As I have engaged and researched the divorce and custody world from different angles, I see that so much of what happens varies from state to state, and even from county to county. As a more libertarian thinker, I find this generally a good thing in theory. The fact that those closest to the people make the rules. The practice is something altogether different. Every state has its own divorce and marriage laws. There are some key things that vary between localities that can make a world of difference.
First Federal Law plays a big role in this. To give the illusion of uniformity there are some standards set up by Federal Law. One is that marriage carries a reciprocal agreement between the states. Basically if two people are legally allowed to be married in one state and they move to another state where they are allowed to be legally married, then that marriage will be honored by the other state. On the surface the relationships are the same. The standards that each party are held to can vary widely from state to state. None of this matters much, unless you are in divorce court. You enter into a marriage in a state that has limits on property division and maintenance, and you can end up getting divorced in state that has no limits and often decides to inequitably divide property. You may live in a state that infidelity matters or doesn’t when you marry, and move to state that is the opposite. Understand that this changes the deal. How a contract is broken is a part of the contract, so moving states changes the contract, and for most people they are unaware of the change of terms. What is worse, is one partner can move to a state that is favorable to them, and after meeting the residency period in than state, they can file for divorce. A ruse of moving for work or or schools or other factors, and the other spouse is to follow can allow one partner to choose a more favorable location to break the marriage contact. Infidelity can have a large effect in some states, and no effect in others. This again changes the terms of the contract.
These same principles are applied to child custody. There is even more Federal ambiguity added to the mix. Federal Law requires states to have child support formulas and systems in place, and have enticed them to up collections through matching funds. The results are that states have figured out that this is a profit center. So much so that my state has instituted in the guidelines for child support that the parent who earns more should pay child support to the other parent, when they share custody 50/50. This is because the state will get more matching funds with the higher calculation. Moving states changes the terms that you will have the when having kids with someone, and in divorce you may not know the terms were changed by moving across the state line. This is a major issues for people who live near state borders, and a large part of our population does. Trade and population centers are often along the state borders. It allows for companies to take advantage of changes in laws in both states without having to turn over an entire workforce. Whether you have shared custody or limited time, and how much you pay in child support is the domain of the state that the the kids go into the courts care either from divorce or birth depending on whether the parents are married. It doesn’t matter what the state laws were where you were married, because they don’t have the jurisdiction.
I am not a fan of the courts being in the middle of all this. I am also not a fan of state sanctioned marriage, but under the tax laws, its is hard to not accept the government domain in relationships. For most of us, we can’t afford to not accept it. I believe that it would be easier to combat the problems with the system, if there were simply one system. Marriage and child custody legislation should be largely federalized. Marriage and divorce should look the same in Miami, Chicago, Springfield, and Sacramento. It shouldn’t matter where you live,the contract should be the same. The terms you are breaking the contract under should be the same, and the issues of child custody and support should be the same. This is an area where we are constantly dealing with the rights of people and the constitution gets stomped on. If the laws are already under Federal purview, then it is more likely to receive the scrutiny it deserves. By the courts, by the president, and by congress. Even more importantly, it would be a valuable topic for the press to cover. No longer do you have the crazy people up in Nebraska making some kooky law for a few people in the high plains, but you have a singular standard that will affect nearly half the population. Most of the problems of the current laws would be absorbed by the Federal government, but now the few activists who want to fix things in each state can fight a unified battle to fix the problems with the system.
I think that long term, there needs to be a simple child custody rights amendment added to the constitution. This amendment should define clearly what the child’s rights are from their parents. I think these rights are pretty simple. They deserve food and shelter. They deserve an education. The deserve to be treated humanely, and to be free from abuse. They deserve a relationship with both a father and a mother. I say this knowing that homosexual couples will adopt children. I think there needs to be a provision that there is someone who has the rights to act as a father for the child. We need to reboot our thinking and accept that kids need male and female influences in their life. These relationships are important. I am not really sure how that one plays out, but I do think it is important. Relationships are imperfect, so this last one might be hard. This amendment should also define a parents rights. The parents rights should include the right to spend significant time with their children. The right to make decisions in their child’s life regarding health, education, and religion. The child has the right to an education, but the parents have the right to choose the manner of that education. It should define who has the ability to settle disputes and how they will be settled. I don’t think a courtroom is the right place. I think that perhaps court is the place where they can come to agreement as to who will settle disputes. This should be a trusted clergy person, therapist, or other person who will develop a relationship with both the parents and the children. There should also be a means for the the parents to change who that person is, because that person should be someone who is trusted by both parents to assist in these disputes. I am sure that there would be far more details than I can think of this moment, but it would have a tremendous effect on the process that we follow now.
This amendment would create a culture where men and women would not have to get married to raise kids together. I think it would be common that parents would have a parenting plan that would guide them in their decision making and living arrangements. I could see parents choosing to live together as a couple or simply as parents in a contract to raise a family together and to share the expenses of raising the children. I think in the long term, it is likely that men and women will choose to raise a family together and have separate romantic relationships. This is something that might even change how homes are built. I could see homes with three spaces in our future. A family space that has the kitchen, dining, living, and children’s spaces. A mothers apartment and a fathers apartment. Each apartment would have private sleeping, bathing, and limited cooking spaces. There would also be a private living room for each parent. The parents would be free to run their apartment as they please. They would share decision making on the shared spaces. The kids would no longer have to shuffle from father to mother. If the parents don’t get along well, they could schedule their time with the kids such that one is responsible for taking care of the kids and the larger portion of the home for a few days and then the other. The children would have easy access to both parents when they need or want them. Activities and homework can be a joint effort without either parent having to go to the others home. When romantic partners are in the house, they wouldn’t have to have any contact with the children. The arrangement could be simply for the time it would take to raise the kids to a certain age. This may not be an arrangement that everyone would want, but it is the type of flexibility that having an amendment that guarantees both parents and children certain rights with each other would lend itself to. Traditional marriage would still be an option. It would squash the current culture that surrounds the single mother heroes our society so loves. Men would have equal access to their kids, and financial responsibilities according to the law would be limited to the guaranteed rights of the children.
Without strong marriage, and we don’t have strong marriage, flexibility in parenting relationships is necessary. The current paradigm is one where men pay the bills and women take care of the kids. It is based on the illusion that this is what the marriage contract represented, and that it should be mimicked as much as possible. This is not what the contract was, and even if it were, the contract is void. The marriage is one that essentially says that I as a man will take care of you financially and protect you physically and in turn you will comfort me and care for my treasures, including my children. When that contract was broken, then the wife was left to figure out how to care for and protect herself. The man still provided for his children under his own roof. The only time a man was held to account, historically, as he is now was when he abandoned his family. If you read the legal path of how we ended up where we are, it is all based on the concept of women being abandoned with their children by men. This has never been the majority of the circumstances. It has always been far more common for women to choose to walk away from men. As a matter of fact, they were far more likely to walk away from their kids. They don’t do this now, largely because the money comes from having the children.
Its time to stop having different standards around the country. Its time to stop pretending that one dynamic works for all families. Its time to stop handing out cash and prizes to one person, while extracting them from the other. Its time to stop pretending that statistical averages actually define how people manage their money and lives. Its time to remember that all parties involved have rights. It is said that divorce is worse than having a spouse die. Part of that is because all the worst parts of the spouse are magnified in the current system, while the best parts are unavailable to you. In the death of a spouse, you lose the burdens with virtues. You are able to idealize the memory of that person. Your former spouse in divorce is remembered at their worst, because the current system encourages people to be their worst.