In a new book, Fordham law professor Clare Huntington points out the many ways in which our society and its laws drive families apart rather than bring them together—and she offers numerous ideas for change.
The book, due out in June, Failure to Flourish: How Law Undermines Family Relationships (Oxford University Press, 2014), touches on everything from transportation policy and zoning law to divorce procedures and the child welfare system.
“The heart of the book is the argument that strong, stable, positive relationships in families, especially between parents and children, are essential for individuals and for society,” she said.
But obstacles to those relationships can be seen everywhere—for instance, in zoning laws that foster suburban sprawl and long commutes, depriving families of time together, and in family leave policies that guarantee parents only unpaid leave to care for a new child, making parents choose between putting food on the table and bonding with a newborn.
Also straining families are many of the practices embedded in our legal system—such as the adversarial, “scorched-earth” approach to determining where a child will live after a divorce, Huntington said. This approach “completely disregards the reality that long after the judge and lawyers have gone home, the members of a family still have to relate to each other,” which can be difficult after a bitter custody battle.
Studies have found that fathers stay more engaged with their children over time if custody proceedings are more amicable, regardless of how much access to their children they receive as part of the settlement, she said. It’s growing more common for divorces to be mediated with the goal of restructuring family arrangements for the future rather than singling out the “better parent.”
Huntington’s book also deals with efforts to reduce the number of children placed in foster care, many of whom are there because their families are struggling with poverty related issues.
There are promising programs, such as the Nurse Family Partnership, which can prevent foster care placements by helping parents develop parenting skills, she said. And a relatively recent reform to the rules governing foster care allow a state to place a child permanently with a member of the extended family—with help from state subsidies—without adopting the child outright, thus preserving the parents’ place in the child’s life.
Huntington further called the prison system “the most stark example of how we undermine relationships between parents and children,” as parents are sometimes incarcerated for nonviolent offenses.
“The person who’s completely innocent—the child—is deeply affected by losing a father and oftentimes a mother,” she said. “When a father goes to prison, the child often loses contact with [him], and the family loses the benefit of the father’s earnings. When a mother goes to prison, the child is at risk for foster care placement.”
One solution she discussed is to incarcerate offenders closer to home so their children can at least visit them. Also, the Women’s Prison Association—on whose board she sits—helps female offenders secure alternative sentences. House arrest paired with social services allows offenders to keep their children at home while completing their sentences.
Other policy changes could enhance fathers’ involvement. “There are all kinds of ways in which the law drives the father away from the family,” she said, noting that some states’ rules grant the mother sole custody of a child if the parents are unmarried.
Granting unmarried fathers more rights would be one improvement, along with reforming the child support system to let fathers provide more direct assistance to their children, she said.
Huntington offers many more ideas for making laws more family friendly, one of which is requiring assessments of how families will be affected by major public works projects. She thinks of her book as “a liberal defense of the family,” in that it calls for families to receive strong government support and still recognizes the important place of the family in our society.
But she acknowledges the political obstacles to such an approach.
“There’s a real fear of the ‘nanny state,’ and an attachment to the idea of autonomy from the state,” she said. “People don’t want to acknowledge that most families receive support from the state, from public education to the mortgage interest deduction.”
It’s a convenient attitude in some ways: “If families are apart from the law, then whether they rise or fall is their own fault and their own problem, as opposed to saying, ‘We, society, have created the conditions under which you are living your family life, and these conditions deeply influence whether your family’s going to flourish or fail.’ The second formulation leads to affirmative responsibility on the part of the government.”