I wrote A Parent-Partner Status for American Family Law (Cambridge University Press 2015) because I found it incredible (and upsetting) that two people could have a child together— one of the most important, challenging, and transformative events in life — and have virtually no legal obligations to each other. This legal gap seemed inappropriate because parenthood affects the parents’ interactions with each other, sometimes producing injustices, and because their interactions affect their child.
For a very long time, marriage has been the primary legal structure that has regulated parents’ relationships to each other. Marriage, however, seemed to me insufficient for that task today. After all, 41 percent of children are now born to nonmarital couples. Moreover, marriage no longer conveys the right norms for parents: marriage is about personal fulfillment and easy exit. Most married people cannot identify how a child changes their legal relationship.
The more I pondered the status quo, the more I became convinced that society should automatically impose legal obligations between people who have a child in common. The obligations should survive the demise of the couple’s romantic relationship and reflect society’s expectations for the co-parental relationship. The legal obligations should convey the message that people with a child in common are family, that parents should exhibit toward each other fondness, flexibility, acceptance, togetherness, and empathy, and that parents should work together supportively to raise their child well.
I knew that the selection of the legal obligations might be controversial, but I believed that some agreement could be found. I proposed five obligations to start a conversation. Those obligations are a duty to aid, a duty not to abuse, a duty to consider relationship work at the transition to parenthood and at the demise of the romantic relationship, a duty of fair dealing when contracting about the family relationship, and a duty to give care or share. The book contains the specifics about these proposals.
Many potential benefits might flow from a new legal status. The status could address the injustices that sometimes arise between parents because of parenthood. It might give people pause before reproducing with others with whom they are ill matched for a long-term parenting partnership. It might promote love by conveying the expectation that parents with a child in common should love each other, at least in the companionate sense. It might foster civic virtue as parents modeled for their children the qualities that make people both good parent-partners and good citizens.
The book discusses these possibilities and some others, but what kept me writing was the prospect that a new legal status might benefit children by shaping their parents’ interactions with each other. I knew that parents generally want to do right by their children, but I also knew that many parents act toward the other parent in ways that harm their offspring.
To see the scope of the problematic behavior, consider the following questions that I asked myself as I wrote the book. Why aren’t more married parents trying marital counseling before they divorce? Why aren’t more divorced couples acting as supportive co-parents? Why are some married couples having children to make their bad relationships better? Why are some unmarried individuals having children with partners who they do not like very much? Why aren’t more nonmarital parents managing to be friends after breakup? Why aren’t more couples working together after break up to build social capital in their children? Why are parents abusing each other? Why aren’t parents utilizing programs at the transition to parenthood that could help them keep their relationships strong? Why aren’t more parents co-parenting during the romantic relationship? Why are parents proposing and enforcing unfair prenuptial agreements?
The answers to these questions vary, but the answers all converge in one fact: we lack a social role, and related expectations, for how parents with a child in common should act toward each other. No term describes the parents’ relationship as a family relationship, and society has forsaken the law as a tool to guide human behavior in this context.
So I wrote this book because society can do a better job channeling adult behavior in ways that would benefit children. The law should guide reproductive choices, encourage couples to act as a supportive team throughout their child’s minority, and define certain behavior as intolerable by providing remedies to redress it. A new legal status would accomplish these ends primarily by creating a new social role that should transform parents’ identities upon the birth of their children. People would become both a “mom” or a “dad” and a “parent-partner.” Once people conceived of themselves in this way, we could expect more parental behavior that would benefit children.