As promised, I want to take up some questions of custody. Of children, that is.
As I did some research for this, I discovered some facts that I didn’t know, and re-discovered some things that used to be fairly commonly said but have fallen out of common parlance.
For example, apparently for centuries, when an unwed mother gave birth, the father was accounted as having no rights at all, whereas if married the father had full rights and the mother virtually none at all. I see claims that in some places mothers were accounted not as a co-equal “parent” with the father, but as (a) the father’s wife – her first place in the family which entitles her only to WIFELY estate, and (b) as the children’s caretaker to the extent the father approves same. Hence her position over the children was little more than glorified babysitter.
Apparently, under Roman law children were accounted a kind of possession of the father, at least in some respects though perhaps not all. This is undoubtedly connected with the Roman father’s authority to abandon a child by exposure. And this attitude carried over into middle ages, where children were (after infancy) viewed as a valuable resource for labor, to which the father had the right (until older, I guess).
Fairly recently (speaking historically), in the US, the custody rules for children after divorce relied on the “principle” of so-called “tender years”, in which it was said that a child needs its mother during its tender years, much more so than its father. As a result, virtually all custody battles between parents for children under age 7 were won by mothers. This became standard only starting in the later 1800s, I gather. Before that, at least in some places, illegitimate children were simply left to the community to raise, belonging neither to the father (who had no rights) nor to the mother. Only much more recently did unwed fathers start to get ANY traction in having a voice on custody of their biological children. They still have nowhere near an equal position.
I am not going to parse through an actual history of the development of the ideas surrounding custody. I am going to lay out some truths that I think I can defend as reasonable and probable, but I don’t claim to be able to prove them all definitively from first principles. Though I will add some first principles, starting here: God made man and woman for each other, male and female He created them, the one completes the other. This completion is seen physically, but is TRUE also emotionally, psychologically, affectively, and even spiritually – in different ways. But the physical sense is the most obvious: man and woman cannot reproduce except together, and since reproducing is a very great good of human nature, the impetus toward being together is very great.
And permanent. That is, God made marriage to be permanent, for life. Unlike most animals, human children take fully (at a minimum) 14 years to grow up, more like 20, and (for handicapped children) for life sometimes. It takes a commitment that is open-ended (without specified end-date) to be a parent, and so marriage is permanent. At the spiritual level, marriage is a pointer and preparer to teach man about union with God, and part of the way it does this preparing is by showing us a pathway of committed, unconditional love so we are prepared to commit to that kind of relationship with God. To wholly give yourself away in love is to give yourself away without a definite time limit. And thus married love is properly a whole commitment of self, until death.
There is no such thing as a lasting community of persons without someone having the authority to decide on different matters. For, as soon as there is a disagreement as to the right way to take (on a grave matter) if there is nobody who has the authority to which others ought to defer, then all those others will generally perceive an OBLIGATION to stand up for their own preferred judgment…and the community will not be in common any more, it will dissolve by each going his own way. So, in any ongoing community, there can and must be a way of identifying who has the authority: it may be by election, by lots, by Divine appointment, permanent or temporary, but it has to BE. By making the family a permanent institution, God created a definitive need for there to be someone in charge.
In the family, God made it the husband. He could have done it differently. He could have designed it so that they choose, or they switch on an annual basis, or any of 50 other approaches, but He didn’t. We can propose dozens of plausible reasons why the way He chose works, but none of them FORCED God’s hand, because He could have made man differently so some other arrangement would have made sense for man. He chose that mankind would consist of 2 sexes (not one and not 23), and that the husband would be the authority of the family. (Which, by the way, shows the inherent limitation of that authority: as in all other cases, authority exists for the common good of the community, not for the personal good of the guy in charge. Hence for a man to be in charge in the true way is for a man to carry out the office of father by serving the good of the rest, it is a role of service.) And, among humans, to be in authority is not to be a different species than those who are ruled, it is a vocation of service that adds to man a superficial layer of good, not changing his essence. This is important, because men and women are of the same nature, and share completely equal dignity in sharing that nature, neither one is more than the other in essence. The only difference in dignity is regarding layers of good added on top of the basic nature, much as a president receives the dignities of his office but has no claim on them from his very nature.
The PRIMARY meaning of parenthood is love. God the Father is not our biological father, any more than he is the biological father of the Son of God. But He is the paradigm of being a father. Fatherhood (and motherhood) is found FIRST in the act of love by which a man and a woman commit to permanent, unconditional love for each other, and in expressing that love physically, with a willing extension of their love for each other into love for the fruit of their love made flesh, a child. True parenthood as a human being, as a rational being with intellect (capable of foreseeing) and will, is an act of love made permanently and unconditionally for the child that God may send to the family formed by marriage.
As in all other things made to be united, God made the family’s good to be integrated with the good of the members: to be a flourishing human being means, among other things, to be serving others and being served in the family by turns. One of the ways a father and a mother serve the good of the children is by being in the flesh an example of permanent, unconditional love to each other, the husband demonstrating love as a man to his wife, the woman demonstrating unconditional love as a woman to her husband, (both of which are, also, the promise of unconditional love for the child). This manifestation of love is for the child like daily rain on the young, thirsty plant, this is necessary for thriving. And so one of the templates of love the parents live out in demonstration to the children is that of loving authority and loving obedience. Children need all this to flourish. And to learn their own future roles.
Now we come to the crux of this: children who either are not born into a married family relationship of parents, or who were but whose parents are splitting.
It is inevitable that if a child is raised with one parent, the other being apart by either the lack of or the failure of marriage, the child necessarily suffers from NOT having that daily demonstration of permanent, unconditional self-giving love between father and mother, and that daily promise of unconditional love for the child that resides in their love for each other. As a result, the child’s vocation as a human being called to permanent, unconditional love of God is placed in great jeopardy: without the template, how is he to be able to even perceive much less carry out his calling? And in addition to the defect of not modeling the kind of love we are called to with God, the single parent is not modeling as well that entirely ordinary human love between equals that ought to be every human’s estate with others as a complete person. Nor is that single parent demonstrating loving authority and loving obedience before the child. Therefore, it is ALWAYS the case that conceiving and raising a child out of wedlock, or marrying but separating and raising the child alone, presents real damage to the child, whatever else is true in the given circumstances. Other than acts of actual, direct abuse, there is hardly any graver damage a child can suffer. (We see it in all the emotional and psychological train wrecks that we observe in kids raised without one of the parents.)
So, what is the best solution for such kids? I will separate it out into 2 categories: those kids conceived where the bio-parents are not married, and those conceived within a marriage. For the former, their basic need is to be received into a family, an intact marital relationship of mother and father. Rarely, if ever, will there be any reason why this will not be much, much better for the child than being raised by just one parent. And, since within marriage by God’s design what is good for parents is good for kids and vice versa (that integrity of the natural social unity I mentioned above), the fact that the bio-parents brought that child into being without marriage, without that marital integrating, unifying coordination of personal goods, means that in justice THEIR personal goods take a far, far distant third to the good of the child and of society.
The basic consequence is simple, if unsavory to some: a bio-father has no right to complain if the bio-mother wants to put the baby up for adoption, and frankly the ONLY real right a society like ours ought to give the father is a right to discuss his preferred religion for an adoptive family. The bio-father simply doesn’t have much in the way of rights, naturally, and shouldn’t be granted much by society. But also, the bio-mother ought to not keep the baby herself as a single mother if a reasonable adoptive family is available, her moral right to keep the baby is less than the baby’s right to be raised in a family with the permanent, unconditional love of two spouses for each other and him or her.
Ah, but what if the bio-mother wants to keep the baby in spite of the baby’s needs? Well, here is where we get into social and cultural particularities that cannot be solved globally, by general principles.
In a society in which abortion is unheard of and in which there are more adopting-ready families than there are babies needing a family, I could see it reasonable for society to insist on her giving the baby up for adoption, by law. Yes, to our sensibilities that seems a harsh wrench against “feeling”. But (as my previous post indicated) if society has the right to regulate when you can have sex (even though you are “in love” that doesn’t trump society’s right to constrain you), for the sake of the children to be thus conceived so that they be born into a family, surely society has the right to insist that when you refuse to abide by that law about having sex only within a family, you don’t get to decide on keeping the baby and raising it outside of a family. And, just as it isn’t real love (the love God designed for spouses), when 2 gays want to have sex, and it is a deformity against real love when a man and a woman want to have sex without regard to any children, so also (usually) it is an act against real love for the bio-mother to refuse to place the baby for adoption if a good family is available. Society plausibly can act for the good of the baby and society over the good (as she feels it) for the bio-mother.
That’s (part of) the argument in favor of 100% adopting out. However, I did say above that “I could see it reasonable” rather than insisting on the one right way because I can see alternative arguments. One of them is that society hasn’t the right, the authority to decide that. The baby does not belong to society, but to the mother. Now, those who make this argument have a couple of worries about making it stick. First of all, when you introduce “belong” you have to worry about harking back to the Roman pater and his ownership of the children, including to the extent of exposing a baby to death. That kind of “belong”? No, let’s hope not.
Secondly, you have to face up to the fact that the basic unit of society is the FAMILY, and to a large extent individuals within a family have social rights mediated by the family. A family is a natural entity. A child “belongs” to its family (and the family belongs to the child, so within family that squelches the idea of belonging as ownership.) Society doesn’t have the right to take a child away from a family just because the family is not ideal. But get rid of the family entity, and it just is not really all clear that the child by nature “belongs” to the bio-mother in a sufficient sense to be able to say to society to “bug off, it’s her decision” whether to put him up for adoption. There are societies who said otherwise. Even if in some general sense it ought to be her decision, it remains true that society has a right to stick its oar in when there is a severe case of abuse or neglect…and I did point out that failing to put the child into a family is a grave form of neglect. So, is “not placing for adoption” grave enough? All other things being equal, (as in, sound society with good laws and morals), I suspect yes, but I won’t insist on it.
But there is another objection: that by nature, the mother’s love of a child is so great that demanding that she give up her child is unnatural and will lead to other disturbances in society. The counterargument to the first (that it is unnatural) is that it was no natural love by which she first conceived the child, and it is no natural love to insist on keeping the child from being raised in a family. The counterargument to the second is not so easy: yes, because of the passions involved, a woman may be led to worse evils (even to killing the child), so we might have to accommodate less than ideal rules about it. I suspect that this will depend on circumstances that will vary from place to place and person to person, and no universal solution can be affirmed definitively.
Now, what about children in a failed marriage? Some (most, in the last 100 years) said the mother has the greater claim, and that usually she should have primary custody, unless she can be shown to be unfit. A newly urged argument is that this is sexist, unjust, and there is no prior reason to prefer one sex over the other. I might be inclined more toward the latter position, if I did not know that, at least through the 1980’s (maybe still true but maybe not), far more than half of divorces were more caused by the man than by the woman, and that this fact should be considered in the overall judgment: the custody battle isn’t simply a decision about JUST CLAIMS of a parent _over_ a child, it is also (always) a decision for mopping up the detritus of a failed marriage, and the kid’s best interest to be weighed with the parents’ interests and potentially against the at fault parent(s)’ interests. If a marriage is destroyed because a man commits adultery with the office secretary, there can be no easy reason to think that the man is going to be the better parent for the children. But I also would shy away from any overwhelming bias purely by general statistics: just because more adulteries wrecking marriage (used to be) initiated by men, doesn’t mean that’s what happened in THIS case. (And, by the way, I simply assume that effectively all marriages that end in divorce end only because of “fault”, and all divorce findings should be by a finding of fault in at least one party, if not both: out of justice for both the children and the victim spouse (if there is one), assigning fault (and acting on it) is a way of vindicating the their true rights. It tells a child he is right to feel slighted, abused.)
Since the 1970’s or 1980’s or so, there has been a vast increase in arrangements of joint custody. I tend to think this experiment was a big mistake and should end. I have seen far too many of these go on and on and on wrecking the lives of both parents and children. No, can we stop this experiment, please? I have also seen cases where the non-custody spouse has walked away and made a good life for themselves, because the custodial spouse had complete control and allowed no involvement of the other. A husband and a wife in marriage are supposed to be a family, a social unit, living together and working together. A FAILED marriage means, at a minimum, that they can’t live with each other, they can’t work toward the same goals together, they can’t come to mutual decisions together, they are at odds about decisions great and small with no end in sight. So, what joint custody appears to mean, in practice, is an ongoing custody by the STATE, who continually gets embroiled into the minutiae of what ought to be family decisions that are none of the state’s business, to pick one parent over the other time and time again and “grant” custody over X issue, until yet another blow up: which faith (and which flavor) to raise them in, which school to put them in, whether to allow the boy to play school football or object because it is too dangerous, etc, etc, etc.
I would propose an alternative. Usually, generally, for most cases: one parent should be chosen THE kids’ custodial parent for all purposes. Period. That’s all. However, to give a way and a reason for the other parent to be willing to accept such a thing, have the court appoint a family friend (i.e. a family that is friends with BOTH husband and wife) as back-up custodians. These friends, whom the “losing party” can refer to for objectivity, can intervene (or ask the court to intervene in extreme cases) if the “winning” parent’s custody is not being carried out properly. That way, there will be a mechanism in place for NOT having to have every little ongoing disagreement be heard at the state level by a judge who really doesn’t know the persons at all, when the state isn’t really designed to run families. Keep the decision-making below the level of the state, as much as possible. (And, by the way, “custody” is a different issue from right/ability of the non-custodian parent to have an ongoing relationship with kids. That’s a sticky problem I am not addressing.)
Should it be the mother or the father who usually gets custody? Let me ask a prior question: should we expect to find that USUALLY it will be with the mothers that the children will flourish as much as possible? Or, should we expect to find that USUALLY it will be with the fathers that the children will flourish most? Or, should we expect NOT to find either one on a USUAL basis, but only individual cases?
That’s tough to answer. But not necessarily impossible, for one very good reason: fathers and mothers are not interchangeable. The sexes are complementary not just physically, but in other ways as well. As a result, there is a real difference between a father’s role with kids and a mother’s role. So it should not be terribly surprising if there were certain rules of thumb by which we might judge that kids will do better with a father or a mother, and these rules might indeed weigh with a strong preponderance for one or the other.
But they won’t necessarily be EASY rules to apply, and they won’t outweigh all other factors. The old standard of “tender years” was such an easy rule…and arguably might be overly simplistic. Surely the court’s decision of where fault lies can change the application of tender years doctrine. But so could other considerations. For instance, we might need to take temperaments into account: it could be true that kids with a tendency to melancholia as a temperament (not simply as a response to the divorce) do particularly poorly with a parent who has a sunshiny sanguine temperament who never had a moment of angst in her life.
And of course there will be the question of splitting kids apart between parents. The good of siblings is so great that I would guess that splitting is almost never the right choice, but I hesitate to say it is a firm rule. (What about if there are 8 kids? A Four and Four split still leaves each kid growing up with several siblings. A single parent managing 8 might be so overwhelming a burden that he or she simply cannot do well enough to justify the “benefits” of being raised with your siblings.)
Instead I would end with this: asking “what are the _rights_ of the parents” is almost always the wrong question, at least before you have already answered about 243 prior ones. The parents had the definite DUTY to make loving acts of self-sacrifice to each other (even when it hurts), and at least one of them failed that duty gravely. The right of the kids to live with both parents is being denied them, and given that denial, at least one parent’s so-called “rights” to children is diminished to being almost irrelevant – i.e. with respect to a parent at fault. What should be the guiding principle would be “what will promote the greatest flourishing of all parties but especially the kids, without putting the state in the referee’s corner continuously.” As far as I can tell, that will normally not be shared custody, and will normally require careful (individual-based rather than merely categorical) judgment about the parents, the kids, and family & friends.
Comments (100)
Pretty balanced. Good job, Tony. I'll add more later, but one thing that needs updating is that your point on men being responsible for most divorces is incorrect. Since the 1980s, it's overwhelmingly women who initiate divorce. Statistics vary, but I found this reference pretty quickly on Google. The average I've seen is about 72% of all divorces...
And please note, that's from the Huffington Post. A den of MRAs they most certainly are not.
I would say that if you continue the tender years doctrine instead of adopting a "whoever files no fault is automatically unfit to be a parent" for custodial rights, you will likely see men outside of very conservative religious groups simply abandon marriage altogether. Since no fault is the only most absurdities can become a basis for divorce, not letting men have equal custody rights when their wives can divorce over bat$h^& crazy reasons is just formalizing further the annihilation of patriarchy in mainstream society and telling men that we care absolutely nothing for their place with their kids.
Posted by Mike T | July 29, 2015 6:33 AM
I have anecdotes on the other side claiming that divorces initiated (in court documents) by women are, at least, for serious reasons. The anecdote battle can be played all day long from both sides.
I did in the comments here (both those linked and elsewhere in thread) attempt to discuss some studies that were purportedly brought to _show_ that the majority of divorces are initiated _frivolously_ by women, and that do not show that, but it was a waste of time because those bringing the additional statistics a) did not know how to read statistics (e.g., how to understand a percentage of a percentage, did not understand that a lower percentage of a higher percentage could be a higher percentage) and b) were determined to understand them, incorrectly, as supporting their agenda.
http://lydiaswebpage.blogspot.com/2012/04/rant-against-mens-rights-attitude.html?showComment=1385943584741#c7279878615724166773
http://lydiaswebpage.blogspot.com/2012/04/rant-against-mens-rights-attitude.html?showComment=1385992259878#c4979156977160034787
I don't have time to re-fight that particular battle in this thread. I put a lot of time into it then, though.
Posted by Lydia | July 29, 2015 8:52 AM
Source.
By definition from a Christian perspective, no fault divorces are frivolous until proven otherwise. Points are not granted because a woman claims a string of wrongs by her husband and then oh by the way she eschews the entire process of proving them. Were it not for the fact that claims in court are exempt, that would be defamation, not presenting an argument.
Posted by Mike T | July 29, 2015 9:47 AM
Well, no, just because the laws of a state are no-fault, it does not follow that a divorce filed under those no-fault laws is by definition frivolous until proven otherwise. Moreover, testimony is testimony. Sometimes it's credible, sometimes not. Under no-fault law, nobody is going to ask you to prove it. Therefore, that there is not court filing of documentation does not mean that the claim was unfounded or a lie. Naturally, there is sometimes defamation (from both directions--male to female and vice versa). Unfortunately, our system is set up so as to make it extremely hard to adjudicate after the fact whether the divorce was in fact frivolous or whether claims made could be substantiated. It does not follow that we should say that because this person files in a no-fault state, this person is filing frivolously. That's just silly. In plenty of cases, the at-fault spouse pressures the not-at-fault spouse to agree to a simple, no fault divorce to save money "for the sake of the children." In that case, who files tells us nothing at all.
In any event, that wasn't your original claim, Mike. Originally you quoted an article that admitted that the filing of a divorce under no-fault law didn't automatically mean a frivolous filing but claimed anecdotal evidence for frivolous divorce. I merely pointed out the weakness of such claims.
Posted by Lydia | July 29, 2015 10:02 AM
I quoted that article to provide a numeric reference to the percentage of divorces filed by women, not to make claims about why they file them. That was due to Tony's points about how divorces were filed up into the 1980s.
No fault divorces are based upon arguing no concrete, provable point of why the marriage should be severed at the civil level. Therefore from the perspective of outsiders they are unworthy of the consideration of having any gravity to the reasons as to why they occurred.
Our system is set up to make it hard to second guess the outcome of all cases, and for very good reasons. If you think this is unfair, try being one of the people on death row who gets denied an appeal after they've exhausted their existing ones because some new evidence came out of the woodwork that could exonerate them if another appeal, which the law didn't allow, were to occur.
Posted by Mike T | July 29, 2015 10:24 AM
Lydia,
Calling the divorce frivolous is not the same thing as saying that the initiator had no case against their spouse. Being a legal proceeding, a divorce can only be judged by society based upon the claims made. Therefore society ought to grant no privileges, no sympathy, nothing to someone who fails to bring clear charges against their spouse much for the same reason society heaps opprobrium on prosecutors who bring weak cases and ambulance chasers.
Tony,
I think you cannot avoid asking "what is in society's best interests" when it comes to custody. Traditionally, avoiding feral children raised by a single mother would a major consideration. Outside of the tender years, it seems to be the case that children need the structure, discipline and authority that a decent father brings more than the nurturing and care of a mother. Obviously, children are harmed either way, but I think the studies on children raised by single mothers need to be a major factor in deciding "what is best."
Dual custody is the best, most equitable arrangement for families where neither parent is "clearly unfit." Failing that, custody should go to the mother during the tender years and then to the father afterwards.
Posted by Mike T | July 29, 2015 10:49 AM
I didn't say it is unfair. What I do say is that it means that you can't use the bare statistics, _given_ the no-fault divorce laws and the fact that it is cheaper for everyone to file no-fault and that this is used against innocent spouses to encourage them to agree to no-fault, to conclude that divorces filed under no-fault law are ipso facto frivolous divorces initiated by the filer and that the non-filer is the innocent spouse being abandoned. Since the entire system encourages a situation where the facts do not come out in the process, the final statistics are uninformative.
This is in contrast to criminal law, where a jury has to be convinced and vote the person guilty beyond reasonable doubt and the arguments made are matter of public record.
Posted by Lydia | July 29, 2015 12:09 PM
You don't have to get a spouse to agree to anything with no-fault divorce. That's part of the problem. It's a unilateral decision.
Posted by Mike T | July 29, 2015 12:15 PM
I think perhaps you don't understand what I'm talking about. Here's how it can work, and sometimes I believe does work. Spouse 1 wants to end the marriage and insists on it. Spouse 2 wants to save the marriage. Spouse 1 points out that he (or she, take this mutatis mutandis throughout) can get the divorce in the end because of no-fault law, but that if Spouse 2 contests it, this will cost more for lawyers' fees, etc., though the result will be the same in the end. Since living apart is already expensive (since Spouse 1 insisted on moving out) and finances are already a concern for both of them and for the children, this is a worry for Spouse 2. It's cheaper to have a no-fault divorce without any contesting on either side. Spouse 2, realizing the truth of this, agrees not to create a fuss. *At that point*, if Spouse 2 happens to be the one actually to *file the papers*, this *does not mean* that Spouse 2 is frivolously abandoning Spouse 1. On the contrary, it is Spouse 1 who is insisting on the divorce and Spouse 2 who, realizing the futility of fighting, is acquiescing. Who actually files is at that point uninformative as far as who initiated and insisted on the divorce. This can, of course, happen either way--either the man can file because the woman insists on the divorce and can get it in the end anyway, or the woman can file because the man insists on the divorce and can get it in the end anyway. Who files is just really not informative.
Posted by Lydia | July 29, 2015 1:06 PM
That's all well and good, but the one who actually files right bears the stigma if they are cowardly enough to be bullied into doing it. That goes for men and women alike. Furthermore, one has to wonder how many divorces might have not happened if the other spouse coldly said "I'd rather eat ramen for a year than give you that satisfaction."
Posted by Mike T | July 29, 2015 1:11 PM
Also, it's my understanding that the divorce itself cannot be contested under most states' rules when no-fault is the method used. The only contesting is how the property is divided and who gets custody of the children. I know that's how it works in Virginia.
Posted by Mike T | July 29, 2015 1:13 PM
Tony, a very thoughtful post; thanks.
One thing you might consider concerning single mothers: I've known several such mothers whose parents and extended family have taken them in and provided the example and nurture that she would not be able to provide on her own. I don't mean the perpetuation of single motherhood through the generations that you see in some places, but traditional families where the daughter failed morally (in this culture, so easy to happen for our young folks) and the family extends forgiveness and helps her to raise her child in a good family environment, with Grandpa acting as a father and he and Grandma providing the example of a righteous marriage.
As for some way to get courts out of custody micromanagement -- this is vital. Children are almost always the ones punished by the system as it is today; it is not for their benefit or good but provides a means for the parents to use them against each other.
Posted by Beth Impson | July 29, 2015 1:37 PM
That was my concern too, Beth. In the scenario you describe, or even in a worse scenario where the biological mother turns out,for whatever reason and over the long haul, to be no good, there should be preference given to biological family members of the illegitimate child for adoption. This may have been Tony's underlying intention in the post, but it isn't clear that it is if so.
Posted by Terry Morris | July 29, 2015 5:23 PM
Terry, that's a good issue to look at. I did not get into the issue of closed adoption versus open adoption because I thought it a little too far afield and too large an issue to tackle alongside of custody. I don't think the final chapter is yet written on what sort of adoption is best for newborn babies, but my impression is that a situation where the baby is raised in nearly the same fashion as the biological children of the adoptive parents, with no interaction with the baby's biological mother, is best all things considered. I.E. as nearly as possible a simple, straightforward nuclear family. If that's not possible, then absolutely having the grandparents or aunt & uncle involved makes sense, I just don't think that an aunt & uncle arrangement should be treated at all like a closed adoption (i.e. with the baby coming from "we know not where") - most of the extended family will know about it, trying to keep it from younger kids & cousins is probably stupid, it would have to be above-board, and I don't know whether this is good.
As for the grandparents taking over: when the mother is very young, age 21 or lower, this is more possible. If the mother is older, say 25 and up, she has already lived independently and it may simply NOT WORK for her to cede her independence by moving back in and handing the kid over to her parents and then be treated (at least in part) as only an older sister to the kid. The situation is NOT normal, and confuses what ought to be simple. The kid's mother figure and father figure ought to married to each other, just for starters. If the bio-mother gets to age 30 and decides she just cannot stand the way her (cranky, aging) parents are dealing with the almost-teenager, can she just walk away with the kid? Why or why not?
Before the bio-mother is an adult on her own, I don't think that she should have the capacity to say, of her own "rights" and without any regard to others, whether she is going to keep the child - I think that her father's and mother's rights to order the family household is great enough to have a very strong say, both over _her_and_over_her_child, to the extent society allows _them_ any say to begin with. If they want to keep the child and help raise it, that might be OK rather than some worse option, but I don't think it should not be viewed as "just as good" as putting the child in a standard nuclear family.
Posted by Tony | July 29, 2015 7:15 PM
Well, I was talking about responsibility in terms of who is responsible for the failed marriage that led to the divorce, not merely responsible for the divorce filing. I didn't look up the decades, and it does absolutely NO good to point at stats about who filed for divorce. Before no-fault (and contraceptives) became universal, women filed for divorce because their philandering husbands cheated on them, there was more of that than the other way around. With Lydia, I don't think the "who file" data can be used to tell us who is "really" more at fault given no-fault laws. Let's just leave it at this: there are lots of cases where the man is at fault, lots of cases where the woman is, and lots where BOTH are at fault. That's enough for this discussion, isn't it?
Nor do I think that the studies on children raised by single mothers can be used to show all that much. Not without a LOT of insight that usually is not found in these studies, such as how emotionally stable mom is, now financially stable she is, how much non-material support she gets from family and church, and so on.
I will say this much: fathers are not interchangeable with mothers. If what Mike is saying is right, it seems to suggest that we should go with tender years (say up to 10) with mothers, after that with fathers. And this would imply (a) that we are OK splitting apart the quasi-family the single mother formed with the kids during their tender years - including, if things went well after the annulment, that she marry and form something like a standard nuclear family????? And (b) would imply we are OK with imposing on kids that they be raised in one household's faith/moral/life philosophy to age 10, and then be raised in a different household's set after that...which would seem to guarantee nothing more than that the kids be skeptics about all value systems. Great, let's raise post-moderns on purpose.
No, I don't think, Mike, you have considered the implications sufficiently. Mostly, I think, once you have settled on the right placement for these kids, you stick with that. If that's with the mother during tender years, the authority-figure is going to have to come from another source, I guess. Which is why I really am pushing for thinking outside the box here.
But you just said above that we cannot avoid taking up "what is in society's best interest" and there is little reason to think dual custody is that. It isn't generally best for society, and isn't best for the kids. And the "equitable" issue comes FIRST AND FOREMOST to this sharp end of the sword: "the kids are being treated unfairly by (at least one) parent, how can we minimize that injustice and get the kids the closest thing possible to a fair break here, as close as possible a shot at what they need to flourish?" Dual custody is not the answer to that question. Simple dual custody, with the parent who caused the divorce, is basically saying to the kids "not only are your rights in _justice_ to a whole family are being trampled into the ground by your oath-breaking stinkin' parent, but we aren't paying any attention to that either." Where's the equitable treatment to the kids?
OK, so let me think wild and woolly thoughts completely outside the box here: Can't make up your mind who's at fault? Call no-fault divorce "both fault". Take the kids away from both the parents and put them with another family - friends that they have known all along. Give that family custody over the kids.
Then, Mike, you won't have that situation with mom filing divorce after dad imposes that silly ultimatum about court costs: if she doesn't want to lose the kids, she doesn't file for no-fault divorce. If both want custody of the kids, divorce becomes a finding of fault...which is what we should expect for enforcing contracts, yes?
I don't know all of why no-fault laws came along, but probably a large share of it was courts being unable to locate "fault" in claims and counter-claims of emotional withdrawal or psychological abandonment and obscure nonsense that is impossible to prove. So turn the tables: take that junk off the table as "cause" and leave it at objective facts. Mike, you ought to like that: no more
I will say one more thing, though: regular pornography use is an objective cause.
I am not worried about that cause of destruction of marriage. That I can live with. It's the destruction caused by society emplacing rules and laws that cuts off its legs and batter it over the head and stab it in the back directly, not the indirect stuff of expecting men to step up and be whole men.
Posted by Tony | July 29, 2015 8:03 PM
Tony, thank you for the thoughtful answer to my concern, which at bottom has to do with removing the unfortunate child in question from kith and kin. I think I agree largely, if not wholly, with everything you said, especially the last paragraph in your reply; the idea that a dependent juvenile who, by virtue of getting pregnant and having a baby, somehow magically is invested with absolute "rights" and authority over what happens to the child *independent of her parents* seems ridiculous on its face to me. And you're right, of course, that these situations tend to have and introduce all manner of complications, so there's no simple, straightforward solution in the majority of cases.
Posted by Terry Morris | July 30, 2015 5:57 AM
Like Lydia, you want to "play it fair" despite the fact that the actual statistics show that at the end of the day, it's women who are pulling the trigger against their marriages more often than men. While I think it's certainly true that there's lots of case of one-sided faults and two-sided faults alike, that doesn't tell us much in the face of the alleged permanence of marriage. Most faults are simply not suitable grounds for a divorce.
Let's also be realistic, for every woman who can move in with a stable nuclear family and have her father fill in as a father figure, there are probably well over 20 who cannot. That's a direct result of the spreading of divorce and single motherhood. At the end of the day, the result is quite similar whether it's multi-generational matriarchal rule in the ghetto or just the result of rampant divorce in the middle class. The problem that these studies do tend to bring up is that the environment is such that these kids don't have a daily father figure of any sort.
I am open to making compromises that let the wife have a say. To be blunt, as I prefer measures that enshrine patriarchal norms into law, I would prefer to see the law reflexively give the father custody in any situation in which it is not shown that he is unfit.
That is the norm, not the exception. Most kids who are raised in intact families will be post-moderns for a variety of reasons.
Given how the system actually works, it's not easy for a child to actually say which parent caused the divorce. Even where that can be formally demonstrated, it may lack a great deal of background that explains how and why it happened. So in the end, if divorces are to be given outside of grave harm done, it stands to reason that children should not be forced to choose between their parents. This is particularly true when the one claiming a basis to leave may not have a very good reason even if it technically is. For example, a woman who is a vicious shrew has no moral right to divorce her husband over a minor affair. When you abuse a spouse into a point where they act out, you are part of the reason it happened. In justice, you cannot claim true victimhood. That's equally true with the genders reversed.
That's not thinking outside the box, that's thinking outside of reason. No-fault doesn't translate to "both at fault" because it can cover situations like where a decent, but boring spouse is dumped for a "better model" among other things. The problem with no-fault divorce is already well-established. Your approach would take a flamethrower to both parties without much concern for guilt. In other words, your position moves it farther to the left without even realizing it. It's the ultimate in non-judgmentalism; it's applying the logic of "zero tolerance policies" on fighting from public schools to the entire family life.
It's actually not that hard to find, Tony. The stated reasons from the advocates in the 1960s when it first came up was to enable women to divorce husbands who were behaving badly, but who could not be easily divorced under the existing laws that required a true finding of fault. That is to say, it was not to help the courts expedite things, but rather explicitly pushed by the left to upend the power that "bad husbands" had in their marriage.
If you want to go there, then bear in mind that romance novels are also pornographic in nature. If erotic materials are grounds for divorce, then you've just opened a flood gate that will impact both genders. I am not willing to go there. One reason being that I actually witnessed a female relative strategically place pornography around her husband's belongings and computer and try to claim he was a porn addict. Setting up an ex-spouse is easy and if you're a woman, it's very easy to get the courts to not ask too many questions.
Then what you're declaring is that the perverse incentives those changes have made mean nothing to you. The fact is that women and children need marriage far more than men do. When you make marriage indistinguishable from knocking up a live-in girlfriend in terms of legal rights, but adding legal duties to it, what incentive is there? Take your Christian blinders off and imagine life outside of the church for once on this issue.
Posted by Mike T | July 30, 2015 6:17 AM
No, not really. I am saying let's unwind the worst of the perverse incentives. If that means we will locate a new set of worst perverse incentives that ALSO need to be unwound, sure, we can tackle those next. Maybe all you and I are arguing about here, Mike, is whether there should be no-fault divorce of any sort. I certainly don't want to argue about that, I don't think that no fault divorce makes sense, I would never have allowed it to be enshrined into law. Ultimately, it is true that custody battles have to play into marriage law, but I was mainly focusing on custody itself for this post.
I agree. Which is one of the reasons I would not, without a lot of caveats, recommend the "standard" model for unwed mothers be that of having the grandparents be jointly responsible for the baby with the bio-mother.
Fair enough about the studies. But because there HAS been a preponderance of bio-mothers getting custody, there is relatively poorer data on fathers getting custody and those outcomes - we (at least I) don't know the extent to which kids raised without a mom are damaged in comparison to the damage of being raised without a dad. The norm has been the bio-father does not get custody (if the mother contested) unless he can prove that he will be a BETTER than average single guy at raising a kid, and this means making it be the norm that bio-dads getting the kids will bring out a whole new range of bad outcome statistics.
I am open to alternatives also. I too think that society should support patriarchy. As I said in my OP, fathers ARE the authority of a family, and this needs to be supported in law directly and indirectly. So, on that level alone, in theory I could see courts telling wives with some regularity "no, that's not a cause of divorce, buck up and live with it." I could also agree with husbands getting more say on certain kinds of divorce / custody disputes merely because they are the husbands.
But when all is said and done, if "divorce" means that a mother and a father can no longer live with each other's decision-making, keeping then BOTH in the picture for decision making as an ongoing affair means keeping the state as an ongoing referee to settle the disagreements, and this can't be good for the state or the people involved. And if dual custody means saying to a child "you are X% under your mother's authority and (100-X)% under your father's authority", you effectively are splitting the kid in parts and delivering different parts to different households (what happens when those authorities are at odds?) - not to mention what effect that has on the kid's notion of authority in general (and feral children). I would rather see a mother exercise FULL parental authority (without perfect success because she is not intended by nature to hold a father's authority), than see BOTH exercise partial parental authority with the state having final fatherly authority rather than a parent.
Talking about statistics: Mike, are there statistics on kids raised by a single parent solely because the other parent died in an accident or illness? Seems to me that for this kind of situation, (a) the living parent is, automatically, going to take on both a mother's and father's roles as best he or she can (on a day to day basis). And (b) society has no reason to even ask "is this OK" in terms of "allowing" the living parent to have sole custody - for purposes of law, it is and should be a given. So, can we learn from this what tends to be the better situation - living with mother or living with father? On different aged kids? And with varying levels of familial or local (non-governmental) support?
Finally, in my mind I was separating out custody and contact with. I have been seeing, with 2 close family friends, the ongoing turmoil of divorced parents disagreeing about church and schooling options and the like. In both cases repeated resort to courts to settle the disputes. My sense is that you avoid this by saying that one parent and one parent alone has full parental authority for all matters. But this says little about whether the other parent has a right to a relationship with the kids. If mom loses out on custody, but wants to have a day each week, or a weekend every 2 weeks with the kids, is there some way this can happen without that meaning she has joint custody? I am scratching for a solution here, I don't have a good answer. Does that simply re-name all the same old problems ("she let them stay up all hours, fed them candy and soda, took them to the amusement park when Dad said they have to finish their homework...")? Does an ongoing involved relationship with the non-custodial parent simply bring back in the back door all the problems of dual custody? If so, should the custodial parent have the authority to simply pull the plug on the child's relationships that are unwholesome, including that with the non-custodial parent? That's kind of what FULL parental authority means, isn't it?
Posted by Tony | July 30, 2015 7:34 AM
And that thinking is a core part of the problem. If you start from the assumption that a father isn't motivated differently from the average single guy, you've already entered a realm which shows a total lack of respect and appreciation for fathers. If mother and father were swapped, it would be scandalous to many people.
Posted by Mike T | July 30, 2015 7:45 AM
Sure - especially if you mean by "father" not just a bio-father but a married father. And here's where stats from fathers raising a kid alone because the mother died might do a world of good. It just stands to reason that a man going through the effort of marrying and then having a kid is going to be different from a single unwed bio-father in terms of maturity and responsibility.
I don't know for certain what statistics are out there and what they claim to show, I haven't looked. But given the state of social research, I seriously doubt the ability of statistical studies to correctly pick apart the differences between single-father households and single-mother households in terms of outcomes for kids (and society), because so much of what I would look to find as "outcome" cannot be measured DIRECTLY, only indirectly by proxies. Whole emotional bearing, sound morals, intact psychological health, good intellectual habits, respect for authority (but not too much), ability to lead a family, etc cannot readily be measured well, and so much of the measurements we will get will be from the failures who show up in crimes and doctor's offices - it's just going to be chancey drawing solid conclusions from that limited data. If you can successfully measure SOME kinds of disrespect for authority in crimes reported, how are you going to measure too much respect / subservience / dependent mentality?
Not to mention that really good studies need to be long term, and a problem there is that our culture itself is changing so fast that it is changing some of the parameters that need to play into the measurements: single mothers' economic resources in 1960 were vastly different than they are now, because back then hardly 1 in a 1000 single mothers would have a good-paying job. Just as big a change in access to professional day care - hugely different now compared to then.
As a result, I just doubt that we can have a solid social science basis to claim that handing kids over to fathers is better, or that handing kids over to mothers is better, in general. And if no based on actual, solid science, it is going to end up being based on non-scientific notions of what is more fitting, normal, etc under each deciding person's (judge's) perspective on the roles of men and women in general. Which is a darn good reason not to allow feminazis involvement in any part of the family court apparatus. If we could at least START with an agreement that father's and mother's roles are not intended by nature to be interchangeable, that would help.
Posted by Tony | July 30, 2015 8:47 AM
"OK, so let me think wild and woolly thoughts completely outside the box here: Can't make up your mind who's at fault? Call no-fault divorce "both fault". Take the kids away from both the parents and put them with another family - friends that they have known all along. Give that family custody over the kids."
Ah, a solution King Solomon would approve of, I think.
The Chicken
Posted by The Masked Chicken | July 30, 2015 9:01 AM
Oh, and by the way:
Excellent, Mike, you are correct. For the moment I was thinking that one parent filing for no-fault unjustly should force the other parent to counter with a claim of FAULT - which should mean the divorce would not end up being "no-fault". But in reality, some of the time there is NO justifiable cause for divorce and so the victim parent hasn't a leg to stand on claiming fault. "No fault" should mean "no divorce", not "both fault". Society should be upholding the contract, not breaking it when one party wants to break it.
Posted by Tony | July 30, 2015 9:22 AM
Actually, if you really mean all matters, it says a lot. If you have authority for all matters with your children, *of course* this means that you can say, "No, you can't go spend an afternoon with Mr. Smith." That's part of your having fully authority for all matters. And a good thing, too. One wouldn't want just any old person to be able to demand to spend an afternoon with your kids without your having to agree!
Courts all the time order people to allow their children to have a relationship with a non-custodial adult. For better or worse (I tend to think it is for worse) grandparents who don't get along with their grown children can go to court and try to get a court to order the children to allow them to spend time with their grandchildren. So yes, of course this type of thing not only could happen but does happen with non-custodial parents. All the time. But it also has to be either agreed upon by the parties and rubber-stamped by a court or else imposed by the court (if the parties cannot agree). Therefore it certainly can be a form of interference (for good or ill) and hence a limitation of the authority of the custodial parent. This is pretty well-trodden turf in divorce law and family court.
By the way, any form of punishing parents for divorcing under no-fault law (e.g., by their both losing custody) would be a statutory matter. I doubt any family judge would be allowed to do that on his own authority for that reason alone, and that's probably (in my opinion) a good thing. Any such statutory change would amount in practice to a near-abolition of no-fault. That I consider probably a _good_ thing, but it should be done in statute, not by a judge on the fly, and thereby parents would know ahead of time (being advised by a lawyer or by the court) that they cannot use a no-fault divorce option without compromising their entire relationship with their children in law.
Posted by Lydia | July 30, 2015 9:26 AM
For example, a woman who is a vicious shrew has no moral right to divorce her husband over a minor affair. When you abuse a spouse into a point where they act out, you are part of the reason it happened.
So that is what happens when you drink the manosphere Kool-Aid. Your spouse can force you to have an affair. I guess he deserves to be the patriarch of the family when he has no control over his own actions.
Posted by Step2 | July 30, 2015 12:12 PM
It's called provocation. It was a legal defense whose roots go back thousands of years of civilized society. Only recent modern society thinks you can mistreat or outright abuse the heck out of people and expect them to respond like robots programmed to follow Asimov's 3 rules in regard to the person mistreating them.
Funny thing is, "he abused me" is successfully used all of the time by women to maim or kill men, usually with the sympathetic support of a good chunk of the activist left.
Posted by Mike T | July 30, 2015 12:20 PM
I agree with Step2. Very well-put, and a good zinger about a worthy patriarch who is unable to control himself. Btw, I've seen the "abuse" thing used on the male side as well. Counselors encourage it, sometimes even if the couple originally thinks they are going to a counselor to help to save the marriage. The psychobabble is thick on the ground in a counselor's office.
Posted by Lydia | July 30, 2015 12:34 PM
It's called provocation.
No, it's called adultery. Provocation, if allowed in a legal defense at all, has to be an immediate reaction to a trigger event. Of course actual physical abuse is always grounds for a divorce and the basis of "stand your ground" laws and persistent emotional or mental abuse is one of those vague areas that no-fault divorce was meant to solve. Either way, an affair is not a legitimate response.
Posted by Step2 | July 30, 2015 12:40 PM
In general, the notion that men's sexual appetites should not have to be controlled and that male sexual misdoings are the fault of women somehow or other is a staple of the kinds of sites Mike T. is reflecting.
Posted by Lydia | July 30, 2015 12:51 PM
Right. This whole discussion is under a hypothetical that we could get changes in laws. We don't want judges making their own laws.
Well of course. But what I am trying to get at is whether, assuming we could make changes in law and courts, we could come up with a different plan of attack that said one parent has full custody in terms of all decision-making authority, but NOT have that imply that the other has no relationship at all with the kids - and still not have to involve the courts in repeated refereeing about "he took 3 hours longer than we agree..." nonsense. Maybe it is impossible.
Well, that's another area of absolute nonsense. As long as a court has not decided that a parent is unfit, if the parent says "no, I don't want the grandparents involved" that should be final. The courts taking it on themselves to interject state control when there is no bona fide state cause is outrageous.
Posted by Tony | July 30, 2015 12:53 PM
There is no such thing as "a minor affair" that results in intercourse. You know those marriage vows that say "forsaking all others"? That's part of the contract.
In addition, the causal implications of a wife being a shrew toward a husband's concrete acts of infidelity are all negative, not positive (her acts are not, themselves, the temptation to sleep with another woman). No man can claim to be overcome in the heat of lust DIRECTLY due to his wife's shrewish behavior, it can only be indirect. So no man can claim enough in the way of mitigating circumstance in her behavior to disclaim grave responsibility for the failure of the marriage, in such a case. Her being a shrew - even a horrid, intentionally vicious shrew, is not a sufficient cause of his being unfaithful with a specific woman.
So, saying a wife is a vicious shrew leading to infidelity, is to introduce _both_ spouses being causes of the divorce. And while hers might indeed be the graver responsibility, fault on both sides is still would make it a "fault" divorce.
Nevertheless, it is unfair of Step2 to imply that if, in that circumstance, he is unfaithful, that she has NO responsibility for his adultery. That is, that she is morally free of guilt. No, that's not how responsibility and guilt work. She still is a morally responsible party if her wrong actions are in part a cause of his unfaithfulness. It's not all or nothing: both can be at fault for his adultery.
Posted by Tony | July 30, 2015 1:18 PM
This would have been a truly great zinger - back in the era when it was accepted by all parties that a woman is inherently morally weak (i.e. she can't control herself) and needs to be led by her husband. "Hey, can't control your wife? That makes you a bad husband. Apply to Petruchio's School of (Wifely) Anger Management."
Less so now, when most people don't say she can't control herself, (not even those who support patriarchy).
In fact, every husband, in virtue of being a male and married, is by nature a patriarch whether he lives up to the calling or not. He doesn't "deserve" it by making a passing grade, nor lose it when his grades slip some. If his patriarchal authority was conditioned by satisfactory level behavior, it would be subject to the wife's recognition of his satisfactory level behavior. And it isn't.
Posted by Tony | July 30, 2015 1:36 PM
You're absolutely right, but my point was never to justify his sin. A little fact that flew over Step2 and Lydia's heads.
And so ideally, the judge would mock both of them and throw their case out of the court saying that the two deserved each other and neither one had standing as a victim. In such a case, depending on how they both behaved, I could see the judge asking for a finding if any of their relatives are more suitable guardians for their children and that custody should be severed if either party continued in the behavior that lead to the court case.
Posted by Mike T | July 30, 2015 1:40 PM
To say nothing of the fact that today, every argument can end with the wife credibly (under law) threatening to divorce him, get alimony and child support and take his kids from him if he persists in whatever she wishes to not be done. Whether or not she chooses to use this is a different matter. The fact is that it is a legal option and everyone knows it.
Posted by Mike T | July 30, 2015 1:43 PM
Mike T., you forget how much of your stuff, and also the stuff you sympathize with, I happen to run into elsewhere. Not intentionally, I assure you. I'm familiar with the bait and switch whereby all manner of "The woman thou gavest me" excuses are thrown around in an audience perceived as sympathetic and, when called on it, the touter thereof says, "Oh, no, I've been misunderstood. *Of course* I wasn't excusing the man's sin."
Tell it to those whose B.S. meter has not been adequately tuned. I assure you, I've smelled enough of it by this time that the stench hits me from miles away.
Posted by Lydia | July 30, 2015 1:51 PM
Lydia, the only thing weaker than your B.S. meter is your mind-reading act.
Posted by Mike T | July 30, 2015 2:23 PM
Getting back to CUSTODY questions: one of the most horrid things I discovered in researching this is the cases of rape, and the rapist claiming (and getting) paternity rights. What judge, whether in his right mind or completely loony, would subject a mother who was raped to ongoing contact with the rapist? It's an outrage.
But here's an even odder twist: Older girl rapes a younger boy (she's his baby-sitter). Girl gets pregnant. She sues for child support - AND WINS!
What goes through the minds of the judges who decide these cases? And, for the latter, why did not the lawyer for the boy and parents sue the girl for damages equal to ALL of the child support payments plus extras? And why did not the judge award the boy those damages even if they didn't think to sue to begin with (as soon as he thought of possibly, maybe, remotely, that he might award the child support, he should have told the family to sue for damages so he could do both at the same time, efficiency and all that.)
Come on, people! These are outrages. The public should be stoning some of these judges, or at least shunning and shaming them to social death.
Posted by Tony | July 30, 2015 3:57 PM
It's not all or nothing: both can be at fault for his adultery.
There may be some rare circumstances where that might be true, Mike T's wasn't one of them. You seem to be conflating the mutual problems within the marriage, which certainly she deserves a great deal of fault for, with his unilateral decision to have an affair. If you despise no-fault divorce primarily because of its unilateral nature it doesn't make sense to claim an affair is typically a different sort of thing.
This would have been a truly great zinger - back in the era when it was accepted by all parties that a woman is inherently morally weak (i.e. she can't control herself) and needs to be led by her husband. "Hey, can't control your wife? That makes you a bad husband. Apply to Petruchio's School of (Wifely) Anger Management."
This isn't about controlling his wife at all because her behavior is ultimately her decision, not his. It is about how the husband controls his own response to his wife because his behavior is ultimately his decision, not hers.
Posted by Step2 | July 30, 2015 3:59 PM
Tony, I want to pick up on that question:
Contrary to (ahem) some people's narratives about the history of this, it was actually *feminists* who brought about more rights for unmarried fathers generally. This was because they wanted to erase distinctions in law between men and women, and at one point at least they were willing to do this in a way that lessened the rights of women. (Another example of this is that many laws used to state that a husband owed it to his wife to support her financially. It was feminists who got this taken off the books. I heard Phyllis Schlafly speak about this once and state that she had researched these legal changes directly by looking up the relevant state laws. So there, again, feminists actually _reduced_ female power in family and divorce law in their drive to make the sexes indistinguishable in law.) This is how it came about that an unmarried father can block a woman from placing a child for adoption now, where that was not the case decades ago.
Now, I don't really think anybody intended this to apply to male rapists; I think that was a genuinely accidental legal loophole. It is one that a number of states have closed just in the last few years. But the legal situation created by giving unmarried biological fathers prima facie custody rights is what _created_ the possibility that a rapist could sue for partial custody. The judges would presumably claim that, if state law does not make an exception for rapists, they have to take the rapist's claim to custody seriously under law.
I did not know that male rapists actually have received custody, but I have read of a number of cases where a girl (sometimes a minor) and her parents have to spend huge quantities of money in lawyer fees to prevent the infant's being given in partial custody to the rapist and live in fear of it for years, because nobody is able or willing peremptorily to laugh the case out of court. Fortunately, this is something that legislatures can solve and have been solving.
Concerning the older female statutory rapists, again, what you have is a mess created by other laws. Here's one way that it works: The state itself automatically goes after the other biological parent for child support if the custodial parent claims any state aid for the child. This includes state aid for, e.g., health insurance or healthcare. Most states have pretty good healthcare packages for the minor children of poor parents. If the bio-mother, *whoever she is* (so, yes, this could include a woman who had committed statutory rape resulting in pregnancy) uses any state services for the child, the state will seek to recoup the costs by going after the other biological parent, even if he was a minor when the child was conceived. This all just kind of gets churned out by the system: "Oh, you're a single mom. You need state aid for the kid. Who's the father? Thanks for that info. We'll be sure he pays child support." She doesn't even have to do anything but name him. I suppose one could even imagine a situation in which the bio-mother felt some measure of shame and didn't particularly want to seek the child support, but it would not in that case be her choice, unless she had so much money that she never sought any state aid for the child.
This sort of thing happens all the time in other circumstances as well. For example there was the bizarre situation I highlighted of the surrogate mother who got socked by the state (for a while) for child support even though the child's conception had been "commissioned" by a wealthy actress and her then-husband, who provided the biological materials (as it were) for the child's conception. Because the bio-father took custody at the child's birth and didn't have enough income, he sought state health insurance for the baby, and the machine got in motion and went after the surrogate (a waitress) for child support. Eventually I believe the waitress got off the hook because the wealthy actress was made to pay instead.
So the idea that bio parents should be made to pay child support even if they don't have custody--which makes sense as a general rule of thumb--has been as it were "automated" to such an extent that it creates all these weird injustices.
Posted by Lydia | July 30, 2015 4:31 PM
Come on, Step2. We don't need to go down this road. As the old marriage teaching made clear, one of the purposes of marriage is to constrain the passions. If a woman intentionally and without just reason withholds herself for long, long periods from the marriage bed, SHE IS TOO partly responsible for his finding sex elsewhere. The fact that he is, himself, *fully responsible for his own actions* doesn't deny her some responsibility.
Here's another example of that mutuality of responsibility: every man has the responsibility to keep his thoughts away from lust. (From the sin of consented lust, not from the temptation thereof, of which we cannot be in control 100%). However, women have a moral obligation to contribute that by dressing modestly. A woman who intentionally and with forethought dresses provocatively, about 3 levels below modest, is contributing to a man's sin of lust even though he himself is *fully responsible* for his own consent to the sinful lust.
Responsibility is additive, not a zero-sum game. As Cain found out: yes, I am responsible for my brother, and wife, and child, and neighbor, each in some limited degree.
If we can't just drop this fruitless line of equivocal foolishness, I will just go back to Mike's ugly comment about "minor affair" and delete from there.
Posted by Tony | July 30, 2015 4:37 PM
Right, that's probably how we arrived at these places. So, let's turn it around: take advantage of the situation and ERASE the legal "right" of an unwed father to any paternity rights. Do it in the name of "correcting the rapist loophole". Pay no attention to people who suggest we could carve out a narrower rule - THAT'S NOT THE ISSUE. Just keep harping on the fact that rapists will find any loophole, so get rid of the whole stupid theory of paternal rights without reference to marriage.
And let's take the in vitro / surrogacy idiocy as an opportunity to COMPLETELY SEVER the notion that biological "relationship" trumps anything, much less everything. Let's kill the theory that having some of the same genes as a person makes you their controller. Instead, let's base custody and such on personal actions. You have to take responsibility for your actions, not GET control of your genes in someone else's body. If you willingly consent to have sex outside of marriage, you are responsible for the costs of raising a child so conceived - that does not give you rights over the child. If a woman rapes a boy of 12, he does not (for legal purposes) consent, and he is not responsible for the costs. If a woman becomes a surrogate mother, she has to answer for her actions: the child would not exist but for her consent. Joint and several liability should be implied here: EVERY ONE of the three people are FULLY liable for the costs of raising the child, not just some. (I would not mind holding the doctors liable also, but some people might balk at that.)
Posted by Tony | July 30, 2015 5:40 PM
And hey, let's sock sperm donors with child support costs, too. Just for even-handedness.
Posted by Tony | July 30, 2015 5:42 PM
I haven't re-googled it, but I think a lesbian couple may have gotten child support from a sperm donor. I could be misremembering. It would be justice, if true.
Posted by Lydia | July 30, 2015 7:13 PM
Heh, go figure. Hard to out-weird reality.
Probably there will be a change in the contracts for sperm donation to try to preclude that. But we can just override such contract provisions as being unenforceable. You know, like contracts for selling humans or human body parts? Making a baby for profit is close enough to selling humans for us to stop it. That should work for IVF itself, but apparently nobody is making the case.
Posted by Tony | July 30, 2015 10:00 PM
I'm quite sure that *is* written into sperm donation contracts, but my guess is that some states don't recognize those aspects. Generally it's better (from our perspective) if state laws simply act as though surrogacy and sperm donation don't exist, because then it's more likely that more normal notions of parenthood will be applied, and a sperm donor is actually at risk of that. The best alternative of course would be an explicit statement that no such contract will be recognized under state law. But if state law is silent on it, in theory I believe a sperm donor could be regarded as a biological father. As far as I know, it would be left up in the air--TBD.
Posted by Lydia | July 31, 2015 9:45 AM
If you want to end the attractiveness of sperm donation, you need to give the father some parental rights over the child. Sticking the man with the bill is only a good start, but that doesn't address the facts that a) there will always be men who are stupid enough to take the risk and b) it does nothing to give women a direct disincentive to seeking a sperm donor instead of a husband. If you don't attack the incentives from all sides, you are not really attacking the problem.
Posted by Mike T | July 31, 2015 10:28 AM
Well, I am happy to attack it from all sides, but I am not sure how giving a sperm donor rights as well as liabilities helps.
On general principles, laid out above in the OP, I am against a bio-father having ANY rights if he didn't bother getting married to the mother before conception (or at least during gestation).
Again, I am not seeing it. If it becomes standard that the bio-father is liable for child support, a woman going to a sperm bank would be, ipso facto, going to get a child and child support payments. The sperm bank would naturally have data on the father so the state could easily pursue him for costs. The "risks" would be a near certainty: get X amount for donation, pay 100X amount in support costs. Simply having it standard that sperm donors are liable for child support would kill the economic picture for sperm banks altogether.
Posted by Tony | July 31, 2015 11:45 AM
I'm also including private arrangements as well. I could easily see a lesbian couple offering a man a threesome and $X amount of money with a contract that says he gives up his custody rights. Legally, he could in fact give up his custody rights under such a situation and they COULD say that abstaining from demanding 2 kids' worth of child support is a good price to pay for him not reneging on that. I would counter that by making it legally uncertain that his side had any enforceability thus making them have to factor in the possibility that they could lose custody.
Posted by Mike T | July 31, 2015 12:07 PM
OK, I see the logical possibility. If you put doubts about whether the lesbians can keep custody of the kid out of the guy's hands, they might not want to go with this.
I can't see that being a particularly good reason for giving unwed bio-fathers paternity rights. First, because that represents less than 1% of babies, whereas the other cases represents something like 30% to 40% of kids. I don't want to make it impossible to improve matters for 40% just so I can spike the wheels of 1%.
Second, because it's not all that strong an impediment. There are ways a woman can probably get sperm without resorting to straight-up paying a guy for an explicit donation, and half the ways he won't even know he might become a (bio-) father.
I would rather make the principled statement that fatherhood belongs to marriage and take custody outside of marriage off the table, and live with the minor effect that has on lesbian arrangements. In the long run, we need to be thinking about what kind of society and morals and customs we SHOULD have, not just what we can do short-term to impede one minor problem.
Posted by Tony | July 31, 2015 3:25 PM
Yes, it's usually from a sperm bank. However, in order to charge him child support, he has to be tracked down anyway, so he would know then.
The current state of the laws generally denies paternal custody rights to a man who has had no relationship with the child, but that doesn't preclude a demand for child support. A sperm donor is a paradigm case of that (no relationship with the child), which is why it is possible that a sperm donor could have child support demands without custody rights.
If we're making up fantasy laws, the most direct is just outlawing sperm banks. Cut to the chase.
Trying to tinker with child custody laws to discourage sperm banks is a) not going to happen, b) questionably wise or moral, and c) unlikely to have much of a deterrent effect.
Posted by Lydia | July 31, 2015 4:23 PM
It doesn't bother me all that much to charge a sperm donor for child support, because his behavior is wrong and ought to be penalized. But I am puzzled about why society thinks charging this makes sense, since it doesn't have any beef with the behavior. What's the rationale? Is it purely based on his supplying genetic components? If so, that will end up being thrown out if cloning and / or other genetic developments work out, where (a) someone might take cells from you without your knowing and make a baby, or (b) a scientist might splice using a portion of a person's DNA to select for specific traits.
Like with the rape cases, I find it astounding that the rest of the establishment goes along with this (charging a sperm donor with child support). Surely people think that, if you don't object to the behavior itself, THAT outcome is irrational?
Posted by Tony | July 31, 2015 5:37 PM
It's part of a larger question. Why does society take the attitude that it's "her body, her choice" but the act of supplying a woman with semen in some capacity makes him utterly bound to her decision? The answer probably has to do with the fact that people who won't hesitate to shriek about the slut/stud "double standard" (it's not a double standard because it's rooted in gender differences, not morality) will enthusiastically demand a double standard there.
To be frank, there is no good argument for child support when no-fault is filed either because it's a given that many of the men forced to pay child support and lose their daily custody didn't deserve it. That doesn't stop many who claim to be fervently against no-fault divorce from find rationalizations to make it possible.
Posted by Mike T | July 31, 2015 7:26 PM
Not uniformly. I think our culture still has a pretty strong notion that "society" shouldn't be required to pay for a child's upbringing when there is a biological parent known to exist, who knew that his behavior would or could bring about the existence of a child, and who has resources and could help shoulder the burden. The financial obligation may seem like a pretty crass thing to hang on to when all other obligations are out the window, but courts (varying by state) are sometimes at least open to the idea that everybody else shouldn't have to take financial responsibility for your generating a child or engaging in behavior known to possibly generate a child while you get off scot free.
Mothers are sometimes made to pay child support as well, by the way. E.g. If the mother has the higher income and the father has partial or full custody.
Posted by Lydia | July 31, 2015 7:26 PM
This is the same system that says no, a 12 year old cannot consent to have sex with a 30 year old woman, but he can be held liable for the pregnancy her felony created. Why? Because the courts have ruled that child support is not legally a punishment.
Posted by Mike T | July 31, 2015 7:32 PM
Well, heck, why not go back to grandparents? Sure, society shouldn't have to pay, but the mother who undertook, completely freely (without even passions to cloud her thinking) to have a child without a father in the picture, (or two lesbians, or whatever) is FULLY liable for the costs of that decision. Why does society think that responsibility ought to be shared out? There isn't any reason there OTHER than society just wanting to pin the cost somewhere. So pin it on the doctor. That makes just as much sense (actually a good bit more, frankly. And he can afford it, too, more than likely.)
No, this is one that I think is likely to get buried pretty soon: by not having any relationship at all with the mother, and not participating in any way with an act of intercourse, I don't see society long holding on to pinning the sperm donor with anything but honestly reporting any genetic issues. (Until we go back to having a moral POV about sperm donating to begin with.)
Which ought to get men screaming "my genes, my decision", right? If that's the basis of child support, it makes just as much sense as "my body, my decision" (that is, it doesn't make sense, but is just as consistent).
No, I will not let this go, Mike. You are spouting manosphere claptrap, in this one. A man who sleeps around, and a woman who sleeps around, are BOTH guilty of gravely evil sins. That their sins may be damaging to their psyche and internal make-up in slightly different ways may be true due to the different make-up of men and women, but THAT difference pales in comparison to the spiritual death that both will suffer from embracing those evil acts willfully. Both versions will send you to hell. That there is a difference does not prevent there still being a moral double standard. (Like, for example, the double standard of the ancient Jews stoning an adulteress but not the adulterer, when the law said to put both to death.)
Posted by Tony | July 31, 2015 7:52 PM
I actually rather like the idea of making the IVF lab or inseminating doctor pay child support. Poetic justice indeed, but will never happen.
I think what we've actually got is a strange amalgam of totally messed-up thinking and remnants of more sensible thinking. The totally messed-up thinking is that making babies by sperm donation (IVF, surrogacy, lesbian "parents," etc., etc.) should be allowed in the first place. The remnants of sanity are that human beings who knowingly engage in actions known to possibly or probably bring a child into existence by means of their own reproductive capabilities have a special responsibility for that child. The result is a policy hodge-podge to leave the head spinning.
Posted by Lydia | July 31, 2015 8:24 PM
To which I agree completely.
On another tack: I am surprised that nobody has raised a question about my title. I rather thought that somewhere along the way we might delve into why and just how far it is society's job to decide things like custody to begin with. Who makes it a state job to rule on custody? Why can they put a child with one parent and not the other?
Posted by Tony | August 1, 2015 7:07 AM
I accept that society sometimes has to decide custody, on pain otherwise of anarchy. If Mom and Dad split up and both want custody, it's obviously a non-starter for them both to get their friends and have a rumble to decide who gets the kids.
However, in _normal_ cases custody should not be thought of as granted or decided by the state but rather as recognized by the state as a pre-existing situation. Children should never be thought of as prima facie wards of the state granted to custodial adults. This is part of the danger of homosexual "marriage"--namely, that when children are acquired by the couple, they are often acquired in some bizarre way (e.g., male homosexual couple purchasing a surrogate's services in Thailand) that leaves all prima facie custody questions up in the air and turns adoption into the default way of forming a family.
If I may say so, this is why I go a slightly different direction than you do on single motherhood. While I agree that adoption is virtually always better in such cases, as a matter of policy and prudence I think that maintaining the notion of prima facie custody is more important. If the state comes into every single mother situation and says, "Okay, you had this child out of wedlock which was irresponsible; we're going to grant custody to someone else," that encourages the notion that the child belongs to the state rather than that the state merely recognizes a pre-existing custody created by nature.
I agree that a single mother is not a normal situation in the sense of "normative," but it is in a different sense a "state of nature," since the mother did biologically bear the child. The minute we start sharply questioning whether any rights are conferred upon any parent prima facie by the state of nature, we are setting up a very real possibility for a wrongful notion of custody as _first_ being the province of the state and only graciously being bestowed by the state, not that of the biological parents.
Posted by Lydia | August 1, 2015 9:20 AM
True enough. We need to be very cautious of hyping state authority and damaging the lower layers of authority in society.
However, apparently in colonial and early federal times, the child became a ward of the local community (poor houses and orphanages) just as a matter of course - that was the social presumption. So speaking generically rather than with current problems in view, we need to at least be conscious of other models of custodial assumptions before we settle on what model we think represents the root reality of human nature best.
I have not yet thoroughly tried to work out, from first principles as it were, the tension between the unwed mother's role and the role of society and the state, regarding custody and "rights". I do want to respect the natural condition of a bond between mother and child. At the same time I want to recognize what seems to me to be natural limits to that source of a bond.
One argument against the model I mention from colonial times is that it reflects a model of society itself that is unnaturally constrained. At those times (certainly in earlier times) a woman was subject to her father until she was married. She did not own property in her own name, and could not "establish" a household in her own name. Hence both from theoretical and practical considerations an unwed mother keeping the child was impossible: bringing a child into her father's household without his say, who was not the father's own child, is "unnatural" in the sense of what a patriarchal household is. And for the woman to depart her father's house to be on her own was to ensure that she and child would be destitute because she had no property and no prospect of decent work, and could not establish a household. That guaranteed that the child would be a social outcast. (Which is kind of what "illegitimate" actually implies).
All that carries the freight of its social assumptions: the daughter is the father's to give away in marriage and she has no authority to contract marriage without his consent, the girl cannot be the head of a household, and she has no place in society as a worker, her only place is as daughter or wife. Most of us probably don't want to return to most of those assumed conditions. For one thing, this model essentially ensures that widows are mistreated.
And yet, the case against (some of) those assumptions by the liberal establishment is not as simple and airtight as they would like to pretend. Having women able to work outside the home in positions of "equality" with men apparently means, in practice, that women MUST work outside the home in order for home economy to work, which leads to problems with raising kids. It is not all that easy to square the competing needs here, I would argue that we don't know what a good model would look like, one that did not assume and force women into "daughter or wife and nothing but" but did not effectively force women to work outside the home while raising children.
So for the moment I would only suggest that we not presume that, ideally, unwed mothers' natural place with the child implies that she has presumptive custody of the child (i.e. custody until shown unfit). I think that we can reasonably argue other models.
For our current grievously damaged culture, I don't want to disturb that presumption in favor of the unwed mother without putting something better in its place, and that means treading carefully. For example, I would say that surrogacy poses especially severe dangers to all of the familial assumptions built into our social structures. If the surrogate mother can simply hand over the child to the contracting "parents" (or even parent) without state oversight and approval, this will lead almost directly to slavery and associated evils. Certainly surrogate mothers doing it for pay smacks of selling a child. For that reason, legal surrogacy should mean, at an absolute minimum, that the prospective parent(s) would have to go through just the same adoption screening and regime that is imposed in all other cases of a child coming under the custody of someone other than the bio-mother, and there should be very strict rules prohibiting pay for a child. This all means that the child is going to be considered the child of the bio-mother unless and until the state approves the adoption.
Legal surrogacy and IVF, for gay couples (or singles), means that the norms of familial working are shot to pieces - as we have documented here with Miller. Finally, if the feministas get their way, "family" will become a completely empty word, all there will EVER be is just "who has custody of the child right now" and there will be constant intervention by the state. The family will cease to be a viable entity and every person will simply belong to the state. (At first it will be every person belongs to the state until they are 18 and then they belong to themselves, but that won't last). So finally, legal surrogacy and IVF need to be forbidden altogether. But until we come around on that, we can at least try to hold the line on maintaining that there is SOMETHING better than having kids directly the ward of the state.
Posted by Tony | August 1, 2015 10:02 AM
Yes, I completely agree. That is I believe how it is in a few states that don't recognize surrogacy contracts and also in some third-world countries that have become fed up with what Wesley J. Smith calls (clever phrase) "biological colonialism." In Thailand, for example, right now a homosexual couple is literally "on the lam" with two children, one quite a young baby, whose surrogate changed her mind about agreeing to the arrangement when she realized they were gay. One of the men is apparently the sperm donor. The other man is unrelated. The surrogate was merely a so-called "gestational carrier," because they purchased eggs from another woman! A horrible mess. But Thai law, I gather, grants prima facie custody to the mother who bears the child and does not recognize surrogacy arrangements, so they could be forced to give the child back to the surrogate. My cynical guess is that they are bribing officials to stop this from happening, but they do not have paperwork to leave the country.
The other child (a little boy) being dragged from pillar to post with them, was born by a similar arrangement with a different woman some time ago (a year or two?).
I say, on this point, good for the Thais.
Posted by Lydia | August 1, 2015 12:30 PM
Tony, as my comment more or less said explicitly, the existence of the double standard is rooted in biology, not morality. It's a reflection of the realization that for a woman to have had 50 decent quality male lovers is no accomplishment and requires no work for most decent looking women. If anything, it takes effort for her to remain chaste. For men, it's precisely the opposite. To be a successful cad, you must actually be successful at being sufficiently attractive that 50 decent quality (looks, personality, etc.) women find you attractive enough to be seduced.
The moral angle is important, but it is not the only angle here. Adultery is similar in that respect. It is equally immoral for both genders, but adultery carries intrinsically higher risks when the husband is the victim because custom and law presume he is responsible for any child his wife bears. For a variety of reasons, this is not comparable to what a wife faces. If they get divorced, it is a real fact of life that a man with 5 kids may find that 2 are not his and he's legally obligated to pay for them anyway.
Reducing everything to the moral issue is pointless, unless you are an egalitarian hoping to wash away gender differences. The state has to factor in not just the moral angle, but the real secular harms done. Those harms do, in fact, vary at least somewhat based on which party is the victim. A wife with a cheating husband is never liable for child support for his bastards; a cuckolded husband as a fact of law is liable. There's also a very strong consensus among social conservatives and feminists alike that men who are victimized by paternity fraud should not have the ability to undo their obligations assigned under fraud "for the benefit of the children."
Posted by Mike T | August 1, 2015 3:05 PM
Tony,
I also think that any proposal to add obligations to men (your IVF example) will fail with men if it's not coupled with comparable rights elsewhere. If husbands' rights in particular are not firmed up legally as you propose such things, I think you will be just written off as another social conservative who is playing useful idiot to the feminists trying to further reduce men's standing in the law.
Posted by Mike T | August 1, 2015 3:15 PM
I don't know what you mean here.
In traditional societies, adultery - if discovered qua adultery - was either (a) equally harsh on both because both were put to death, or (b) was harsher on the woman because she was punished severely and the guy was not. Punishment ranged from death to prison to being a social outcast with no plausible means of support other than becoming a prostitute.
If not directly discovered as adultery and the woman became pregnant she either had the case where her husband mistakenly assumed the child was hers, in which case she was not punished except by 9 months of mental torture of worrying whether the child would look a spitting image of the dad. If she became pregnant and THIS ITSELF discovered the fact of adultery because the man knew he could not be the father, she was punished at least as severely as her partner in crime (if she divulged his identity).
If, instead, you are referring to the "risks" of a man raising as his own a child not his own, that hardly seems as much danger to risk as being stoned, being imprisoned, or being thrown out of all decent society and being forced to starve or be a prostitute.
You've got that muddled. The PRESUMPTION is in favor of the husband being the father. That presumption can be overturned by evidence, and doing so can sever the husband's liability. If a man is able to prove that the child is not his own biologically, he can force a different outcome by pursuing the bio-father in law or by simply filing at court to sever his responsibility (with the evidence). (It is completely irrational to balk at laws that presume that any child conceived or born during your marriage are yours, when those laws give you a way of overturning the presumption. The laws ought to be made for the majority cases, not the exceptions. And they ought to support the presumed rights of husbands over kids born to their wives, not attack those rights.)
Not directly and personally, no. As long as she is married to the jerk, she is affected financially because his debt will damage their joint financial affairs. And it could even rebound on her more directly, insofar as jointly owned property might get a lien on it. Sure, she can work at severing her involvement from him by divorce, but divorce is ITSELF a financial drain and rarely leaves women with equal material resources to what they had before (even when it leaves them with more than the guy has).
That's something I have never heard among social conservatives. Men should bear their real obligations, and those include the burdens of the babies conceived or born during their marriage unless and until it is proven that some other man is responsible. And, even then, the husband should have the ABSOLUTE RIGHT to choose to take the child as his own, cutting off the bio-father utterly and forever. But if he declines to, he _obviously_ has no moral obligation to financially support the child. I have never heard a conservative say otherwise. Of course, the proper thing to do if her husband doesn't wan the baby is put the baby up for adoption (presuming still a baby when paternity is discovered), and then the bio-mother will, also, be relieved of her moral responsibility to care for the child. If the mother can't see doing that (giving up the baby), she would seem to be choosing her baby over her husband, which seems (to me) to imply a divorce. Which, again, should not obligate the husband to support said baby.
Posted by Tony | August 1, 2015 4:04 PM
The biology is different, and that means the effects are different, and therefore we OUGHT to treat them differently. Nevertheless, there has been at times a double standard even about things that are not supposed to be treated vastly differently, such as the gravely different legal punishments applied to the crime. At that's enough to be said about the matter: while there are differences, there have been inappropriate double standards.
Posted by Tony | August 1, 2015 4:53 PM
Mike T:
Granted that female chastity is more important to society than male chastity, the "slut/stud" double standard is still objectionable because it treats female promiscuity as shameful and male promiscuity as admirable, when in fact both are shameful. The problem is not that it treats equal things unequally - you are right that male and female promiscuity, though equally immoral, are not equal in all relevant respects - the problem is that it fails to treat male promiscuity with the stigma it actually deserves. It fails to protect women and children, as well as husbands and fathers, from the harm done by philanderers.
A society with a _different_ "double standard", one that treated all promiscuity as shameful but was more vigilant about stigmatizing female transgressions, would be objected to by feminists with less of a claim to justice than they have in their objection to the "slut/stud" double-standard, which actually is unjust.
Tony:
Since adultery is usually done in secret, most such transgressions will be undiscovered. Social stigma, because it addresses a person's internal sense of shame, what Freud would call the superego, can be a more effective deterrent than legal consequences, which only operate where the transgression is proved.
It is very important that men have confidence that the children born to their wives are their own children. The social stigma against female unchastity furthers this end, and there is not a parallel end further by stigma against male unchastity. There is a particular harm that an adulteress does to her husband that an adulterer does not do to his wife. A man who even SUSPECTS his wife of infidelity may have doubts raised in his mind about ANY of his children. If her character is called into question in one instance, who knows what she may have been doing years ago, when these children were conceived? Whereas a woman's doubts about here husband's fidelity never raise doubts about whether her children are hers. (There's a lot more than finances involved here). We can recognize that this gives society reason to be more vigilant in stigmatizing infidelity in women, while at the same time recognizing that cheating husbands do very grave harm to their wives and also to their whole families and to society at large and ought to be subject to much greater stigma than they traditionally have been.
Posted by Christopher McCartney | August 1, 2015 5:43 PM
Chris, let me just add one clarifying point: what evil the adulterous wife causes to her husband is not more than the evil that the man with whom she slept does to her husband. The evil he causes is as wrong as the evil she causes.
Anyway, I strongly support social arrangements that stigmatize adultery and support the patriarchal role of husbands and fathers. We ultimately need to turn around ALL the foolish ways in which we have damaged these proper goods of society, including ways in which marriage and divorce laws damage the family and patriarchy. And by "patriarchy" I mean only what Christian teaching means by it: the husband is the head of the family, and lays down his life for them as Christ did for the Church.
Posted by Tony | August 1, 2015 6:25 PM
I could sit here for quite some time dreaming up descriptions of ways in which male infidelity hurts society that are not identical to the ways in which female infidelity hurts society. And the same for male promiscuity when unmarried. I could also sit here thinking of ways in which male infidelity in a marriage hurts the wife that are not precisely (on average) identical to the ways in which female infidelity in a marriage hurts the husband. The fact is that all such comparisons end up being apples and oranges. And while I'm making fruit analogies, cherry picked. It is not *in general* true that female bad sexual behavior is more harmful to society than male bad sexual behavior. This should be fairly obvious, but unfortunately it isn't obvious to everybody. And that doesn't mean that men and women are identical, as the various "ways" are not all identical. Simply that there is not some general rule that one is worse for society than the other. The concern about child paternity is one concern, but to make it a stand-in for "harm to society" is short-sighted, to put it mildly.
Good grief.
This is one reason why I sometimes regret the fact that W4 is a web site somewhat "to the right of the right," somewhat off the beaten path politically speaking, somewhat non-mainstream. It affects our comment base in unpredictable and not always salutary ways.
Posted by Lydia | August 1, 2015 7:02 PM
Chris,
I agree. The problem I have with the knee-jerk reactions from conservatives on the "double standard" is that it's a refusal to accept the fact that it's a natural difference that exists everywhere in a fallen world due to innate gender differences. You cannot be effective in addressing that issue if you stamp your feet and deny that it is rooted in biological and social truths about the sexes.
Tony,
I'm not so sure that you are correct about this, except in some states in more recent decades perhaps. I found this on Google when searching for "presumed paternity in history." It contradicts a lot of what you said. I know in Virginia you can have a shot of getting out of it, but it's not a given. In fact, I've seen articles at sites like Reason which go into detail about how men can be bound in many states even when it's blatantly obvious that they couldn't be the father. Further complicating it, apparently the welfare reform of 1994 pushed the states to adopt laws that make it exceedingly difficult (in some places impossible) for an unmarried man who is falsely named to stop paying. In virtually all of these situations it seems impossible for the defrauded man to actually sue for damages.
That's true, but consider a few critical differences:
1. If a man impregnates a woman he meets in a bar in the bar's bathroom and leaves (and thus she can't track him down), his wife suffers no loss. If the husband and wife were reversed, not true. She brings an illegitimate child home.
2. Every illegitimate child a woman conceives in a marriage is a child her husband cannot claim as the biological father. Thus a good wife can still have kids with a cheating husband, but a good husband with a cheating wife risks reducing or eliminating his chance of actually having heirs that are truly his.
I think I know what you mean, but bear in mind that there is a heresy called "mutual submission" that plays with similar rhetoric. It all but defangs the meaning of head of household by making it sound like a godly husband would never actually do things like make decisions for the family on his own, especially which didn't appeal to his wife.
Posted by Mike T | August 1, 2015 7:33 PM
Unfortunately, it's simply not true. You are blind to the apex fallacy, like a lot of older conservatives. You see the alphas running around acting like bonobos and fail to see the majority of men who are simply invisible to most young women today. The fruit of the sexual revolution is that instead of choosing one beautiful woman, an alpha male can now choose dozens of good looking women or slum it with "just above average" when the pickings are slim.
Actually go interact with secular millennials. You'll find that the reason many of the guys have turned to porn is that it is significantly harder for an ordinary man to appeal to a woman who's had a taste or two of the sort of men who, a few generations ago, would have barely said hello to her because he'd have focused his energy on getting a hard 9 out of 10 or better for a wife since that's all society would tolerate.
Do I blame the women for this? No. Because so many of them ending us as STD-riddled, cat-herding spinsters will be more than enough punishment on its own.
Posted by Mike T | August 1, 2015 7:47 PM
No, actually, I see the turn to porn *itself* as an enormous "harm to society." And frankly, I am made almost physically ill by the "explanation" that porn use is caused by women who won't marry the poor, poor betas who turn to it as a consolation prize.
But Mike, I really won't debate this kind of thing with you. I could start trying to answer your shallow talking points about how society is more hurt by male infidelity than by female. Just in the course of one trip to the grocery store I came up with three or four partially biology based distinctive ways in which society is hurt by male infidelity. But I'm not going to waste them on you or attempt to reason with you about this.
It is enough for me that you know and everyone else knows that manosphere talk is unwelcome here.
Posted by Lydia | August 1, 2015 8:28 PM
Ugh. Do I have to? What do I get out of it? What's in it for me?
Instead of the ordinary (chaste) guys trying to appeal to a woman who wouldn't barely say hello to a man who sleeps around? Or trying to appeal to a woman who has come to her senses after having had a taste or two of the kind of man who sleeps around, getting burned, and figuring out that kind of man isn't worth loosing sleep over - that an apparent 9 or 10 guy is fool's gold compared to a guy with a heart and soul of gold purified in the crucible.
Promiscuity has certainly harmed much of our social fabric, it has hurt both men and women in myriad ways. We don't need to figure out whether it harms women or men more here.
The different states are different on this, but in principle there is a way to defeat the legal presumption that a husband is the biological father. Sometimes the pathway is too narrow and should be corrected. Similarly with child support payments: in various states the mechanisms are tortuous and intentionally designed to get more money rather than make sure justice is done. It is true that things have gotten worse, not better, in recent years, too. But I simply don't care that much about the particulars for this discussion. As the general rule, the presumption SHOULD be in favor of the husband being the father of the child, and society OUGHT to be arranged so that such a presumption is not a grave injustice to men, rather it should be a measure that vastly decreases state interference into the family and thus promotes men as the authority in the household. To the extent that we have fallen away from that, we are (once more) damaging society.
And I am sure that people who thus play with that "mutual submission" phrase are perfectly happy with my layout of patriarchal authority in the OP, and in several follow-up comments that highlight the distinctive authority of husbands over their family. /sarc
Posted by Tony | August 1, 2015 8:32 PM
This is true.
I find it particularly humorous that liberals are so all-fired in favor of evolutionary theory - which utterly supports the above statement - and yet have absolutely no willingness to allow evolutionary theory to have a say in this regard. They absolutely deny that THEY are bound by anything that evolution has handed to mankind - that's all for other people, not them. Men DO care that the child they are supporting is their own flesh and blood, they are evolutionarily programmed to care (so they say), but nooooo, society cannot be organized to reflect that men care.
Posted by Tony | August 1, 2015 8:53 PM
Tony (6:25):
I agree on all points.
I am hesitating about whether to add a further clarification to your clarification to the effect that the adulterous wife has done that particular evil to her own husband, to whom she swore a solemn oath of life-long fidelity, and to her own children in undermining their father's confidence in his relationship with them; whereas the man with whom she committed adultery has done objectively the same evil to folks that are not members of his own family. I say I am hesitating about saying this because I don't want to sound like I am in any way making excuses for the man. The crying need of our age is to recognize the shamefulness of unchastity as such, in both sexes. We are so far, as a culture, from sanity in these things that the task of construing the precise differences between the shame due to various agents of adultery is not a particularly urgent one, it seems to me.
But I want us not to make the perfect the enemy of the good. Most cultures that care about pudor care more about instilling it in women than in men, and with good reason. Yet there are some Christians who are so allergic to any "double standard" that they would retard efforts to hold women to a higher standard simply because efforts to hold men to a higher standard are not proceeding apace. Pragmatically speaking, human weakness being what it is, I suspect male pudor is bound to lag behind so that improvement in this area will necessarily lead to increased double standards. We should pursue it anyway.
Posted by Christopher McCartney | August 1, 2015 9:01 PM
Mike T:
Are you nuts? Have you fallen for the crass worldly concept of "harm" or "loss"? And would you say the same of a wife who engages in non-coital adultery? that her husband suffers no loss?
Let me give your words a more charitable interpretation than I think they deserve: I'll assume you mean she suffers no loss from the pregnancy as narrowly distinguished from the act that produced the pregnancy. Even this is wrong. A man who impregnates a woman not his wife has inflicted loss on himself, for which he has no just claim against the mother of his biological child, but genuine loss nonetheless: by not marrying her he has deprived himself of the right to be a father to his own offspring. The fact that it is his child she is carrying means that unlike every other pregnancy in the world, this pregnancy is a source of sorrow for him (whether he feels it or not): because of this pregnancy the fruit of his own body will be a stranger to him. Now a husband's body belongs to his wife, as Paul teaches. So when a married man inflicts this kind of loss on himself he also inflicts it on his wife, who was innocent in the affair. She has an interest and a right to be the mother of all of his offspring. He has deprived her of that. This ought to be obvious.
Posted by Christopher McCartney | August 1, 2015 9:02 PM
Lydia:
I have no complaints about your treatment of Mike T., given all of the off-the-wall things he has said. But Jeremy Taylor, for instance, deserves a more open minded hearing. In The Rule and Exercise of Holy Living he asks,
There is much that I would disagree with in this, and much else that I would qualify, but it represents something close to a consensus of the most learned and pious teachers within Christendom until recently and should not be lightly dismissed.
Posted by Christopher McCartney | August 1, 2015 9:57 PM
Christopher, I do as it happens disagree with Jeremy Taylor on point 2, and I believe that he says it both because he is focused too much upon bastardy in a family and, as regards the consequences of violations of peace, murders, etc., because he is not giving due attention to the basic fact that it takes two to tango. Moreover, as I said to Mike T., there are a variety of ways in which even in terms of consequences and even if one restricts oneself to discussing those consequences which are in some respect unique to male misbehavior (or more likely as a result of it), male sexual misbehavior has _worse consequences_ for society. Again, I say "a variety of ways" because I'm not claiming that one can add them up or perform any other quasi-mathematical operation and come up with a "net harm to society" quotient that is worse on the male side. But neither, I would say, can one do so for female sexual misbehavior. I could say a great deal more about this and have many thoughts on it, but frankly I have no desire whatsoever to discuss the matter further in the presence of Mike T. or anyone else who has drunk of the vile manospheric poison and spews it in comboxes. You, I understand, are coming to this not from that poisonous perspective but simply with your own opinions formed by older writers. We could possibly have an interesting conversation on the topic, but there really is no venue for it to take place.
As for holding women to a higher standard of sexual chastity than is presently generally expected in Western society, I am all for it, though I have no desire to hold them to a higher standard than men as an end in itself. (Both should be held, in terms of social expectations, to the highest standard possible!) I would never say that we should not ask women to be chaste and modest because maybe men won't be chaste and modest, too, or maybe more women than men will listen, or any such nonsense. As a mother of daughters, I would be insane to say anything so wicked. Chastity and modesty, like other virtues, are their own reward. On the contrary, as you would learn if you were ever unfortunate enough to frequent the sites of the reactionaries on these subjects, it is those crying loudest for the sexual double standard who would decry efforts to ask men to be chaste on the grounds that It's not fair, because so many women aren't chaste. Such destructive childishness is to be rejected across the board, whether from liberals or from the neo-misogynists.
Posted by Lydia | August 1, 2015 11:03 PM
I was careful in what I said was equal. The harm done to the family by each actor is equal because it is ONE AND THE SAME HARM. Both cause it.
Nevertheless, this much seems true: when a woman commits adultery, in respect of the harm the adulterous act causes to the husband and family, the degree of guilt IN the woman, in harming those whom she has a particular obligation to love the more is of a graver degree, than that of the man who has no such particular obligation to love.
Which says nothing at all about the different but real harms by the adulterous husband. Which I simply don't have any intention of going into in detail: for every evil on one side, there is some other evil on the other side NOT PRECISELY EQUAL (because some are different in kind), but real nonetheless. There is nothing to be gained by weighing the 1001 evils one one side against the 1010 evils on the other to see if one outweighs the other. That's a nonsense game.
It will usually be true that in a society the women are more likely to be closer to chastity than the men - it takes a very strenuous effort toward degradation to change that. To the extent that the women use this standing to call the men toward virtue, society may have hope that they will improve. To the extent, rather, that the men USE this difference as an excuse to ignore a calling to live up to their women, so far society is destined to fail. We men may recognize the difference, we may never excuse ourselves from virtue on that account.
Posted by Tony | August 1, 2015 11:06 PM
I was referring to harm/loss in the financial/genetic sense because...
1. A woman who cannot enforce a child support claim inflicts no financial loss or material harm on the wife.
2. Another woman carrying her husband's baby does not prevent her from having children of her own.
Bear in mind that if a woman bears the children of men other than her husband during her fertile years, he has no morally licit options. The only way for a woman to be in a similar situation is to have a cheating husband who will not have sex with her. Certainly possible, but less likely.
It's questionable that most women ever "come to their senses" after one or two flings with a cad. More often, especially in the cities, it's a woman spending her best years with them and then only "coming to her senses" when she's used up and older and no longer as good at getting them. So then she finds a "man with a heart of gold" and then both realize on some level that she's burned out on the inside in much the same way a severe porn addict or cad is burned out.
To be sure, there are problems for women who try to be chaste in many areas. They're equivalent to the plight of men who are not "failed cads" and are trying to find a good woman. My sympathy for the men is actually limited, but I see what's going on with a lot of men of my generation. Since most of them are not concerned with the eternal implications, my sympathy is indeed, rather limited, but I also don't want to live in a society that is devolving into a matriarchy so the question becomes what to do when faced with a majority of men having limited success, a minority having wild success and a lot of women being used (and burned out) as sexual outlets for that minority. Eternal consequences aside, there are real consequences for us here and now.
And I could probably bet good money that your points would start out really good and then fall flat because you tend to deny the existence of socio-sexual hierarchy and that the sexual revolution disproportionately benefits the upper echelon of men (in terms of base sexual attractiveness to women, not morals). Funny thing is, I'm not even talking about societal harm, but how society must judge the intrinsic gender differences that apply to the effects of adultery when adjudicating particular cases.
Posted by Mike T | August 2, 2015 6:16 AM
That's true with certain caveats. The level of "slut shaming" historically has been at levels that would make even most modern conservative women scream "stop being so judgmental." Social science has actually discovered that typically such societies are ruthlessly policed by the women themselves for a variety of reasons, one of which is that a minority of sluts (10% for example) can ruin it for everyone. And as we see in modern America (and the rest of the English-speaking world), once the slut shaming ends, it's very very ugly.
Guilt before God, perhaps, but society probably should punish men who pursue a known married woman harder than the wife unless there is proof that she solicited it. A rational society would ever consider the death penalty for a man who habitually does that because it needs a serious deterrent. This is especially true when you consider that often cheating men are "sexy bad boys" and social shaming doesn't work on them. The bad boy outsider cred can only be increased with shaming. Heaping opprobrium on them is like waxing and polishing a sports car and wondering why people like it more. So another solution is needed, and that's to skip the social controls and go directly to higher level felonies at the very least.
Posted by Mike T | August 2, 2015 6:26 AM
Or will have sex with her and give her STDs. Good option there, of course.
Because we are biological beings, the urge to pass on to the future children of your own flesh and blood is great. But it is not the ONLY human drive that marriage deals with. Which is borne out by parents who, unable to have kids of their own, adopt. (And incidentally by parents who, able to have kids of their own, adopt also.) The evils done to families by adultery even after the woman is past the age of childbearing are real, even though illegitimate children are not an issue. Ideally, society wants adequate disincentives for all aspects of adultery, not just one or two. Before we get an ideal culture, of course, there will be gaps ans lapses.
Posted by Tony | August 2, 2015 11:41 AM
Mike, give it a rest. Every comment of yours that depends critically and essentially on this "hierarchy" just makes me want to close the thread. I can accept that there is, in fact, a _kind_ of a hierarchy (though I would use a different paradigm to name and describe it), without accrediting it the kinds of motive power you (and the manosphere) credit it with. I just know too many partners (married and unmarried) that don't fall into the patterns implied by that hierarchy to accept that it explains sexual pairings all that well. And, since this thread isn't about that issue, give it a rest already.
Posted by Tony | August 2, 2015 3:38 PM
Tony,
I agree. And my hammering on some of these points is to bring out aspects that the system should be addressing. One of those is that it is easier for a woman to deny her husband the ability to pass on his genes than it is the other way around.
This thread has had a number of meanderings. I don't know why you think that one's worthy of singling out. Probably because the topic is intrinsically offensive to a lot of social conservatives.
Posted by Mike T | August 2, 2015 4:31 PM
I think we can (hopefully) all agree with Spengler's Universal Law of Gender Parity:
Posted by Mike T | August 2, 2015 4:39 PM
In a discussion at Orthosphere, Zippy made a comment that sums up my frustration with people like you and Lydia on these issues:
Men are a soft target. You have the establishment's full permission to heap opprobrium on men all day long. Liberals will either ignore you or cheer you on as you sputter on about "porn-addicted men," "video game-playing losers" (ironically, most gamers I know have better jobs than Real Men tend to have) and whatever else you want to scorn.
Try going after women with equal gusto and see where that gets you. I'd bet good money that y'all aren't prepared for what you'd receive if you did it right.
Posted by Mike T | August 3, 2015 8:27 AM
Tony,
This sort of issue is also why you are going to find minimal support for anything that further erodes real or perceived rights for men. If conservatives want to make headway on issues like dealing with IVF and sperm banks (as you proposed here), they'll first have to gain some serious street cred on standing up for and trying to strengthen men's rights.
Posted by Mike T | August 3, 2015 11:00 AM
Yeah, quoting Zippy Catholic (tm) is likely to make ME stop and re-think my position. Real good idea there. Because, you know, Zippy is my GREAT PAL and holds me in the highest esteem, and vice versa.
Maybe, but honestly almost NOTHING I have written here is intended to be a "here's how we move from where we are right now in a better direction." The point of this OP and thread was more to discuss the ideal than the practical. Let's see, the things I commented as if they MIGHT have a chance to be enacted within a few years are (a) killing the idiotic idea that a woman can rape a younger boy and then get child support from him, (b) that a rapist male can claim paternity rights (whether he pays child support or not), and (c) that sperm donors can be charged for child support given our current view of the behavior. These are pandering to women? Get a grip, Mike.
You mean, my suggesting that unwed mothers should not automatically have custody of their kid isn't "going after women" even a little? And that women rapists should be treated the same as men rapists should be treated? C'mon, Mike, get some perspective.
You mean my statement (through and through all of this) that no-fault divorce should be ended doesn't mean anything? It doesn't mean I am standing up for men and against women's abuses? (Admittedly, I don't see it happening any time within the foreseeable future, but that's the goal we should WANT even if it is unachievable) And my call for a return to patriarchy, including women generally not working out of the home? Come off it, Mike, you sound like a broken record on this topic.
The reality is that the damage our culture has done to men by undermining patriarchy and men acting like true men is now so far gone that a great many women have been damaged by that, so the CURRENT situation is men and women both are so grievously damaged by not having good men around that BOTH are being hurt. Trying to claim who is hurt the most or who is causing the worst of it is just re-arranging deck chairs on the Titanic: men gave women the vote and let women into the colleges, women left the homes and went to work when men demanded more family money, women demanded equal pay in spite of unequal careers, and on and on and on. Like the Jews and the Canaanites (errrr, Palestinians) you can go back and back and back and find ever older wounds over which to grieve.
Just be a good Christian and don't worry about who is the greater victim. Sometimes I think manosphere-ists would get all over Jesus because he didn't preach game and didn't uphold men's rights! Well, I don't need to discuss game to know it isn't the answer to "who gets custody of kids" because the first principle of the issue isn't whether men or women have more right, it is what the KIDS more have the right to. And kids, you know, come in both varieties.
Posted by Tony | August 3, 2015 7:37 PM
Let's not go ad hominem. I quoted it because it was concise and made the point. It also has the benefit for others of being from someone who is a critic of the manosphere.
I was referring to option C, letting unmarried women put a baby up for adoption without the father's consent or ability to adopt and generally reducing the paternal rights of unmarried men. I think you might be surprised that even option b) might generate some controversy because rape has been so badly expanded and politicized that you are as likely to deny paternity rights to a man who had drunken sex with a woman as you are to a forcible rapist. In fact, the reason I posted that link was to show a reminder of the utter insanity surrounding the issue of rape and sexual assault today.
No, actually your proposals on women are good and sound. I was referring to the language of condemnation and blaming men primarily for where we are. Take this, for instance:
The reality is that there is a feedback cycle between the genders. Men respond to incentives mainly having to do with what it takes to get a woman to be with them. Whatever women reward, society gets more of from men in general. You can shame men all you want, but the fact is that if women reward caddish behavior, that's what men will provide. Women are not any more virtuous by nature than men. Both are fallen, even if not in precisely the same way.
In fact, one of the issues that are brought up on manosphere blogs that gets little attention among social conservatives is that it's impractical to expect the men raised in the wake of no-fault divorce and other aspects of the 60s and 70s explosion of feminism to have much to draw upon in the way of role models. Even men from intact families are not accustomed to much resembling more than a voluntary patriarchy (ie wife consents to husband's continued authority, but isn't obligated to accept it by law or custom). Even today, most of the self-proclaimed "conservative women" I meet strike me as essentially feminist in their attitude toward gender roles and such.
I think if Jesus were preaching on the issues surrounding marriage today, He would say a lot of things that would be hard for a lot of people including those who consider themselves "Bible-believing Christians." Rather than attracting a lot of women as He did back then, a lot of them would leave when Jesus tells them that submission is not an ideal, but obligatory in marriage. That marriage is not an equal partnership, but mirrors His relationship with the Church (including the obvious fact that Jesus never submits to His church). Men would likewise find the challenges of being a father and husband as God intended to be a burden.
I also think that if you are talking about Vox Day and Dalrock's readers, I think you'd find most of the men actually open to what Jesus would say. In fact, I think a lot more of them would prefer to live in a genuinely conservative, Christian society than you imagine. What I find most ironic is that you are probably more likely to have Roissy and Roosh agree with you on social issues than the pastors and priests at many "mainstream churches."
Posted by Mike T | August 4, 2015 8:05 AM
Trying to get back to the actual topic of the OP:
Tony, has your research indicated that in the older western societies where the child born out of wedlock was regarded as akin to an orphan, etc., the baby didn't actually _live_ with the mother? I find that surprising, if for no other reason than that it would be turning away a perfectly good wet nurse in a world without baby formula. My impression (admittedly vague and derived largely from older fiction) is that adoption as we know it is a relatively recent phenomenon and that the older practice was that there often simply was no one else to care for the child unless it was abandoned and taken up by some kindly stranger or by an orphanage. If the child was abandoned and died, the mother would be charged with murder (see the 19th century novel Adam Bede, for example). It seems plausible to me that the baby would end up with the unwed mother just by default, particularly in a society that hadn't gone to the trouble to _organize_ such complex social organizations as adoption agencies, a society without telephones and telephone books in which the mother could look up places to which to give her baby, and so forth. A fortiori, society would not have been _requiring_ that she give up her child to someone else to raise.
So I would be surprised if even a very traditional older society actually forcibly required adoption in a case of unwed motherhood, simply for a variety of practical reasons. I'm willing to be corrected, however, if you have found evidence to the contrary.
The question then arises what the best way would be in a society with far less abortion and far less sexual promiscuity, but _with_ our modern degree of social organization (e.g., we do have adoption agencies, we do have a lot of couples willing to adopt) to _encourage_ adoption. And I'm thinking myself that the best way is just pressure from friends and family (which used to in fact be used). People asking the young woman who is pregnant, "So, have you gotten in touch with an adoption agency? Why not?" and other tactless questions.
I think really that abortion is the biggest reason for the acceptance of unwed motherhood among social conservatives in the West. Many self-interest arguments one could use for adoption would also be handy for abortion: You aren't in a position to take care of a baby. You need to go on with your education. You aren't ready to be a mother. Etc. We're terrified to make such arguments lest the girl get an abortion, and the sad thin is, in our society as it is, we might be right to worry about that. People are so illogical that even some arguments for the baby's interests might be _heard_ as arguments for abortion, though they aren't, logically. The baby needs a father, for example. ("Oh, you're right. The baby needs a father. There is no father around. Guess I'd better get an abortion.")
I've seen just in my own lifetime conservatives remove much of the stigma surrounding unwed motherhood and fall in with the culture on this, and I have seen it happen in large measure because of abortion. (Notice even the replacement of "unwed mother" with the all-purpose "single mother," which could include a widow!)
So I think that a return to high incentive for adoption without any governmental coercion would happen if, per impossible, we could keep the high level of adoption organization in the west while outlawing abortion (and also pursuing illegal abortionists vigorously) and if society were to return to viewing unwed motherhood negatively and encouraging adoption as an antidote. That confluence of circumstances, my perception is, simply wasn't around for very long at any time in Western societies.
I also think that the activists who have gotten judges to open up their original birth records (this has happened in England, for example) are wrong and are undercutting adoption. Speaking as an adoptee, if my bio-mother had it set up originally that I could not hunt her down and find her, I think it was better that that agreement be kept in law than that adoption be discouraged by breaking it. I have read that adoptions have fallen off greatly since it has become impossible in England to have an old-fashioned closed adoption (though I can't re-find the documentation on this).
Posted by Lydia | August 4, 2015 8:25 AM
Mike, this a worthwhile debate point. Let's pursue it.
I don't see why we want to treat differently, in terms of granting paternal custody rights, to any of (a) violent rapist, (b) a man having drunken sex with a woman consensually outside of marriage, or (c) completely consensual non-drunken sex outside of marriage. I think for ALL THREE of these the man ought to be denied custody as a matter of course: he hadn't married her, that's sufficient to close the question. I would moderate that result only to this extent: for (c), I would allow the bio-father's preference for the religion of the adopting couple to be weighed with the bio-mother's.
What, in your mind, is the principle on which any one of these men ought to have custody? That the kid bears his genes? SO? Why does society care? He didn't bother to get married to the woman and thus promise to raise the kid appropriately. After-the-fact "promises" to be good to the kid are going to be counted as overcoming the evidence of his prior dismissal of the kid's welfare by conceiving the kid out of wedlock? Why?
If we are going to have a society that promotes MARRIAGE and not just "fairly good custodial behavior" considered generically as if you can have really good conditions outside marriage, we have to disincentivize having kids outside of marriage. If a man actually cares about the welfare of kids who bear his genes, we want social pressure to push him into marrying the prospective mother before the kid exists. Giving him custody without marriage incentivizes the wrong behavior.
To the extent that badly-characterized "rape" distorts incentives, I think it is obvious that the fix is in CORRECTLY characterizing the act, not in granting custody to a man who shouldn't get custody even if the act is correctly characterized as consensual fornication.
My position is that basically unmarried bio-fathers DON'T HAVE any rights by nature. They can be granted benefits by society, because society regards it as better given various conditions, but this is not society recognizing an existing natural right.
Go back to what fatherhood really means: an act of permanent, unconditional love resulting in a decision to bring a new person into existence. The act of sex in marriage by which both parents deliberately procreate is such an act. The act of sex in unmarried partners ignoring whether a child may come about IS NOT such an act. The latter carries no natural rights over the child for the bio-father, who is acting as an animal, not as a man.
Mike, if you are instead arguing that unmarried men should get society-granted custody possibilities because - due to defects of our culture etc - this will produce better results than the alternatives, you have to have to be able to argue that in detail. (And it doesn't dispute my general thesis at all.) I would be willing to grant unwed fathers custody privileges on a showing that this would lead to better results, I just don't know how showing that is realistically going to be made as a generality - given that I already think that SHARED custody is probably a bad idea in general, and it seems very, very unlikely that granting an unwed father privileges of custody preferentially over the unwed mother can be reasonable.
Posted by Tony | August 4, 2015 10:48 AM
Which is a bit weird since social conservatives tend to take a hard stance on negotiating with criminals, terrorists, foreign enemy states, etc. In fact, conservatives of all sorts tend to greatly disdain the tendency of European states to pay ransoms to Islamic groups to get their citizens back. Obviously, if negotiating or being held emotionally hostage is a form of immoral capitulation in those cases, it applies to abortion.
And it's no coincidence that as many as 45% of the children born to Millennial mothers are born out of wedlock. It is almost as though once you remove the stigma and throw welfare at it in the name of half-cocked Christian theology about human dignity you get more of it. It also doesn't help that the narrative is now moving quickly to "unwed mothers are heroines for not aborting/putting up their kids for adoption" with the blame falling on the dastardly men who impregnated them. (As though they are not equal partners in the moral crime against the child)
What seems obvious to me is that you are going to only reclaim ground on the outrageous outliers at first. That seems to be where there is no general support for "tolerance." Part of that is no doubt due to the fact that there are many middle class people with a kid out of wedlock, but almost none who have two or more absent a common law marriage or something equivalent. Start with the men who have multiple kids out of wedlock and can't support them. We need a charge like the Soviet Union's "Social Parasitism" offense. Then include the women who bear their children and who can be shown in court knew the man to be a cad. Once society is accustomed to actually prosecuting such people, it may become more accepting of the idea that reproduction is not a private act as it intrinsically implicates the public good.
Posted by Mike T | August 4, 2015 10:55 AM
I don't think they have any principled right. I am saying that as a strategy, attacking the custody rights of unmarried men is bad policy until the rights of married men are fundamentally resecured under law. Irrespective of the fact that it's not good to conflate the rights of married and unmarried men, it's simply impolitic given the reality of the legal system.
Do remember that I am of a mind that unwed mothers not only don't deserve child support, but also include welfare there too. I have advocated on this blog that unwed mothers simply have no rights at all to support at all if they don't choose to adopt out. I am a firm believer in creating an almost manichean level difference in the rights of wed versus unwed parents.
In my mind, the "rapist loophole" is a feature given the reality we are in. It's a cudgel with which to beat our opponents. As they deny that marriage confers specific paternal rights, their genetic standard of custodial rights and support obligations should naturally give a rapist the same rights as an other unwed father. Do I like it objectively? Of course not. However, I have no sympathy for those who defend the status quo. They're flaming hypocrites on most issues. To be honest, I derive no small amount of schadenfreude at the thought of rubbing their noses in the natural implication of their views.
And like dogs, they'll probably have to have their noses grounded into the puddle of bodily waste until they stop @#$%ing on our collective carpet.
Posted by Mike T | August 4, 2015 11:04 AM
No, my original research was ambiguous on this but I didn't notice. It indicated that for a considerable times the welfare of the child was considered a community problem (with, for example, the care of the "Guardians of the Poor"). Now that I look more closely, it does appear that usually the child - when the mother did not marry in order to avoid illegitimacy of child - stayed with the mother at least at first, and mayhap was supported by the community at least in part. In some cases the mother abandoned the child (which was not an accepted option), and in many cases the mother, after initial infancy period, might leave the child as an indentured child with more well-off parents (especially if they had a nursing mother around) to be raised as a servant. In any case, there doesn't seem to be much inclination to remove the child from the mother.
Seems to me that one of the obstacles is the fairly intense hurdles demanded in the adoption process. We have, as a society, made it harder and harder. I don't know why. Other than making sure a mother isn't selling a child, I am not sure why society has an interest in the rules / structure that makes it so hard. For instance:
Closed adoptions represents a contract: the bio-mother and the new parents and child are contractually separated. I don't know what it is that makes society think they can break contracts like that. If we think (and this is far from provable in any scientific sense) that closed adoptions are going to constitute something of detriment to the child, then STOP ALLOWING THEM IN THE FUTURE - as we do with all sorts of other contracts. That doesn't erase the obligation to uphold existing contracts.
Another for instance: a mother may "consent" to an adoption before birth but then "change her mind" within a certain window like 6 months or a year. Why? Buyer's remorse? We give 3 days for a buyer's remorse window, not a year. What makes us think that the mother's emotional state a year later is a better indicator of real consent than her emotional state before? If we want to support adoption socially, we want to design rules that HELP people make good decisions, and by definition this isn't likely to be a "decision loaded with emotional trauma". Seems to me that creating by law a very strong presumption in favor of unwinding any consent to put the baby up for adoption is probably unhealthy.
This unhealthy attitude also plays into the current perverse incentives against adoption: because of the hoopla with so many women choosing -after giving birth - to reverse their decision to place the baby for adoption, pregnant women looking at their options are sometimes saying to themselves: "I know that after I give birth, I will feel AWFUL about having given up that baby because I will have abandoned her. So instead I will avoid the problem by abortion." (Of course saying "I will kill the baby for the good of the baby" is completely irrational, what she is really saying "I will kill the baby so I don't feel bad.") But this is a manufactured perverse incentive: a woman ought to feel good about putting the baby in a BETTER situation than she can give the baby, and social structures ought to support that.
Posted by Tony | August 4, 2015 12:15 PM
One possible explanation for the contractual issues is that society in general is increasingly sympathetic to arguments about how much consent was involved, whether you can "sign away your rights" and such. It's my understanding that even most reasonable prenups are effectively unenforceable in most areas. That is to say, if you had a rule that said if either party cheats they get only the assets they brought in, many a judge would just shred it if a cheating wife claimed it would cause her suffering and hardship (and her husband is a big mean rich man).
On a variety of issues, returning to a stricter set of expectations on judges with respect to contract law would be good. The absence of coercion and factors that would cloud the mental processes of the parties (ex. alcohol, drugs or severe sleep deprivation while the contract was being considered) should be what the court relies upon as it traditionally did.
Lydia's proposal about putting some of these issues into law, not contracts, is probably the way to go. Giving the mother no choice on how to structure an adoption would make it easier. It's one area where the emotions intrinsic could easily lead to choice paralysis if handled under open-ended contracting.
Posted by Mike T | August 4, 2015 12:33 PM
But there is an unfortunate aspect to that, if we're talking now about the existing legal situation, not a more ideal situation: Homosexual adoption.
Some years ago I was electronically acquainted with someone in New Zealand who had a pregnancy out of wedlock in the family. I asked whether the family would encourage the mother to place the baby for adoption. The reply was that they were not, and one reason was that under NZ law, the mother could not do anything to prevent the child's being adopted by a homosexual couple. Similarly, in the Thai case I described above, it is the surrogate's "homophobia" that is preventing the homosexual couple from leaving the country with the baby. So to some degree and in some respects maternal input on the adoption could be a good thing.
Posted by Lydia | August 4, 2015 1:25 PM
WRT gay adoption, I have a feeling that we are going to see something like the Rotterham scandal hit at least one English-speaking country before it's all said and done.
Posted by Mike T | August 4, 2015 2:36 PM
Right: while we are in the depths of degenerate society, there will be any number of horrendous unintended results from trying to apply rules that would be reasonable in a healthier state. If we didn't have SSM, and didn't allow adoptions to gays at all, Mike's comment wouldn't run into the problem Lydia points out.
I get the sense that people in society simply don't want to credit ANY agreement as being enforceable if it results in either unpleasant results or results that you didn't anticipate. "But that's not the result I meant to get..." is being taken as a valid rejoinder to "That's what you agreed to." So much for the meaning of "contract".
Likewise, people are increasingly unwilling to credit the possibility of making a commitment that runs years and years and years, out to 3 or 4 or 6 decades. They simply refuse to accept the idea that you really can commit yourself for such a long time. So much for life-time contracts.
Taken together, "marriage" is no longer treated as a contract for life, but a quasi-contract "until at least one of you don't want to be married any more". Which is just a joke.
Obviously, turning this degeneracy around will take more than just modifying custody or adoption rules, but they all play into each other: a commitment to place the baby for adoption to another family means, at its root, a LIFETIME commitment to release your claim as "mother" to the child in favor of some other person who will become (really, not just legally) that person whose love is the in-fact love of a mother to the child. Yes, a person really is capable of this commitment.
Posted by Tony | August 4, 2015 2:52 PM
By the way, w.r.t. some of what Tony's research turned up, I trust that we can all agree that putting a young child into indentured servitude is not a form of adoption and is not desirable.
This all fits into what I was saying about history: My strong perception is that historically western society only really got its act together fairly recently as far as making it relatively easy for an unwed mother to place her child for adoption with a loving, married couple. See this, for example, on the horrors of "baby farming" and the incredible difficulties that unwed mothers in Victorian England had in getting _anyone_ to take on their child and actually care for it, rather than killing it.
http://www.loyno.edu/~history/journal/1989-0/haller.htm
It is looking to me like there was maybe an interval of, at most, fifty years (probably less) prior to the sexual revolution during which an unwed mother could easily get hold of a reputable adoption agency and place her child in a smooth process which she could be assured would result in the child's being well-cared-for. And then came the sexual revolution, the collapse of the black family, and all the rest of the mess. It's still possible for an unwed mother to place her child for adoption relatively easily, but meanwhile there are all the other problems we have been discussing--the destigmatization of sex outside of marriage, etc. etc.
So it's hard to find a good social model in history for encouraging adoption.
Posted by Lydia | August 4, 2015 4:52 PM
Here's an interestingly appalling thought: what did the ancient Hebrews do about an unwed mother before delivery? Did they kill her outright? If so, hey killed the baby. If they let her live until the baby was born (seems unlikely, but...) and then killed her, who took the baby? Was the baby just classed in the category "orphan" and dealt with that way? But generally orphans had known parents and were not stigmatized as illegitimate, whereas a baby born out of wedlock was illegitimate.
Posted by Tony | August 4, 2015 5:53 PM
Tony,
Re: children of adulterers, there is Wisdom 3:16-18.
I suppose it is to be allegorically interpreted.
Posted by Bedarz Iliaci | August 5, 2015 2:20 AM
OK. What about the children of fornicators? Probably worse yet, no?
Posted by Tony | August 5, 2015 5:29 AM
I don't think that means, "God wants you to kill babies whose parents committed sexual sin to conceive them." As to what was actually _done_, I suppose modern Islamic practices _might_ be a clue to ancient Hebrew ones: Whatever appalling fate is going to be visited upon the mother is allowed to wait until she has the baby and has gone through a period of nursing. Then the child is given to relatives.
Posted by Lydia | August 5, 2015 8:03 AM