Encouraging Divorced Fathers to Remain Active Parents

I came across an excellent article today in the University of Pennsylvania Law Review, Solangel Maldonado, “Beyond Economic Fatherhood: Encouraging Divorced Fathers to Parent, 153 U. Pa. L. Rev. 921 (2005). The article isn’t posted yet on the law review’s web site, but I found a copy of it on Seton Hall’s site.

Maldonado, an Associate Professor of Law at Seton Hall, argues that the law has influenced social norms, most specifically in this context by its treatment of no-fault divorce and child support. She cites with approval arguments that the increased enforcement of child support (from a fairly casual enforcement level in the mid-20th century to decisive and active enforcement today), leaves fathers with the impression their primary contribution to parenting is economic. Every divorce lawyer (and nearly everyone else) has repeatedly heard from divorced fathers the lament that “I’m just a meal ticket.”

In many communities, so long as a divorced father pays child support – even if he does nothing else for his children – he is perceived as a decent, maybe even a good, father. Even if he has little contact with his children, so long as he supports them financially he will not elicit the moral opprobrium of most of his neighbors, coworkers, or relatives. We have only to look at the labels used to describe fathers who do not financially support their children (“deadbeats,” “deadbeat dads”) and the law’s and media’s obsession with such fathers and contrast it with the lack of attention given to fathers I refer to as “emotional deadbeats” to conclude that society condemns economic deadbeat dads but apparently cares little about emotional deadbeats.

. . . In most states, so long as nonresidential fathers pay child support, they have satisfied their legal obligations to their children. The law does not require that nonresidential fathers see their children, provide them with moral or educational guidance, or meet their friends and teachers. It merely requires that they support their children financially; it does not require that they parent them. By failing to demand that nonresidential divorced fathers take a more active role in their children’s lives, and by imposing few consequences when they abandon their children, the state enables disengaged parenthood and sends fathers the message that their presence is not important.

Id. at 940-41 (footnotes omitted).

Maldonado cites disturbing statistics about the involvement of fathers with their children after divorce:

  • About 80 percent of children live with their mothers after divorce.
  • About 60 percent of children have little or no contact with their fathers after divorce.
  • 23 percent of children of divorce have had no contact with their fathers during the past five years.
  • Most time fathers spend with their children is focused not on moral or personal development but on entertainment.
  • She cites research indicating the advantages for children who grow up with active involvement by both parents (if they’re not in conflict). The power of the article, however, lies in its analysis of why divorced fathers tend to be so disengaged and what society can do to change fathers’ behavior. Moving beyond the usual concern about courts’ preference for mothers over fathers, she points out that divorce lawyers may perpetuate bias by conveying to their clients the impression that custody is Mom’s to lose. (I regularly do this myself). The article also points out that the whole concept of “visitation” gives fathers the impression they’re not important to their children.

    Although legally responsible for supporting their children, unless they share legal and physical custody, fathers may depend on the residential mother for information about their children’s health, performance in school, athletic activities, friends, etc. For many fathers, the superficial nature of the visiting relationship leads to increased frustration as they realize, in the words of one nonresidential father, that “a father who is a visitor is not a father at all,” and may eventually lead to termination of all contact.

    Id. at 977 (footnotes omitted).
    She also traces fathers’ disengagement to the emotional pain they experience and their conflict with the child’s mother.

    Maldonado argues that society can and should change family law to encourage (require?) divorced fathers to participate more actively in their children’s lives. She suggests these changes:

  • Establish a norm and expectation of joint legal custody and stop allowing mothers veto power over joint custody. That is, presume that joint custody is appropriate unless the court receives evidence that it would be detrimental to the child.
  • Require parents wishing to avoid parenting responsibilities to submit to a “Refusal of Parental Responsibilities” hearing at which he or she would state on the record the reasons for rejecting the children.
  • Encourage courts to hold in contempt residential parents who interfere with visitation by the other parent and to be willing to suspend their driver’s licenses and professional licenses.
  • Characterize parenting time with the nonresidential parent not just as a right but as a legally enforceable duty. Rather than nagging nonresidential parents to spend time with their children, the court could simply impose on uninvolved parents a requirement of community service in lieu of parenting time as it does now for minor criminal offenses.
  • Establish a cultural norm of nurturing fatherhood similar to the cultural norm that already exists about economic support.
  • I found Maldonado’s article at once challenging, grating, and enjoyable. It’s a good illustration of why law reviews exist and why we lawyers should pay more attention to them.