In a new paper forthcoming in the Virginia Law Review (2016), Deborah Dinner, JD, PhD, associate professor of law at Washington University in St. Louis, provides the first legal history of the father’s rights movement, analyzing how middle-class white men responded to rising divorce rates by pursuing reform in both family law and welfare policy.
“The Divorce Bargain: The Father’s Rights Movement and Family Inequalities,” offers insight into the relationship between the private law of divorce, which regulates largely middle-class families, and public welfare state policies, which have the greatest effect on poor families.
Dinner challenges the assumption that these private and public family law systems operate in parallel, showing instead that they are interdependent. “The role that fathers’ rights activists played in constructing the ‘divorce bargain’ shows that the reform of private family law went hand in hand with reform of public family law in the late 20th century,” Dinner argues.
Through the mid-20th century, Dinner writes in the paper, marriage shaped the relationship not only between men and women but also between middle-class men and the state: men supported children and wives in exchange for legal protection of male familial authority.
In the 1960s and 1970s, escalating divorce rates and the emergence of no-fault divorce laws upset this balance, she writes. By the mid-1980s, activists and federal and state legislators forged a new political compromise: fathers’ rights activists conceded ongoing child support obligations in exchange for greater access to custody upon divorce.
This “divorce bargain” catalyzed a shift from common law presumptions favoring maternal custody to statutory recognition of joint custody. In so doing, Dinner wrote, it reinforced private rather than public responsibility to support children living in nonmarital families.
“The ‘divorce bargain’ represented activists’ response to state and federal policies that made private child support, rather than public welfare assistance, the primary source of support for dependent children and, in turn, reinforced these policies,” Dinner said.
“The ‘divorce bargain’ formed part of the neoliberal restructuring of the welfare state that injured poor families,” she said. “By tying paternal responsibilities to rights, the ‘divorce bargain’ advanced middle-class men’s caregiving interests while simultaneously harming father-child relationships within poor families.”
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