“Parent Partnerships” Could Be the Future of Marriage

Shoring up “traditional marriage” won’t help today’s couples or their children. Instead, we need an entirely new legal status – “parent partners.”

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“We need to face the fact that when young girls have babies out of wedlock, most of the time their education ends with that first baby,” Republican presidential candidate Ben Carson said recently. “And those babies are four times as likely to grow up in poverty, end up in the penal system or the welfare system.” Carson’s solution? “It is very clear that intact, traditional families with traditional, intact values do much better in terms of raising children.”

Carson, like many discussing family issues today, misconceives both the problem and the potential solution. Forty years ago, half of all out-of-wedlock births were to teenage mothers. Today, the figure is 15 percent. No longer, in fact, are nonmarital families “nontraditional”: 41 percent of births are now to unwed couples. The National Survey of Family Growth found that almost 80 percent of women aged 15 to 44 approve of a woman’s decision to bear a child outside of marriage; nearly 70% of their male counterparts agree.

Today, the real problem is that both unmarried and married couples are having children without committing themselves to a supportive parenting-partnership. This problem can’t be solved by somehow forcing unmarried couples into old-style marriage relationships, either through Carson’s remedy of “family and faith” or through legal coercion.

In-depth interviews of unmarried parents by sociologists over the last ten years reveal that many families have inauspicious beginnings. Singles frequently have children with people they don’t know well or whom they reject as acceptable long-term partners. These largely unplanned births hardly set families on a path for success.

Unmarried couples, in fact, break up at a high rate even though they start out wanting to raise their children together. As their romantic relationships crumble, the children often lose contact with their fathers. The Fragile Families and Child Wellbeing study revealed that more than one-third of five-year-old children born in nonmarital relationships had no ongoing contact with their fathers, and 23 percent had not seen their fathers in the prior one to two years. Their parents’ strained interactions were mostly to blame.

Encouraging marriage will not solve the problem, even assuming that the plummeting marriage rates could be restored. A marriage license does not limit reproduction to couples with healthy relationships. Nor does it guarantee that parents stay together. Some places today, like Trousdale County, Tennessee, are reported to have a divorce rate of 90 percent. Divorce, just like breakup for unmarried couples, causes children economic deprivation and other disadvantage.

Nor does marriage alone adequately promote successful co-parenting after divorce. Most divorced parents are not “perfect pals,” a term coined by family therapist Dr. Constance Ahrons.

While court-mandated co-parenting classes encourage parental cooperation, such classes provide too little, too late. The most common co-parenting arrangement after divorce is now “parallel parenting,” as reported by Drs. Kari Adamsons and Kay Pasley, and this arrangement encourages parents to disengage from each other instead of working together as a team for their child’s benefit.

Family law is largely to blame for parents’ reluctance to work together to benefit their children. While parenthood creates legal obligations between a parent and child (like child support), parenthood leaves the legal relationship between the parents virtually unchanged. This legal gap conveys the message that society has no expectations for how parents should interact. Consider, for example, that an unmarried or divorced parent has no legal duty to aid the other parent, even if the other parent is dying in the street and a call to 911 would save that parent’s life.

Like society at large, the law even lacks a word to describe the parents’ relationship. In everyday speech, parents refer to each other as “baby mama” and “the father of my children,” but these terms often have a derogatory connotation and suggest that the parents are not in a romantic relationship. “Co-parents” typically refers to divorced parents and then only to a subset of their broader relationship. No label exists that suggests parents have a permanent family relationship with each other from the moment of their child’s birth.

Social roles shape human behavior. The absence of legal obligations and language creates a void where there should be a social role to guide the relationship for the benefit of both parents and their children.

To fill this hole, society should impose a core set of legal obligations on parents who have a child in common that would obligate them to each other at least until their children are grown. These legal obligations should apply to all parents, whether married or not, and should survive the breakup of the parents’ romantic relationship and repartnering. They would be enforceable by the parties themselves, like any other private legal obligation. This relationship could be called “parent-partnership.”

Every state should enact a package of these obligations. The government should warn people that if a child is born or adopted ten months after the law’s passage, the parents will have automatic, eighteen-year long legal obligations to each other. Most of the obligations would kick in at the birth of the child, but some of them (such as an obligation not to abuse the other parent) might be triggered at conception or when the couple filed an adoption application.

These legal obligations should convey the expectation that people with a child in common will work together supportively for their child’s benefit. They should also convey the expectation that parents will exhibit toward each other those qualities that psychologists have said are essential for keeping relationships strong during the transition to parenthood and for making co-parents resilient after their romantic relationships end: fondness, flexibility, acceptance, togetherness, and empathy.

We might disagree about which legal obligations make the most sense, but we should discuss the possibilities. Apart from a duty to aid when a parent is physically imperiled, the law might prohibit parent-partners from psychologically abusing each other. Only half the states today allow a court to award a civil protection order to a parent for the other parent’s psychological abuse unaccompanied by threats or physical harm.

Parent-partnership might also regulate the parents’ financial interactions. These obligations would differ from the child support obligation that each parent owes to their child, as that doesn’t cover the disproportionate, often hidden, economic costs of caregiving, such as when a caregiver has to take a lower-paid job with more flexible hours. The law could provide compensation if one parent freeloads off the other parent’s caregiving labor, such as when a parent abandons the other parent and gives nothing in return. Unmarried and divorced parents currently lack a remedy for this injustice. The law could also address financial interactions outside of those related to caregiving: it could disallow the enforcement of an unfair premarital agreement at divorce if the spouses have a child together, something most states do not do.

The law could even require parent-partners to attend a relationship program at the transition to parenthood. Newborns predictably cause the quality of the parents’ relationship to plummet, and some programs appear to prevent that from happening. If one parent wanted a recalcitrant parent-partner to attend, the court should offer assistance. At the end of the romantic relationship, society might expect that parent-partners consider reconciliation counseling or, at least, friendship counseling (to promote a strong friendship after breakup). The law could offer a parent a remedy to ensure that the other parent learns the benefits of such counseling.

If parents were obligated in these ways to each other, people would be more deliberate about with whom they reproduce, more likely to engage in behavior that is beneficial for their child, and less helpless when confronting the injustices that parenthood can create between parents. Most important, the combination of these legal obligations would establish a social role that would help parents define their relationship from the get-go as a supportive family relationship. This role should guide their behavior without much need to enforce the obligations in court.

Adopting a parent-partner status would not diminish the importance of marriage as a social and legal institution. Rather a new status could co-exist with marriage by imposing a core set of legal obligations between parents (whether married or not), without triggering any public benefits.

Society can do better than lament the demise of “traditional” families. Society can begin to shape the law to benefit all families.

Merle H. Weiner

Merle H. Weiner is the Philip H. Knight Professor of Law at the University of Oregon School of Law. She is the author of A Parent-Partner Status for American Family Law (Cambridge University Press 2015).