Journal Issue: Children and Divorce Volume 4 Number 1 Spring/Summer 1994
Most feminists, whatever their differences in emphasis, would embrace both greater sharing of parental responsibilities and greater support for child rearing as important objectives. In considering the best ways to accomplish these ends, there are both broad areas of agreement and some differences on particular proposals. But there is no dissent regarding the connection between the gendered division of responsibility for child rearing and the disadvantages women experience in the workplace and at divorce. Most feminist scholars would advocate broad-based reform that includes examination of the workplace as well as the family, and public as well as private support for child rearing.Workplace Reform
In considering alternatives, proposals for reform extrinsic to divorce are essential and may well command the broadest support. Virtually all feminist writing about the workplace emphasizes the need to make employment more compatible with child rearing. For fathers to be able to participate more effectively in their children's upbringing and for mothers to avoid the economic marginalization that presently accompanies their child care responsibilities requires reform of the workplace. Adequate and affordable day care, more flexible hours and leave, and greater provision for interrupted and part-time employment without assessment of a substantial career advancement penalty would contribute to greater recognition and support for the caregiving role. Liberal feminists, like Kay and Okin, who emphasize the importance of shared parenting, view these reforms as essential.127 Feminists of difference, such as Fineman and O'Connell, who place greater emphasis on the special qualities associated with maternal caregiving, also embrace the reforms as important for women's protection.128Public Support
Virtually all scholars of the family similarly conclude that adequate provision for children requires a greater degree of public support. While divorce reform may improve the quality of life for middle-class children, in many poor families, the parents' combined postdivorce resources cannot adequately provide for the children. Moreover, the primary private solutions, expanded support obligations and more effective enforcement, work particular hardship on the fathers and mothers least able to pay.129 As Glendon has extensively documented, the United States "stands at an extreme point" in comparison with Western European countries in its failure to provide either public or private support for the casualties of divorce.130 Drawing on an extensive body of feminist literature challenging the traditional distinctions between public and private, Rhode and Minow emphasize that "marriage has presented a promise—between the members of the couple and also between the couple and society—that the costs of traditional gender roles will not be borne by women alone but will be spread throughout society."131The Allocation of Resources at Divorce
Addressing divorce itself, feminists emphasize the need for a more equitable allocation of resources and burdens. The single most consistent theme is the need to reexamine the allocation of resources following divorce. Weitzman charges that "[t]he omission of the career assets from the pool of marital property makes a mockery of the equal division rule."132 Okin is convinced that it is judges' tendency "to regard the husband's postdivorce income as first and foremost his" that best explains judicial reluctance to order adequate levels of support under discretionary standards, and she joins Weitzman in embracing the principle that "[b]oth postdivorce households should enjoy the same standard of living."133 Fineman and Kay, in the midst of their disagreement on virtually everything else, share enthusiasm for such proposals, commonly referred to as "income sharing," that would equalize the postdivorce living standards of the two resulting households.134
There are three principal justifications for income sharing. First, as Singer notes, postdivorce income, particularly in families with children in which the higher-earning spouse is not also the primary caretaker, inevitably reflects the division of labor within the marriage. Wage earners can devote themselves fully to their work and still enjoy children largely because of the contributions of the other spouse. Caretakers who cut back on their own employment do so at least in part in reliance on the income of the other spouse. Given the difficulties of calculating the impact of marriage on postdivorce earning capacity, and the fact that adjustments are inherently limited by the higher-earning spouse's ability to pay, equalization of postdivorce standards of living offers a certain, easily administered solution that underscores the concept of marriage as a shared enterprise. Singer accordingly proposes that postdivorce income be equalized for a period proportionate to the length of the marriage with separate provision for child support.135
There are two primary criticisms of this model of income sharing. The principal feminist criticism is that an exclusive emphasis on husband and wife does not go far enough in providing for children, particularly if the children are still young and the marriage was a short one. These feminists emphasize, therefore, a second rationale: the continuing responsibility of both parents for the well-being of the custodial family. Rutherford suggests a per capita income division for a period that may exceed the length of the marriage.136 Most other proposals, like Okin's, advocate comparable standards of living (rather than equal income) for the two resulting households, either for a period proportionate to the length of the marriage or until the children reach the age of majority, whichever is longer.136,137
The other major criticism centers on the fact that, while a portion of postdivorce income may be jointly determined, another, potentially larger, portion is individually determined, particularly after short marriages or marriages without children. Ellman argues vigorously that the husband is not responsible for societal discrimination generally or for the choices his wife makes before the marriage and that any adjustment of postdivorce income should therefore be tied to the effects of the marriage.138 Glendon has long maintained that "childless and child-rearing marriages involve different social, political and moral issues and should therefore be analyzed separately,"139 suggesting that an income-sharing approach justified for one type of marriage might not be appropriate for all. Feminist writers such as Rutherford, however, respond to both types of criticism with a third rationale for income sharing. Noting that all men benefit from the societal discrimination against women and that, even in marriages without children, women assume a much greater share of the domestic responsibilities, she concludes that income sharing ought to redress the general inequality in men's and women's prospects even if the income disparity in a particular marriage does not reflect the marital division of labor. Singer, while also advocating that income sharing be independent of the presence of children, bases her conclusion on an investment theory of marriage that treats marriage as an economic partnership in which the spouses exchange implied promises to share postdivorce income.140 For Singer, income sharing depends on the same partnership principles that underlie the equal division of marital property, not on the particular arrangements of a given relationship.
Whatever rationale is adopted, the tension between treating marriage as a shared enterprise and doing justice in individual cases acquires particular force when the higher-earning spouse and the primary caretaker are the same person. If the spouse of an unemployed alcoholic both supported the family and provided the only care the children received during the marriage, why should that spouse's income, the only income available for the support of the children after the divorce, be shared with the other spouse? While the injustice of the result is obvious, the issue poses particular difficulties for feminists because of distrust of judicial discretion and a reluctance to recognize exceptions to the concept of marriage as an economic partnership. Rutherford would nonetheless recognize a limited exception where a spouse had contributed neither income nor domestic services during the marriage, unless the lack of contribution resulted from non-self-inflicted incapacity.141
Income sharing, at least in its broadest forms, represents the clearest feminist response to the financial issues now addressed by both spousal support and child support provisions. Virtually all feminists emphasize the need to replace discretionary standards with firm and easily administered rules to overcome judicial bias. Most feminists, like Okin and Williams, emphasize the importance, in both symbolic and practical terms, of securing recognition of postdivorce income as jointly rather than individually owned. Many feminists, particularly the feminists of difference, insist on treating the mother-child relationship as a unit rather than addressing the needs of women separately from the provision for children.142 Finally, many feminists agree with Singer that only income-sharing proposals adequately recognize differences among women and adequately provide both for those women in traditional roles and for those women in nontraditional roles.143
While there is broad feminist support for income sharing, there is no similar consensus behind any of the other proposals. The leading alternative is recognition of lost career opportunities as an expanded basis for alimony. Family law scholars such as Krauskopf and Parkman have long discussed this concept, there is increasing recognition in the case law, and Ellman recently argued for recognition of lost income potential as the sole basis for alimony.138,144 Nonetheless, there is considerable feminist hesitation about the concept. O'Connell, drawing on Fineman's work, criticizes such proposals because of the victim imagery they employ.145 Women are measured in terms of a male model of full work force participation and compensated to the extent they fall short. Singer further objects that alimony connotes the transfer to a financially needy and deserving wife of assets belonging to her ex-husband and, thus, fails to recognize a wife's ownership interest in her husband's career assets. Additionally, she contends that, because alimony is thought to involve the transfer of assets, its availability continues to depend upon both the need of the recipient spouse and the financial ability of the obligor. She believes that each of these can be, and has been, manipulated to the disadvantage of divorcing women.146 Most feminists, like Singer, prefer income sharing.
A second set of proposals involves expanding the definitions of marital or community property to include professional degrees, pensions, and other assets acquired over the course of the marriage. Although there is feminist support for these proposals, none offers the possibility of a comprehensive approach without including postdivorce income. The dividing line between career enhancement that results from acquisition of a master's degree and career enhancement that results from ability to work overtime, between retention of an existing career with children and investment in a new one, is highly arbitrary. Only recognition of the full range of interactions between the division of labor within the marriage and postdivorce income offers an adequate basis for adjustment.
Finally, while there is feminist support for recent changes in child support enforcement, child support provisions remain focused on the children's immediate expenses rather than on the overall well-being of the custodial family. Genuinely shared parenting must include recognition of the impact of child rearing on both parents' households and of the importance of the postdivorce households to the well-being of children.Child Custody
The broad consensus of feminists regarding the need to provide greater support for child rearing and to address the financial consequences of divorce does not carry over to the issue of custody. Feminists who place the greatest priority on dismantling traditional gender roles have the greatest enthusiasm for joint custody. Bartlett and Stack present a classic liberal feminist defense of joint physical and legal custody in arguing that feminist critics have focused on the concrete and immediate effects of joint custody laws but have ignored the law's expressive or symbolic power to alter social expectations and norms.
According to Bartlett and Stack, "From the point of view of ideology, rules favoring joint custody seem clearly preferable. Joint custody stakes out ground for an alternative norm of parenting. Unlike the 'neutral' best interests test or a primary caretaker presumption, these rules promote the affirmative assumption that both parents should, and will take important roles in the care and nurturing of their children. This assumption is essential to any realistic reshaping of gender roles within parenthood. Only when it is expected that men as well as women will take a serious role in childrearing will traditional patterns in the division of childrearing responsibilities begin to be eliminated in practice as well as in theory."147 They argue that many of the criticisms of joint custody result from judicial bias and that better implementation, rather than an alternative standard, offers the best way to promote women's interests.
In contrast, Becker presents the feminist case for a maternal deference standard in which courts defer to a fit mother's custody preferences, whether she prefers sole maternal custody, sole paternal custody, joint legal and physical custody, or something in between. Becker starts by arguing that "mothering and fathering continue to be different activities; mothers tend to be more intensely involved in their children's lives and tend to have greater empathy for their children."148 She continues that, " . . . regardless of whether we should make equal parenting our primary goal, it is not occurring. Women continue to be the primary caretakers physically and emotionally even in dual-wage families. Women continue to invest more emotionally in children than men. We continue to socialize our daughters to do so. We should not, therefore, ignore their pain when they lose custody at divorce. Rather, we must judge custody standards in light of the emotional needs of women and children."149 In concluding that even a primary caretaker standard does not adequately address the needs of women and children, Becker reviews implementation of such a standard in West Virginia. She demonstrates systematic bias against women, especially at the trial court level and especially where (1) the fathers did more than the average father; (2) the mother "voluntarily" separated from the child at some time for some reason; and (3) the mother was sexually active outside marriage.150 Becker emphasizes that, in considering these issues, judges applied a less favorable standard to women than to men, even when operating under a standard thought to favor women. After a review of the alternatives, she concludes that only explicit deference to maternal preferences (a "maternal deference" standard) can overcome pervasive male bias in the application of otherwise neutral standards and provide adequate recognition and protection for women on an issue so central to their well-being.
While few other feminists have embraced an explicitly gender-based standard, there is strong support for a primary caretaker preference. Fineman, like Becker, emphasizes the "qualitative differences between the contributions of primary caretakers (typically mothers) and primary earners (typically fathers) to the upbringing of children."151 She is particularly critical of joint custody statutes "which formally grant fathers equal control over their children, regardless of who provides the day-to-day care and nurturing."152 To reward "demonstrated care and concern for children," Fineman advocates a primary caretaker standard that she believes will "ensure a good future for children in our culture" by encouraging "nurturing and concern for children in a concrete way." Such a standard, Fineman acknowledges, "may currently operate to the advantage of mothers, but if we value nurturing behavior, then rewarding those who nurture seems only fair."153
Scott, who supports Fineman's effort to reward demonstrated care and concern for children, is nonetheless critical of a winner-take-all custody system that ignores the reality of the many modern marriages in which caretaking is shared, albeit in a variety of different ways. She proposes a proportional custody system in which parents are awarded joint legal and physical custody in accordance with the level of responsibilities they assumed during the marriage.154
The dispute over the nature of the maternal role is central to the divisions in modern feminism. The differences between those who favor dismantling the gendered division of responsibility for children and those who celebrate mothers' special connections to their children are largely unbridgeable. Nonetheless, there are at least four aspects of custody that command broad feminist agreement: systematic discrimination against women in litigation and mediation; inadequate response to domestic violence; inappropriate resolution of high-conflict disputes; and inequitable distribution of rights and responsibilities following divorce.
Bartlett and Stack, in their defense of joint custody, mention judicial bias against women as an important factor undermining effective implementation; they place particular emphasis on the tendency of judges to take more seriously the demands of men's jobs than women's and the failure to restrain male efforts to coerce, antagonize, and manipulate their former spouses.155 Becker and Fineman base at least part of their appeal for maternal deference and primary caretaker standards, respectively, on distrust of judicial discretion. The fact that outcomes in litigated cases (men win more than 50% of the cases studied) diverge so radically from settled cases (sole maternal physical custody in 80% to 90% of cases nationally) and so often employ gender-stereotyped assumptions persuade virtually all feminists to favor restricted judicial discretion.
Similarly, however much many feminists agree that fathers should remain involved in their children's upbringing, they also share broad concern about requiring such contact in inappropriate cases. The legal system has historically downplayed the incidence and importance of domestic violence and has responded ineffectually where its existence is indisputable.156 Many courts do not recognize spousal abuse as grounds for denying custody or visitation despite the evidence linking parents' conduct to subsequent abusive behavior by children who grow up with such role models and despite the need for continued cooperation between mother and father to make joint physical or legal custody or visitation effective.157
More complex is the resolution of high-conflict disputes. A number of studies emphasize the role of conflict as a destructive factor in children's adjustment to divorce. Fineman fears joint custody creates an incentive for husbands to seek shared physical or legal custody as a form of retaliation against their wives and for courts to impose joint legal or physical custody as a literal splitting of the child to avoid decisions in difficult cases.158 Joint custody proponents like Bartlett and Stack similarly acknowledge the potential for abuse and argue that strict guidelines are necessary to preclude joint physical or legal custody in inappropriate cases, such as those involving domestic violence, and to guard against the use of shared custody as an extension of marital manipulation and discord.159
Finally, virtually all feminists agree that the current allocation of rights, responsibilities, and resources is inequitable. Czapanskiy effectively summarizes the criticisms of many feminists when she concludes that "what is wrong with joint custody is that it adds rights rather than responsibilities. And what many parents and children need are responsibilities rather than rights."160 Like Bartlett and Stack, Czapanskiy starts with the proposition that the expressive goal of the new ideal ought to be a fifty-fifty division of parental responsibilities and that both parents' relationship and responsibilities to the child should continue after divorce. Like Becker and Fineman, however, she also believes that the care women provide is undervalued. To remedy this, Czapanskiy advocates proportionality in the assignment of parental responsibilities with far greater recognition given to the "nonparallel allocation of nonfinancial responsibilities," that is, the fact that mothers assume a much greater proportion of day-to-day care. Rather than describe the resulting arrangement in terms of either primary caretaker or joint custody preferences, Czapanskiy advocates a "parenting plan" in which parents discharge their respective obligations through a combination of custodial and financial contributions to the child that bring into better balance the full range of children's needs (from buttered toast for breakfast to college financing) and the variety of parental contributions.