Beyond Economic Fatherhood: Encouraging Divorced Fathers to Parent

Abstract

In this Article, Professor Maldonado examines the extensive empirical evidence of paternal disengagement and analyses the reasons close to one-third of noncustodial fathers have little or no contact with their children after divorce. Exploring current societal norms of post-divorce fatherhood, she concludes that the law's and society's treatment and expectations of divorced fathers may be facilitating their disengagement. Drawing on the rich scholarship on the law's effect on social norms of littering, recycling, sexual harassment, and marital commitment, among others, she argues that the law has the ability to trigger a social norm of involved fatherhood after divorce, thereby encouraging fathers to remain a part of their children's lives. She proposes that states adopt a presumption of joint legal custody AND require that nonresidential fathers participate in their children's upbringing. Relying on norm theorists' framework for determining how social norms arise, Professor Maldonado rejects legal enforcement of mandatory parenting rules in favor of informal external and internal sanctions. She argues that as a result of the law's expressive function, these legal reforms will signal to fathers and their communities that fatherhood is an important and expected responsibility, not an option, and that good parents nurture their children. In short time, communities would informally enforce paternal involvement rules by shaming those fathers who violate the norm. Further, these legal reforms might also have a self-sanctioning effect as many fathers would internalize the legal rule and experience guilt if they failed to participate in their children's upbringing because it would signify, both externally and internally, that they are bad parents. Thus, even absent external enforcement, fewer fathers would abandon their children after divorce.