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Fairness in Allocations of Parental Responsibilities, and the Limits of Law

Published online by Cambridge University Press:  05 June 2020

Ram Rivlin
Ram Rivlin*
Affiliation:
Ram Rivlin, Lecturer, Hebrew University of Jerusalem, Israel. ram.rivlin@mail.huji.ac.il
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Extract

We love our children. We really do. Yet we also find ourselves happy when they finally fall asleep, or when they go back to school at the end of their summer vacation. We wish we could spend more time with our children, we really do. Yet we also wish to pursue our own projects, both professionally and personally. This ambivalence hints at a basic characteristic of caring for one’s own child, which is known to every person who ever had a child: it involves both a burden and a benefit.1

Type
Research Article
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Canadian Journal of Law & Jurisprudence , Volume 33 , Issue 2 , August 2020 , pp. 397 - 433
Copyright
© The Author(s) 2020

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Footnotes

For helpful comments and conversations on various versions of this paper, I am grateful to David Enoch, Re’em Segev, Ofer Malcai, Ori Herstein, Alon Harel, Shahar Lifshitz, Sharon Shakargy, Serena Olsaretti, Hanoch Dagan, Avihay Dorfman, and audiences at workshops in the Hebrew University of Jerusalem and Tel Aviv University.

References

1. See Jennifer Senior, All Joy and No Fun: The Paradox of Modern Parenthood (Hachette UK, 2014). Cf S Katherine Nelson, Kostadin Kushlev & Sonja Lyubomirsky, “The Pains and Pleasures of Parenting: When, Why, and How Is Parenthood Associated with More or Less Well-Being?” (2014) 140:3 Psych Bulletin 846.

2. For a normative assessment of such agreements, see Ram Rivlin, “The Puzzle of Intra-Familial Commodification” (2017) 67:1 UTLJ 68.

3. See the Australian Child Support (Assessment) Act 1989 (Cth), s 35; see Belinda Fehlberg & Mavis Maclean, “Child Support Policy in Australia and the United Kingdom: Changing Priorities but a Similar Tough Deal for Children” (2009) 23:1 Int’l JL Pol’y & Fam 1.

4. A similar view is reflected in those U.S. states that apply the “Income Shares Model”. For details, see Jane C Venohr & Tracy E Griffith, “Child Support Guidelines: Issues and Reviews” (2005) 43:3 Fam Ct Rev 415 and Jane C Venohr, “Child Support Guidelines and Guidelines Reviews: State Differences and Common Issues” (2013) 47:327 Fam LQ 327.

5. For example, if the child’s needs amount to $1000, and the parents are equally well off in terms of their income, the first stage dictates that each has to spend $500 on support. The form of payment (in what I describe as the second stage) is that the non-residential parent should transfer $500 to the custodian, but such a transfer reflects an equal share in the burden, since each parent is presumed to spend the same amount—either directly or through a transfer. Contrarily, on the model I will immediately describe (the ‘division of labor model’), the non-residential parent is expected to bear the financial burden, while the residential parent bears the burden of caregiving. Thus, the residential parent’s income does not affect the non-residential parent’s share in the burden. Consequentially, in the example above, the non-residential parent shall be required to bear all the burden of $1000 through a transfer, notwithstanding the scope of resources available to the residential parent.

6. Thus, for administrative reasons, there might even be logic in focusing only on the income of the non-residential parent. See infra note 10 for further reservation.

7. Merle H Weiner, “Caregiver Payments and the Obligation to Give Care or Share” (2014) 59:1 Vill L Rev 135.

8. Surely, a full argument requires adjusting the financial burden to the burden of care, but the basic scheme assumes this basic rough symmetry.

9. Federal Child Support Guidelines, SOR/1997 s 3, 9. While the basic formula might assume that both parents’ income is equal, it still dictates that the obligor’s duty is determined independently, namely without seeing this burden determined by distributive principles. The significance of caregiving is reflected also in the difference between the criteria for support of children at the age of majority, distinguishing between disabled children (who presumably still need care) and those pursuing postsecondary education (who presumably do not). Cf Krangle (Guardian ad litem of) v Brisco, 2002 SCC 9 at para 35.

10. See supra note 4, and compare the original Australian scheme of 1989, which refrained from considering the caregiving parent’s income. See Stephen Parker, “Child Support in Australia: Children’s Rights or Public Interest” (1991) 5:1 Int’l JL Pol’y & Fam 24. It is important to note, however, that deciding whether to calculate the child-support amount based on both parents’ income, or on the non-residential parent’s income only, might be affected by all sorts of administrative and practical considerations. Thus, the ‘Percentage of Income’ model and the ‘Income Shares’ model might differ in evaluating the magnitude of the burden, with the ‘Percentage of Income’ presupposing that part of the child’s needs are borne by the residential parent. Still, as explained in the text, such a model implies that the residential parent is less responsible for the financial burden, at least as long as only the allocation between the parents is at stake.

11. Thus, in terms of the example in supra note 5, the non-residential parent shall be required to bear all the burden of $1000 through a transfer, notwithstanding the scope of resources available to the residential parent. Note further, that when parents have a parental plan according to which custody is divided 70-30 (e.g. when the children are with one parent during weekdays and with the other during weekends), this will usually come with a decrease in the amount of required support payments. Yet under the ‘independent’ model, this enters the calculus only in what I have termed “the second stage”: the non-residential parent has a burden of X, which she bears partly through transfer to the residential parent and partly through direct spending when the child is with her (during weekends, in the above example). The decrease is therefore a matter of offsetting the part already spent from the amount that should be transferred to the other parent. Under the ‘traditional’ model, in contrast, the decrease reflects not only the form of payment (namely direct v via transfer) but also the basic scheme of allocation (“first stage”). Since both parents provide care, the non-residential parent is not expected to bear the burden alone.

12. See Mary Ann Glendon, The Transformation of Family Law: State, Law, and Family in the United States and Western Europe (University of Chicago Press, 1989) at 131; and the survey in Shari Motro, “Labor, Luck, and Love: Reconsidering the Sanctity of Separate Property” (2008) 102:4 Nw UL Rev 1623 at 1631-37.

13. Jane Rutheford, “Duty in Divorce: Shared Income as a Path to Equality” (1990) 58:4 Fordham L Rev 539. See also Weiner, supra note 7; Cynthia Lee Starnes, “Lovers, Parents, and Partners: Disentangling Spousal and Co-Parenting Commitments” (2012) 54:1 Ariz L Rev 197; Ayelet Blecher-Prigat, “The Costs of Raising Children: Toward a Theory of Financial Obligations Between Co-Parents” (2012) 13 Theor Inq L 179.

14. See, for example, American Law Institution, “Principles of the Law of Family Dissolution: Analysis and Recommendations” (2002) [ALI Principles] at section 5.05(4)(a), which proposes an alimony award based on “disproportionate share during marriage of the care of the marital children,” for the “period during which the claimant provided significantly more than half of the total care that both spouses together provided for the children.”

15. On the transformation of Western childhood, see, generally, Viviana A Zelizer, Pricing the Priceless Child: The Changing Social Value of Children (Princeton University Press, 1994); Steven Mintz, Huck’s Raft: A History of American Childhood (Harvard University Press, 2004); Samantha Brennan, “The Goods of Childhood and Children’s Rights” in Françoise Baylis & Carolyn McLeod, eds, Family-Making: Contemporary Ethical Challenges (Oxford University Press, 2014) 29. For the racial history of “childish innocence” in the U.S., see also Robin Bernstein, Racial Innocence: Performing American Childhood from Slavery to Civil Rights (NYU Press, 2011).

16. Elizabeth H Pleck & Joseph H Pleck, “Fatherhood Ideals in the United States: Historical Dimensions” in Michael E Lamb, ed, The Role of the Father in Child Development, 3d ed (John Wiley and Sons, 1997) 33. For the cultural shift, see Gayle Kaufman, Superdads: How Fathers Balance Work and Family in the 21st Century (NYU Press, 2013) and Ralph LaRossa, “The Culture of Fatherhood and the Late-Twentieth-Century New Fatherhood Movement” in Laura Tropp & Janice Kelly, eds, Deconstructing Dads: Changing Images of Fathers in Popular Culture (Lexington Books, 2015) 3. The extent to which this cultural image tracks an actual shift in fathers’ participation is beyond the scope of the current discussion. For the sake of my argument, suffice it to assume that such a change is possible.

17. See Stephanie N Barnes, “Strengthening the Father-Child Relationship Through a Joint Custody Presumption” (1999) 35 Willamette L Rev 601 at 602; Holly L Robinson, “Joint Custody: An Idea Whose Time Has Come” (1982-83) 21 J Fam L 641 at 643-44.

18. Thus, work and not leisure is a benefit in need of distribution rather than a burden, leading to a call for sharing “human capital” or future earnings. See Joan M Krauskopf, “Recompense for Financing Spouse’s Education: Legal Protection for the Marital Investor in Human Capital” (1980) 28 U Kan L Rev 379 and Joyce Davis, “Enhanced Earning Capacity/Human Capital: The Reluctance to Call It Property” (1996) 17 Women’s Rts L Rep 109. For a general view regarding the value of work versus leisure, see Philippe Van Parijs, “Why Surfers Should Be Fed: The Liberal Case for an Unconditional Basic Income” (1991) 20:2 Phil & Pub Affairs 101.

19. ALI Principles, supra note 14 at section 3.04(g): “the residential parent also has disproportionate opportunity to enjoy a relationship with the child, an opportunity less available to the other parent. The residential parent’s disproportionate responsibility for a child might thus be assumed to be roughly counterbalanced by the disproportionate relational benefits concomitant with residential child care.”

20. Merle H Weiner, The Parent-Partner Status in American Family Law (Cambridge University Press, 2015) at 436-37.

21. Cynthia Lee Starnes, “Mothers as Suckers: Pity, Partnership, and Divorce Discourse” (2005) 90:4 Iowa L Rev 1513 at 1551 (dismissing the need to take custody into account, since “psychic benefits simply cannot be quantified”).

22. See Bruce Feldthusen, “Discriminatory Damage Quantification in Civil Actions for Sexual Battery” (1994) 44:2 UTLJ 133.

23. Surely, not all families follow such a planned path. Yet even in cases of unplanned pregnancy, a decision to share a household (after the birth or after deciding to keep the pregnancy) is often guided by the wish to provide a stable framework for shared parenting, and so the claim in the text is no less true. Where the parents do not share a household at all, questions of marital property would not arise, yet the allocation of child support and its relation to the parents’ preferences regarding custody would still be relevant. I focus my discussion on those couples who negotiate a full agreement, combining separation, allocation of marital property, child support and custody, thus relating to the parties as “divorcing”, etc., yet much of the discussion can be relevant to other forms of familial life as well.

24. It might also have a negative impact in terms of incentives, but I will refrain from discussing this aspect here.

25. See Rivlin, supra note 2.

26. For the central role of homemaking in the partnership, see Starnes, supra note 21.

27. Interestingly, a similar view is reflected by the ALI Principles, supra note 14 at comment (e) on section 5.05(4)(a), which states (while discussing care-based alimony) that “at dissolution, the primary wage earner retains both that earning capacity and the parental status, while in the absence of any remedy the primary caretaker loses any claim upon the other spouse’s earnings. The result is that, while the primary caretaker’s contribution to the marital endeavor—children—remains shared after the dissolution, the primary wage earner’s contribution—financial support—reverts entirely to him or her in the absence of any remedy. The compensable loss recognized by this section can thus also be explained as providing a more balanced allocation at dissolution of the benefits created by both spouses’ contributions to the marriage. This rationale leads directly to a claim by the primary caretaker on her spouse’s post-marital earnings” [emphasis added].

28. See Jessica L Borelli et al, “Gender Differences in Work-Family Guilt in Parents of Young Children” (2016) 76:5-6 Sex Roles 356. See also Sharon Hays, The Cultural Contradictions of Motherhood (Yale University Press, 1996).

29. For the price of custody in terms of opportunities in the labor market, the ability to establish new intimate relationships, or leisure, see Ann Laquer Estin, “Maintenance, Alimony, and the Rehabilitation of Family Care” (1993) 71:3 NCL Rev 721. For a classic depiction of the burden of motherhood, see Adrienne Rich, Of Woman Born: Motherhood as Experience and Institution (WW Norton & Company, 1976).

30. For a classic depiction of this dynamic, see Richard Neely, “The Primary Caretaker Parent Rule: Child Custody and the Dynamics of Greed” (1984) 3:1 Yale L & Pol’y Rev 168 at 177-78 and Scott Altman, “Lurking in the Shadow” (1995) 68:3 S Cal L Rev 493.

31. See Carol Smart & Selma Sevenhuijsen, eds, Child Custody and the Politics of Gender (Routledge, 1989); Susan B Boyd, Child Custody, Law, and Women’s Work (Oxford University Press, 2003); Vivienne Elizabeth, Nicola Gavey & Julia Tolmie, “The Gendered Dynamics of Power in Disputes over the Postseparation Care of Children” (2012) 18:4 Violence Against Women 459.

32. If necessary, assume that one of them is the genetic mother where the other gave birth, or that both of them have a biological connection to the children.

33. For a thorough description of the emergence and history of this principle, see Mary Ann Mason, From Father’s Property to Children’s Rights: The History of Child Custody in the United States (Columbia University Press, 1994).

34. See Divorce Act, RSC 1985, c 3, s 16(8): “In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.”

35. Convention on the Rights of the Child, GA Res 44\25, UN OHCHR, 1989, Article 3.1 holds that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

36. The ALI Principles, supra note 14 at section 2.02(1) lists the child’s best interests as the primary objective of the whole chapter, which deals with the allocation of custodial responsibilities. Fairness between the parents is acknowledged only as a secondary objective of these norms. For a further discussion, see Patrick Parkinson, Family Law and the Indissolubility of Parenthood (Cambridge University Press, 2011) at 77.

37. Ira Mark Ellman & Tara O’Toole Ellman, “The Theory of Child Support” (2008) 45:1 Harv J on Legis 107.

38. See ALI Principles, supra note 14 at section 2.02(1). I assume here, in line with common legal schemes, that parents rather than others should bear the costs of childrearing when possible, hence I ignore the question of fairness between parents and other fellow citizens in this regard. For an argument in favor of public shouldering of the burdens of childrearing, see Serena Olsaretti, “Children as Public Goods?” (2013) 41:3 Phil & Pub Affairs 226.

39. Scott Altman, “Should Child Custody Rules Be Fair” (1996-97) 35:2 U Louisville J Fam L 325 at 353.

40. Cf ALI Principles, supra note 14 at 96 (comment a): “when more than one rule could be expected to serve the interests of children equally well, or when the impact of the alternative rules upon children is uncertain, Chapter 2 adopts the rule most likely to produce results that achieve the greatest fairness between parents” [emphasis added].

41. The term ‘lexical priority’ or ‘lexical order’ is presented and explained (in the field of moral theory) in John Rawls, A Theory of Justice (Harvard University Press, 1971) at 37-38 (revised version 1999, at 42-44). Rawls characterizes it as “an order which requires us to satisfy the first principle in the ordering before we can move to the second, the second before we can move to the third, and so on. A principle does not come into play until those prior to it are either fully met or do not apply.”

42. Many commentators neglect this distinction, noting—directly or indirectly—that the child’s best interests are not only prior, but also exclusive or lexically prior. See ALI Principles, supra note 14 (fairness will be taken into account only when best interests of the child (BIC) criteria are equally met, or equally uncertain, in both alternatives). But such a conclusion is ill-founded. See Carl E Schneider, “On the Duties and Rights of Parents” (1995) 81:8 Va L Rev 2477 at 2481; Jon Elster, “Solomonic Judgments: Against the Best Interests of the Child” (1987) 54:1 U Chicago L Rev 1 at 16-21; David L Chambers, “Rethinking the Substantive Rules for Custody Disputes in Divorce” (1984) 83:3 Mich L Rev 477 at 499. For the current needs, whether those parental interests ground any “rights” is not important.

43. Indeed, such a stipulation assumes that there is an upper limit to child support payments, for otherwise the child’s “needs” would simply expand according to her parents’ financial ability. Yet such an assumption is both possible and reasonable. See Laura W Morgan, “Child Support and the Anomalous Cases of the High-Income and Low-Income Parent: The Need to Reconsider What Constitutes Support in the American and Canadian Child Support Guideline Models” (1996) 13:2 Can J Fam L 161 and Lori W Nelson, “High Income Child Support” (2011) 45:2 Fam LQ 191. Surely, the above stipulation makes the discussion relevant mostly for the rich. But recall that this is only a thought experiment: I utilize these assumptions in order to isolate an aspect of the normative picture that might be blurred in the regular scenarios of everyday families. Once the principles become clear, their implementation in ordinary cases will be separately discussed.

44. As Starnes put it, “psychic benefit is not necessarily time dependent” since the primary caretaker may devote most of the time to cooking and cleaning while the other spouse is investing in leisure activities (Starnes, supra note 21 at 1551). See also the discussion at section III(e) below.

45. In Elster’s terms, this is a question of local distributive justice. See Jon Elster, Local Justice: How Institutions Allocate Scarce Goods and Necessary Burdens (Russell Sage Foundation, 1992). In making this assumption, I do not commit to the claim that those principles should also guide the couple’s behavior during their functioning familial relations. See Jeremy Waldron, “When Justice Replaces Affection: The Need for Rights” (1988) 11:3 Harv JL Pub Pol’y 625.

46. See Larry Temkin, “Equality as Comparative Fairness” (2015) 34:1 J Applied Phil 43.

47. Indeed, many schemes for allocating marital property follow this logic, distributing equally the assets without taking into account more general egalitarian principles regarding also the general wealth of the parties (in non-marital property), etc. See Family Law Act, RSO 1990, c F-3.

48. See Harry Brighouse & Adam Swift, “Parents’ Rights and the Value of the Family” (2006) 117:1 Ethics 80 and David Archard, “The Obligations and Responsibilities of Parenthood” in David Archard & David Benatar, eds, Procreation and Parenthood (Oxford University Press, 2010) 103.

49. See John Rawls, “Outline of a Decision Procedure for Ethics” (1951) 60:2 Phil Rev 177 at 193; George Sher, “What Makes a Lottery Fair?” (1980) 14:2 Noûs 203; John Broome, “Fairness” (1991) 91:1 Proceedings of the Aristotelian Society 87.

50. That was indeed the suggestion of Jon Elster, Solomonic Judgments: Studies in The Limitation of Rationality (Cambridge University Press, 1989).

51. See Sarah Abramowicz, “Contractualizing Custody” (2014) 83 Fordham L Rev 67.

52. See Richard J Arneson, “Luck Egalitarianism—A Primer” in Carl Knight & Zofia Stemplowska, eds, Responsibility and Distributive Justice (Oxford University Press, 2011) 24; Richard J Arneson, “Egalitarianism and Responsibility” (1999) 3:3 J Ethics 225; Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Harvard University Press, 2000).

53. Assuming that both sides claim maximal shared time with the child, every single marginal time unit stands for distribution. The conflict arises from the unavailability of shared time. Being responsible for disabling the possibility of shared time with the child thus generates the conflict over that time.

54. According to that rule, the spouse at fault for the divorce shall lose custody over the children. See Mullen v Mullen, 188 Va 259; Jamil S Zainaldin, “Emergence of a Modern American Family Law: Child Custody, Adoption, and the Courts 1796-1851” (1979) 73:6 Nw UL Rev 1038; Robert H Mnookin, “Child Custody Adjudication: Judicial Functions in the Face of Indeterminacy” (1975) 39:3 Law & Contemp Probs 226 at 234. Applying this consideration surely requires a rich concept of responsibility regarding the separation. Note, however, that this argument does not rely on the rejection of the unconditional liberal right to leave the marriage at one’s will. The right to exit is a liberty to leave the marriage, not a justification for doing so. In similar fashion, the diligent should be preferred over the lazy in allocating resources, even though one is fully entitled (meaning under a liberty) to be lazy, as long as the lazy could be reasonably expected to work. Similarly, one might be at liberty to leave the marriage even though remaining within the marriage is still a reasonable option. Under these circumstances, the party who leaves the marriage bears responsibility for doing so. Responsibility should therefore be determined carefully. A full exploration of this point is beyond the scope of the current project.

55. See Joseph Millum, “How Do We Acquire Parental Rights?” (2010) 36:1 Soc Theory & Prac 112, who argues for an investment theory of parental rights. Note, however, that considerations of past effort are usually already counted in the scheme of joint effort that justifies the equal distribution of the marital property. In that view, a spouse that invested in homemaking is entitled to a share in the property that is equal to the other who invested in breadwinning. Nevertheless, if the very same spouse was the primary investor in both homemaking and breadwinning, the relevance of effort-based considerations re-emerges.

56. Previously I limited the scope of relevant considerations to those pertaining to the parties’ responsibility, precluding considerations of background-based need from affecting the distribution. Yet some schemes for allocating property do take into account such considerations, and thus consistency requires taking that into account in matters of custody too. Indeed, generally, the needier one is, the stronger becomes her claim to a distributed good (see Derek Parfit, “Equality and Priority” (1997) 10:3 Ratio 202). Accordingly, the poor have priority over the rich (at least prima facie) in the distribution of benefits and advantages. Without attempting to fully break down the notion of ‘need’ in the current context, it is plausible to assume that the parents might sometimes be unequal in their need for time with the child. This may be due to differences in lifestyle, character, and personality; due to the presence of other children or close relatives in their lives; and so on. Under these circumstances, one parent might have a stronger claim to the child than the other.

57. Bearing the child’s interests in mind, it may be the case that even if only one parent can be involved with her upbringing, and all of her needs shall be met, the involvement of both parents in financing her will still be of expressive value or such. However, this does not necessarily justify support payments transferred to the custodian: direct transfer to the child (even beyond her needs) will achieve that goal. Thus, to the extent that the child’s emotional needs require both parents to be involved in her finance, the non-residential father would be entitled to buy the child luxuries that will not come at the expense of the custodian’s duty to meet her needs.

58. See the text in supra note 27.

59. See Elizabeth Anderson, Value in Ethics and Economics (Harvard University Press, 1995); Ruth Chang, ed, Incommensurability, Incomparability, and Practical Reason (Harvard University Press, 1998); Symposium, “Law and Incommensurability” (1998(146:5 U Pa L Rev 1169-731; Cass R Sunstein, “Incommensurability and Valuation in Law” (1993) 92:4 Mich L Rev 779. See also Jonathan Baron & Mark Spranca, “Protected Values” (1997) 70:1 Organizational Behavior & Human Decision Processes 1.

60. For a recent defense of a pro-market view, see Jason Brennan & Peter M Jaworski, Markets Without Limits: Moral Virtues and Commercial Interests (Routledge, 2015). For a discussion of such trade-offs within the family, see Rivlin, supra note 2.

61. Therefore, even to the extent that something about the child’s behavior towards the non-residential parent might exempt the parent from the duty to support the child (an issue I will not address here), this would not affect this parent’s duty to share the burden with the custodian. Similarly, direct payments to the child will not be considered as paying off this debt as long as they do not save money for the other parent. One can easily think of such scenarios.

62. See Ronald Dworkin, “What Is Equality? Part 2: Equality of Resources” (1981) 10:4 Phil & Pub Affairs 283 at 285.

63. While the virtue-based view of desert has Aristotelian origins, modern theorists tend to focus on one’s actions and especially effort. See Heather Milne, “Desert, Effort and Equality” (1986) 3:2 J Applied Phil 235; and more broadly: Fred Feldman & Brad Skow, “Desert” in Edward N Zalta, ed, The Stanford Encyclopedia of Philosophy (Winter 2016 Edition), online: https://plato.stanford.edu/archives/win2016/entries/desert/.

64. See section b(i) below.

65. I will return to this point at subsection e below.

66. Note that if the less fitting parent also does not want to have custody, it seems that the discussion in the former subsection will simply apply. I focus here on scenarios where both parents do wish to be custodians and perceive residency as a benefit, yet one of them is a better parent.

67. See Andrea Charlow, “Awarding Custody: The Best Interests of the Child and Other Fictions” (1987) 5:2 Yale L & Pol’y Rev 267 and Joan B Kelly, “The Best Interests of the Child: A Concept in Search of Meaning” (1997) 35:4 Fam & Concil Cts Rev 377.

68. This intuition seems to hold even if the burden should have been shared by all the competitors before the allocation. Take, for example, the case of partners who have to divide an indivisible good between them. The fact that they previously shared the accompanying burden (such as taxes, etc.) cannot base a claim to continue sharing the burden after one of them has gained sole possession of this good. Surely, in the case of children, the parent has a direct duty to the child rather than only a duty to the partner, yet it seems that by ensuring the fulfillment of the child’s needs (via the other parent) this duty is met.

69. See the sources mentioned supra note 34, and the accompanying text.

70. For the view that there are no parental rights, but only partial discretion as to how they fulfill their obligations to the child, see Phillip Montague, “The Myth of Parental Rights” (2000) 26:1 Soc Theory & Prac 47; Samantha Brennan & Robert Noggle, “The Moral Status of Children: Children’s Rights, Parents’ Rights, and Family Justice” (1997) 23:1 Soc Theory and Prac 1; Archard, Procreation and Parenthood, supra note 48.

71. See Emily Buss, “Parental Rights” (2002) 88 Va L Rev 635.

72. See Brian Crittenden, Parents, the State and the Right to Educate (Melbourne University Press, 1988).

73. See Brighouse & Swift, Parents’ Rights and the Value of the Family, supra note 48 and James G Dwyer, “Parents’ Religion and Children’s Welfare: Debunking the Doctrine of Parents’ Rights” (1994) 82:6 Cal L Rev 1371 at 1374-76 (defining it as a “privilege” rather than a “right”, based on Judith Jarvis Thomson, The Realm of Rights (Harvard University Press, 1990) at 53-54). Nothing in my argument here relies on defining these interests as rights; hence, I will not tackle the issue of classification here.

74. Such a view is prevalent in case law. See, for example, Meyer v Nebraska, 262 US 390 (1923) (custody and guardianship are parents’ basic rights, protecting them from the state’s infringement (in this case, by way of prohibiting the teaching of foreign languages to elementary school students)); Pierce v Society of Sisters of the Holy Names of Jesus and Mary, 268 US 510 (1925) (parents have the liberty to direct the upbringing of their children, including their religious education); Santosky v . Kramer, 455 US 745 (1982) (the standard of proof in involuntary termination of parental rights proceedings set at clear and convincing evidence, otherwise infringing the due process requirement). While these decisions might be debated, they exemplify the view that grants parents a special power over their children, relative to third parties.

75. See Donald C Hubin, “Parental Rights and Due Process” (1999) 1:2 JL & Fam Stud 123 and James W Bozzomo, “Joint Legal Custody: A Parent’s Constitutional Right in a Reorganized Family” (2002) 31:2 Hofstra L Rev 547.

76. Otherwise, we would be forced to believe that unless the child’s interests are compromised, the parent can make no claim. That seems implausible.

77. See text accompanying supra note 51.

78. This is due to the problematic incentives such a regime creates. See section IV(c) below.

79. This can include concerns about the children’s nutrition and diet, as well as their religious behavior, etc. See the interesting (albeit anecdotal) description in Ann Laquer Estin, “Bonding After Divorce: Comments on ‘Joint Custody: Bonding and Monitoring Theories’” (1998) 73:2 Ind LJ 441 at 450 (“For any practicing attorney, these complaints are familiar: ‘All they had for dinner was Coke and potato chips!’ ‘They never go to bed on time at his house, and they’re always exhausted when they come back to me on Sunday night’, ‘Can you believe it? He took a five-year-old to see Robocop!’”).

80. Of course, as long as the altruistic commitment coincides with a genuine self-interest, it will have a limited effect, perhaps only on questions of desert. I assume here that satisfying one’s own altruistic preferences should not be counted as part of one’s welfare. Cf Lewis A Kornhauser, “Preference, Well-Being, and Morality in Social Decisions” (2003) 32:1 J Legal Stud 303 at 316-22 and Jeremy Waldron, “Locating Distribution” (2003) 32:1 J Legal Stud 277 at 292.

81. Actually, one might even think that in such cases there is a place for greater public funding of the child’s expenses, depending on one’s general view regarding the origin of the duty to support children. See Scott Altman, “A Theory of Child Support” (2003) 17:2 Int’l JL Pol’y & Fam 173 and Olsaretti, supra note 38.

82. Indeed, as Starnes put it, “A primary caretaker may devote long hours to the daily drudgeries necessary to maintain a home for the child—shopping, cooking and cleaning—yet reap little psychic benefit in the process. On the other hand, a non-primary caretaker who devotes little time and energy to caretaking may reap huge psychic benefits, as when he and his child enjoy a heart-to-heart talk about the child’s perceptions, troubles and hopes.” Starnes, supra note 21 at 1551.

83. Dorothy E Roberts, “Spiritual and Menial Housework” (1997) 9:1 Yale JL & Feminism 51 at 55. See also the description at Katharine Silbaugh, “Turning Labor into Love: Housework and the Law” (1996) 91:1 Nw U L Rev 1 at 11: (“preparing meals, washing dishes, house cleaning, outdoor tasks, shopping, washing and ironing, paying bills, auto maintenance, driving, … feeding the baby, emptying garbage, answering the telephone, planning family activities, making beds, caring for pets, weeding, sweeping floors, or putting clothes away.”). See also the vivid description of the invisible housework of office-like work in Elizabeth F Emens, “Admin” (2015) 103 Geo LJ 1409. For a general discussion, see Mary Jean Dolan & Daniel J Hynan, “Fighting over Bedtime Stories: An Empirical Study of the Risks of Valuing Quantity over Quality in Child Custody Decisions” (2014) 38 Law & Psychol Rev 45.

84. See Susan D Stewart, “Disneyland Dads, Disneyland Moms? How Nonresident Parents Spend Time with Absent Children” (1999) 20:4 J Family Issues 539.

85. See Jay Lebow & Kathleen Newcomb Rekart, “Integrative Family Therapy for High-Conflict Divorce with Disputes over Child Custody and Visitation” (2006) 46:1 Family Process 79 at 88 (describing how families use the legal system to continue fighting and resist the transition to post-divorce structures). Where there is a background of domestic violence, the need to co-parent might even reinforce the subordination and terror of the marriage. See Katharine T Bartlett, “Feminist Legal Methods” 103:4 (1990) Harv L Rev 829 at 836, 846-47.

86. Cf Robert H Mnookin & Lewis Kornhauser, “Bargaining in the Shadow of the Law: The Case of Divorce” (1979) 88:5 Yale LJ 950 at 973 (noting that opportunities for strategic behavior increase where there is uncertainty about the other side’s preferences).

87. For the sake of simplicity, assume that there are only four options: (1) Having custody and the other spouse pays support; (2) Having custody and paying support solely; (3) Not having custody and the other spouse pays support; (4) Not having custody and paying support solely. Assume further that each of the parents prefers 1 over the other options, and least prefers 4. However, the parents may differ in their order of preference regarding 2 and 3. If the better custodian (in terms of BIC) prefers 3 over 2, she might waive her claim to custody under a legal regime that requires the custodian to bear the whole burden of support.

88. See Rivlin, supra note 2.

89. See the seminal opinion of Justice L’Heureux-Dubé in Moge v Moge [1992] 3 SCR 813.

90. See supra notes 28-31.

91. For such concerns accompanying claims that are associated with “father’s rights” groups, see Kay Cook & Kristin Natalier, “The Gendered Framing of Australia’s Child Support Reforms” (2013) 27:1 Int’l JL Pol’y & Fam 28 and Ruth Halperin-Kaddari & Marsha A Freeman, “Backlash Goes Global: Men’s Groups, Patriarchal Family Policy, and the False Promise of Gender-Neutral Laws” (2016) 28:1 CJWL 182 at 210.

92. Whether or not there should be a difference between the law and the law of private ordering in this regard hinges on questions about the scope of desirable judicial review of divorce settlement agreements.

93. Thus, such agreements should be valid according to the Divorce Act, RSC 1985, c 3, s 15.1(5)(b) (2d Supp), even without balancing the non-residential parent’s exemption through transfers in marital property that benefit the residential parent, since the child has enough resources and requiring the non-residential parent to pay would be “inequitable”.

94. Robert H Mnookin, “Divorce Bargaining: The Limits on Private Ordering” (1985) 18:4 U Mich JL Reform 1015 at 1020; Penelope E Bryan, “The Coercion of Women in Divorce Settlement Negotiations” (1997) 74 Denv UL Rev 931; Tess Wilkinson-Ryan & Deborah Small, “Negotiating Divorce: Gender and the Behavioral Economics of Divorce Bargaining” (2008) 26:1 Law & Ineq 109 at 115-20; Wanda Wiegers & Michaela Keet, “Collaborative Family Law and Gender Inequalities: Balancing Risks and Opportunities” (2008) 46:6 Osgoode Hall LJ 733.

95. See in the context of “evaluative mediation”, Leonard L Riskin, “Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed” (1996) 1 Harv Negot L Rev 7 at 44; Lenard Marlow, “The Rule of Law in Divorce Mediation” (1985) 9 Mediation Quarterly 5 at 11; more generally Richard H McAdams, “An Attitudinal Theory of Expressive Law” (2000) 79 Or L Rev 339.

96. For fairness as a challenge for settlements, see Owen M Fiss, “Against Settlement” (1984) 93 Yale LJ 1073 at 1085 and Marian Robert, Mediation in Family Disputes: Principles of Practice (Ashgate, 2008) at 213.

97. This conclusion can also be put in terms of supporting what has been termed “norm-generating” rather than “norm-educating” and “norm-advocating” mediation, in the terms of Ellen A Waldman, “Identifying the Role of Social Norms in Mediation: A Multiple Model Approach” (1997) 48:4 Hastings LJ 703.

98. See Oliver W Holmes Jr, “The Path of Law” (1997) 110 Harv L Rev 991 at 993-94 (first published 100 years earlier, at (1897) 10 Harv L Rev 457).