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.