The Disintegration of Families and Children’s Right
to Their Parents
By Lynn D. Wardle
Bruce C. Hafen Professor of Law
J. Reuben Clark Law School
Brigham Young University
Provo, Utah 84602 USA
Presented at the
Caribbean Regional Conference of
the International Society of Family Law
The Legal and Social Consequences of the Disintegration and
Reconstitution of Families
March 18-19, 2011
Nassau, The Bahamas
I. Introduction
A. Best of Times and Worst of Times
B. The exclusiveness of biological and adoptive motherhood and
fatherhood
II. The Worst of Times—The Disintegration of Marriage and Families
III. The Public Costs and Private Harms of the Disintegration of Mutual Families
A. The Social Costs of the disintegration of Marital Families
B. The Detrimental Consequences for Children of Deprivation of Parenting
by Both Parents
IV. The Problems of Planned Parentlessness
V. Children’s Legal Right to A Parental Relationship With Both Parents
A. The Child’s Fundamental Right to a Parental Relationship With Both
Parents
B. Protection of A Child’s Relationship with Both Parents Is Deeply
Imbedded in American Legal Policy
C. The Role of the Law in Remedying the Disintegration of Families
VI. Conclusion: Silver Linings; the “Best of Times” As Well
I. Introduction
A. Best of Times and Worst of Times
“It was the best of times it was the worst of times, it was the age of
wisdom it was the age of foolishness, it was the epoch of belief it was
the epoch of incredulity, it was the season of light it was the season of
darkness, it was the spring of hope it was the winter of despair, we
had everything before us we had nothing before us . . . .” -- Charles
Dickens, A Tale of Two Cities
• Baroness Deech “It is marriage that makes all the difference…”
• Chief Rabbi, Lord Sacks noted: “Children lucky enough to be born
into strong families are advantaged in almost every area for the rest
of their lives: school attendance, educational achievement, getting
and keeping a job. They will earn more. They will be healthier. They
will be more likely to form strong marriages of their own. Children
who do not have that good fortune will be disadvantaged for the rest
of their lives.”
B. The exclusiveness of biological and adoptive
motherhood and fatherhood
Chart ___. ART—Thirteen Potential Parents
Consider the number of potential parents in the following hypothetical: Husband & Wife (H&W) want a
child but they both are infertile. They contract with a married Sperm Donor (SD) for SD to donate sperm, and
they contract with Egg Donor (ED) for ED to donate an egg. Both egg donor and sperm donors are is married
(to SDW1 and to EDH1). Husband and Wife also contract with a Gestational Surrogate (GS) to carry the
embryo/fetus to birth. GW also is married (to GSH1). After the contracts are signed and the child is conceived
and implanted in the gestational surrogate, all four couples involved (H and W, SD and SDW1, ED and EDH1, GS
and GSH1) divorce & all eight of the adults remarry other persons before the child is born.
At the time of birth there are thirteen (13) persons who seem to have plausible legal claims of parentage:
1) H
Contract claim – intended/initiating father
2) HW2
Wife of H at the time the Child was born
3) W
Contract claim – intended/initiating mother
4) WH2
Husband of W at time the Child was born
5) SD
Donor of the sperm that combined with egg and became Child; genetic father
6) SDW1 Wife of SD at time he donate sperm in which she, as his wife, claims interest in fertilized
egg and the child born therefrom
7) SDW2 Wife of SD at time his genetic Child was born; claim under gender equalized spouse-attime-of-birth rule
8) ED
Donor of the egg that combined with sperm and became Child; genetic mother
9) EDH1
Husband of ED at time she donated the egg, claims a spousal interest in fertilized egg and
the child born therefrom
10) EDH2 Husband of ED at time Child born; claim under husband-at-time-of-birth rule
11) GS
Birth mother
12) GSH1 Husband of birth mother when she became pregnant; claim under 300-day rule
13) GSH2 Husband of birth mother when she gave birth; claim under husband-at-time-of-birth rule.
The strongest claims under conventional paternity doctrines probably are those of H, W, WH2, SD, ED, GS,
GSH1, and GSH2. (Also, it is unlikely but not inconceivable that the new wife husband of SDW!, and the new
wives of EGH1 and GSW1, as spouses at the time of Child’s birth of persons claiming a parental relationship with
Child, might also be able to assert some parental claim under the spouse-a-time-of-birth rule.)
II. The Worst of Times—The Disintegration of
Marriage and Families
First, there has been a dramatic increase in cohabition without marriage. In
1960, just one percent of all couples living together were unmarried.
Figure E. Percentage of Couples Cohabiting Without Marriage
http://familyfacts.org/charts/110/one-in-10-couples-living-together-isunmarried (seen 11 March 2011), citing U.S. Census Bureau, Current Population
Survey, 2010.
II. The Worst of Times—The Disintegration of
Marriage and Families
Second, the social value of, desirability of, and status of marriage has
plummeted, and this is reflected in many statistical reports.
Pew Research Center in November 2010 found that thirty-nine percent (39%)
of Americans surveyed believe that marriage is becoming obsolete.
Figure _. The median Age at First Marriage for Men and Women Has Risen
http://familyfacts.org/charts/102/men-and-women-are-marrying-later (seen 11 March 2011), citing U.S. Census Bureau, Current Population Survey, 2010.
Figure __. The Annual Marriage Rate has Fallen Dramatically
Number of Marriages per 1000 Women age 15+
http://familyfacts.org/charts/105/the-annual-marriage-rate-has-declined-significantly-in-the-past-generation (seen 11 March 2011), citing Statistical Abstract of the
United States, National Vital Statistics Reports, and The Heritage Foundation, 2010.
Figure __. Percent of Married Adults, Age 15+
Figure __. Marriage Drops In Importance for Young Adults in US
Wendy Want & Paul Taylor, For Millennials, Parenthood Trumps Marriage, Pew Research Center, available at
http://pewresearch.org/pubs/1920/millennials-value-parenthood-over-marriage (seen 14 March 2011).
II. The Worst of Times—The Disintegration of
Marriage and Families
Third, the number (1.8 Million) and percentage of children born out of
wedlock in the United States every year is at unprecedented historic high
levels.
Table 1. U.S. CHILDREN BORN OUT OF WEDLOCK
1940-2007
Year
All Races
Number
Rate/1000 live
births
White Number
Rate/1000 live
births
Non-White
Number
Rate/1000 live
births
1940
89,500
38
40,300
19.5
49,200
168.3
1950
141,600
40
53,500
17.5
88,100
179.6
1960
224,300
53
82,500
22.9
141,800
215.8
1970
398,700
107
175,100
56.6
223,600
349.3
1980
665,747
184
320,063
110.4
345,684
484.5
1990
1,165,400
266
647,400
169
472,700 bl
667 bl
2000
1,347,000
332
866,000
271
427,000 bl
685 bl
2005
1,527,000
369
--
317
--
693 bl
2007
1,714,600
397
--
--
--
--
2008
-
410
Fig. A. Percentage of US Children born out of marriage
Source: http://familyfacts.org/charts/205/more-than-four-in-10-children-are-born-tounwed-mothers (citing U.S. Census Bureau, National Center for Health Statistics, 2010.)
Figure B. Birth Rate for Unmarried Nearly Rate for Married Women
The gap between married and unmarried birth rates has narrowed, The Heritage Foundation, 2011, at
http://familyfacts.org/charts/213/the-gap-between-married-and-unmarried-birth-rates-has-narrowed .
II. The Worst of Times—The Disintegration of
Marriage and Families
Fourth, divorce has stabilized at extremely high levels and shows very
dangerous signs of social class separation.
Figure __ Number of divorces per 1,000 married women (age 15+)
http://familyfacts.org/charts/120/the-divorce-rate-is-declining-but-still-high
Figure __. Percentage of Adults Divorced by Age 55
II. The Worst of Times—The Disintegration of
Marriage and Families
Fifth, there has been a dramatic increase in the number (nearly 20 million)
and percentage (over 26%) of children being raised by single-parents, mostly
their mothers.
Figure C. American children under eighteen years-old living with a
single parent
One in four children lives in a single-parent home, The Heritage Foundation, 2011, at
http://familyfacts.org/charts/135/one-in-four-children-lives-in-a-single-parent-home .
II. The Worst of Times—The Disintegration of
Marriage and Families
First, there has been a dramatic increase in cohabition without marriage. In
1960, just one percent of all couples living together were unmarried.
Second, the social value of, desirability of, and status of marriage has
plummeted, and this is reflected in many statistical reports.
Third, the number (1.8 Million) and percentage of children born out of
wedlock in the United States is at unprecedented historic high levels.
Fourth, divorce has stabilized at extremely high levels and shows very
dangerous signs of social class separation.
Fifth, there has been a dramatic increase in the number (nearly 20 million)
and percentage (over 26%) of children being raised by single-parents, mostly
their mothers.
III. The Public Costs and Private Harms of the Disintegration of Mutual Families
A. The Social Costs of the disintegration of Marital Families
$112 Billion per years state and federal (very conservative estimate)
$100 Billion per year for 14 federal programs
Social costs of Juvenile crime/ delinquency much higher
B. The Detrimental Consequences for Children of Deprivation of
Parenting by Both Parents
Juvenile crime/ delinquency / incarceration much higher
Private Harms, cont’d: Divorce Lowers LifeExpectancy for Children
“Parental divorce during childhood emerged as
the single strongest predictor of early death in
adulthood. The grown children of divorced
parents died almost five years earlier, on
average, than children from intact families. The
causes of death ranged from accidents and
violence to cancer, heart attack and stroke.
Parental break-ups remain, the authors say,
among the most traumatic and harmful events
for children. “ - The Longevity Project (2011)
IV. The Problems of Planned Parentlessness
Planned partial parentlessness is a growing phenomenon in many affluent
countries.
There are two principal forms of this phenomenon:
-Deliberate conception by a woman of a child outside of marriage which
she intends of raise as a single mother
-Use of artificial procreation by same-sex couples is experiencing a minigay-by-boom
“Recent studies have shown that youth who report same-sex or both-sex romantic
attractions or sexual behavior (sex minority yough) are at elevated risk for negative
health outcomes, such as high rates of suicide attempts,victimization in school
violence, drug and alchol abuse, early onset of sexual behavior, eating disorders,
and teenage pregnancy, compared to heterosexual peers.”
Is there a connection between parental separation resulting from no-fault
divorce revolution and the rise of homosexual lifestyles and same-sex unions
when the first generation of children of no-fault divorce became young adults?
V. Children’s Legal Right to A Parental Relationship With Both Parents
A. The Child’s Fundamental Right to a Parental Relationship With Both Parents
B. Protection of A Child’s Relationship with Both Parents Is Deeply
Imbedded in American Legal Policy & International Human Rights Law
1980 Hague Convention on the Civil Aspects of International Child Abduction
Convention on the Rights of the Child (CRC)
European Convention for the Protection of Human Rights and Fundamental
Freedoms
The attempt by one parent to alienate the child from the other parent, provoke very forceful
responses from the courts, including modifying and changing custody.
Physical and other kinds of interference with the child’s relationship with the other parent
has been grounds for courts to modify custody.
Courts can and sometimes do impose contempt sanctions for interference with visitation or
custody.
Criminal prosecution may result
Parental kidnapping is a crime
Various tort claims also have been recognized
Parental Kidnapping Prevention Act of 1980
Uniform Child Custody Jurisdiction
Congress also amended the Fugitive Felon Act to make it applicable to parents who abduct
or retain their children in violation of state law
Federal Parent Locator Service to abducted children
Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of
V. Children’s Legal Right to A Parental Relationship With Both Parents
C. The Role of the Law in Remedying the Disintegration of Families
“Research across 18 European countries indicates that 20 per cent of the increase
in divorce rates during the past 40 years is due to legal reforms.”
Other legal factors also may influence the disintegration of marital families. While
it is hard to quantify, it is logically possible that the promotion and growing
acceptance of same-sex marriage in the past decade may have contributed to a
decline in the social status, perceived important, and individual desirability of
marriage.
VI. Conclusion: Silver Linings; the “Best of Times” As Well
Some good news: Slowing of overall divorce rate; drop of divorce rate among welleducated, transitions from cohabitations to marriages, etc.
“[T]he State does not have the physical or financial resources to replace the work done
inside marriage for the benefit of family.”
“The State is a blunt instrument of social welfare; it is always short of money and lacks the
personal warmth that is an essential element of sensitive support.”
As Baroness Deech perceptively noted, leaders of society should speak of marriage with as
much enthusiasm as they show in discussions about, for example, the environment—and
please, may we drop the word “partner”, which should be confined to tennis and solicitors’
firms, and be less shy about marital status? After all, being married is the most public way
that men and women have been able to invent over thousands of years of showing a
permanent bond with each other and with their families. There can be no family tree
without public recognition and preservation of its roots.
~END~
Figure__, In 28 years U.S. Correctional Population has Quadrupled
US Correctional Population, in Millions [1]
http://familyfacts.org/charts/850/the-correctional-population-has-soared (seen 11 March 2011)