Sutherland Newsletter – April 10, 2012

Parents’ Rights Versus Parent’s Rights

By Bryce J. Christensen and William C. Duncan 

One of the latest harmful consequences of accelerating family breakdown is the pitting of parents against one another. This was evident in the 2012 Utah legislative session. For instance, legislators debated a bill to allow unwed fathers longer periods of time to object to adoptions of their children even when those fathers had been completely uninvolved in supporting the child’s mother. Legislators also took a bill that would have forced courts to give 50 percent of a child’s time to each divorced parent regardless of the conduct of the parents and the child’s settled patterns. Legislators voted down a proposal that would allow courts to consider whether a spouse who was not at fault in breaking up the marriage should be forced to seek paid employment, leaving children with no supervision or requiring placement of young child in non-parental care after being betrayed by a former spouse.

Those supporting the bill enhancing unmarried fathers’ rights and the bill requiring 50-50 custody after divorce and opposing the bill protecting the child-nurturing role of a betrayed spouse claimed to do so in the name of “parents’ rights.”

Typically when we talk about parental rights (or, perhaps more accurately, parental autonomy) we are referring to the need to prevent the government from interfering with the ability of fit parents to raise their children. The arguments raised in the bills noted here are different. They are not claims that the reach of government should be restrained but rather that it ought to beenhanced so that it can take sides in disputes between a child’s two parents. These claims turn the idea of parental rights on its head.
This is the great, and dangerous, irony of family breakdown. As a parent turns to the state to seek its help in getting him or her out of the marriage with as few tangible consequences as possible, the state gains an important client and a wide range of new powers consequent to the new duties it is being asked to fulfill.

It is not surprising that this scenario results in a distortion of thought. In responding to the bill that would make it easier for stay-at-home parents to continue to care for their own children in the home, one opponent actually saw no difference between a welfare recipient and a mother staying home to care for her children with the support of a faithless former spouse. Besides being insulting, such a statement turns reality on its head. A man or woman who must merely keep the promise made at marriage to support a spouse, a promise on which that spouse has relied in foregoing other opportunities to devote himself or herself to the couple’s children, is hardly being imposed on. When, conversely, a spouse who has the resources refuses to care for a husband or wife, that failure increases the likelihood the government will step in to provide support, whether through direct welfare payments or collection of child support.

Then there is the claim that it is a constitutional “right” for each parent to have precisely 50 percent of a child’s life after divorce. If a parent is fit, the state should not exclude that parent from a child’s life. That is why our laws presume that both parents will share joint legal custody on divorce. However, one should not have to be Solomon to know that splitting a child in half is not a good parenting practice. Beyond the practical difficulties (school schedule, travel) created for a child who has had no real say in the parents’ decisions, there are very real problems of justice. For instance, a parent who spends the majority of his or her time working outside the home so the other parent can care for the children and who then commits adultery would be able, on divorce, to completely upset the settled arrangements for the children and get fifty percent of their time. (The reality, of course, is that the children are unlikely to get more time with this faithless parent anyway. Instead, they will be cared for by institutional daycare, a stepparent, some other family member, or the parent’s new boyfriend or girlfriend.) This unjust division of custody would actually create an incentive for a party at fault to seek divorce.

Allowing courts to consider fault in granting a divorce and in the other legal issues following divorce could help reduce the injustice. It would allow courts to take seriously a parent’s desire to protect a child from the consequences of an ex-spouse’s bad behavior. Current considerations of whether a parent is excluding the other parent from a child’s life would be more just, and safe for children, if fault considerations (including whether one spouse broke up the marriage for a frivolous reason) were also taken into account.

The real answer, however, is for our laws and our people to turn their attention away from rights they want the state to create and towards obligations they have a duty to fulfill. The first obligation a parent owes to a child is a stable marriage.

Men who effectively abandon their children by impregnating that child’s mother and then not supporting her should not be able to claim they have had some “right” infringed when the mother makes the choice to allow that child to be raised in an adoptive home. Men and women who desert their spouses should not be able to assert a spurious “right” not to fulfill a promise to support that spouse. Those who break up marriages should not then be able to demand child-splitting without any consideration of their actions.

Treating adults as serious moral agents who can be assumed to be not only capable of but also responsible to keep the promises they make when they marry is not an abridgment of rights. Rather it is a rejection of a new kind of dependency on government as a shield against the negative ramifications of bad choices. The best way to protect the real rights of parents is to ensure that, as much as possible, they are committed to one another in a marriage dependent on the state for nothing except a wedding license.

Bryce J. Christensen, Ph.D., is associate professor of English at Southern Utah University and adjunct fellow of Sutherland Institute’s Center for Family and Society. He is a contributing editor to The Family in America and author of Divided We Fall: Family Discord and the Fracturing of America (Transaction, 2005). He has also published articles on family issues in Society, The Public Interest, Policy Review, Modern Age, and other journals.

William C. Duncan, J.D., is director of the Marriage Law Foundation and is the director of Sutherland Institute’s Center for Family and Society. He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.