June 30th, 2011

Child support: the law is an ass?

[NOTE: The following is a reprint of an old post of mine. I thought that it would be an interesting one to revisit, in the light of the spotlight shed on the institution of marriage lately.]

Dean Esmay wrote a short post with the following statement that caught my eye:

…I still note with some mild annoyance that apparently it’s okay to loudly proclaim for “a woman’s right to choose,” and evil and wicked and oppressive to say that her right to choose might have limits, that she should use birth control and be more prudent… but if a man doesn’t want to be held fiscally and socially responsible for a woman’s choice for 18 years, he’s an evil scumbag who should keep it in his pants and use birth control and if he doesn’t like it too bad. He made his “choice” when he chose sex. She gets her choice well after the fact, and gets to hold him responsible for her choice whether he likes it or not.

Although I think I understand where Dean is coming from—on the face of it, it certainly seems an unfair situation, doesn’t it?—his words made me take a little stroll down memory lane, along some paths I haven’t visited in quite some time. Thus, this post.

One of the benefits of being a little (just a little!) older is being able to remember when things were very very different, and trying to apply that perspective to the issues of the day. I’m well aware that nothing I say here may convince Dean (or anyone else, for that matter) to see this issue any differently. But please hear me out.

I’ve done a bit of work off and on over the years in the fields of custody, child support, and the rights of fathers and mothers. Way back when I was first learning about this stuff, abortion was illegal, and divorce was granted on fault grounds (adultery, desertion, battery; that sort of thing). In fact, the family law of Massachusetts, the state I knew best, embraced some very strange principles, so strange that when I write about them you may not believe they were operating as recently as the late 60s and early 70s .

In fault divorces one person was the plaintiff and sued the other, alleging a marital offense; the other often countersued and alleged a different offense on the part of the original plaintiff. So the couple wasn’t just suing for a divorce, they were suing to see who would be judged the guilty party and who the innocent one.

Condonation was a possible defense against fault charges, and was defined as:

the act of forgiving one’s spouse who has committed an act of wrongdoing that would constitute a ground for divorce. Condonation generally is proven by living and cohabiting with the spouse after learning that the wrongdoing was committed.

So, to be crystal clear: if spouse A hit spouse B, this would ordinarily constitute a marital offense and B could sue A for divorce and win. But if A could successfully claim that at any time after the blow—even if it was months after—the two had slept together, then B could be denied a fault divorce on these grounds.

Then there was “collusion.” In a state such as New York, for example, adultery was one of the only grounds for divorce, and people often faked adultery in order to obtain a divorce. In those days there was actually a fairly lucrative business trafficking in women whom one could hire to go to a hotel and pretend to have an assignation with the husband for this very purpose.

So, collusion was:

an agreement between two or more persons that one of the parties brings false charges against the other. In a divorce case, the husband and wife may agree to use adultery as a ground in order to obtain a divorce more quickly, knowing full well that adultery was not committed. Collusion is illegal.

Illegal—meaning, if found to have occurred, no divorce.

And then there was a third strange legal principle. Memory fails me (and Google does, too; I can’t find the term anywhere) as to what it was called. But the idea was that if both parties alleged fault on the part of the other, and the court found that both their claims had merit, they could be judged to cancel each other out. Two wrongs apparently could make a right—and then, no divorce.

The utter absurdity of much of this underlines the timeless truth of the famous statement made by Charles Dickens’s character Mr. Bumble, about a different but highly related matter (that the law presumed a wife to be under her husband’s control):

Mr. Brownlow: The law assumes that your wife acts under your direction.

Mr. Bumble: If the law supposes that, then the law is a ass, a idiot! If that’s the eye of the law, then the law is a bachelor. And the worst I wish the law is that his eye may be opened by experience.

Fault divorce had its—well, it had its faults, to be sure. Now that it has nearly gone the way of the dodo, I don’t think too many people mourn it. At any rate, I’m certainly not one of them. The once-flourishing industry that provided fake mistresses (and real photographers to document the occasion) is no more, as well. But remnants of the old system remain in our family laws, like some sort of vestigial organ.

What was the point of all of this, anyway? The law was thought to have a strong interest in marriage because the institution constituted the bedrock of society and of childrearing. Breaking up a marriage was meant to be difficult, and only to be available under certain quite egregious circumstances. The lack of easy availability of divorce was often painful for everyone involved, and it led to terrible hardship—although, of course, the remedies making it easier have also led to terrible hardship.

I’m not suggesting we go back. But it’s useless to pretend that the law can ever solve the dreadful problems inherent in the fact that people are flawed, love doesn’t always last, and that the children of such unions need to be protected as much as possible from the mistakes of their parents.

The following is an illustration of just how far the law used to be willing to go to protect the children. There was a rule in Massachusetts that all divorces were conditional when granted, and that they only became official six months after the final hearing. The reason? Way back when this rule had been written, there was no way to be certain that a woman wasn’t pregnant at the time of the divorce, and the court didn’t want to make bastards of the children born after the hearing, if in fact the pregnancy had occurred during the marriage. Back in those quaint days, being illegitimate had huge negative ramifications for the child, and the court would go far to prevent a child from being placed in that legal no man’s land.

What’s more, there was another odd and related rule: a man was (and in many cases, still is) “estopped” from claiming he was not the father of any child born of his marriage—that is, conceived within the time frame of the marriage. And this not only included cases in which the child was not in fact his because his wife had had an affair, it included pregnancies that began when he was away from home and could not have possibly been the father.

Talk about lack of father’s rights; a man was (and, as I said, often still is) actually required to support a child that was not his! And why was/is the law being such a dreadful, abominable ass? The rationale behind the idea, archaic though it may seem, was that (a) the rights of a child to be legitimate were paramount, and (b) when you got married, you made your bed and had to lie in it (even if someone else had been lying in it as well).

I am most definitely not saying I approve of such laws. I’m merely trotting them out from the dustbins of memory (and please, let me know if I’m wrong about any of this, because I’m doing this entirely from my own recollection) to illustrate just how far the pendulum has swung in recent years towards protecting the rights of parents versus those of the child.

Yes, with abortion and birth control and divorce on demand and most of the people involved in these cases not ever having been married in the first place, it does seem as though a man should be able to say, “Whoa! I never bargained for this! You got pregnant, you decided not to have an abortion (the solution I would have preferred), you decided to keep the baby. Why should I have to pay for the next eighteen years?”

This is the way it used to be explained, anyway: when two people sleep together, both of them—man and woman—are presumed to assume the risks that go along with the act. And what are these risks?

The first is that every single act of intercourse might end in pregnancy (unless the woman is past menopause, which of course is irrelevant to these cases). Despite birth control, despite assurances that all is taken care of and that it can’t happen, despite whatever people tell themselves and each other, despite truths and despite lies—it’s still possible. And everyone is presumed to know it’s possible. And if they don’t, they very well should.

But all is not equal. By the act of sleeping together (with or without birth control), the man and the woman assume different risks, and there’s no way around some of those differences, because they are rooted in biology. The woman runs the risk of becoming pregnant. Pregnancy means a woman is faced with the associated health risks, which can be considerable; the associated decisions (because—and there’s no way around this—she carries the fetus around within her body) as to whether to bear or not bear the child and whether to keep the child, if borne (if she gives birth and wants to give the baby up for adoption, the father can in many cases sue to block the adoption and raise the child himself. But that’s a different situation than we’re faced with in Dean’s example, in which the father neither wants the child nor wants to pay for it).

In addition to the risks and responsibilities of pregnancy itself, the mother who chooses to give birth and give the child away bears the pain associated with that. And, if she chooses to keep the child and raise it, she—no less than the father—takes on the responsibility of supporting it financially. As custodial parent, she takes on the task of raising it as well, in the emotional sense.

The father takes on a different responsibility, and different risks. He knows he does not have any chance of becoming pregnant (at least that was true when last I checked). But he knows he runs the risk that his partner might, and that if she does she’ll have the right to make the major decisions about that pregnancy. He also knows that, if she happens to decide to keep the baby, he will be required to support it financially, although his emotional connection to it cannot be forced. And he knows, and assumes the risk, that she might even keep the fact of a pregnancy from him, and/or abort the baby without his knowledge.

That’s a lot of freight associated with one act of sex, isn’t it? Not too many people think about it that way—and, to be realistic, they probably never will. It’s perhaps the very last thing most young people think of when they hop into bed together.

But the law doesn’t really care; it’s that much of an ass, and a party pooper as well. Because the law still contains that remnant—that vestigial organ, as it were—of being more interested in the welfare of the child than the rights of either parent.

You may disagree with the results—I don’t like the results all that much myself. But my observation is that there’s no good solution and probably never will be, human nature being what it is. And the law we’ve got right now is as good as any I can come up with, I’m afraid—even though it may still be an ass.

[NOTE 1: For all you English majors out there: yes, I know the original quote is “The law is a ass.”]

[NOTE 2: In my research, I found this unrelated NY Times article with the amusing title “If the law is an ass, the law professor is a donkey,” about the prevalence of Democratic professors in law schools.]

16 Responses to “Child support: the law is an ass?”

  1. Occam's Beard Says:

    she carries the fetus around within her body

    Ah, neo, but pregnancy is just a social construct, foisted upon us by the matriarchal hegemon.

    (This risible postmodern rubbish cries out for parody.)

    Re “condonation,” I can see the sense of this, frankly. It’s a logical adjunct in the marital context to the statute of limitations in the criminal one. Condonation would prevent “gunnysacking” a grievance until some later date. Bygones, and all that. (Note that something like condonation would have gotten Clarence Thomas off the hook; if whatsername followed Thomas to another position after the allegedly scarring experience, it clearly wasn’t that scarring after all.)

  2. gs Says:

    For simplicity, assume that both divorcing partners have no moral objection to abortion.

    At first glance it seems to me that if (there is proof that) the wife aborted a child which the husband wanted or if she bore a child which the husband did not want, the division of assets should be adjusted for that.

    I am not proposing to penalize the children by reducing child support.

  3. Liz Says:

    As far as I’m concerned, a man who willingly has sex with a woman minus a condon is called a father.

    I have sympathy if the man in question took reasonable precautions but, from the way certain people talk about pregnancy when the man doesn’t want the baby, you’d think we were talking about immaculate conception.

    Take some responsibilities, fellas, and maybe your complaints would be received more favourably. As it is, a lot – *not* all – men seem like they just don’t want to take responsibility.

    (And yes, I do believe that women should take responsibility as well. I do wish some of them would think before they procreated.)

  4. Curtis Says:

    Law is an ass when it assumes anything kind about man. If this is a truism, it helps explain why Utopian jurisprudence devolves into such utter hypocrisy.

    There is another purpose to marriage of which children is the main example: In becoming more “human” and less animal, one learns love which is the living of one’s life for another. Marriage serves the purpose of developing “humaneness” and the appearance of children aids this purpose both in the natural love that is there and in the quotidian choices. To love is to die to self and for that marriage and kids are very helpful. And it’s a sneaky thing because one doesn’t even realize what has begun. If the law is there and recognizes that there will be times when the whole enterprise will be extinguished due to weakness or crisis, and seeks to prevent such calamity, then a greater good is accomplished by the creation of more strong, moral, and humble creatures than would have happened without the law. We start out thinking we love but were really wanting something (selfishness) and the law should encourage the transformation of that selfishness into love. A man or woman who has no care for their own children is less than human, even less than animal. It is our culture more than our law which is the current ass.

  5. Steve Says:

    The law is biased to give the mother custody of children. If women are interested in equal rights, I want to see them push to have that changed. If they don’t they are full of crap.

  6. Jim Sullivan Says:

    “Talk about lack of father’s rights; a man was (and, as I said, often still is) actually required to support a child that was not his! And why was/is the law being such a dreadful, abominable ass? The rationale behind the idea, archaic though it may seem, was that (a) the rights of a child to be legitimate were paramount, and (b) when you got married, you made your bed and had to lie in it (even if someone else had been lying in it as well).”

    When I see Equitable Estoppel rear its head nowadays, it is primarily (but not entirely) brought up in the Child Support arena. Some guys will find out that the ten year old kid he is paying support for may not be his. He’ll want a DNA test then he’ll want be released from his obligation to pay (if the test comes back and says he likely isn’t the father, of course).

    The rationale is that it would do tremendous psychological harm to a child to be told, out of the clear blue sky that the man they know as dad isn’t really their dad at all.

    I find the illegitimacy rationales fascinating. Mostly because I just can’t imagine such a subject mattering anymore in Family Court. Everything I say is anecdotal but I’d say the majority of child support and custody, even if only by a slim margin, revolve around children born out of wedlock.

  7. Gray Says:

    My wife’s ex only paid a token payment of $250/month for his kid, my stepkid, based on the initial agreement with her. She’s very nice….

    He decided to go for a unilateral modification of the Costodial Agreement and didn’t want to share the cost of her orthodontia. He said: “Well my teeth are crooked!” I’ve got the dental insurance.

    I warned him not to let the courts get a crack at him–to stay out of the courts, pay the $250 and whatever he can for his half of the braces, but noooooo! He went to the courts…

    Now he owes $722/month and the arrears are piling up.

    Dumb ass….

  8. Gray Says:

    He”ll be sending his Social Security money to his kid at this rate and it is utterly his own fault. I don’t need the money and I don’t want to impoverish him, but he went to the courts….

    Dumb ass!

  9. J.J. formerly Jimmy J. Says:

    Curtis said, “There is another purpose to marriage of which children is the main example: In becoming more “human” and less animal…….”

    That entire paragraph is about as fine an example as I have seen of the reason why marriage is an important part of our culture. It really is all about the children. I know that’s a well worn motto of the left, but it is true. If only they, and the rest of society, really believed it.

    It certainly was true for me. I began with more selfish desire than selfless love but was eventually transformed into a responsible father and husband.

    I hope you won’t mind my passing it along to my e-mail correspondents. I like to share this kind of wisdom with my friends.

  10. expat Says:

    I agree with JJ. Your comment is wonderful.

  11. Lame-R Says:

    Excellent post, and Curtis’ comment hit the nub of my feelings on this subject.

  12. Occam's Beard Says:

    I fully agree with Curtis and JJ. Marriage is about children. Period. Not tax breaks, benefits, or anything else. Children. Period.

    And whenever I hear some leftist sanctimoniously cite childless marriages (childless by choice, infertility, age, whatever), I have to restrain the impulse to throttle him to give Darwin a helping hand.

    Sure, there are chldless marriages. There are also sham marriages (hello Bill and Hillary!), there are green card marriages, there are all kinds of deviations from the norm in all spheres of endeavor (and with which Dems always seem to be uniquely familiar), but the bottom line is that the tail doesn’t wag the dog. The purpose of marriage is to provide for the protection, support, and raising of children, even if not every marriage fulfills that purpose.

  13. Mrs Whatsit Says:

    What Curtis said.

    The presumption of legitimacy in marriage is probably going to go away eventually as a result of DNA testing, but it certainly isn’t happening very fast. My Family Court experience matches Jim Sullivan’s theory that it doesn’t come up all that often anyway, because most of the cases don’t involve parents who were ever married. It’s sad, but where I live at least, that’s true.

    However, I’ve seen a couple of equitable estoppel cases that used the presumption of legitimacy in a way you might not expect. In both cases, husbands who had raised children as their own for many years found out only upon divorce — from DNA testing obtained by their wives or wives’ boyfriends –that the children were actually fathered by the wives’ boyfriends. In both cases the husbands fought to KEEP their legal rights to the children, who were by then, to all intents and purposes, their children even though the biological relationship had never existed. In both cases, the husbands succeeded. Even though they had been tricked and deceived in a particularly foul way (in both cases, the wives had known all along who the children’s real fathers were), these men loved the kids they had raised as their own. They wanted to keep paying child support, they wanted visitation rights, they wanted to keep on being fathers to the children they had raised, and the presumption of legitimacy helped them do it. It isn’t always an anti-man thing — depending on what the men want. Not all men want to wiggle out of their parental obligations as soon as they get the chance.

  14. Wandriaan Says:

    In the posts here you can observe the fact that man’s fallen nature primairily reveals itself in the betrayals in the most primordial community: the family.
    No fault divorce was a fruit of naivite concerning evil in men and women.
    In my life-experience no thing contributed so much to the increase of innocent and guilty suffering as the frivolous attitude concerning divorce (and the family in general) that became fashionable some forty years ago. The law is just an expression of this cultural phenomenon.
    Protecting the family by society is the number one way to decrease innocent and guilty suffering. Society should raise its sons and daughters on the utter seriousness of marriage and the family, given the truly sacred involvement of the procreation of children.
    As I have said before: we boomers were suckers foremost in all thing concerning sex. We were stern on flimsy matters like Co2 emisions and frivolous on deadly serious matters as the family.
    It is time to admit it: we were wrong, Hollywood was wrong, the progressives were wrong, our reviled ancestors were right: the most dangerous thing you can do, both as an individual and a society, is to tamper with the institution of the family.
    But most boomers won’t admit it; they will boast till they die on their ‘fabulous sexual liberation’.
    The Catholic Church has gone through the whole rot of the sexual revolution itself, but the most promising parts of the Church are instructing the young now based on the ‘Theology of the body’ of John Paul II.
    What I have seen is very realistic and morally beautiful at the same time.
    More and more I think that the way out of the current malaise of the West is not political. It is dedicated and well instructed young people creating beautiful strong families, little oases of spiritual innocence in a increasingly jaded and decadent world.
    This boomer at least prays for this: that they may not be so stupid as I was and have strong, vibrant and, yes: if possible, large families.
    As Christ said: ‘That they may have Life and have it more abundantly’.

  15. JJ Says:

    Well said Wandrian In the past I’ve not been a big supporter of the Catholic Church. However, I now recognize that moral training from religious sects or programs such as Boy/Girl Scouts are really more important than ever and that the sexual revolution, while embraced as allowing more freedom and choice, was actually a corrosive force on marriage and the family.

    Like you, I’m praying that there is going to be a counter revolution. A rebirth of honoring the family as the basic unit of a strong republic.

  16. IgotBupkis, President, United Anarchist Society Says:

    …that if she does she’ll have the right to make the major decisions about that pregnancy. He also knows that, if she happens to decide to keep the baby, he will be required to support it financially, although his emotional connection to it cannot be forced. And he knows, and assumes the risk, that she might even keep the fact of a pregnancy from him, and/or abort the baby without his knowledge.

    Right there is the freight car of load I personally take massive issue with. Not in the direction you think, however — it basically deals with the twin concepts of Authority and Responsibility.

    If you (i.e., The Law) are going to saddle someone with Responsibility, then you have no business not providing them with the maximum amount of related, equivalent Authority available to you (i.e., The Law).

    That is not to say that a man must have the Authority to reject his Responsibility for a child, if he does not have the Authority to order an abortion if he doesn’t wish to support it.

    But he SHOULD be given some “compensation” for this difference —

    a) No woman should be allowed to either terminate a pregnancy nor to choose to have a baby without providing the knowledge of her pregnancy to the father, if known (and yes, the courts should make all reasonable efforts to assist the woman in determining the father’s ID if she can narrow it down to a reasonably small sample). The man should have some reasonable opportunity to encourage the woman in the “other direction” if time and situations permit.

    b) He may not have final say in the final decision, but at the very least, he should be heard on the matter if he is going to be assumed to have Responsibility. That’s really not THAT MUCH to ask, is it? 18 years of responsibility vs. a couple hours of time discussing the options. A couple hours of time discussing the options vs. terminating what, by some considerations, is a human life (I don’t agree with that, but that’s a different matter — the guy OUGHT to have a chance to convince the woman not to go through with an abortion if he has moral objections to the action)

    c) If a woman is going to violate the will of the father in this regard, it should provide some reduced responsibility for it. He should be required by law to pay only 40% of the child’s living expenses.

    d) If a child is born, then it should be treated as 50% “his child” — he should have as much opportunity to be a normal parent — with the same rights and responsibilities to the guidance of that child — as the courts can provide him with, should he wish it… The idea that she can have a baby, then raise that child to hate the father, or to hate men in general, or to raise the child to ideas and notions that the father disagrees with or despises is shamefully EVIL. He should have as much input into that child’s life as the courts can reasonable provide in comparison to any other parent. Granted, the child “needs its mother” more than the father… but this could be counterbalanced in a dozen different ways, by providing some times with the child which balanced the enhanced time a child gets with its mother in the early years. If you are going to claim he is Responsible, then he needs to have Authority to match.

    e) The direct, intentional violations of a man’s right to fatherhood by the mother should have SEVERE consequences when performed by the mother. If she lies, fabricates evidence, fails to inform, or otherwise acts to deprive him of his rights AS A PARENT then The Law should throw the book at her. This is tantamount to a cop fabricating evidence or lying under oath. It is someone abusing their special privilege for a direct personal goal, regardless of their personal justifications. It clearly destroys the basic underlying fabric of society and is one of the worst possible crimes one can personally undertake.

    f) To violate a man’s Authority over the life of the child — his PLACE in it — is a violation of the rights you gave him when you placed the burden of Responsibility on his shoulders.

    g) If the man is required to make personal compensation, and he believes the money will be misused (suppose the wife is a junkie or alcoholic, as a prime example — but not one provably so in court to the point where her maternal rights are called into question). Then he should be able to require the court to act “en loco parentis” to expend his proportion of the child’s expenses — he should be able to pay the money not to the mother, but to an agent of the court, who sees that the money in question is being used to care for the child, and not to buy drugs for the mother while the child lies in poopy diapers for hours. And yes, I do know of a “lesser” circumstance of this, where the father in question made sure that his daughter had what she needed — clothes, food, etc., but refused to pay child support because the mother was a lush. I’m willing to bet that has happened a lot in the past.

    I don’t object to the idea that there is a male Responsibility as a result of a child being brought into the world.

    I DO object — most strenuously — to the idea that he does not gain Authority over the child in direct association with that Responsibility.

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.

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