Journal Issue: Children and Divorce Volume 4 Number 1 Spring/Summer 1994
Feminist Proposals for Reform
The overriding factor underlying the feminist critique of existing divorce policy is that child rearing is important and expensive and that it is an expense borne disproportionately by women. The egalitarian model of husbands and wives holding comparable jobs and sharing domestic responsibilities largely does not exist. The pretense that men and women stand on equal footing at divorce effectively assigns custodial mothers primary responsibility for both caring for and supporting their children. When high rates of mother custody are combined with high rates of divorce and low levels of support, what emerges is an overall shift in the responsibility for child rearing from parents to mothers.113
The consequence of this shift is not just more work for women. Middle-class women, that is, well-educated women with good employment prospects, face a clear choice between family and career. Many have delayed or foregone marriage and had fewer children once married.114 Although the most recent data show that more of these women are now choosing to become single parents rather than forego parenthood altogether, the net result is a smaller cohort of middle-class children as a percentage of the total.115 Moreover, of those children born to middle-class parents, many end up being raised in conditions of relative poverty because of divorce. Finally, children born in working-class or poor families are more likely than middle-class children to experience divorce, and their mothers are less likely to be awarded support at all.116 The hardships divorce imposes on middle-class women and children constitute a disaster for the poor. Taken together, these changes amount to a systematic disinvestment in the next generation. In 1986, the proportion of children living in poverty was almost double that of adults while, in 1960 and 1970, the poverty rate for children was only one-third the adult rate.117 Although divorce is not the only cause, it is a major contributing factor to a wholesale decline in the well-being of American children.118
While there is little dissent from this picture, there is less agreement about why it occurred or about how to fix it. The cultural feminist critique places major responsibility on what Fineman terms "the illusion of equality." In her 1983 account of divorce reform in Wisconsin, Fineman blames the poverty of existing divorce discourse and the refusal to acknowledge the value of maternal nurturing.119 She claims that divorce reform and, indeed, discussions of the role of women in society generally, focus on two images: women as victims, dependent on men, and handicapped by their inability to participate in the labor market on male terms, and women as equals, fully capable of succeeding on the same terms as men. Missing, Fineman believes, is recognition of the needs of children, of the importance of nurturing for their well-being, and of the fact that mothers, upon divorce, are asked to meet greater demands with fewer resources than their former husbands. Fineman terms the concept of equality an "illusion" that devalues women's connections to their children and prevents recognition of the support needed for the child-rearing role.120 She echoes Weitzman's conclusion that ". . . we cannot treat men and women as equals in the divorce settlement. We must find ways to safeguard and protect women, not only to achieve fairness and equity, but also to encourage and reward those who invest in and care for our children and, ultimately, to foster true equality for succeeding generations."121
Kay, in her review of no-fault divorce and its aftermath, agrees that the unequal position of men and women at divorce results from the unequal division of labor during the marriage and that, at least in the short run, there must be legal recognition of the financial consequences of those roles.122 Kay nonetheless expresses the concern shared by many liberal feminists that we should not encourage future couples entering marriage to make choices that will be economically disabling for women, thereby perpetuating their traditional financial dependence upon men and contributing to their inequality with men at divorce. According to Kay, episodic analysis123 offers a theoretical structure within which men and women can view their responsibilities to each other and to their children in a different light. By emphasizing the bright line that separates the unique female tasks of pregnancy and childbirth from the common male and female responsibility for child rearing, episodic analysis suggests that, when both parents are available, neither should become the primary nurturing parent. She believes that men, like women, should be able to draw an important aspect of their selfesteem and identity from their parental roles and that women, like men, should be able to lead productive, independent lives outside the family. Female dependency should no longer be the necessary result of motherhood.124 To implement this view of family life, Kay notes that "since . . . Anglo-American family law has traditionally reflected the social division of function by sex within marriage, it will be necessary to withdraw existing legal supports for that arrangement as a cultural norm."125
While the liberal feminist embrace of shared parenting and the cultural feminist dismissal of the "illusion of equality" seem diametrically opposed, much of the theoretical conflict disappears in practice. Kay's embrace of shared parenting is aspirational; she sees joint custody, for example, as "draw[ing] strength from shared parenting during the marriage" without addressing whether it is appropriate in a marriage in which one parent bore the entire responsibility for child rearing.
Fineman, in contrast, focuses on the ways in which the concept of equality imposes a straitjacket on divorce decisions made in the context of existing marriages in which there are neither equal employment opportunities nor equal assumption of domestic responsibilities. Czapanskiy bridges much of the gap between the two positions by using the distinction between volunteers and draftees to explain the ways in which the existing system reinforces the traditional division of household labor. Czapanskiy observes: "Fathers are given support and reinforcement for being volunteer parents, people whose duties toward their children are limited, but whose autonomy about parenting is broadly protected. Mothers are defined as draftees, people whose duties toward their children are extensive, but whose autonomy about parenting receives little protection."126 She argues that the key to achieving Kay's goal of shared parenting in a world characterized by the inequalities that Fineman describes is to emphasize the relationship between rights and responsibilities. She is critical of the emphasis of fathers' rights groups on equal division of family assets (as though the children did not exist) and equal authority over the children's future (as though differences in parental contribution did not exist) but not equal responsibility for the children's well-being. Czapanskiy concludes that equal rights should follow from, not precede, and certainly not be independent of, shared responsibilities.