74 Pages Posted: 14 Mar 2015 Last revised: 21 Nov 2017

Date Written: March 12, 2015

Abstract

A vast literature documents the history of the women’s and gay liberation movements in the late twentieth century, but we still know little about how heterosexual men navigated dramatic change in the legal regulation of families. This Article provides the first legal history of the fathers’ rights movement. It analyzes how middle-class white men responded to rising divorce rates by pursuing reform in both family law and welfare policy. This history offers novel insight into the relationship between the private law of divorce, which regulates largely middle-class families, and public welfare state policies, which have the greatest effect on poor families. This Article challenges the assumption that these private and public family law systems operate in parallel, showing instead that they are interdependent.

Through the mid-twentieth century, marriage shaped the relationship not only between men and women but also between middle-class men and the state: men supported children and wives in exchange for legal protection of male familial authority. In the 1960s and 1970s, escalating divorce rates and the emergence of no-fault divorce laws upset this balance. By the mid-1980s, activists and federal and state legislators forged a new political compromise: fathers’ rights activists conceded ongoing child support obligations in exchange for greater access to custody upon divorce. This “divorce bargain” catalyzed a shift from common law presumptions favoring maternal custody to statutory recognition of joint custody. In so doing, it reinforced private rather than public responsibility for children living in nonmarital families.

The divorce bargain promoted formal equality and sex neutrality within private family law, but also entrenched gender and class inequalities. The bargain failed to challenge women’s disproportionate responsibility for childrearing within marriage, yet enabled men to use custody rights as leverage in child support and spousal maintenance negotiations. In addition, tying paternal responsibilities to custody rights advanced middle-class men’s caregiving interests but hurt those of low-income fathers who could not afford to pay child support. The state vilified these men as “deadbeat dads” who did not merit legal protection. The history of fathers’ rights advocacy for the divorce bargain, therefore, reminds us not to confuse liberalism with equality.