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The Children of Nonmarriage: Towards a Child-First Family Law

The Children of Nonmarriage: Towards a Child-First Family Law

Pamela Laufer-Ukeles

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Although family law has traditionally focused on marriage as the framework for supporting children, the modern family is increasingly developing outside of marriage.  As such, we must consider whether family law does enough to support the children of nonmarriage, who have less resources available to them, receiving less parenting time and less child support and suffer poorer outcomes on a range of wellbeing indicators.   A wave of suggested reforms has posited that the way to customize family law to the context of nonmarriage is to focus on solidifying co-parent relationships through recognizing a co-parent legal status and awarding rights and imposing obligations as between biological parents more fairly, thereby placing “marriage-like” trappings on unmarried parents.  In this article, I argue that this approach misses the opportunity to focus on the needs of children first and directly instead of expecting benefits to trickle-down from stronger relations between co-parents.  Given the different circumstances involved, I caution against the impact of potential negative side effects of such reforms for children.  Instead, I focus on how the law can do more to support children of nonmarriage directly, by state action focused directly on supporting children, and by legal recognition and facilitation of additional parental figures who provide care and support alongside traditional parents.  The expanded parental web to benefit children of nonmarriage that I envision is made up of direct state benefits and support for children, as well as stepparents, birth parents, grandparents, and functional parents working alongside traditional parents to provide impactful care for children in an inclusive and stratified manner that preserves the dominance of the primary caregiver.  This framework focuses on the way the law can support children directly and by facilitating cooperation among a variety of parental figures, perhaps idealistically, leaving aside concerns about fairness and equality in adult-centered disputes.  Such idealism, however, better reflects the reality of how care is provided outside of marriage and is perhaps more practical than legal mechanisms that impose the trappings of marriage on those who are unmarried. 

Professor of Law and Healthcare Administration, Academic College of Law and Science, Hod Hasharon, Israel; J.D. Harvard Law School; B.A., Columbia College, Columbia University. The author would like to thank the participants and organizers of two important workshops focused on nonmarriage at which this Article was presented: The Nonmarriage Roundtable at the University of Arizona and the Joint Parenthood in Family Law and Policy at the Hebrew University, Jerusalem. Special thanks to Ayelet Blecher-Prigat, Merle Weiner, Douglas NeJaime, Clare Huntington, Naomi Cahn, Shahar Lifshitz, Laura Kessler, Shari Motro, Dara Purvis, Katharine Baker, June Carbone, Sharon Shakargy, and Ram Rivlin for helpful insights and discussions relating to this Article. Thanks also to Gabrielle Agus for outstanding research assistance.

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Pamela Laufer-Ukeles

,

The Children of Nonmarriage: Towards a Child-First Family Law

, 40 Yale L. & Pol'y Rev. 384 (2022).