Tag Archives: child support

Incorporating Family Law into the Study of Nonmarital Families

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A guest post by Clare Huntington.

Thanks to the Fragile Families and Child Wellbeing Study as well as other research, we are developing a rich body of knowledge about child outcomes in nonmarital families. What is missing from this growing body of research, however, is a discussion of the role of law in influencing these outcomes.

As I have elaborated elsewhere, family law is designed for married families. The family law system is far from perfect, but the legal rules, institutions, and norms generally help divorcing families restructure their lives in a way that encourages co-parenting and recognizes the potential contributions of both parents, financially and socially, to the rearranged family.

It is a very different story for nonmarital families. Family law’s rules, institutions, and norms do not map well onto family life that is not defined by marriage and have the potential to undermine relationships in these fragile families.

Beginning with legal rules, states give considerable power to unmarried mothers (power that, for married mothers, is shared with a spouse). When a child is born to unmarried parents, for example, the mother automatically gains sole custody 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. This legal structure can exacerbate the phenomenon of maternal gatekeeping, which is well documented.

Family law also exacerbates acrimony between unmarried parents. Child support laws, which are relatively effective for divorcing families, impose unrealistic obligations on unmarried fathers, many of whom have dismal economic prospects. The failure to satisfy child support requirements fuels animosity between unmarried parents, many of whom are already experiencing difficulty co-parenting.

The basic institutions of family law are designed for marital families and simply do not work for nonmarital families. A married couple needs to go to court to end their relationship. When there, the court will ensure there is a clear custody or visitation order, specifying when each parent will see the child. The family will also have access to the court-based resources that help divorcing couples adjust to post-divorce life, such as the development of a detailed parenting plan, access to co-parenting classes, and so on.

By contrast, unmarried parents do not need the state to dissolve their relationship, so there is no reason to go to court, and most do not. This means that unmarried parents ending a relationship are left without an institutional structure to help them adjust to post-separation life. They do not have the benefit of a custody or visitation agreement, which can guard against maternal gatekeeping and which sends the message that both parents can and should be involved in the child’s life. They do not have the benefit of a detailed parenting plan, which can forestall conflict and set out clear expectations. And they do not have the benefit of court-based co-parenting classes, which can teach parents how to work together. Of course there are many ways in which nonmarital families differ from marital families, and I do not mean to suggest that unmarried fathers are likely to take on the joint custody role that many divorced fathers do. But the lack of an institution to help nonmarital families transition into a co-parenting relationships is a serious problem.

Finally, family law’s norms still reinforce traditional gender norms, with fathers as breadwinners and mothers as caregivers. Anachronistic for many married couples, these norms are starkly at odds with the reality of nonmarital family life. Marital norms thus deem unmarried fathers failures because they are not providing for their children economically. This undermines the place of fathers in the family by telling mothers and children that fathers are not acting as they should, and it undermines the social contributions that fathers can make.

In all these ways, 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. I outline such an approach in my recent article, Postmarital Family Law: A Legal Structure for Nonmarital Families, but let me give one example here. To address the problem that nonmarital families do not have an effective institution to help forestall conflict and transition into co-parenting, the United States should learn from Australia’s creation of Family Relationship Centres (FRCs) in 2006. FRCs offer free, readily accessible mediation services in the community, not the courts, to help unmarried parents move into co-parenting relationships. Built in centrally located areas such as shopping malls, they help separating couples develop a short-term plan for the child. The plans are not legally binding, but the idea is that by forging an agreement for the first year or two after the romantic relationship ends, a couple will get in the habit of working together. Then, as their lives inevitably change, they will be better positioned to adapt and continue their co-parenting. It is too soon to evaluate the long-term impact of the FRCs, but an initial assessment found that the FRCs have reached families that would not otherwise have gone to court and that most clients are satisfied with the services they received.

It is hard to establish definitively as a causal matter that the mismatch between family law and nonmarital family life contributes to worse outcomes for nonmarital children, but there is reason to believe that family law’s failures exacerbate the rocky transitions that contribute to poor child outcomes. At a minimum, as we deepen our empirical understanding of nonmarital families, the role of the law should be in the conversation.

Food Insecurity and Marital Status

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So far, in our blog series on the Gunderson and Ziliak Future of Children research report, we’ve outlined how 1 in 5 children in America are food insecure and how there are more reasons for this besides low household income. For example, caregivers’ mental and physical health, as well as child care arrangements, are contributing factors. Another piece of the puzzle is family structure.

I’ll start with some basic statistics. This table from childstats.gov shows the differences in the percentage of food-insecure households with children by family structure in 2011. Without taking any other contributing factors into account, female-headed households with no spouse present are more than twice as likely to be food-insecure than households headed by married couples (40 vs. 15 percent). Households headed by a father with no spouse present have a 28% prevalence of food insecurity, in between married couples and single mothers.

These differences aren’t surprising. But there’s more to the story.

Gunderson and Ziliak summarize several studies that give us clues about how marital status is related to food insecurity. For example, Balistreri found that children living with a single parent or with an unmarried parent in a more complex family (such as when the mother is cohabiting with a partner and there’s also a grandparent in the household) are at greater risk of food insecurity than children living with two biological parents or in a stepfamily. Also, Neeraj Kaushal and colleagues found that children living with their biological parents, whether married or cohabiting, have a lower risk of food insecurity. In contrast, Miller and colleagues found no substantive differences across family types after controlling for socioeconomic status and demographic characteristics. Regarding unmarried families, Nepomnyaschy and colleagues have shown that nonresident fathers’ consistent support, whether in cash or in kind, is associated with lower food insecurity; interestingly, inconsistent support was worse than no support at all.

Based on these findings, it’s important not to jump to conclusions about marital status and food insecurity. While married-couple households seem to be at least risk, this doesn’t mean a marriage certificate solves food insecurity, and that we should rush people into marriage. Family complexity, socioeconomic status, and nonresident fathers’ support also play a contributing role.

The Fragile Families Study and the work of Sara McLanahan, editor-in-chief of the Future of Children offer potential policy implications. In a recent article about unmarried parents, McLanahan and Jencks concluded that to prevent the negative outcomes associated with having children outside of marriage, women with lower socioeconomic status can be encouraged to postpone having children, giving them time to mature and increase their education and earnings. By extension, since women aren’t likely to marry men with poor earning capacity, men need to increase their capacity to provide for a family. Initiatives such as the promotion of effective birth control and education access seem promising. For currently unmarried families, Nepomnyaschy’s article underscores the importance of consistent child support in reducing the risk of childhood food insecurity.