By Leah Ward Sears
Monday, October 30, 2006
For the first time in history, less than half of U.S. households are headed by married couples. And on Sept. 29, the Centers for Disease Control and Prevention released data showing that almost 36 percent of all births are the result of unmarried childbearing, the highest percentage ever recorded.
In family law, as in the rest of American society, there is an intensifying debate about how we should respond to this kind of news. Should law and society actively seek new ways to support marriage? Or should family law strive to be marriage-neutral by providing more rights and benefits to its alternatives, such as cohabitation and single parenthood?
Some family law experts argue that our most pressing need is to find ways to equally support a wide variety of family forms. For example, the respected American Law Institute, an organization of judges, lawyers and legal scholars that periodically drafts model laws and other proposals for legal reform, has proposed a new set of laws that promotes this "family diversity model." In "Principles of the Law of Family Dissolution," some ALI scholars argue that family law should focus less on trying to channel people into marriage and more on being "fair" to people in different relationships -- in other words, that it should take families as it finds them.
I am not a law professor. But from where I sit as chief justice of the Supreme Court of Georgia, a family law that fails to encourage marriage ignores the fact that marriage has long been associated with an impressively broad array of positive outcomes for children and adults alike. Experts who contend that we need to move "beyond marriage" say they are only responding to the facts. But here is one major fact: High rates of family fragmentation hurt children.
For example, studies have consistently shown that children raised outside marriage suffer disproportionately from physical and mental illness; are more likely to drop out of school, abuse drugs or alcohol, and engage in violence or suffer it in their homes; and are less likely to attend college. Child Trends, a nonpartisan research organization summed up the evidence in 2002: "Children in single-parent families, children born to unmarried mothers, and children in step-families or cohabiting relationships face higher risks of poor outcomes."
Of course, many hard-working single parents do an excellent job of raising children, and they need our support, too. But I believe that building a healthy marriage culture in America is a legitimate concern for family law.
I am not alone. For example, "Reconceiving the Family," a new book published by Cambridge University Press critiquing the ALI's "principles," has contributions from 27 family law scholars, including two other state supreme court chief justices. The Institute for American Values recently published a statement, signed by many legal and family scholars, that concluded that "a prime goal of family law should be to identify new ways to support marriage as a social institution so that each year more children are protected by being raised within the marital unions of their parents." Moreover, the supreme court in my state just established a Commission on Children, Marriage and Family Law with an important goal: to find ways to reduce unnecessary divorce and unmarried childbearing.
Why are state judges such as myself so concerned about strengthening marriage? Start with the basics: Fragmenting families are flooding our court dockets. Since I became a trial judge in 1989, the percentage of domestic relations cases has risen sharply; they now account for 65 percent of all cases in Georgia at the Superior Court level. Last year more than 14,000 children were in the care of the Georgia Division of Family and Children Services, and nearly 24,000 were admitted to a youth detention center. One out of every four Georgia children under 18 has a case with the Office of Child Support Enforcement.
These figures are typical of what is happening in every state. For judges, they represent a difficult workload. For families, they represent an astonishing level of necessary but intrusive government oversight. For government, they represent a mountain of resources that could be used for other purposes. For children, they are a tragedy.
As a judge I am often frustrated that I must work within a system designed only to pick up the pieces after families have already fallen apart or failed to come together. We must work to prevent family fragmentation, because the consequences for children and society are severe.
If we look for solutions, we will find them. What we do not yet know how to accomplish, we can learn. Americans believe that problems, no matter how difficult, should be addressed and not merely endured. Whether it is racism, crime or poverty, Americans believe that we can find ways to make a difference. Accepting the decline of marriage as inevitable means giving up on far too many of our children. They deserve better than that.
The writer is chief justice of the Supreme Court of Georgia.