Men's rights and child support: the law is an ass (Part II)
I added the following as a comment to the original post on the subject, but I thought I'd highlight it here as well, since it's a response to points made by many readers in the comments section. This post doesn't really stand on its own; it relies on the first one and is an expansion of it.
(I want to add, also, that I am rather intensely sympathetic to the problems of both men and women in this area. There's plenty of sorrow, pain, and injustice to go around.)
Equal protection does not, when last I looked, apply where the valid and actual biological differences between male and female are the basis for the distinction made. Pregnancy is, by definition, one of these biological differences, and in my opinion the distinction here is based on that biological difference. The situation will never be exactly equal for that reason, and cannot be.
Once the woman is pregnant and there is a disagreement between partners about what should be done (the situation we are dealing with here), the following would be the only alternatives for her: bearing the child or having an abortion, and doing either because she chooses it; or bearing the child or having an abortion because she is compelled by another. Given that abortion is presently legal, to allow a man to compel a woman to bear a child against her will is not a good solution in the legal sense. The same would be true, by the way, for forcing her to have an abortion against her will.
For a somewhat (but not totally) analogous situation, there's a principle in the law of contracts that says that "specific performance" of a contract is not ordinarily enforceable by the law. There are certain things the law will not compel a person to do just because the other person involved in the bargain or the contract wants him/her to do so, even if it was explicitly part of the original agreement. Making things right traditionally involves a money penalty, rather than compelling specific performance.
However, back when the legal system banned abortion, it used to compel the woman to bear a child against her will, although it could not compel her to keep it. (In truth, however, in many cases, women got illegal abortions anyway and did not bear the children in question. But that's a different issue.)
Now that a woman is allowed to make the choice to have a legal abortion, no one else is allowed to choose for her, not even her husband. Some of you may indeed disagree with that, but IMHO changing that rule would make very bad law indeed, somewhat like compelling specific performance.
The real question is: what is the proper remedy in a case in which the mother bears the child against the biological father's will, and is asking him to financially support that child? Note, again, that no one can force him to be an involved or caring father; no one can compel him to babysit or have the child live with him (that would be compelling specific performance, once again).
The remedy is financial, as remedies usually are under the civil law: pay child support. And it applies equally to both spouses, as far as I know (legally speaking; in actual practice it's not always applied so equally). For example, if the unwed father successfully stops a mother from giving a child away for adoption, she is compelled to pay him child support for that child (although she never wanted or expected to), and he is free to raise it. This would be the most analogous situation, in my opinion, the one to which equal protection would apply. The remedy, once again, is financial: she could not be compelled against her will to have anything more to do with the child other than to pay child support.
If one accepts the principle that, for biological reasons, the woman gets to decide the course of her pregnancy, the question remains whether the biological father should be allowed to opt out of paying if she chooses to bear and to keep the child against his will. Under some sort of contract law, one might imagine that, as a penalty, she might have to forego child support because she is going against his expressed wishes about his own child.
But that's where some sort of strict contract law between the parties (mother and father) does not apply, because the remedy is not to the mother as a party to a contract (real or implied): it's to the child, who is not a party to any contract made before its conception. Child support is paid to the parent but it's a right of the child, and is supposed to be applied to the child's needs only.
For example, let's say the woman had promised the man that she'd have an abortion if pregnant; an explicit oral contract. But she then changes her mind when actually pregnant and refuses to do. "Specific performance" is not allowed; he can't force an abortion on her. If contract law were to be applied, and he could prove she had agreed to an abortion and broken her word to him (the "contract"), he might be able to opt out of paying for that child as a sort of financial penalty for her breaking the contract, in lieu of specific performance.
But this is where another overriding principle, the "best interests of the child" comes in. And this, once again, is because the child was not a party to that contract, and the child is the helpless result of the decisions of both these adults, and as such must be protected. It is in society's interests to protect that child--or so goes the argument--and to compel both parents to support that child financially until it reaches its majority.
So, there is a linked set of decisions: the decision to have sex (and to assume its consequences), in which both take part; the decision to have or not to have the child, which is the woman's only, for biological reasons; once she decides to have the child, the decision as to whether it will be given up for adoption (and the man has some rights in this matter, to challenge an adoption and keep the child himself); once the decision is made for one or the other parent to keep the child, the decision to pay child support (equal for both parents according to ability to pay), and the decision about coparenting and visitation rights, in which the court is involved if the parties disagree.
Bottom line: there are certain things you can force a person to do legally, and certain things you can't. There are certain risks you are assumed to have taken on when you engage in certain acts. And there are certain considerations that trump others, according to the law, and are considered best for society as a whole.
posted by neo-neocon @ 7:11 PM
60 comments
60 Comments:
I'm just going to respond to this via the previous thread, since it all goes together.
I would like to point out however that ultimately this discussion could easily go into the direction of determining the purpose of society (self-preservation?), the purpose of marriage, and whether evolving ideas of marriage (e.g., gay marriage)have changed the picture.
Meanwhile, Ymar said:
In the end, the basic rule is: if a woman doesn't want a child, you can't force her to have it. It's always been that way.
If a thug wants your money and to kill you, you can't force him not to. It has always been that way. Until the advent of government and the rule of law.
Are you trying to say that if the government passes a law that says thou shalt not have abortions, and thou shalt not have post partum depression and kill your baby, that such laws would have any effect? Thank you.
I think the arguments going on here are lacking in common sense. One can try to argue on legalistic and/or philosophic grounds that it is unjust that men have to pay child support for babies they didn't want brought into the world. But isn't that really what the institution of marriage is all about?
I realize nowadays we conceive of marriage as separate from procreation, and we see sex the same way. And I am not denying these non-procreative aspects of the institution. But surely, historically, the entire institution of marriage, and such correlates as adultery punishments for women, etc. was based on a simple equation: in return for sexual access, the man took responsibility for the potential consequences of that sexual access.
Why is that so hard to understand?
One of the reasons we had "fallen women", "back alley abortions" and so on was just precisely because men and women were having sex outside of marriage, and without the mutual guarantees that marriage implies.
Child support is nothing more than reducing the institution of marriage to its bare essentials.
And, yes, I know that child support theoretically puts an equal burden on men and women (been there!). However, in my case, I never even bothered to collect, I was just happy to get my kids. I will let someone else get upset about it.
I think this is one of those things where we have to let common sense and tradition determine our views, fitting for a conservative, if not a neo-conservative. Men, because they are MEN, are responsible for their offspring, and, because they are MEN, are only too happy to assume that responsibility. That's the way I look at it, anyway.
As to those of you who have worked yourself up into a Hegelian tizzy abuot the whole thing and have decided never to have an intimate relationship, relax. Find a woman you like, who works hard, and who you can trust, and start saving social security. It's not that hard.
I've always been pro-choice, but I'm sorry to say that these two posts have done more to persuade me of the injustice of that position than anything ever produced by the "pro-life" crowd. If one can say that the man should "keep it in his pants" if he doesn't want to suffer the consequences of child support, then others can certainly say that the woman should "keep her pants on" if she doesn't want to bear the child. If it's thought to be "not a good solution in the legal sense" -- how nicely put! -- to force a woman to bear a child against her will, then why is it a "good solution in the legal sense" to force a man to support a child for at least 18 years that he was clear before the fact that he didn't want?
Being "rather intensely sympathetic" doesn't cut it, and neither do Dickens quotes. Biological differences are real, but using such differences to support a flagrant injustice with regard to men is just as vicious as the old regime that used the same sorry excuse to support injustices for women. No choice for either sex at least had the effect of penalizing both for their sexual behavior in theory (though in practice, and certainly before the pill, men got away with much more than women).
A better way is to assert, before a child is born, a free choice for both people involved. If a woman who gets pregenant is, as I still think she should be, free to decide whether to have the child or not, then in exactly the same sense, a man who gets her pregnant should be free to decide whether he wishes to support the child or not. She has the freedom and the responsibility to determine whether or not a child comes into the world -- but she does not, or ought not, have the power to decide the man's life for him.
A better way is to assert, before a child is born, a free choice for both people involved. If a woman who gets pregenant is, as I still think she should be, free to decide whether to have the child or not, then in exactly the same sense, a man who gets her pregnant should be free to decide whether he wishes to support the child or not.
Does this include married men or just single men? If single, then marriage becomes a form of bondage for men, does it not, because they lose their right to not support their children?
If a woman gets pregnant and knows that she has NOTHING to guarantee her support while child-raising, will she be less, or more, inclined to abort?
If we get to the point that men get to choose whether or not to support the children they help create, what happens to the institution of marriage?
"Equal protection does not, when last I looked, apply where the valid and actual biological differences between male and female are the basis for the distinction made."
This is correct. But it only applies where the actual difference is - it is not extended out from there, which what we are discussing here is something that is not inherrently different. This issue can be totally fair and equal. It not a "viral" clause that effects anything that has to do with pregnancy, just those that are - by definition - different and unable to be made equal.
"Once the woman is pregnant and there is a disagreement between partners about what should be done (the situation we are dealing with here), the following would be the only alternatives for her: bearing the child or having an abortion, and doing either because she chooses it; or bearing the child or having an abortion because she is compelled by another."
True, those are your only choices. Typically chosen based on if the childs rights trump the parents or not.
"Given that abortion is presently legal, to allow a man to compel a woman to bear a child against her will is not a good solution in the legal sense. The same would be true, by the way, for forcing her to have an abortion against her will."
This is a logical fallacy. "Because it is currently legal to choose then not letting her choose is obviously wrong" - the premises concludes that the conlusion is good. While I don't agree that forcing is correct (you will note that I don't like forcing either party to do anything they don't want to) this isn't a good dismissal of the idea. Better is noting that you are then picking the rights of the male over the female, or saying that the rights of the one that wants the kid supercedes the one who doesn't (the second argument is a common one, though used in support of forcing a choice in saying that "bring to term" is a more correct decision and, therefore, trumps the other).
If, as you say, the rights of the child are paramount because they are not a part of the contract then killing them is MUCH worse than simply not paying child support (especially given govt subsidy programs in act today). Yet that doesn't count on the females righ to an abortion. That makes absolutely no coherent sense - either the rights of the child trump the biological parents rights or they do not.
"Now that a woman is allowed to make the choice to have a legal abortion, no one else is allowed to choose for her, not even her husband. Some of you may indeed disagree with that, but IMHO changing that rule would make very bad law indeed, somewhat like compelling specific performance."
Partially that would depend on your view. If, as many do, you consider it to be a seperate life then you are codoning murder. Right now in many countries it is legal for a male to kill a female for a variety of reasons (there are even places where "She needed it" suffices). We consider that murder, but he has the choice and females are conisdered "less than human" enough so that it's not murder. Your logic directly leads to this: "Now that a Man is allowed to make the choice to have a legal killing of a female, no one else is allowed to choose for him. Some of you may indeed disagree with that, but IMHO changing that rule would make very bad law indeed, somewhat like compelling specific performance." That's the problem with appeals to it being legal now and taking away choice is wrong - if you thought about it much outside of this single discussion I don't think you would like where much of this leads, and if your logic is compelling then it should be there also.
I'm relativly undecided on when the fetus becomes "human" so I generally let others who really care fight over where to draw the line, mostly I just argue against someone who seems to assume that everyone has thier same axioms yet chooses a different path. It is perfectly logical, and even reasonable, to think that human lifes begins at conception and, being a seperate life, aborting it is murder (much as we consider a female to be human and murder to kill her). It wouldn't be the first time the US decided to make legal non-humans into humans and it murder to kill them (and that one caused a big war at around 1861). I'm sure those people felt it was horrid of the govt to compell them to not do something also, didn't make it right.
You will note that the distinction I'm making is that it is irrelevant (with respect to if the entity having the act commited upon has rights or not) how the person doing the act feels. If the person commiting the act's feelings were important then we would still have slaves, women would be subservient, and a whole host of really bad crap that went on in the past.
"But this is where another overriding principle, the "best interests of the child" comes in. And this, once again, is because the child was not a party to that contract, and the child is the helpless result of the decisions of both these adults, and as such must be protected. It is in society's interests to protect that child--or so goes the argument--and to compel both parents to support that child financially until it reaches its majority."
Why does this only come into effect *after* the woman has made the decision? Other than "Can't stop it" and "I don't like it" have you given any reason (and I'm sure if you think about that for a moment you can come up with dozens of cases where that makes REALLY bad law and is, thus, not compelling)? If the rights trump them, no abortions under any circumstances other than mothers life in danger (same justification for killing another living being) and the father pays. If they do not then abortions are leagal and men don't have to pay.
To be consistent you have to make this first choice - does the fetus have rights or not. If it does, does it's right to a good welfare trump the rights of the adults to manage thier persons the way they choose. If "Yes" then abortions are illegal and the father has to pay. If "No" then abortions are legal and the father gets to choose what to do with his person also (and, "person" has *always* included assests). If the fetus does not then abortions are legal and the father doesn't have to pay (someone without rights can trump someone with them).
You can't simply decide to apply "Childs best interest" in a few cases (just so happens only in the case of where a males choice resides) and "Adults right to choose" in others (that just so happen to be every case where a female has a choice) and expect people to be persuaded. Your not when the situtation is reversed, in fact you are pretty dead set against it. You are going to have a *REALLY* hard time convincing very many non-females (and quite a few females) that a mothers right to choose trumps the babies welfare but that the babies welfare trumps the males right to choose - which is exactly what you are saying. It will eventually be removed by the courts as females truly become equal in all situations (Just as some "equality" has helped, some will also loose). You can't have equality except where you like getting the better end.
Who cares about child support? All you have to do is move out of state and "forget" to tell the chumps where you went. She is the one who wanted the baby anyway.
I was thinking and formulating logic cycles of the "child's rights" clause. I came to the conclusion that abortion, didn't have the child's rights in mind and that the law in being support of abortion, does not have the child's rights in mind.
Which is the point strcpy made at the end of his post. So I won't belabor the point.
On Constitutional bases, either a child before being born has Constitutional Rights or not. If the child does, then the child has a right to life, liberty, and the pursuit of happiness. Although the child would not have a right to be involved in a legal contract until 18. Legally, as far as I know, the parents are the guardians of the child. After the child is born, but I don't see why that should be the case. If the parents are made guardians before the child is born, then they would have 50/50 power over both the life and the welfare of the child, and therefore this legal power would entail legal responsibilities.
If a person doesn't want the child, then he in effect forfeits his guardianship of the child, and all powers and visitation rights included.
I frame it this way. If you want a man to pay, then the man automatically gets parental rights and guardianship over the child, dual guardianship. This gives him the power over the welfare of the child. Yet, biologically Neo, you admit that such a power is legally incapable of being given to the man. So what we have is one group of American citizens discriminated against in terms of legal rights, because of sex. Not only that, but that group of American citizens have all the legal responsibilities akin to taxation, but none of the benefits. That's unConstitutional, forget about fair.
The equal protection clause is not strongest concerning the legality of forcing a woman to have or not have a child she does or does not want. The equal protection clause is strongest concerning the financial and guardian rights system, which entails powers given to parents for the welfare of the child.
The government is not the caretaker of the child, the government is not the legal guardian of the child. Children are not raised nor indoctrinated by the government, they are not the property of the government.
So it makes sense that a person that does not want to be part of a child's life, should have no say in the child's welfare.
If a man is responsible for the child's welfare, then what happens to his powers of guardianship? Do the courts enforce visitation rights, do the courts enforce equal standards concerning child care?
If what I hear is true, then the courts don't enforce visitation rights. They don't enforce it, and they don't enforce accountability either. If a man has the responsibility of paying for his chld's welfare, then why does the mother control 100% of the money concerning the welfare of the child?
It doesn't work, under equal protection the legal responsibilities and the legal guardianship powers should not be entirely skewed to the 9/10ths of ownership rule.
The state isn't looking out for the child's welfare here. The laws are obviouslly not designed to do that, or if they are, then they don't work and they also don't have the right to under the legal system. The state does not have legal guardianship over the child, as we already knew in the Terri Schiavo case.
So it isn't just about a man wanting to not have any responsibility for his child, it is not just about a man wanting to give up his custody in return for his income.
It is about the entire edifice of the legal and cultural system we have, that divides the responsibilities unequally between man and woman, man and child, and woman and child. In addition to partitioning power to the women's side almost exclusively.
A man can't exercise his parental rights even if he pays. In a free market system, this is a bait and switch, and there is no legal guarantee t hat a man has any right to make sure that his money is being spent well or that the child's welfare is such and such.
The only way he can win back custody is if he somehow sabotages the mother's life. And for a man that is not vicious and just wants what is best for the child, because he disagrees with how the child is raised or whatever, then what options are available to him?
None. Because he is forced to pay, the woman has no self-interest in mediating the problem.
It's human nature. If you promote bad and lazy actions and punish good actions, then bad actions will outproduce the good.
The whole point of human nature is not choice, it is virtues. And virtues are habits. The government in promoting bad habits on the part of women in their life, produces bad situations.
One solution is obvious. Don't invite the government into your relationship. But the problem is, can the government make you pay for child custody if you were never married to a woman? That one I don't know.
But usually the safe answer is not about avoiding intimiate relationships. It is avoiding marriage.
There was a very heated discussion on this on the Guardian Talk Board a few weeks ago. Almost as heated as most abortion threads.
My view (in my utopic world) is that each partner has a chance to opt out. I don't think a man should be able to force a woman to have or not have the child, but the woman should not be able to force the man to support the child if he doesn't want to and they are not married.
Frankly, it disgusts me that so many children are brought into the world with these two strikes already against them. Men don't want to commit, women (sometimes) want a meal ticket. The child is used as a bargaining chip.
Perhaps if women didn't feel that they could coerce a man they don't have a relationship with (or the government for that matter) to pay them to have children, there would be less young women going down this path which will likely lead to a lifetime of poverty for them and their child.
If the law was REALLY in the interest of the child, it would force everyone to be licensed before procreating.
Steve: If we get to the point that men get to choose whether or not to support the children they help create, what happens to the institution of marriage?
We get to that point because we've already gotten to the point that women get to choose whether or not to bear the children that they've helped create. The institution of marriage, sorry to say, is largely irrelevant to this situation. As we've seen from the same-sex marriage debate, it remains a state-sanctioned expression of two people's love for one another, but has no direct effect on the raising of children. If you're not happy with that, all I can say is that it's a little late in the day.
Steve: If a woman gets pregnant and knows that she has NOTHING to guarantee her support while child-raising, will she be less, or more, inclined to abort?
If a woman gets pregnant and knows beforehand that the man who impregnated her had and has no wish to support the child, she SHOULD be more inclined to abort -- that's the point. If you're not happy with that, then you (in the form of society) should be the one to provide her with support.
Ymarkasar brought up several interesting ideas and questions, some of which I can answer at least in part.
"If a person doesn't want the child, then he in effect forfeits his guardianship of the child, and all powers and visitation rights included."
Where I practice, at least, the law defines visitation as a right of the CHILD as much as of the parent. That is one of many reasons why parents can't just forfeit visitation to avoid paying support. It is possible under some circumstances to surrender a child to the state or to the other parent and give up all rights and obligations forever, but no government is going to allow a parent to do that solely because the parent doesn't want to foot the child's bills.
"The government is not the caretaker of the child, the government is not the legal guardian of the child. Children are not raised nor indoctrinated by the government, they are not the property of the government."
That's not quite true. Yes, parents are the legal custodians of their children, but the government also has legal obligations to protect children, not to mention sound policy reasons for doing so. That's why governments prosecute child abuse, garnish parents' wages for child support, establish schools, and pay for foster parents for children whose legal parents have abandoned them, among many other things.
"Do the courts enforce visitation rights, do the courts enforce equal standards concerning child care?"
Where I practice, at least, of course the courts enforce visitation. (I'm not sure what you mean by "equal standards.") The huge majority of cases I am involved with concern visitation disputes. The courts regularly force reluctant custodial parents to allow visitation to noncustodial parents, and custody can be taken away from a parent who persistently disregards or sabotages the other parent's visitation rights. Maybe in other jurisdictions, the courts don't do this. Where I practice, at least, if a parent is complaining that the court isn't enforcing visitation, take a closer look at the facts of the case and you'll be likely to discover that there's a reason for it, rooted in the particular facts of the situation.
"If a man has the responsibility of paying for his chld's welfare, then why does the mother control 100% of the money concerning the welfare of the child?"
The custodial parent has a responsibility to provide support, too. Noncustodial parents aren't asked to fork over 100 percent of the cost of raising a child, just their fair share -- determined, at least here, by taking into account both parties' incomes and resources. The courts don't usually try to control the way the custodial parent spends the money, though in extreme situations, they will. It's just way too much micromanagement, far beyond the resources of most court systems.
"Can the government make you pay for child custody if you were never married to a woman? That one I don't know."
Yes, of course. It happens all the time. If a father acknowledges paternity, or a DNA test proves an overwhelming likelihood of paternity, Dad is on the hook without regard to marriage. It is not the child's fault that its parents chose or didn't choose to marry, and the whole point of child support is to protect the child.
The big problem in this whole discussion is that everyone seems to think that family courts can somehow make these situations turn out fairly. Try though the courts may -- and where I practice, they try hard -- fairness isn't going to happen. Life is profoundly unfair, and nowhere is that clearer than inside a family court. It is not fair to children that parents don't stay together to raise them until they're grown up. It is not fair to one parent when the other spouse has affairs or turns abusive or criminal or alcoholic or just leaves. It is not fair to two loving parents that children are human beings, and not pies that can be sliced into perfect halves and equally divided. It is not fair, either to the woman or the man, that pregnancy happens only to women. Courts can't wipe out these injustices; they are reflections of the deep and abiding unfairness of the rest of life. All a family court can do is to muddle towards the least imperfect solution to each family's individual problems. In every case, somebody's rights are going to suffer, no matter what the court chooses. Instead of beating on the doors of family courts demanding perfect justice, it would be much wiser for people to choose their partners carefully in the first place, to do their best to avoid creating children with a partner they can't trust, and to take responsibility for the consequences of their own mistakes. But that would require healthy measures of maturity, conscience, and common sense -- and I guess that is just too much to ask.
The reason that neo mentioned that equal protection isn't the same between a man and a women in the case of deciding whether or not to have the child in question is because, like she said, there are biological differences. The fetus is dependant upon the woman for life. She gets to decide whether it lives or dies because its in her, not just because she's a woman or because the fetus is less than human.
If a person in an act of drunken decision making decided that he/she would allow another he/she to be connected via machines in order to whatever, allow the 2nd person's kidney's to work for the next 9 months while awaiting transplant changed their mind when sober, they would absolutely have a right to disconnect that machine. Man or woman.
Once that decision is made and there is now a child, now the best interests of the child is there and the money issue is that the father needs to support this innocent child. Both man and woman took the risk and both are financially liable. But yes, the woman gets to make the first decision because her body is needed for it.
I thought neo had it spot on and was just going to say amen until I read the comments. I had been uncomfortable with the getting out of financial liability card being out there but hadn't figured out why. She has it down.
Niko said;
"Do the courts enforce visitation rights, do the courts enforce equal standards concerning child care?"
Where I practice, at least, of course the courts enforce visitation. (I'm not sure what you mean by "equal standards.") The huge majority of cases I am involved with concern visitation disputes. The courts regularly force reluctant custodial parents to allow visitation to noncustodial parents, and custody can be taken away from a parent who persistently disregards or sabotages the other parent's visitation rights. Maybe in other jurisdictions, the courts don't do this. Where I practice, at least, if a parent is complaining that the court isn't enforcing visitation, take a closer look at the facts of the case and you'll be likely to discover that there's a reason for it, rooted in the particular facts of the situation.
Niko, where do you practice? Is this in the USA? I've never heard of any enforcement of visitation.
Seems to me the current situation is right: Sure, you don't automatically, or rather explicitly, consent to being a parent when you have sex. But as an adult in a sexual relationship (of either gender), contraception is your own responsibility. If you don't take it, the child has a right to be supported by both parents - whether they had him by choice or by accident is immaterial. It takes two, and two need to take responsibility for the consequences, whatever their initial intentions.
At the risk of sounding like a moral fundamentalist here (not quite sure how that fits with neo-neo-cons), perhaps it might just be best not to have sex with someone with whom you are not in a meaningful, communicative and trusting relationship.
Terri: She gets to decide whether it lives or dies because its in her, not just because she's a woman or because the fetus is less than human.
But she doesn't get to decide another person's life for him. They both knowingly took the risk of pregnancy when they engaged in sex. But she is the one who knowingly decides to bring a child into the world despite the man's disagreement, and she is the one with the responsibility for her own choice, not him. Yes, the situation is unequal -- only she can make such a life or death decision. But to compound the natural inequality by asserting that she can also force him to support her decision is manifestly unjust -- neo has it spot wrong.
By the way, if you want an example of where the "current situation" is taking us, see mimo's comment above -- the argument along the lines of "if you didn't want a child, you shouldn't have had unprotected sex" can be and is applied to women as an argument against abortion.
Niko, where do you practice? Is this in the USA? I've never heard of any enforcement of visitation.
I practice in New York State. What jurisdictions do you know of that don't at least try to enforce visitation?
Sally, et al.:
What this discussion seems to be crystallizing into is that, if a woman gets to decide whether to have a baby, then a man should be able to decide whether he pays for it.
If we are at that point, then is it any wonder that we will be over-run by cultures that don't tie themselves up in knots over having kids, and raising them.
Of course, we don't want the state telling a woman what to do with her body, but then, following the logic, child support is telling a man what to do with his body, too, inasmuch as it is normative for a man to use his body to perform the labor requisite for getting paid.
Clearly, it's all the fault of the children, who don't perform any useful labor whatsoever!
What all of this suggests is that certain demands, inequalities, whatever, in human life are better handled by assumed cultural norms rather than by the police, but, if those cultural norms collapse -- and clearly they are collapsing -- then we're all done.
I would next like to propose for discussion the injustice of children being compelled to look after their parents.
As I suspected, this topic has sparked a lot of heated commentary.
I simply don't have the time to give to counter each and every argument, which in the end would probably not convince the unconvinced, anyway (of course, that's true of every thread; this one's no different, I suppose).
But I did want to say that my basic stance is that of Nikolaides.
I've actually been involved in this field from many different perspectives: the legal, the policy-making, the personal (friends, that is, both male and female: fortunately, I've never been involved personally in any such dispute), social science research, and as a family therapist. I've done work for mother's rights and for father's rights, and am highly conversant with the arguments on both sides.
My observations: people tend to extrapolate from their own personal experience and imagine whatever happened to them is the thing that's happening to everyone. For example, cappy doubted Nikolaides's assertion that visitation is enforced--I would guess, perhaps from cappy's own experience or that of some friend/relative of his/hers? But my knowledge of the way the court system usually works is that Nikolaides is absolutely correct (although, of course, it's not enforced in all cases).
The botton line, which is difficult for many to accept, I'm sure, is what Nikolaides has said:
The big problem in this whole discussion is that everyone seems to think that family courts can somehow make these situations turn out fairly. Try though the courts may -- and where I practice, they try hard -- fairness isn't going to happen. Life is profoundly unfair, and nowhere is that clearer than inside a family court.
I would add: "nowhere is that clearer than inside a family court or a therapist's office." The stories on both sides are heartbreaking.
The law does take an interest in the protection of children, and needs to do so. When a couple is married or together, the interest the law has is limited to ending negligence or outright abuse. But when a marriage or a relationship dissolves and custody is disputed, or children must be financially supported and the arrangements given the enforcement of the legal system, parents surrender some of their autonomy to the court system. Other ways--mediation, for example--are good to try, to avoid giving up this autonomy. But they often don't work, because the parties are so at odds. In such cases the court steps up to the plate, because it's the only system with the means of enforcement. Enforcement is far from perfect, of course, like everything else that courts do.
One more thing: this entire post was meant to describe in some detail just why the topic of abortion is a separate one from the topic of child support. I guess, for some people, that did not get conveyed.
The big problem in this whole discussion is that everyone seems to think that family courts can somehow make these situations turn out fairly. Try though the courts may -- and where I practice, they try hard -- fairness isn't going to happen. Life is profoundly unfair, and nowhere is that clearer than inside a family court.
Niko perhaps missed my argument that if the government cannot resolve things fairly, it should not resolve things at all. So, no, not everyone here can be dismissed through such a simplistic argument.
The fact that it is separate is sort of the point. If someone wanted it to be fair, they would want it to be inseparate. Since I don't want it to be fair, it really doesn't matter how far apart the options available are from each other.
Where I practice, at least, the law defines visitation as a right of the CHILD as much as of the parent.
That really doesn't make a lot of sense. Children have few if any rights, those that they do have, they cannot actually use until they are 18. Law of contract, law of various other things, freedom of speech, freedom of privacy. These things just don't exist for children, whether before or after birth. The guardian in the form of the parent or the state, exercises the rights of the children for them. Meaning, there is nothing stopping them from agreeing to choose for the child themselves what is best for the child. Whether it is a right of the child or not, should not make a legal difference in this scenario. But it does seem to make a difference amazingly enough. The state enforces the "right" of a child, when a right is simply a choice whether to take or not to take the benefits of, like the "right" to a speedy trial. Yet a child is not mature and old enough to truly decide as an adult... so, their rights aren't exercised by the child but by the guardian. Which is the point.
but no government is going to allow a parent to do that solely because the parent doesn't want to foot the child's bills.
The government serves the people, not the other way around. The government will allow whatever the people decide is a pragmatic solution.
but the government also has legal obligations to protect children
Whatever legal institutions exist, they don't seem to be part of the Constitution. Meaning, they exist because of other reasons or were created sometime in the past like the Pledge of Allegiance.
That's why governments prosecute child abuse, garnish parents' wages for child support, establish schools, and pay for foster parents for children whose legal parents have abandoned them, among many other things.
I can see the government doing so as part of the common welfare, but that's no reason why the system is Constitutionally protected as it is. Meaning that there shouldn't be change.
I'm glad to hear that in some states visitation is enforced. It would simply be unjust otherwise.
You refer to the personal responsibility solution. That has merits, given the way it stands of course. However, there is still the element of government interference. Meaning, government enforcement, if it enforces anything, modifies people's personal behavior through risk and rewards. The system as it is, I contend, modifies bad behavior for both women and men in terms of relationships. Especially when the state interferes regardless of marriage or not. That is probably the biggest indictator that you don't got no personal responsibility since your actions don't really matter to the government, only the consequences matter.
You say take responsibility for personal actions. Yet why should anyone take responsibility for their child when the state is the one that seeks to interfere and punish and reward, for the good of the child? Why take care of the child itself if the government is so eager to step in and take the parent's legal role? You see, there is few if any incentive for personal responsibility when the government has the power and the will to take your children away in the physical and legal sense.
But to compound the natural inequality by asserting that she can also force him to support her decision is manifestly unjust -- neo has it spot wrong.
It seems to me that Neo's position that since you can't force a woman to hear a man's position, if you aren't willing to assault the pregnant woman, then it is simply unfair but still reality that the woman can force the man to pay because it is financial and therefore controllable by the government. Her position seems to me, that because a woman has a right to her body and that cannot be interfered with, this is different from enforcing a child's right to financial responsibility by both parents. It is different, but in the social and moral justice of the scale, it doesn't matter how different the cases are, bad law is bad law. A person's right to pursue happiness and personal property are seized by the government, given to another, while sounding like the KELO Act, should really be reviewed by legal masters. To take it in the human rights case, a woman's body is her body for 9 months or 18 years of a child's life. A man's personal property and financial assets are his for 9 months or 18 years as well. The law, because it cannot force the woman to do something, will force man and woman to do something according to their "financial assets". Which I tend to believe, might be disproportionate or perhaps not. Regardless, it seems very much like the government picking on people it can pick on. When they could no longer illegalize abortion, the government then tries to hold on whatever else power it has over people. The welfare of children are never protected by the government, especially in the case of children.
If the state is so interested in the child's welfare, then the state needs to use taxpayer money. Ah, but then that is welfare. So why have the state involve itself at all? Because the child is a minor and it is hard for a minor to exercise their Constitutional rights, meaning the state has to deal with the guardians. So that is why it is a mess. The person you are trying to protect, doesn't have any say at all. That's why it is a mess. In the absence of stated wills, the state goes with biology and sexual discrimination because it has no other choice.
The law does take an interest in the protection of children, and needs to do so.
What the law needs to do is to respect the wishes of a sovereign human being, this being the child, woman, and man. Because one tripod is missing, the child, the imbalancing of the system causes extreme stress to be placed on the other supports.
If you don't like the withholding of financial support, then find some other way to redistribute the stresses between man and woman. If the state wants to interfere because it has an "interest in the child" then it should take responsibility for the relationship it is getting power over. But it doesn't. If it did, it might concern itself with state responsibility in addition to personal responsibility.
But they often don't work, because the parties are so at odds.
Did you ever perhaps consider that they don't work because each party can always depend upon the state to ENFORCE their version of things?
Perhaps they don't work because the benefits of working for the child's interests don't outweigh the benefit of relying upon the government to protect the child's interests for them.
How much harm or benefit accrues is hard to know.
neo: One more thing: this entire post was meant to describe in some detail just why the topic of abortion is a separate one from the topic of child support. I guess, for some people, that did not get conveyed.
It got conveyed alright -- the problem is just that it's wrong.
Once upon a time the law said that if a woman got pregnant she must bear the child. In those bad old days, there was no question of the man being able to evade his responibilities, either legally or morally. (Many did anyway, it's true, just as many women obtained illegal abortions, but both actions were heavily sanctioned both socially and legally.) In those days too they had councillors, therapists, lawyers and judges who all had had experience with "family" misfortunes or tragedies, and who could all shake their heads sorrowfully and then say, "well, what can you do? The law is a ass, life's unfair, and that's just that."
But the law got changed. Life is unfair, yes -- it's unfair that only women have babies (in both directions, by the way), just as it's unfair that only birds have wings. But the law should not be exacerbating that unfairness, and in particular, it shouldn't privilege one group at the direct expense of another. Our current situation is a partial hold-over -- we've changed the burden on one sex but simply left it unchanged entirely on the other, with the result that a substantial portion of the life of the one sex is put into the hands of the other. That's not just unfair, it's unjust, untenable, and in the long run will not survive -- either men are given the same right of refusal that was given to women, or we'll lapse back to denying it to both. The old "life's not fair" shrug just isn't going to work.
There are only three things the government should do: keep the peace within the nation, defend the public against external threats, and maintain stability of the currency. Expecting them to do anything else ensures, at best, disappointment; and at worst, a police state.
(paraphrased from AMCGLTD)
To place additional support in my argument that the government is interfering to the detriment of the common welfare, is that child support was not enforced until 1960s. If Don Surber is correct, that is.
Society seems to have gotten quite well before the 1950s. Why is suddenly children's rights something that the government needs to protect now?
If the argument is that we don't want to go back to the dark old days, then if you keep going back in time, you'll eventually hit a time in the dark old days that didn't have anything of today's world and yet still functioned.
I don't have an account so I am posting as anonymous. Maybe I'll get one if I stay involved.
Under no circumstances does it make sense to me that a man could require a woman to abort his baby.
On the other hand, however, I understand more the concerns that many people had about men who did not want to have a baby and were forced to allow their partner to go ahead with it and then forced to pay child support. The key to understanding this seems to be a greater focus on understanding specific situations, so I want to address with a hypothetical example.
If a man and a woman have discussed their feelings about sex and it's potential to create babies, and taken measures to prevent this from happening, there is still the chance that the woman will become pregnant. Perhaps through carelessness, perhaps through deception . . . perhaps through simply bad luck. In this situation, it seems to be an irresponsible decision to me if:
The woman decides that she wants to keep the baby
DESPITE
The man having expressed his continued desire not to
AND
The woman also expects the man to pay child support.
This is a situation in which a man, despite having impregnated a woman, has done so despite taking reasonable precautions, and it does not seem fair to force him to pay support for the child.
I still believe that the woman has a right to have this child, however. As neo said, the law can neither compell a man to raise a child who he does not want, nor a woman to abort a child that she does. And that is the way that it should be.
What did not seem to be addressed very much was the fact that becoming pregnant changes a woman. A man who
unintentionally impregnates a woman merely has to make a decision about a concept (his baby), that he already had decided that he did not want. For the woman, however, the decision is no longer about a concept but about a physical change inside of her body. To reverse that change is not a whimsical change of opinion, because her opinion about a concept of a baby has to be replaced with an opinion about something much more tangible. Not to mention the fact that the reality of an abortion is much less pleasant for the woman involved than for the man standing by.
This one situation does exist, however, where it seems unfair to require male child support. And perhaps, if it could be proven, he should be able to get out of it. The more ideal situation, however, remains one in which the two people having sex have respect for one another, and the woman in this situation does not ask the man to pay child support.
In any other situation, it seems that because neither party took responsibility for dealing with these issues ahead of time, through birth control, conversations, or ideally, both, it seems reasonable that the woman must bear greater responsibility for bearing the child and making decisions regarding that, and the man must respect those decisions and recognize, as so many other people said, that he should have kept it in his pants if he was not ready for the consequences.
Sally, if you follow your argument to its logical consequence and do away with requiring unwilling fathers to pay child support, you will still fail to do away with unfairness. The unfairness in your scenario will be imposed, not upon the father, but upon the child, who will have to grow up with the economic support of only one parent. The child, bear in mind, is the only person in the triangle who made NONE of the decisions that brought the situation about. The child is also the one least able to protect itself. Why does moving the situation's inherent and inevitable injustice from the father -- who did, at least, make some of the significant choices, and has some power to control his situation -- to the child, who made none of the choices and has little or no power, seem fairer to you?
Nikolaides: Sally, if you follow your argument to its logical consequence and do away with requiring unwilling fathers to pay child support, you will still fail to do away with unfairness. The unfairness in your scenario will be imposed, not upon the father, but upon the child, who will have to grow up with the economic support of only one parent.
First of all, let me underline that this is not about "unfairness" (which is a whiner's complaint), but about injustice, the particular injustice of our current arrangement of rights, choices, and responsibilities when it comes to making children. What I'm saying is that, in deciding to give the "right to choose" to women, we cannot reasonably deny that same right to men, whose bodies -- as Steve pointed out earlier -- are also affected, through their labor over many years.
Regarding the rights of, or fairness due to, the child, I'm not clear why it should be regarded as unfair, let alone unjust, that the child should be supported by the one person who wanted to have her/him. In fact, many women who've made the choice to have a child by themselves do just that, having a basic sense of moral integrity. No doubt it would be better for the child to be supported by two people -- but it would also be better to be supported by three or four or many people; it would be better to be supported by a rich person or people than by poor one(s). But that, as people on this thread are inclined to say, is just life.
Let me try to be clear about this: a man has, and should have, no more right to walk away from his legitimate family responsibilities than a woman. But IF the man has clearly expressed his disinclination to have a child, AND the woman chooses to proceed with the birth regardless (which choice she alone is entitled to make), THEN she cannot, in common justice, demand that he pay for her free choice for a minimum of 18 years.
If the law was REALLY in the interest of the child, it would force everyone to be licensed before procreating.
That's my new tag-line on MSN Messanger, replacing "No, that's the sound of the poster's point flying over your head at Mach 3"
As soon as the government decides that fathers who don't want that obligation can walk away, remember, it has also decided that taxpayers will have to finance that part of the care of the deserted kids that the remaining parent cannot cover alone. Even if you are not concerned with the injustice to the abandoned child, what do you think of this injustice to yourself, as a taxpayer? Why should you have to pay? You weren't even THERE when these people made the decisions that created this child. How can it possibly be the most just solution for YOU to pay for the needs of this man's child, while he's off having fun?
Or maybe you think that's too unjust, and taxpayers shouldn't have to step up. Maybe we should let orphaned and half-orphaned kids beg in the streets, the way they do in Third World countries. Or if that's too disturbing, let's make them stay home and starve, while Daddy uses his latest paycheck to fly to Bimini. Sure, there'd be no injustice there! Let's do that!
The more ideal situation, however, remains one in which the two people having sex have respect for one another, and the woman in this situation does not ask the man to pay child support.
As mentioned quite adequately before, the state will force a man to pay regardless of what the mother says. Because the state has given itself the rights to oversee the welfare of the child, meaning to get financial support for the child from both of the parents. It doesn't really matter what the mother or father chooses, because their choices don't matter legally.
Even if you are not concerned with the injustice to the abandoned child, what do you think of this injustice to yourself, as a taxpayer?
We can't get rid of Healthcare or Medicare or whatever social institutions have been imposed on the tax payers. We can only make the system more just and equal in terms of protection and application, to individuals. You can't justify actions because it is unjust to the tax payers, because there are too many taxpayers for you to ever protect with one policy change.
Why should you have to pay? You weren't even THERE when these people made the decisions that created this child. How can it possibly be the most just solution for YOU to pay for the needs of this man's child, while he's off having fun?
The legal system, Niko, and Neo has already told you that the legal system approportions powers to itself because it sees the interest of the child as the responsibility of the legal system to enforce. If that is so, why would the legal system be contradictory and have individuals pay for the legal system's morality? The legal system, if to protect the welfare of the child, should use legal means like the IRS. If the welfare of the child is society's benefit, then society should pay. Not individuals.
Some people don't even understand the concept of justice, just as they keep trying to say it is all about fairness when it really isn't.
I love people like Ymascar who think everything in the 50s was perfect. Perhaps it was if you were white, male and straight AND legitimate.
Bottom line, being a parent is not something that should be forced on unwilling parties. Children born into this mess are already behind the 8 ball.
This is 2006, not 1956. Birth control is available. Abortion is available (except for South Dakota). There is no reason for unplanned or unwated children to be born.
This is 2006, not 1956. Birth control is available. Abortion is available (except for South Dakota). There is no reason for unplanned or unwated children to be born.
I can think of a number of very good (legally, at least) reasons for an unplanned and/or unwanted child to be born. Notice that there are no less than two people who may or may not want the child to be born: the mother and the father (and in most cases even more than that). You could have everyone save for the mother not want the child to be born, and the child would still have to be born, legally.
However, even in the case where no one - not even the mother - wants the child, I can think of at least one good reason (again based on legality) for the child to be born: child support.
"Society seems to have gotten quite well before the 1950s. Why is suddenly children's rights something that the government needs to protect now?"
Because more people know of more ways to both threaten and protect children than ever before. In the interest of keeping the peace, the government has had to intervene, lest teams of cell phone connected pedophiles and vigilante mobs who run out to kill anyone who gets called "Chester the Molester" in an IRC chat room don't rip the nation apart.
Progress, I guess you'd call it.
The easy way around these problems is to take marriage to be what gives the male legal responsibility to care for children. According to the entry "affiliation" of the Wikipedia 1911 Britannica encyclopedia (fortunately "affiliation" begins with "a" and so is in the two volumes now available), marriage effectively used to be that in many European countries:
[i]In the British colonies, and in the states of the United
States (with the exception of California, Idaho, Missouri,
Oregon, Texas and Utah), there is some procedure (usually
termed filiation) akin to that described above [i.e., affiliation in Great Britain], by means
of which a mother can obtain a contribution to the support
of her illegitimate child from the putative father. The
amount ordered to be paid may subsequently be increased or
diminished (1905; 94 N.Y. Supplt. 372). On the continent of
Europe, however, the legislation of the various countries
differs rather widely. France, Belgium, Holland, Italy,
Russia, Servia and the canton of Geneva provide no means
of inquiry into the paternity of an illegitimate child, and
consequently all support of the child falls upon the mother;
on the other hand, Germany, Austria, Norway, Sweden, Denmark
and the majority of the Swiss cantons provide for an inquiry
into the paternity of illegitimate children, and the law
casts a certain amount of responsibility upon the father. [/i]
The argument that it is very important for children to have caring from both parents it seems to me does not hold water. Far more important, as having much-longer-lasting effects on future generations, is that children have well-loved genetic qualities, which is more likely to be the case if the female is allowed to have children by a male who is well-loved but can't give money. Prostitution is bad to the extent it is expensive, not to the extent it is cheap; thus it certainly seems morally questionable that it be proper to force some women into it by denying their right to have meaningful, reproductive sex for free. And of course, with illegitimate children of married men, the support he is forced to give them is that much less support for his legitimate children; it actually is a feminist issue--wives (present or future) suffer from enforced male child support of mistresses’ children more than husbands do. The mistresses’ children are after all the husband’s children, but the wife has no genetic stake in them at all. This is especially bad because usually men love their wives more than their mistresses.
It's no wonder people associate love with France; fairly recently females used to be able to give it more freely there than in England or the US. I seem to recall that the European Union Constitution considers as a child’s right paternal support, which I suppose because of DNA analysis, etc., is unfortunately a more workable policy nowadays than formerly..
The comments on both these threads fall into revealing patterns.
There is much wrangling over the relative rights of individuals - male vs female sexual partners, or parents vs. fetuses.
And there is repeated yearning for some imaginary "good old days".
The underlying issue here is that social mores and the contract of marriage DID once function as very clear indications of intent and committment to conceive and nurture children.
Certainly there were messy divorces and bad situations in the past.
But the clarity of that marriage marker is the missing aspect of the "good old days" that I think many here are nostalgic for.
But this only works in a society where sexual intercourse is tightly linked not just to physical maturity, but to responsible social and (ideally) emotioanl maturity.
The discussions about competing individual rights indicates only how far we have sunk into an adolescent, self-indulgent view of "adulthood".
The problem is that children - sometimes of advanced age! - are now free to have sex. But the results of sex still require adult maturity.
Equal protection does not, when last I looked, apply where the valid and actual biological differences between male and female are the basis for the distinction made.
You will have to tell me where you looked. I just had a look at the Fourteenth Amdt and it makes no reference at all to biological differences between male and female. Feminists have relied on this fact for generations in breaking down laws which discriminated against women. It appears a tad hypocritical for women to now announce that of course biological differences should be considered, as long as such consideration leads to outcomes which they favor.
..the decision to have sex (and to assume its consequences), in which both take part
This is rendered meaningless by the fact that your whole post is a justification for a system in which the "consequences" are entirely up to the woman. Sex has whatever consequences for her, and for the man, that she wishes it to have.
But your post is an interesting example of the degree of rationalization of which educated people are capable.
I agree with ben-david; this entire discussion is based on a wildly inflated sense of individual rights, and an obliteration of the sense of individual obligation and responsibility.
Although nnc does not state it so baldly, the thrust of her argument is that women have an obligation to themselves, and men have an obligation to defer to women. Whatever else can be said in favor of this position, it flies in the face of the idea of equality under the law, of the idea that man and women should be interchangeable in the eyes of the law, and the idea that every individual should have a choice as to whether or not to become a parent.
I think all of these ideas are a little dubious myself, but they form the basis for the whole "pro-choice" feminist argument. You cannot reasonably scrap them just because they are now being employed by men, and expect to keep them for use by women. At least, not without looking completely self-serving.
..there are certain considerations that trump others, according to the law, and are considered best for society as a whole.
Most of the law in this area has been made by the courts, rather than by legislatures. The courts authority to make law ranges from the uncertain to the non-existent. When it comes to deciding what is best for society the situation is crystal clear; the courts have no authority whatsoever.
The older law on these subjects was explicitly based on the good of society. The current law is based on “fairness” to “individuals”, if the individual is a woman, and the interests of society, if the individual is a man. (Neo’s post makes this admirably clear.) In other words, we have libertarianism for women and social-conservatism for men. Or as the old saw puts it, “Women have rights, men have responsibilities.”
Current law has quite plainly not served the interests of society as a whole, and as this discussion indicates, it has not even done a good job of being fair to individuals. But nothing is likely to change until control of the process is wrested back from the courts.
Here's a challenge for those in favor of the current system: can you make a single argument in favor of making men who never wanted a child at all (but did not have a say in the matter after initial intercourse) pay child support that cannot equally be rationally (as opposed to legally) applied to sperm donors? A few obvious notes to be said for any such attempts:
- Both had the opportunity to keep it in their pants (in fact the sperm donor had to have premeditated intentions of donating the sperm, while the typical argument in favor of abortion is that people can't control themselves when their hormones get going)
- In both cases the woman most likely had as much choice as the man regarding initial intercourse
- In both cases the woman definitely has 9 risk-free months to choose whether to keep the fetus/child
- Neither ever wanted to support a child of even to have anything to do with the child, should a child result (again, the sperm donor is much more responsible for pregnancy than the other, as they know ahead of time that pregnancy is the intended result)
- In both cases it's undeniably in the best interest of the child for the father to pay child support
Women also have the choice to keep their pregnancies to term and prosecute the father for child support.
In short, because of abortion, women can "walk out" on raising a child. Men cannot. Not without a lifetime of evading prosecution.
This is nothing short of sexual discrimination against men. Men should be able to toss 300 or so dollars at whoever to stop being the father of a unborn baby, right?
(just thought I'd add some controversy, hehehehe)
[i]But the clarity of that marriage marker is the missing aspect of the "good old days" that I think many here are nostalgic for.
But this only works in a society where sexual intercourse is tightly linked not just to physical maturity, but to responsible social and (ideally) emotioanl maturity.[/i]
While I understand the nostalgia for the fifties, and the desire to believe that "back then, people were responsible, marriage and children were tightly linked, and everything worked out fine," I tend to take that idea with a grain of salt, given my family history.
My father has a half brother, the child of his father's first wife. After my grandfather and his first wife split up, my grandfather moved back in with his mother, my great-grandmother. My great-grandmother apparently always hated my grandfather's first wife, and she would not take the kid. Neither did my grandfather make any effort to keep in touch with his son. To this day, my uncle wants nothing to do with the rest of my dad's family.
On my mother's side, her father walked out on my grandmother and her three children, took off for California and was never seen again. Mom got *one* letter from him twenty years later, and that was the last she heard of him. My grandmother received no financial assistance or even contact from him, ever again, and was forced to go to work with no qualifications other than a high school diploma, supporting three preschool children. Furthermore, this was back in the day when divorced women in particular were heavily stigmatized--the stories my grandmother has about some of the slimeballs she had to deal with after her husband abandoned her are hair-raising. (No sexual harassment laws back then either--some of these slimeballs were her coworkers and even bosses.) The effects of this abandonment had profound emotional consequences on Mom and her two brothers that (in my opinion) have seriously f***ed up her life, both past and present, and has had consequences for us children as well.
Now I absolutely agree that the cultural concept of the linkage between marriage and childbearing is fairly weak in modern society, and I think is a bad thing for all sorts of reasons. But based on my own familial experiences, I'm not entirely sure how tight the *behavioral* (as opposed to conceptual) linkage was in the first place, not to mention the real nastiness of some of the concepts that supposedly buttressed it (for example the idea that a divorced woman is a "fallen" woman who is easily sexually available).
I hope this comment doesn't show up twice-- I thought I posted it an hour or two ago but it doesn't seem to be here. Anyway, jw, do you have a citation or link to any information about a case in which a male who was victimized in a female-offender situation was later held liable for the support of a resulting child? I am asking seriously, not confrontationally --I have never heard of such a case, and I'd really like to know about it if it has actually happened somewhere. Thanks.
Now, if we were to say that we will put massive amounts of money into a male contraceptive and provide it free to all males, the current law in combination with that may have some real rights in it. That as we all know is not going to happen. The opposition to wasting money on a male contraceptive is simply too high.
You mean like condoms? :P
The ideal solution would be for the mother to give the child up for to a two-parent family that really wants it, and will care for it.
Neither one of these sad, sorry human beings is fit to be a parent. The poor kid deserves better than either one of them.
Given that I wasn't born anywhere close to the 50s, I do have to say that I'm objective about this. Unlike people who were born around there, you people have what is known as nostalgia. Both negative and positive. Meaning either you think it was all better back then or you think it was much better now than back then.
I don't have prejudices one way or another. I know that is hard to accept, but that's just the facts.
There is no reason for unplanned or unwated children to be born.
Is that a support for abortion I hear?
Because more people know of more ways to both threaten and protect children than ever before. In the interest of keeping the peace, the government has had to intervene, lest teams of cell phone connected pedophiles and vigilante mobs who run out to kill anyone who gets called "Chester the Molester" in an IRC chat room don't rip the nation apart.
How exactly does child support protect the children in those cases you outline, however? Which was my original point, of course. If the state wants to protect the child, enforced child support isn't the correct method.
My arguments are based upon the historical-traditionist model. If the fabric of our society depends upon the protection of our children through current means, then it is easy for me to disprove that by going back into history far enough that such methods did not exist, yet America still stood strong. I don't think it is a fear people should take counsel of, that is all.
I won't go into the extent of Flenser's arguments, since his differs a bit from mine. Just to make that clear.
Anyone that actually thinks today's world is better than any time in America's past, has an obligation to support their conclusion with the facts that explain why child support is responsible for such benefits.
People like me, who believe today's world is the best, don't have to offer explanations because I don't believe enforced child support was responsible at all.
That's the difference, you see.
Another solution not offered is simply court enforcement of legal or non-legal oral agreements before or during sex that the female should take contraceptives in addition to the male.
Since the child ain't concieved yet, it ain't got no rights to be blunt. Even if presumably it had rights after being concieved.
So, if the male or female breaks the agreement, legally the courts should be able to enforce that the side that broke the agreement should not be able to hold the other side financially liable.
If you have prenuptial agreements, there is no reason for lack of another.
Because even if you aren't married, the courts can make you do things you don't want to do. So you might as well start the legal process early on, even if you aren't married and are just cohabitating.
It won't solve all the problems, but it will reward the smart vs the dumb, which is all we can do.
ymarkasar, your rationale leaves out one of the most important reasons that the government enforces child support: to protect ITSELF from having to support the children of parents who won't do it themselves. AFDC, Medicaid, food stamps -- all these programs are financed by the government (meaning taxpayers) to cover the needs of children whose parents can't or won't do it themselves. As long as that's the case, you will never find a court that will relieve one party of financial liability for a child solely because the other party breached an agreement not to conceive.
Nikolaides: As long as that's ["that" being various forms of state child support] the case, you will never find a court that will relieve one party of financial liability for a child solely because the other party breached an agreement not to conceive.
But, of course, "conception" isn't the point at issue here -- birth is the point at issue. And it's certainly not a matter of breaching an agreement -- the whole point of this thread is that no agreement is involved. Indeed, the point is precisely that one "party" -- which just happens to be the male party -- has no power whatsoever to make any kind of "agreement" in these matters that has any legal standing. And that's simply wrong. And it's not, necessarily, for the courts to determine this. It's for we, the people -- a people with a basic interest in unbiased justice -- to determine, and to instruct our courts on.
Fine, Sally, you're right, I agree. It should certainly be up to legislatures, not courts, to determine our child support laws. Of course, right now, that is the situation we have. For the most part, except for occasional exceptions like the case that triggered this discussion, all that child support courts do is to enforce the child support laws that have already made by the legislature in the court's jurisdiction. If you've ever spent much time in a child support court, you'll know that their proceedings are generally quite routinized and formulaic: how much do you earn? Where does that fit into the table in the statute? OK, pay up this amount, that's the percentage the statute says you owe.
But anyway, if you don't want courts to do it, try to find me a LEGISLATURE that is going to vote for new laws under which fathers can opt out of child support by contracting with the other partner before sex. It'll still never happen. No legislature wants to take back to the taxpayers an argument that runs, essentially, like this: "We don't think it's fair that fathers should have to pay any part of the cost of raising children they didn't want or intend to conceive. When a mother can't cover the cost alone, we think you, the taxpayers, should help to support the kids so their fathers don't have to. So here's your new law and your increased tax bill for Medicaid, AFDC, and other children's services. Pay up!"
The point I am trying to make is that the government has a self-interest here. Since legislatures vote on budgets, that's even more true if you are looking at the legislature than if you are looking at the courts. As long as that self-interest exists, no branch of government is going to be motivated to make it easier for fathers to opt out of paying child support. You aren't going to get much support from voters for such legislation, either -- not once they realize their wallets are directly affected. The constituency of reluctant fathers just isn't big enough. Fair, unfair, just, unjust -- that's not really the point. It's just too expensive.
.
Nikolaides: Fair, unfair, just, unjust -- that's not really the point. It's just too expensive.
Look -- behind the laws and routines governing the current situation lie a number of things: inertia, cynicism, and, no doubt, the simple, old desire to have somebody else pay. I'd venture to suggest a further factor as well -- an unholy but long-standing alliance between puritanical segments of the right, that wants to punish sex (especially the extra-marital kind), and misandrist segments of a feminist left, that wants to punish men (or, at the very least, is indifferent to their claims). Caught in the intersection where these forces overlap are those unfortunate males who, just like a myriad females, have had sex and then have been surprised to find that it resulted in pregnancy. Unlike all the women in that situation, however, these people are now trapped -- and doubtless a number have been trapped.
In any case, sure, as long as you, or someone close to you, is not in that situation himself, it seems like it's easy to do the old "life's unfair" shrug and just keep on doing what we've always been doing. But I don't think a society can sustain that kind of wilfull blindness in the long run. I think, instead, that ignoring the issue of justice, particularly in the name of simple unwillingness to pay, will exact a price -- in terms of a growing skepticism and cynicism regarding the law in this area generally, and particularly as it's applied to men, and a spreading disinterest among men in the claims by women for "choice", rights, and justice regarding abortion.
For those who liked the "good old days", that may seem to be just fine. But I think they'll be in for a sad disappointment -- if they think that we can simply re-don a mythic 50's innocence, I think they'll find it instead a bitter parody. But any who understand the irony inherent in the phrase "the good old days", particularly as it applies to these issues, should be willing at least to look at the one-sided injustice that is threatening to undermine some genuine and important social achievements.
I don't know why you would assume that only those who are not unwilling fathers themselves or who don't know somebody in that situation would believe that in the end, those responsible for creating children should pay for the children's needs. It's not generally a good idea to assume things about other people about whom you don't actually know anything.
As I see it, the problem with your argument is that you have selected only one of the multiple injustices created by unwanted pregnancies and are focusing on that one injustice as though it were the only one in the situation. You concentrate on the undeniable unfairness of holding fathers responsible for the consequences of an unwanted pregnancy when they cannot choose to end it, while the mother can. But that's only one of many unfairnesses in this situation. It's certainly unjust, for one thing, that only the woman must undergo pregnancy or abortion, while the man who made the same choice escapes all physical consequences (and then complains when he has to experience any consequences at all!) For that matter, it's unjust that men can't experience the joys and rewards of pregnancy. Many would argue that it is profoundly unjust to the unborn child when a mother chooses to end her pregnancy. And, as I have repeatedly argued, it is unjust to the rest of society to hold it financially responsible for the needs of children whose fathers do not feel like supporting them. There are many more injustices here. No matter how you resolve the situation, some will crop up. The choice is not whether there will be injustice. The choice is, who will bear the burden?
I am not denying the existence of the injustice you are upset about. I am just saying that in this situation, society has had to choose among a number of unjust solutions to a particularly thorny and intractable problem. Right now, society has decided that the least unjust solution is to compel men to pay for the needs of their children, whether or not they wanted the children to be born. While this certainly does visit hardship upon some men (not all men, since, in my experience, not all men who pay child support resent that obligation), society has concluded that hardship to men is preferable to the various other unjust alternatives -- such as forcing unwilling women to undergo abortions; forcing children to grow up without the economic support of one of their parents; or forcing society to foot the bills for those children. It is not so unreasonable, when choosing whether an unavoidable hardship is to be born by children, single mothers, or fathers, for society to decide that fathers are the best-equipped to handle it. This is not a matter of "shrugging off" the injustice. It's a matter of recognizing that, painful though it may be, there are times when the real and the ideal flatly refuse to coincide.
Maybe someday technology will erase some of the barriers to justice that presently exist in this area. But until that happens, perfect justice in situations of unwanted pregnancy is simply not going to occur, no matter how often society decides to shift the burdens around among the players.
Nikolaides: It's not generally a good idea to assume things about other people about whom you don't actually know anything.
Yes. So then don't assume what I'm assuming. The "you" in my sentence was a general "you", as in the British "one".
But you specifically do seem fixated on this idea of "unfairness" rather than justice, and under the rubric of unfairness you want to gather in such things as the fact that men can't get pregnant while women can, and then you metaphorically flutter your hands and say that, you know, nothing's perfect, ideal and real don't coincide, etc., etc. Not to make assumptions, Nikolaides, but I'll just observe that just this sort of obfuscation has characterized every obtuse defence of an immoral status quo since well before slavery. "Society has concluded that --", whatever. The point is to question what society has concluded. As for your defence of "society" in this regard, I can't do better than to repeat your own words at the conclusion of your previous post: "Fair, unfair, just, unjust -- that's not really the point. It's just too expensive."
It's certainly unjust, for one thing, that only the woman must undergo pregnancy or abortion, while the man who made the same choice escapes all physical consequences (and then complains when he has to experience any consequences at all!)
I see. So the mere fact that women can get pregnant entitles them to child support, even though they have every chance to terminate the pregnancy and not require child support at all. That's a... well, let's just say that I'm glad I don't have to defend that position.
Would now be a bad time to mention that in most cases the woman had the option not to have the physical consequences, as well?
Many would argue that it is profoundly unjust to the unborn child when a mother chooses to end her pregnancy.
As far as I'm aware, the official government position is that that is a negligible option. Of course, no one said the woman had to have an abortion; contraception would have worked just as well.
society has concluded that hardship to men is preferable
Translation: men are the stronger gender, so if anyone needs to get shafted, it should be them.
or forcing society to foot the bills for those children
Or maybe a family that wants the child, and can afford more than both unfortunate parents combined?
It's a matter of recognizing that, painful though it may be, there are times when the real and the ideal flatly refuse to coincide.
I usually prescribe going with the thing that most closely approximates the ideal. But obviously we disagree on that philosophy.
Maybe someday technology will erase some of the barriers to justice that presently exist in this area.
...you're tempting me. Really, really bad.
Sally, I understood that you were using the term "you" generally. I believe I simply misunderstood your sentence. Your statement was: "In any case, sure, as long as you, or someone close to you, is not in that situation himself, it seems like it's easy to do the old "life's unfair" shrug and just keep on doing what we've always been doing." If I incorrectly inferred that this sentence meant that only those who know somebody in this situation are capable of comprehending the need for change, and those who do not agree with your prescription for change must not know anybody in this situation, then, sorry -- I guess I misunderstood.
You evidently see some kind of important distinction between the concepts of fairness and justice, but if you've explained it -- and you may well have done so somewhere in these long comment threads -- I haven't seen it or grasped it. In my mind, the terms are nearly synonymous. I just looked up the terms in a few dictionaries and found that quite often, the word "fairness" is used to define "justice," while the word "justice" is used to define fairness. I can see that the distinction is extremely important to you, but I don't see why. Meanwhile, I can't respond to the charge of being "fixated on fairness rather than justice" when I can't figure out why that is so significant to you.
And as for flapping my hands and supporting slavery -- well, that's all just way beyond me. There are three primary parties involved in each unwanted pregnancy: a male parent, a female parent, and a child. Behind that triad is a fourth, more generalized party: society. There are also burdens (or inequities or injustices or unfairnesses or whatever it is you want to call them) created by unwanted pregnancies. One way or another, the burdens have to be distributed among those four parties. If you can offer good strong reasons why the burdens should be distributed in a way that results in your preferred outcome -- that is, so that none of them fall upon the male parent -- great, do it. The process really shouldn't require any name-calling; reasoned argument will do the trick if the ideas are sound. Or, if you can propose a solution that does away entirely with the burdens, so that nobody has to bear them, by all means do that. But this line of argument -- insisting that anybody who believes that the male parent ought to bear some part of the burden must be just as benighted as the supporters of slavery -- and a hand-flapper to boot! -- really doesn't do a whole lot to advance your point of view.
I don't think I've stated anywhere that the present state of the law is perfect or even, necessarily, the best way. What I have tried to do -- and what I think Neo was trying to do in the posts that triggered this discussion -- is to point out that there are rational reasons why the law is presently constructed this way, and to point out some of the minefields we are going to have to cross if we change it. You may have heard the expression, "Hard cases make bad law." This situation could have been the inspiration for that saying.
Justin, your comment either misunderstands or mischaracterizes nearly everything I've said. Just for starters, there's no logical connection whatsoever between my observation that it is unjust that only women get pregnant and your inference that therefore I must think that this is a sufficient reason to entitle them to child support. Nor does your observation about the "official government position" on abortion have anything to do with my comment about some people's opinions of the justices and injustices involved.
But that's enough for now. It's late. Good night!
This comment has been removed by a blog administrator.
"Does this include married men or just single men? If single, then marriage becomes a form of bondage for men, does it not, because they lose their right to not support their children?"
I choose to think of marriage as a sweet yoke of responsibility to my wife and children, rather than bondage. Otherwise I don't think it matters to this discussion.
"If a woman gets pregnant and knows that she has NOTHING to guarantee her support while child-raising, will she be less, or more, inclined to abort?
Perhaps she'd be far less inclined to have sex in the first place...Just because it wouldn't work out that way all the time doesn't mean it might not have a better batting average, and a better impact on society on the whole, and isn't that really what this whole discussion is about?
"If we get to the point that men get to choose whether or not to support the children they help create, what happens to the institution of marriage?"
It becomes invaluable to women who want children, and thereby to men who want sex regularly. Seems pretty clear to me.
I think what we have here is what happens when legality sideswipes morality. If you are to be legally consistant, men would have some 'choice' as well, but since they don't, we start to see the damage done to morality by the manipulation of and reliance on legality. Don't expect the law to save everyone, even children, because it can't. The concern of the law should be for the interests of society on the whole- individual protections are an integral part of that, but only a part. It certainly seems that the more we've tried to legislate the complications of interpersonal relations, the worse things have gotten in that arena.
BTW: This kept coming up earlier- the 'statistic' that 50% of marriages end in divorce is false. If you believe it, point me to a reliable source.
"You evidently see some kind of important distinction between the concepts of fairness and justice... In my mind, the terms are nearly synonymous. I just looked up the terms in a few dictionaries and found that quite often, the word "fairness" is used to define "justice," while the word "justice" is used to define fairness. I can see that the distinction is extremely important to you, but I don't see why. Meanwhile, I can't respond to the charge of being "fixated on fairness rather than justice" when I can't figure out why that is so significant to you."
When Solomon ruled that the baby should be cut in two and each woman claiming maternity be given half, his ruling was Fair, but clearly unjust; which he knew would force the mother, in the interest of ultimate justice, to yield her claim. The definitions I've read never mention morality in defining fairness, but do in defining justice. Fairness follows the prescribed rules, Justice appeals to something greater- morality, God...
It also seems that some might be equating support for the idea that, under current law, men should have the right to 'opt out' of parenthood under certain conditions to mean that we think it is a good idea, or moral, or best for society in general. I certainly do not, but society has to face the ramifications of the law as it's been allowed to develop, and confront the flaws in it to be convinced to revise it. Allowing inconsistancies to stand only prolongs injustice. It also goes to show you what happens when Judges who only see things ex post facto in practice, 'make law' from the bench.
I'm still failing to see how a woman is not only absolved of the responsibilities of having sex, but rewarded because she carries the baby. Neither males nor the state made it so, so if she carries greater risk (of burden), she also carries greater responsibility, no? If you disagree, you upset the balance, and disincentivize responsibility. I think Ymar has said this previously, and I've yet to read a response that made sense to me. And if you want to lecture me about the negatives of single parents, what has the current law done to reduce that?
Thank you, Douglas, for the clear and helpful explanation of the semantic distinctions between "fair" and "just." Sally's objection, then, is essentially that most of my comments have concerned the real-world effect of various aspects of the child support laws on the participants rather than on the inherent morality or immorality of the laws. Sally is apparently, at least on this subject, a proponent of "natural law" -- that is, the concept that law is, or should be, derived from universal underlying moral principles that are inherent in human -- or divine -- nature. I guess I'm not, at least not on subjects like this one where nothing close to a moral consensus exists. Why not? Look at the lack of moral consensus that still exists in our society on "Roe v. Wade," decades after it was decided. We are in that same divided territory here.
Several people here have objected to "judge-made law," as opposed, I guess, to law made by legislators. It's ironic that what triggered this discussion is the recently-filed federal lawsuit in which Mr. Dubay, a father ordered to pay child support, is appealing to the courts -- not, you will note, to legislators -- for change in the child support laws. Why did he choose to do it through the courts rather than through the legislatures? I submit, because it's the only way he might possibly win. Legislators won't change this law unless a sufficient majority forms among their consituents to compel them to do so, and I don't think any of us believe that will happen any time soon. An individual judge, on the other hand, who agrees with Mr. Dubay's point of view on principles of justice might possibly do so, or at least, so Mr. Dubay and those who are supporting his lawsuit must have reasoned. I wonder, should Mr. Dubay prevail, if those of you who have been complaining about "judge-made law" will object to the result on the ground that "judge-made law" is bad and that legislators, not judges, should have overturned our existing child support laws?
Nikolaides: I just looked up the terms in a few dictionaries and found that quite often, the word "fairness" is used to define "justice," while the word "justice" is used to define fairness.
Regardless of dictionaries, "fairness" is all too often used in a childish way to complain about the nature of things, as in the observation that only women give birth, whereas "justice" is something that's in our hands to produce -- or not -- given the nature of things.
Beyond this, I'm just repeating myself, so I'll stop shortly. But I did want to make one last attempt to be clear about the point at issue here -- it's NOT about just removing all burdens from the "male parent", for example, nor about fathers who simply "do not feel like supporting" their children. Right? Can we all be clear on that? The very fact that you and others on this thread repeatedly fall back on the stereotype of the "deadbeat dad" illustrates the blinkers that you're wearing here. I've said repeatedly that there's no question that men should be held to their legitimate family responsibilities -- so the question comes down to what exactly is "legitimate" in these situations. And my point, one more time, is that, SINCE there now exists a choice about whether or not to bear a child even after pregnancy (which there wasn't before), THEN to exclude men entirely from that choice is to render their coerced support for it illegitimate.
Sally, you're right that we're repeating ourselves and that it's time to stop. But just to respond briefly to your point about the deadbeat dad stereotype, I agree that it was unnecessarily perjorative of me to describe the subset of fathers we are discussing here as those who do not "feel like" supporting their children. As to that phrase, I stand corrected. Beyond that, though, you are, in fact, proposing to remove all burdens resulting from unwanted pregnancy from a subset of the group of all biological fathers. This subset consists of fathers who do not want to support their biological children on the ground that they were not given the same choices after conception that the mothers were given. The defining characteristic of the group, then, is essentially unwillingness to pay child support for an unchosen child. If the group must not be described in terms of its defining characteristic because to do so, in your view, is the same thing as invoking the stereotype of "deadbeat dads," (who are, in my view at least, a rather different subset of the set of biological fathers) then honest discussion becomes impossible.
Just one more thing: I appreciate the care that the commenters here have taken to keep this discussion civil. It's an intensely emotional subject and in many parts of the Internet it would have descended by now into insults and profanity. It's heartening that that has not happened here.
ymarkasar, your rationale leaves out one of the most important reasons that the government enforces child support: to protect ITSELF from having to support the children of parents who won't do it themselves.
So the government is looking out for its own interests, in reality, instead of the child's? You got some legal inconsistencies here.
But anyway, if you don't want courts to do it, try to find me a LEGISLATURE that is going to vote for new laws under which fathers can opt out of child support by contracting with the other partner before sex.
Well, that is the point, isn't it in the end. Things are moving in that direction. Public awareness has been sparked through that lawsuit case, debates like this one. This is all a preview to getting the legislature to do something.
It'll still never happen. No legislature wants to take back to the taxpayers an argument that runs, essentially, like this: "We don't think it's fair that fathers should have to pay any part of the cost of raising children they didn't want or intend to conceive. When a mother can't cover the cost alone, we think you, the taxpayers, should help to support the kids so their fathers don't have to. So here's your new law and your increased tax bill for Medicaid, AFDC, and other children's services. Pay up!"
Well, people said abortion couldn't happen either, but look what happened. People said the KELO act couldn't happen either, but then it happened. So tell me exactly, why this will never happen?
The point I am trying to make is that the government has a self-interest here.
Well, it seems to me that the reasons you and Neo gave about not letting men opt out was because of child's rights, now you say it is also because the government is corrupt and won't do jack. If it is both, then perhaps both should be changed, eh?
It's certainly unjust, for one thing, that only the woman must undergo pregnancy or abortion, while the man who made the same choice escapes all physical consequences (and then complains when he has to experience any consequences at all!) For that matter, it's unjust that men can't experience the joys and rewards of pregnancy.
You're using unjust as interchangeable with unfair. I tend to think that will become a problem. And given that I read the end comments here, I'm right, it did cause a problem and I thank others for mentioning it so I don't have to.
In response to Niko, I do appreciate his insights and his knowledge of the law. It has helped me understand greater the possibilities. It doesn't mean I agree with him, but it does mean that I like information regardless of the source. So long as they aren't part of a PsychOps that is, always gotta be careful about those ; )
-- insisting that anybody who believes that the male parent ought to bear some part of the burden must be just as benighted as the supporters of slavery -- and a hand-flapper to boot! -- really doesn't do a whole lot to advance your point of view.
Well, to defend Sally, that's not what she meant. If I may speak on her behalf. I do tend to read a lot and have better reading comprehension given the amount of time I spend on science fiction and debates. So, the way I percieve it, is that Sally said that your defense of your position is just as invalid as the defense for slavery. She didn't say you had the moral problems of slavery in your position, simply that your defense of society is the same in terms of lack of validity as the defense of society used for slavery.
Her problem, to me, is that you try and defend your position using things that don't work and shouldn't work. Your position, as far as I know, is simply the note that trying to change things shouldn't be done. A conservative and a status quo position. You may be open to solutions, but there are a manifest of reasons you think those solutions probably will NEVER work, as you said before.
I guess I'm not, at least not on subjects like this one where nothing close to a moral consensus exists.
A lot of people who do support legislation giving men rights or are willing to, are Constitutionalists. Some may do so to stop abortion, some may do so because they believe it is as just as you can get with abortion, and some may just be lazy men who don't want to pay. Regardless, probably the majority are believers in the Constitution, like me. And believe that law should be Constitutionally derived, not derived from judges, lawyers, and the whims of legislatures.
A lawyer probably does not have the freedom to believe in the Constitution, I understand that, I just think it is a loss.
Btw, moral consensus isn't really the benchmark. Constitutionality, however, is. Constitutionality isn't based upon mob rule, for good reasons.
t's ironic that what triggered this discussion is the recently-filed federal lawsuit in which Mr. Dubay, a father ordered to pay child support, is appealing to the courts -- not, you will note, to legislators -- for change in the child support laws.
As you noted, Niko, the legislatures are too greedy and politically afraid to do anything. So we use fire to fight fire. If the judges want to proactively make shit up as they go along, we must take whatever advantage in the media and in the courts as we can get. Especially with 2 new Supreme Justices.
Just because I dislike the tactics of terrorism, doesn't mean I wouldn't cut off a terroist's head on national tv to support the war effort. Apply it as you will, to disliking judge made laws.
I submit, because it's the only way he might possibly win.
If you read the article Neo linked to, they said they probably knew this wouldn't win. They wanted to generate a public debate, because they knew the media would not give a damn about a Bill when they would about a lawsuit. It is clever and effective. And it works, proof example this debate here and among elsewhere.
like I said, his lawyers don't have the luxury to believe in the Constitution as we do. I don't blame them for it, they are lawyers after all. They got their own thing to do.
About the deadbeat dad scenarios. Current law discourages dead beat dads and encourage women getting pregnant from dead beat dads. Until you change that, complaining that dead beat dads would benefit from a change in legislation is being inaccurate. What you actually want is a law that encourages good dads, punish bad dads, encourage women to marry good dads and punish women who marry bad dads. That is what the law should do, rather than try and engineer child support as if we were back in the 50s and women couldn't work and were ostracized for being divorced.
Times have changed, laws should change with them. But just because the law has changed, doesn't mean you can bypass Constitutionality. A judge should conform to the Constitution as the law of the land, not make up whole new laws. If a judge conforms to his balance of powers, then I have no problem with victories derived from judges.
It's heartening that that has not happened here.
It is mostly because Neo writes via the long essay format. Semi-literate profanity users tend to avoid having to read long stuff. And when the comments are just as long, if not longer, than the OrigPost, then profanity users like the KosKidz tend to become disorientated.
She still gets emails, of course. People will email her things they would never say in the comments, since they would get eviscerated.
" I wonder, should Mr. Dubay prevail, if those of you who have been complaining about "judge-made law" will object to the result on the ground that "judge-made law" is bad and that legislators, not judges, should have overturned our existing child support laws?"
Indeed I stand by my assertion that 'judge-made' law is bad, but the following point is then that in order to demonstrate that fact, you have to carry that 'law' out to it's logical end, however distasteful, and reveal the inherant problem in the law for what it is. No conflict at all. I sat again, I, as I believe most on this side of the debate, don't like the results, but believe that at least they are consistant, and we must either live with that or change the root cause of the problem- the bad 'judge-made' law.
Also, the results wouldn't be a new 'judge-made' law, but rather the consistant application of a bad 'judge-made' law.
I think there's one point we're missing here.
The right being sought is not properly analogous to the woman's right to an abortion, but to those laws in almost all jurisdictions that allow a new mother to drop off her baby at a firehouse or hospital within three days of birth and ... just ... walk ... away ... with no legal rights or responsibilities after that [except that in California they can retrieve the baby within the first 28 days].
The fact that men can't do something a lot like that is fundamentally unequal treatment under the law.
The 72 hour clock should start as soon as the man first finds out about the fatherhood. In the case at bar that would have given the woman plenty of time for an abortion. In all cases it gives the mother an incentive to tell the father early, rather than create one of those ambush situations that one occasionally hears about in child support cases. In the status quo women have two incentives to delay notification: the men won't bond which means the judge is unlikely to award any visitation which gives the woman one less problem [from her standpoint] and a larger support check, and she gets to see if he'll become a high earner which may make support payments lucrative enough to make it worth the bother of dealing with him and risking some co-parenting.
-dk
This is what's happening to me at the moment and I don't understand much about laws, but would appreciate if someone could tell me what to do:
I am pregnant, almost 3 months along, and the father of this unborn child wanted to have this child but changed his mind when I was already pregnant. I guess he realized how much it'll cost to raise this child specially now that he's attending school full-time. Half of the times he wants this child but half of the time he doesn't.
We moved from one state in the west coast to another state in the east coast to start our lives together.
Things haven't been good, we've been argueing all the time and now with this child-to-come we don't know which way to go. He has asked me to leave, as we live in his relative's house I would be the one that has to go, many times and I can't do it, starting because of financial reasons.
I do not agree with abortion. But the father of this unborn child has been making me feel horrible and guilty for this pregnancy and for not opting to have an abortion. But as I said, sometimes he likes the idea of having the baby, sometimes he doesn't.
I love him but we can't continue to live the way we've been living. He says he loves me too but has asked me many times to leave him. And stating not to care about where I go or what I do.
What can I do? If I had his help with money I would leave. I have no place to go to, my family lives in another country and can't help me, and I'm this situation without any help, whatsoever.
It is very true that men are facing a lot of pressure and difficulties on every side. This is a true situation in many regions or countries. They are more likely to suffer from injustice in the absence of any structure or system to speak on their behalf for the sake of truth or justice. The people who commit the highest number of suicides for example are men and this was published in many reports and studies.
While the governments with their ugly politics keep mounting additional difficulties on them through forced laws, as they suffer injustice from an individual standpoint, they take no concern or empathy either to alleviate or to ease their situation. Why can't the state take responsibility for child support? It keeps its grip on everything including all the taxes and revenue. It seems that its aim is to rule like a power-hungry beast, safeguard a crooked system of votebank centric politics and corruption in its corridors.
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