody. (65) It is notable, however, that when states amend their custody laws directing courts to maximize the time a child spends with each parent, (66) custody orders are far more likely to reflect equally shared custody and less likely to reflect sole physical custody for the mother. (67)

It is hard, then, to conclude definitively that the court system is biased in favor of mothers, and there are legitimate reasons to be concerned about mandating custody-sharing regimes. (68) But both the placement outcomes and the resistance to shared custody rules is some evidence that family law still embraces traditional gender roles.

Similarly, child support rules are facially gender neutral, with both parents having a legal obligation to provide economically for children. But in practice, it is overwhelmingly fathers who pay child support, because the children of divorced parents primarily live with their mothers. (69) Even more fundamentally, child support laws focus only on the economic contributions of the noncustodial parent, requiring that parent to provide money, but not time or attention, to a child. (70)

Indeed, in most states, the child support system operates independently of the system for determining child custody and visitation. With limited exceptions, states do not require a visitation order as a prerequisite or corequisite to the imposition of a child support order. And in many states, an administrative agency, not a court, is empowered to issue a child support order, further bifurcating child support and custody. (71) Consider, too, the extensive legal apparatus designed to enforce child support obligations, (72) with federal incentives for states to collect payments. (73) This system is not designed to ensure noncustodial parents have visitation orders in place, (74) and unlike the incentives to collect payments, there is no corresponding set of incentives for states to establish and enforce visitation orders. The child support system thus reinforces the idea that a father's most important contribution is financial and that this alone is sufficient.

The interplay between legal rules and social norms is complex. (75) However, the traditional gender norm that fathers provide economic support and mothers care for children informs and is reinforced by the implementation of the rules governing child custody and child support.

II. CHILDREN OUTSIDE THE LAW

Family law may be based on marriage, but family life increasingly is not. The American family is undergoing a seismic shift, with marriage rates sharply declining for large portions of the population. (76) These changes have become a point of political contention, with right-leaning commentators decrying the loss of marriage (77) and left-leaning commentators arguing that all family forms deserve respect. (78) The truth, of course, is more complicated. Simply marching a couple down to city hall and issuing a marriage license will not ensure that the parents stay together and give their children the attention they need, nor does it address the multiple factors affecting child outcomes, most notably poverty. Conversely, ignoring the influence of family form means policymakers are missing an important source of inequality. (79)

This Part first describes the enormous increase in nonmarital families and the likely impact of this family structure on child outcomes and inequality. It then argues that family law is part of the problem. A fundamental mismatch between marital family law and the needs of nonmarital families destabilizes nonmarital families, affecting both the quality of parenting and a parent's ability to remain in a child's life. In particular, the mismatch increases the stress and friction in a mother's life, in turn affecting the quality of her parenting. The mismatch also makes it more difficult for a father to maintain any relationship with his child. When children grow up without the kind of attention needed for child development, it is much more difficult for them to thrive at school and beyond, virtually ensuring that inequality will only grow.

A. Nonmarital Families

Social scientists have been studying nonmarital childbearing for decades, and there is now an extensive body of research identifying the strengths and weaknesses of these families and how they differ from marital families. Quantitative social science research, such as the ongoing Fragile Families and Child Wellbeing Study, (80) is painting a rich statistical portrait of the differences between marital and nonmarital children. The study is following nearly 5000 children born to both married and unmarried parents between 1998 and 2000. (81) The researchers are trying to identify the resources and abilities of unmarried parents, with a particular focus on fathers; explore the relationship between the unmarried parents; assess the well-being of the children in the families; and gauge the effect of different policies and environmental conditions on both parents and children. (82) In addition to this and other empirical studies, scholars have been using in-depth ethnographic studies to develop a nuanced and multidimensional narrative portrait of unmarried mothers (83) and unmarried fathers. (84)

This Subpart draws on this research to limn the contours of contemporary nonmarital families, emphasizing several often-counterintuitive points. As elaborated below, nonmarital pregnancies, although generally unplanned, typically occur within the context of a romantic relationship, and the man greets the news of impending fatherhood with excitement and anticipation. Despite this early optimism, most couples do not stay together, and even fewer get married. After the relationship ends, the child lives with the mother, and, because he typically does not get a custody order, the father is able to see his child only if he can stay on good terms with the mother. Both parents usually go on to find new partners, often bearing new children. This family complexity makes it harder for both parents to provide children with the time and attention they need to thrive. Fathers want to be involved in their children's lives and see it as their responsibility to provide emotional support and guidance, if not financial support. Most fathers are unable to maintain relationships with all of their children but are actively involved in the life of at least one child.

1. A statistical portrait

In the United States today, family form is strongly correlated with socioeconomic status. As compared with their married counterparts, unmarried parents are younger, (85) lower income, (86) less educated, (87) disproportionately nonwhite, (88) and more likely to have children from multiple partners. (89) The Fragile Families Study adds more detail to this broad statistical portrait. The unmarried (90) parents in the study were generally in their early twenties at the time of the focal child's birth, as compared with the married parents, who tended to be in their late twenties and thirties. (91) At the time of the birth, 45% of the unmarried fathers did not have a high school diploma as compared with 19% of the married fathers, and only 4% of the unmarried fathers had a college degree as compared with 30% of the married fathers. (92) Mothers had similar patterns of educational attainment: 49% of the unmarried mothers did not have a high school diploma at the time of birth as compared with 18% of the married mothers, and only 2% of the unmarried mothers had a college degree as compared with 36% of the married mothers. (93)

Not surprisingly, earnings followed these educational patterns. The average income of the unmarried fathers at the time of the birth was $15,893, as compared with $38,568 for the married fathers. (94) Similarly, the unmarried mothers earned significantly less money at the time of the birth than the married mothers--$10,764 as compared with $25,619. (95) The economic prospects of the unmarried fathers were particularly dim due to a combination of their low educational attainment and involvement in the criminal justice system. (96) Forty-two percent of the unmarried fathers in the study had spent some time in prison at the time of the birth, and even more had been in prison by the time the child reached age five. (97)

Despite these differences between unmarried and married parents, one of the intriguing findings of the Fragile Families Study is that the vast majority of unmarried parents are romantically involved at the time of the birth: 82% of the unmarried parents were in a relationship, and 50% were living together. (98) Belying the stereotype of men interested only in one-night stands, most fathers in the study provided financial support during the pregnancy (81%) and visited the mother in the hospital (77%). (99) Most unmarried fathers also voluntarily claimed paternity at the hospital. (100)

Notwithstanding these early ties, the relationships between unmarried parents typically do not last. Of the unmarried parents in the study who were romantically involved at the time of the birth, 69% ended their relationship within five years of the child's birth. (101) And the percentage of unmarried couples living together declined to 38% by the five-year mark. (102)

After the relationship between unmarried couples ends, children almost always stay with their mothers, (103) and unmarried fathers become much less involved. (104) 4 In the Fragile Families Study, at the time the children were five years old, 37% of the nonresidential fathers had not seen their child once in the previous two years, (105) although 43% of the nonresidential fathers had seen their child more than once in the previous month. (106) This is in contrast to children of divorced parents, who see their fathers more frequently. (107) Additionally, never-married fathers are less likely to pay full child support than previously married fathers. (108) (When unmarried fathers do live with their children, they are more involved than nonresidential unmarried fathers, but they still do less caregiving and contribute less financially to the family than married fathers.) (109)

The quality of the relationship between the parents is an important factor affecting whether nonresidential fathers see their children. When the parents in the Fragile Families Study had a high-quality co-parenting relationship, (110) the fathers were much more likely to see their children and engage in activities with them. (111)

Additionally, there are important nuances in the data. For example, among the Fragile Families Study participants, African American fathers who did not live with their children were more likely to maintain better co-parenting relationships with the mothers of their children and more likely to be involved with their children than Latino or white fathers. (112) Moreover, although unmarried fathers typically do not maintain a relationship with all of their children, one study found that 70% of nonmarital fathers were intensively involved in the life of at least one of their children. (113)

After the relationship between unmarried parents ends, both mothers and fathers typically go on to form new relationships and have additional children with the new partners ("multipartner fertility"). (114) In the Fragile Families Study, by the time their children were five years old, more than half of the unmarried mothers had lived with or dated at least one new partner. (115) Unmarried fathers were even more likely to have multiple new partners. (116) This new partnering often leads to new children. By the time the focal child in the study was five years old, 45% of unmarried mothers and 47% of unmarried fathers had a child by another partner. (117) Thus, 67% of the nonmarital children at age five had at least one parent who had a child by another partner, as compared with only 25% of the marital children. (118)

For the mothers, sometimes the new partners were more appealing partners than the biological father. Within five years of the focal child's birth, 32% of the unmarried mothers in the study had found subsequent partners who had better economic prospects than the biological father. (119) These relationships, however, tended not to last either, in part because of the challenges facing the couple as a result of family complexity. (120)

2. A qualitative portrait

Two studies provide much-needed context and nuance to this statistical portrait. Sociologists Kathryn Edin and Maria Kefalas conducted an in-depth, ethnographic study of 162 unmarried mothers living in Philadelphia, Pennsylvania, and Camden, New Jersey. (121) Subsequently, Edin and Timothy Nelson conducted a similar study of 110 unmarried fathers living in the same areas. (122)

The researchers found that, beginning with the decision to have a child, both men and women told similar stories. The pregnancy was neither an accident nor a planned event. Rather than waiting to find a suitable long-term partner and then having a child, as married parents generally do, unmarried parents typically had a child in the context of a romantic, but relatively unstable, relationship. The men and women interviewed said that they would begin seeing a person, and once the relationship reached some modicum of stability, often within a few months, they stopped using birth control on a regular basis. (123) This decision was understood as a sign of commitment to the relationship. (124)

For the young couples, marriage was not a viable option. In their interviews with mothers, Edin and Kefalas found that the women wanted to be married--indeed, they thought single parenthood was second best (125)--but they held marriage to a high standard and would not settle for the unreliable men who were their current partners. (126) Few men in the women's circles met this standard, but despite this lack of marriageable men, the women were unwilling to forgo motherhood. (127) The women saw motherhood as essential to their sense of self and their place in the world, and they did not want to postpone it until their thirties, a strategy typically employed by middle-class women. (128)

Moreover, there was no career reason to delay childbearing. Living in impoverished neighborhoods with bleak economic prospects means that having a child at a young age does not derail a career, as it might for a middle-class young woman, because there are few career prospects in the first place. (129) Thus, although they were well aware of the risks of getting pregnant, the women Edin and Kefalas studied did not try particularly hard to avoid pregnancy. (130)

In their study of unmarried fathers, Edin and Nelson found a similar pattern. (131) Men also aspired to marriage, (132) but they idealized it, believing marriage was possible only if they could find their "soul mate," a standard the women in their lives did not meet. (133) And yet men did not view this as a barrier to having a child. Contrary to the stereotype of the callous unmarried father, but consistent with the Fragile Families Study's finding that the unmarried fathers were supportive during the pregnancy, (134) the men in the study typically were delighted by the news of their partner's pregnancy and looked forward to the birth of the child. (135) As Edin and Nelson describe it, the young men saw fatherhood as a way of giving positive meaning to their otherwise difficult lives and a good reason to give up an unfulfilling lifestyle. (136)

In the typical unmarried family, the pregnancy would transform a casual relationship into a much more serious one and would, at least initially, bring the couple closer. (137) During the pregnancy and the early days of the child's life, the relationship would be relatively smooth, but soon after the baby arrived, problems were common. Couples generally did not know each other well; they had not chosen each other after a long search for a compatible partner, there were high levels of distrust, and both parents were struggling with the stresses of poverty. (138) Not surprisingly, relationships between the parents typically unraveled. (139)

Once fathers were no longer living with their children, and once relationships with the mothers had ended, fathers typically contributed little to the family economically. Edin and Nelson found that fathers in their study had embraced, at least partially, the new middle-class norm of involved fatherhood. (140) But for middle-class married men, this means caregiving and breadwinning. (141) In contrast, the unmarried fathers in the study did not see breadwinning as essential to fatherhood; instead, they emphasized their role as caregivers. (142) The fathers' vision of providing for children was very modest. (143) Fathers considered it a feat if they could take care of themselves, help with their current household (if they had a new partner and she had existing children), and then, if anything was left over, make small contributions to any nonresidential children. (144)

Although they gave very little financial support, the fathers were fairly engaged on the social front. Highly valuing their emotional relationship with their children, the unmarried fathers in the study believed they should provide love, time, and open communication. (145) This did not mean the fathers were regular caregivers to their nonresidential children; instead, they would see the children when they could manage it. (146) Thus, the fathers viewed their role in their children's lives not as providing economic support or daily caregiving but rather as providing moral guidance and friendship to their children. (147)

Despite their good intentions and interest in being active fathers, over time men would drift away from their children. Edin and Nelson found multiple reasons for this, including the fathers' own behavior, particularly their continued use of drugs and alcohol and involvement in the criminal justice system. (148) They also found that the fathers' inability to pay for even the most basic items, such as an ice cream cone, made them feel ashamed and kept them away, especially if the mother's new partner could afford such treats. (149)

In addition to the fathers' own shortcomings, their relationship with the mother of the child was a central factor affecting whether the fathers saw their children. (150) A consistent view articulated by fathers was that the relationship with the mother had never been particularly significant, and once that relationship ended, the mother was even less important to the father. (151) He cared about his child and saw the mother primarily as a conduit to that child. (152) Unmarried fathers thus rejected "the old package deal," where men were husbands first and fathers second and the relationship between the adults bound the family together. (153) Instead, the men wanted "a new package deal," where their relationship with their children came first and mothers were on the periphery. (154)

Yet this was not how it worked in practice. Instead, the relationship between the mother and father was still very much at the center of the family dynamic. When the romantic relationship ended, unmarried fathers typically did not go to court to secure visitation with their children. (155) This meant that the mothers controlled fathers' access to their children: the mothers physically had the children, and there was no court order requiring them to split either legal or physical custody with the fathers. (156) Mothers thus became "gatekeepers," deciding if and when fathers could see their children. (157)

If mothers were frustrated with fathers, as they often were, they would keep the fathers away. Thus, the men were able to see their children only if they could stay on good terms with the mothers of those children, which the men were not always able to do. (158) In particular, mothers wanted fathers to do more--pay more child support or help more with the child care--and they became exasperated with fathers' inability or unwillingness to do so. (159) The fathers, by contrast, felt that they were doing the best they could, providing what little money they were able to earn and giving the children an emotional relationship. (160) In light of their low levels of educational attainment, their criminal backgrounds, and the very few jobs available, meaningful economic contributions were unlikely. (161) As Edin and Nelson consistently found, the fathers in their study resented the legal system's monetization of their relationship with their children and did not want to be "just a paycheck"; instead, they wanted recognition for the hands-on parenting they provided to their children. (162)

Another relationship factor that led mothers to keep fathers at bay was the stress of managing new relationships. When a mother began seeing someone new, the new man was often jealous of the father. To maintain the new relationship, it was easiest for the mother to keep the father away from the family. (163) As in the Fragile Families Study, Edin and Nelson found that the African American men in their study were better able to negotiate the postbreakup family, maintaining closer ties to their children and smoother relationships with the mothers of their children. (164)

All of this paints a common narrative: An unmarried mother and father have a child within the context of a romantic but not particularly enduring relationship. Soon after the birth, the relationship founders. The couple does not go to court for a custody order specifying legal rights; instead, the mother becomes an informal gatekeeper to the child, keeping the father away for good reasons and bad. If the father can stay on good terms with the mother, he is able to see his child. But maintaining a co-parenting relationship is difficult because the mother is understandably frustrated with the father's limitations, and she is juggling the demands of a new partner. The unmarried father wants to be involved in the child's life, but to him this means maintaining an emotional relationship, not providing financial support, which he is unable to do anyway given his economic prospects. Despite his high hopes for fatherhood, a combination of his own shortcomings and a fractious relationship with the mother drives the father away. The father and mother then both start the cycle again, with new partners and new children, compounding the problem by making the family structure even more complex. From the mother's perspective, the new partner is sometimes better situated economically and thus may be a more appealing partner, but the new relationship founders, in part because of the challenges of multipartner fertility. Although the father is not able to parent all of his children, he does intensively parent at least one child.

This family pattern has direct, and unfortunate, consequences for children, as the next Subpart describes.
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Title Annotation:Introduction through II. Children Outside the Law A. Nonmarital Families, p. 167-196
Author:Huntington, Clare
Publication:Stanford Law Review
Date:Jan 1, 2015
Words:6929
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