Family Law Reform Blog
De Facto Parenthood
De Facto Parenthood: The reformers' latest unwholesome innovation in family law.
by Sara Butler Nardo
Weekly Standard 03/06/2006, Volume 011, Issue 24
Mike Thompson of the Texas ADR chapter sent us this article by our friend Sara Butler Nardo of the Instititute for American Values.
This excerpt shows the frighteningly loose legal standard for declaring someone a "de facto parent". --
"The Washington court, following Wisconsin's model,
established a four-part test to be used by judges in determining whether a
person has standing as a de facto parent:
(1) the natural or legal parent consented to and fostered the parent-like
relationship; (2) the petitioner and the child lived together in the same
household; (3) the petitioner assumed obligations of parenthood without
expectation of financial compensation; and (4) the petitioner has been in
a parental role for a length of time sufficient to have established with
the child a bonded, dependent relationship parental in nature.
"Rather than answering a simple question--Does the adult have a biological
or adoptive relationship to the child in question?--judges will award
parenthood depending on whether the relationship appears sufficiently
"parent-like," a notable expansion of state power in the realm of family
"The courts have justified the creation of de facto parenthood by arguing
it serves the best interests of children. In reality, however, it works at
cross-purposes to the institution that most essentially serves children's
interests--marriage. ... In reality, de facto parenthood serves adults more than children ... .
"This new circular definition of parenthood--a parent is a person who
performs the function of a parent--is part of a larger trend in family law
that sees the law as the creator of the family ... the words we use to
describe this most vital social institution--family, mother, father,
marriage--do not correspond to natural relationships, but are mere labels
that the state is free to apply as it sees fit.
"In the case of the label "marriage," the proposed change ... has been widely and loudly debated. The legal definition of "parent," meanwhile, is already quietly changing."
Simpson breakup shows that to many, there's no truly no-fault divorce
This is from a celebrity gossip column, but I think it is actually an important insight about whether people in general can adjust to unilateral no-fault divorce.
- JC Angie Fenton, columnist for the Louisville Courier-Journal, writes:
"There's no such thing as a no-fault divorce -- at least not in the court of public opinion.
"As of press time, 71 percent of People readers and 76 percent of Star magazine fans blamed Jessica Simpson for the break up of her marriage to Nick Lachey.
" But fear not for the blond beauty. The New York Daily News reports Simpson's peeps are working overtime to improve her image by dishing the dirt on Lachey to every gossip mag around."
Why marriage shouldn't be like a corporation
The New Pantagruel blog recently featured a hilarious and thought-provoking satire
of a playfully-written but ultimately serious article in the San Francisco Chronicle
that said corporations should provide marriages, offering consumers an infinite variety of definitions, combinations, rules, and exit options.
NY JUDGE WOULD MAKE DIVORCE TOO EASY
A great, hard-hitting but compassionate column about the unilateral divorce proposal in New York state.
NY NOW leader opposes Unilateral Divorce in NY Times column
February 19, 2006
Op-Ed: Divorce New York Style
By MARCIA PAPPAS
EARLIER this month, New York's Matrimonial Commission recommended that the
state allow unilateral no-fault divorces. This is a bad idea, and,
frankly, it's unnecessary.
New York already has what is in effect a bilateral no-fault divorce law.
This means that if both spouses want out of the marriage, they can divorce
without any apparent reason after living separate and apart for one year
after signing a separation agreement. In fact, the vast majority of
divorce cases are settled without court intervention. These settlements,
termed separation agreements, then become the basis for the divorce
decree. The process, because it doesn't require much involvement by the
courts, is less expensive for both parties.
The problem with unilateral no-fault divorce is that it hurts women by
removing the incentive for the moneyed spouse (who is usually the husband)
to make a settlement. Instead of negotiating with a dependent spouse ˜
whose only leverage for avoiding an impoverished post-divorce life for
herself and her children may be her assent, or lack of it, to divorce ˜
the husband can simply go to court and obtain an uncontested divorce. Even
if child custody and property division issues haven't been resolved, a
judge can grant a divorce for "good cause" if say, the husband's
girlfriend is pregnant.
And here's where things get tricky. In these cases, resolution of child
custody and property division can drag on for years, to the detriment of
the abandoned poorer spouse. And because unilateral no-fault cuts down on
the incentive to settle cases by agreement, it can take a lot of money and
time in court to make such divorces final.
For women, in general, having to go to court instead of being able to
negotiate a settlement is a misfortune ˜ especially in New York, where, as
the Office of Court Administration has repeatedly acknowledged, the court
system has a bias against women. Moreover, a settlement is also beneficial
for women because both parties can agree to terms that the court cannot
order. For example, in New York, the court can require child support until
the child is 21, but the parties can, and often do agree outside of court
to support payments until graduation from college.
And there's no question that unilateral no-fault divorce hurts women's
economic well-being. A study in Connecticut conducted from 1977 to 1987,
showed that under unilateral no-fault divorce laws, fewer women ˜ only 37
percent ˜ were awarded the marital home as compared with 82 percent under
fault divorce. In 1970, California became the first state in America to
adopt unilateral no-fault laws. These laws have had a devastating impact
on the women in that state. For instance, in San Diego, the likelihood of
a woman receiving alimony awards went to 30 percent in 1976 from 66
percent in 1968.
Unfortunately, it appears that New York will move to institute unilateral
no-fault divorce. If this is inevitable then, at the very least, the state
Legislature needs to remedy the problems faced by poorer spouses in a
dispute by awarding them counsel and expert fees commensurate with the
fees being spent by the moneyed spouse. Such a mandate would go a long way
to level the playing field and ensure fairness for the non-moneyed spouse
in the court system. The Legislature also needs to establish fair and
equitable economic maintenance guidelines, just as the state now has child
Furthermore, in the case of custody disputes, the Legislature should
require that child custody be awarded to the parent who was the primary
caregiver during the marriage to ensure stability and continuity of care
A primary caregiver presumption would also cut down on a litigation tool
in which one parent agrees to forgo a custody battle if the other parent
agrees to a less favorable financial settlement. Richard Neely, a lawyer
in West Virginia, has acknowledged that he often gave that advice to his
male clients. When he became chief justice of the West Virginia Supreme
Court of Appeals, he was responsible for the passage of a primary
caregiver law. Unfortunately, under pressure from fathers' rights groups,
West Virginia's Legislature has since revoked that presumption.
New York is often mentioned as the only state in America without
unilateral no-fault divorce laws. But that doesn't mean that fault divorce
is bad. New York is the only state where the court has jurisdiction to
order child support to 21 ˜ and that's good. Sure, there are things about
New York's divorce laws that could be fixed, but a process that takes time
and weighs the various arguments is the only way to ensure fairness and
financial stability for everyone involved.
Marcia Pappas is the president of New York's chapter of the National
Organization of Women.
Statement on New York Divorce Reform
Here's what I told a columnist about this today --
New York has been affected by the nationwide culture of unilateral divorce, but its much tighter divorce law does help keep marriages from falling apart -- New York has one of the nation's lowest divorce rates. The current law also favors negotiation over unilateral action. That's a major reason why out-of-court "Collaborative Divorce" has been so successful in New York.
If the Assembly wants to do something about ugly "fault" divorces and encourage collaborative divorces, they should do so directly, by switching the waiting periods around -- have a one-year waiting period before filing a "fault" divorce, and a much shorter waiting period for truly "mutual consent" divorces, where the couple has worked out an agreement on all the details, such as custody and finances.
But that is very different from unilateral "irreconcilable differences" divorce, a tragic experiment the first time around, and a farce if it is repeated now. The Assembly should look carefully at the experience of the rest of the U.S., where the well-intended 1960s movement to replace fault with a more therapeutic, consensual process went tragically awry. Many states passed laws saying that before granting a divorce, judges should carefully examine whether the couple really had "irreconcilable differences", referring them to counseling whenever it might help. But these laws quickly broke down into mere "unilateral divorce", because judges did not have the time or training to implement them, so they decreed that filing for a divorce was proof of "irreconcilable differences".
Nationwide, unilateral divorce has produced more divorces, longer divorces, and uglier divorces.
New book includes deep critique of unilateral divorce
A very interesting review by Albert Mohler
of a new book chapter by economist Jennifer Roback Morse:
"Jennifer Roback Morse's essay, 'Why Unilateral Divorce Has No Place in a Free Society,' is published in The Meaning of Marriage: Family, State, Market, and Morals
, edited by Robert P. George and Jean Bethke Elshtain (Spence Publishing Company, Dallas, 2006).
Jennifer Roback Morse, a research fellow at the Hoover Institution of Stanford University, has been tracing the effects of no-fault divorce throughout the culture. ...
"Most significant to Morse's argument is the fact that government is not needed in order for marriage to emerge. "Marriage is an organic, pre-political institution that emerges spontaneously from society," she argues. Furthermore, the actual operation of marriage as an institution depends only to a very small extent upon government at all. "This culture around marriage may have some legal or governmental elements," she acknowledges. "But in most times and places, the greater part of that cultural machinery is more informal than legal and is based more on kinship than on law."
"... one of Morse's central concerns appears--where the informal culture of marriage fails, the government must step in with litigation, laws, supervision, and bureaucratic intrusion. Inevitably, this means "a disaster for the cause of limited government."
"Where this informal and very natural pattern of home life is not preserved, the state must enter the picture. As always, the state enters clumsily and at great cost. Spending just a couple of hours observing a divorce court or custody hearing will be sufficient to prove the point--government simply cannot replace what the breakup of marriage destroys."
I look forward to reading the book.
Baltimore Building Strong Families Program -- rebuilding the African-American family
Sent in by Baltimore County divorce prevention activist Richard Kidd --
Changing a culture through marriage
Baltimore Sun, Feb 18, 2006
When Laneisha Drafts tells people about the father of her child, she'll
be able to call him "my husband."
When Duane Drafts talks about the mother of his child, he'll refer to
her as "my wife."
Now if you're thinking that's as it should be, you're right. If you're
thinking that's the way it is, then oh how wrong you are.
In today's America, the culture has accepted the terms "baby mama" and
"baby daddy." The former is used by guys who have a child by a woman
they didn't and probably won't marry. Women similarly situated use the
How bad has it gotten? Two staffers at a West Baltimore community center
who work frequently with teens say both sexes refer not to boyfriends
and girlfriends, but to "baby mamas" and "baby daddies." That's not the
worst of it.
In many instances, there's no child anywhere around. The girl isn't
pregnant. It's just that the "baby mama/baby daddy" culture is so
pervasive that the terms have now replaced boyfriend and girlfriend.
American Idol winner Fantasia Barrino had a hit song called "Baby Mama."
Fantasia wants single moms to have their own holiday. If you dare
criticize Barrino for putting out such nonsense, her fans will react as
if you've just tried to drown the baby Jesus.
So the Drafts are clearly swimming against the tide of current youth
culture. Laneisha is 18. Duane is 19. They tied the knot about two
months ago. Their baby is due in August if you believe Duane and July if
you believe Laneisha.
Neither has a job but both are looking for employment. Laneisha's goal
is to be an obstetrician. Duane wants to work with computers. If you're
thinking they got married and are having a child under less than ideal
conditions, then you'd be right. But unlike their peers who bandy about
the terms "baby mama" and "baby daddy" as if they're acceptable, the
Drafts are hedging their bets.
They are enrolled in a "healthy relationships and marriage" curriculum
sponsored by the Baltimore Building Strong Families Program, also known
as BSF. Cassandra Codes-Johnson is the director of BSF. Codes-Johnson
also works on the staff of the Center for Fathers, Families and
CFWD has been around for seven years. The goal of the organization is to
help "individuals in regaining the personal power to benefit their
families and communities," according to a news release announcing a $1
million grant to promote marriage and build stronger relationships for
young black couples like Duane and Laneisha Draft.
The staff of CFWD will use that money to train workers from 16 community
organizations in a curriculum designed to help poor black couples from
18 to 35 years old build healthier relationships and marriages. The
reason for that should be obvious, but the folks at CFWD put it in their
news release anyway.
"Studies have shown that children reared in homes free from violence and
by both parents do better in school and are less likely to live in
poverty," reads the release.
That information has been known for some time, as has the skinny that a
preponderance of black homes without dads is a recent phenomenon. During
a lecture at Morgan State University
,0,5357177.story?coll=bal-local-columnists> in late 2003, author
Jawanza Kunjufu said that 90 percent of black families had a father in
the home in 1920 and 80 percent of black homes had a father in 1960.
What are the figures for 2006?
"Our community can't survive [with] 70 percent of our children being
born out of wedlock," Joseph T. Jones Jr., the president and chief
executive officer of CFWD, said Thursday at a news conference giving
more details about the initiative.
Jones is right about that. And he said he's right for insisting that
hip-hop culture be a part of the curriculum he and a team of consultants
developed to teach young couples about relationships and marriage.
"Unfortunately, most people associate hip-hop with one extreme end of
that genre," Jones said. "There's some crazy stuff that goes on in rock.
There's crazy stuff that goes on in opera, if you can understand it."
Jones pointed to Philadelphia rapper/actor Will Smith -- and his
marriage to Baltimore-born actress Jada Pinkett-Smith -- as an example
of hip-hop culture that will be used in the curriculum. (A guy from
Philly hitched to a Baltimore gal: Now there's a mixed marriage if ever
there was one.)
"It has some positive elements in it," Jones said of hip-hop culture.
But he has no illusions about the uphill battle he -- and the Drafts --
"You're talking about changing a culture," Jones said. "That's extremely
Kansas City Star | 02/17/2006 | Divorce, Johnson County style
Custody cases sent to new "problem-solving court"
Court says American divorce trumps Islamic one - Boston.com
Court says American divorce trumps Islamic one - Boston.com
This ruling is completely consistent with existing law. An American court won't recognize a divorce from a country that neither party was a resident of at the time of the divorce. Divorce jurisdiction is based on a person's residence in the state that grants the divorce -- not on what state or country the couple got married in.
India faces dangers of overseas arranged marriages
India faces dangers of overseas arranged marriages
Daily Herald - Bill requiring counseling before divorce moves on
Daily Herald - Bill requiring counseling before divorce moves on
I love the line in this article, "Divorce is usually seen as a private matter between two people". Whoever wrote that has obviously never been in a divorce court, where EVERYTHING becomes the judge's and the government's business.
By the way, mandatory divorce education classes AFTER filing are common in the U.S. All this does is move it up to a point where it may actually help prevent some divorces, in addition to making them less destructive when they do happen. Australia recently enacted a similar requirement.
- John Crouch
Great new case affirms children's rights to both parents --
-- even if one of them is Michael Jackson and the other had agreed to get out of the children's lives completely.
It also affirms that a child must be represented by counsel in a termination.http://www.courtinfo.ca.gov/opinions/documents/B180135.DOC
This is very important. If whacked-out celebrities are allowed to be TRULY "single parents" and not have to deal with the inconveniences of sharing the parental role with anyone, lots of ordinary people are going to believe that they have a right to do the same.
Unfortunately, it did not say, at strongly as I would have liked, that there is absolutely no way the mother could have ever voluntarily terminated in the first place without either a finding of unfitness or a new couple to take the child.
It did say that a mere agreement between the parents is not enough to terminate parental rights; there needs to have been a genuine inquiry by the court into whether the child's best interests would be served by the termination, and the children would have had to have had their own, independent, lawyer. It also cites a general public policy in favor of two-parent families, and several earlier cases supporting that policy.
It includes an explanation by the trial judge of how he originally came to terminate parental rights back in 2001. It is severely lacking, but revealing. The judge spoke as if he was just swept along on the current and felt like he "had to" do what the presumably high-priced lawyers on each side wanted him to do. It sounds like the most fundamental abdication of the judge's responsibility and independence. As if the lawyers were pointing kryptonite at him.