The goal of this blog is not to offend but merely to establish the following three points about the current system in which fathers of illegitimate children can demand visitation and custody rights and have imposed upon them the financial responsibilities of parenthood: 1) The current system is neither “natural” nor “uniform through history” but merely a policy choice; 2) It’s a policy choice that has obvious drawbacks, that these drawbacks were known to history and are still known in pre-industrial cultures, and that these drawbacks have reappeared under the current system; and 3) One justification for the current system–it’s a risk you incur when you have sex–completely vitiates the pro choice argument on a woman’s right to choose abortion.
Though I have no firm opinion on the subject, I sometime wonder whether our culture would be better off if we had the expectation that fathers of children born out-of-wedlock had no imposed financial obligations to support those children and no right to demand a relationship with those children. While in 21st century America we assume that giving such fathers rights and imposing financial obligations on these fathers is somehow “natural,” I am unclear whether that actually reflects history or biology.
The history of child support laws for children born out of wedlock has vacillated from periods in which fathers of such children were required to support their out-of-wedlock children to periods in which the mother had the sole obligation of support, in both England (See Bastardy and Baby Farming in Victorian England) and America. See From Father’s Property To Children’s Rights: A History of Child Custody Preview. Periods in which society did not require fathers to support their children born out-of-wedlock often justified this decision over concerns that allowing mothers to seek financial support for their children born out-of-wedlock “encouraged licentiousness and illegitimacy.”
Since the late 1960’s the now-uniform trend in America is to require fathers of children born out-of-wedlock to provide financial support for their children. Some of the impetus for this trend was the United States Supreme Court decision in Gomez v. Perez, 409 U.S. 535 (1973), which held that once a state posits a judicially enforceable right of children to support from their natural fathers, the Equal Protection Clause of the Fourteenth Amendment prohibits the state from denying that same right to illegitimate children. The other impetus was the creation of AFDC, which led the Federal government, pursuant to 45 CFR 302.17 to require states to seek determinations of paternity and establish child support obligations for children born out-of-wedlock. Basically AFDC paid support to mothers who bore children out-of-wedlock but then used government powers to seek reimbursement of these funds from the children’s fathers. In South Carolina, “[a]t the 1962 Session of the General Assembly of this State, by an Act approved April 7, 1962, Section 20-303 of the Code, relating to the obligation of a man to support his wife and minor unmarried children, was amended so as to provide that a man shall support his minor unmarried children, legitimate or illegitimate.” Marshall v. Richardson, 240 S.C. 318, 323, 125 S.E.2d 639, 642 (1962).
Whether this was a unadulterated good is open to debate. One would have thought that the decriminalization of abortion brought about by Roe v. Wade, 410 U.S. 113 (1973) would have greatly reduced the percentage of out of wedlock births but the opposite has occurred. Instead, the trend lines in the percentages of children born out-of-wedlock since the late 1960’s would support the conclusion that requiring fathers to support these children “encouraged licentiousness and illegitimacy.” See Changing Patterns of Nonmarital Childbearing in the United States. Pop culture terms like “baby daddy” and “baby mama drama” support a concern that requiring folks who did not want to be married to each other to parent a child cooperatively is problematic.
Further, there is a reasonable analysis that the requirement that fathers support their children who are born out-of-wedlock is inconsistent with a woman’s right to chose abortion: if mothers can chose parenthood, why shouldn’t fathers have that same choice? “Sex” is the answer most commonly heard when that question is asked. The claim is that it is by having sex that a man opens himself up to the potential for child support obligations: by having sex with a woman, a man loses the right to disclaim paternity if the woman ends up pregnant. However that argument vitiates the pro choice position. If a woman opens herself up to parenthood by the mere act of having sex, then she shouldn’t have the right to abortion. Either the act of sexual intercourse should open up both parties to the obligations of parenthood or it should open up neither party to the obligations of parenthood. I have never understood a logic that allows abortion on demand but requires fathers to accept the responsibility of parenthood against their will.
I am not clear what a society in which the state does not force fathers to support their out-of-wedlock children would look like. Perhaps some of these fathers would marry the mothers to gain the rights of fatherhood. Further, there’s a reason that the term “shotgun marriage” was more prevalent when marriage was a necessary component of a father’s legal duty to support his children (for interesting reading on the inverse relationship between out-of-wedlock births and shotgun marriages see, An Analysis of Out-Of-Wedlock Births in the United States). Perhaps some of these fathers would support their children informally, without the necessity of a court order, with a quid-pro-quo that the mothers would allow them to have a relationship with these children. Rather than fighting it out in court, each parent would be required to cooperate to achieve their goals. Perhaps unmarried woman would be more careful about not getting pregnant or more likely to consider adoption (or, admittedly, abortion) if they do become pregnant. Perhaps the culture would become more like many pre-industrial cultures in which the mother’s family provided financial support for such children rather than looking towards a father for support (this may be one of the reasons that such cultures aggressively police the chastity of unmarried daughters). Perhaps the culture would look more like that of our closest primate relatives, in which a mother’s own mother, sisters and older daughters help with child care. The rapid rise in out-of-wedlock births and the incredible conflict between “baby mamas” and “baby daddies” could have been predicted by an understanding of history and it is not immediately obvious that this change has been for the better.
If it is offensive to be using the state’s coercive police powers to make pregnant women become mothers, it should be equally offensive to use those same powers to make men who impregnate women become fathers. The current policy encourages the bearing of children out-of-wedlock which destabilizes family formation. I have a thesis that the unacknowledged but primary current goal of family law is not to encourage the stable formation of families (and allow the orderly dissolution of unstable families) but actually to insure that children and dependant spouses do not become wards of the state. The way the law has developed to handle support obligations for children born out-of-wedlock is some of the primary evidence I have to support this thesis.