Private: Failure to Flourish: How Law Undermines Family Relationships

by Clare Huntington, Professor of Law, Fordham University School of Law

Inequality is the issue of the decade. Both income and wealth are concentrated at the top, and social mobility in the United States, although varied in its particulars, is lower than in most developed countries.

One way to increase social mobility is to increase human capital, but, as I show in Failure to Flourish: How Law Undermines Family Relationships (Oxford University Press 2014), this can happen only if we strengthen families. Education is a key component of human capital, but what happens at home in the first few years of life—long before a child starts Head Start or pre-kindergarten—can set a child on a trajectory that is difficult to alter in later years.

Family law is part of the problem. Too often, instead of helping strengthen families, our legal system undercuts family relationships, making it harder for parents to provide children with the relationships necessary for healthy child development.

We can think of family law in concentric circles. At the center are rules about creating and ending relationships, including laws about marriage, divorce, adoption, and parentage. In the next ring are laws governing family behavior, such as child abuse and domestic violence laws. In an outer ring are legal structures and policies that we tend not to think of as family law but which deeply affect families nonetheless. These include tax policy, criminal justice, zoning, food stamp regulations, and laws governing workplace discrimination, among others.

In each ring, family law undermines family relationships. At the center, marriage laws don’t address the needs of a fast growing segment of the population—those parents who never marry. More than forty percent of children are born to unmarried parents, most of whom will not marry. Divorce laws also exacerbate acrimony, turning money and custody into a win-lose battle. In the next ring, child abuse laws deal with symptoms but not causes of child maltreatment, offering lose-lose solutions for families. And in the outer ring, multiple legal structures pose challenges for families. The criminal justice system’s emphasis on incarceration imposes enormous costs on families, especially low-income black and Latino families. Zoning laws that prioritize single-family housing increase sprawl and make it harder for multi-generational families to live together. Workplace policies make it difficult for parents to balance family commitments with the need to earn a living.

In the book, I offer a new vision for family law. I argue that we must re-orient the legal system to encourage the healthy family relationships that are at the core of a stable society.

The new vision recognizes that family conflicts are inevitable. Families break apart, sometimes voluntarily, sometimes involuntarily, for good reasons and for bad reasons. But we need to change the way family law addresses these conflicts because family relationships will almost certainly continue long after legal cases end. Family law must be able to restructure families while also preserving and repairing relationships, at least where there is no history of violence.

This approach creates a framework for understanding what the government should be doing on a broader scale: proactively nurturing strong, stable, positive family relationships to avoid these conflicts in the first place. As a theoretical matter, families and the government are mutually dependent. Families across the income spectrum need the government in myriad ways, from establishing clear rules about parentage to ensuring basic opportunities, such as education. Just as families need the government, the government needs families. Early childhood development is an example of this interdependency. Children need a solid foundation during the first years of life if they are to succeed in school, but children are not in formal schooling, even preschool, during this time. Instead, they are with parents and other caregivers during these crucial years.

This does not mean we should develop an all-encompassing welfare state. Rather, we should implement key supports and interventions at critical stages. The government can and should, for example, help young adults delay childbearing, encourage long-term commitment between parents, and support parents in their key work nurturing children in the early years of life.

The politics of all this aren’t easy, and I devote the final chapter to addressing these issues, but the need to reform family law is clear.