Reaffirming The Child Centered Perspective In Family Law Sociology Essay Example
Reaffirming The Child Centered Perspective In Family Law Sociology Essay Example

Reaffirming The Child Centered Perspective In Family Law Sociology Essay Example

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  • Pages: 11 (2892 words)
  • Published: July 24, 2017
  • Type: Research Paper
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With the growing number of individual households in America, there has been a notable emphasis on redefining marriage within family law.

The state's households are currently deteriorating and the traditional institution of marriage is declining. Many individuals or their loved ones have gone through divorce, which has become a common phenomenon. In 2009, the United States saw approximately 2,077,000 marriages occur with a rate of 6.8 per 1,000 Americans. At the same time, the divorce rate was at 3.4 per 1,000.

Marriage dissolution in the United States is prevalent, with around 50% of marriages ending in divorce. Furthermore, there has been an increase in the number of children born to unmarried mothers, with recent data indicating that over one-third of American children are born to unwed women. Cohabitation is also now widely acknowledged as a typical family arrangement, as evidenced by approximately 9%


of both men and women living together in the United States in 2002.

With the increasing recognition and credibility of non-traditional agreements in domestic law, more children are expected to grow up in single-parent families before transitioning into more complex family setups. This can be attributed to adults separating or forming new partnerships, whether officially or informally. From a child's perspective, family life has undergone significant changes. The deconstruction of marriage and family definitions, along with the emergence of new proposals, raises questions about the role family law should play in strengthening American families.

Many legal scholars argue that current trends in family law overlook an essential aspect: the well-being of the child. Dan Cere emphasizes that "New proposals in family law lack a true understanding of marriage's fundamental role as a social institution in safeguarding

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children's well-being." The abandonment of child-focused ideals of marriage is compared to how religious faith has been trivialized in an era dominated by free-market democracy and globalization.

The commitment of various faiths and churches, including the Roman Catholic Church, to combat the promotion of "irregular" theories about marriage and family has sparked controversy. This controversy has caused tensions and divisions within families, particularly affecting children. Despite society no longer considering a child-centered perspective on marriage fashionable, it is important to carefully consider the significant consequences that can arise from a shift in family law towards a model focused on close relationships or couples. This may explain why countries that have legalized same-sex marriage have seen an increase in proponents of the traditional view of marriage as a social institution connected to reproduction. In this article, we will critically analyze the child-centered model of marriage by discussing Dan Cere's ideas presented in The Future of Family Law and Pope John Paul II's views outlined in his Letter to Families.

Part 1 explores the various theoretical models of marriage in the context of family law. Part 2 delves into the religious justifications for child-centered arguments and evaluates their points. Lastly, Part 3 presents empirical data supporting the child-centered model's argument that public policy and family law should protect and benefit marriage as a promise of hope for our children.

I. Two theories: the competing perspectives in the "connubial" and "close relationship" models in family law. Family law is perhaps the most significant area of law as it directly affects people's quality of life. As John Dewar of the University of Australia states, few areas of law generate as much controversy

and disagreement as family law.

It is a topic that affects us all, and many of us have personal experience with it. Few countries have laws that impact so many people’s everyday lives as much as this topic. However, as societies have progressed, the definition of marriage and family has become a subject of debate. It can even be said that we are approaching a point in family law where two conflicting theories are shaping and influencing it.

One theory follows the traditional concept of marriage, emphasizing its marital nature and defining it as a heterosexual union focused on reproduction and raising children. The other theory highlights the importance of family diversity and argues for a definition of marriage that prioritizes couples rather than children.

There are two conflicting perspectives on marriage. The first viewpoint, known as the connubial position, argues that marriage is a societal institution regulated by the government. On the other hand, the close relationship position supports separating marriage from state control.

Cere's perspective suggests that family law in North America tends to align with the close relationship position. This can be seen in the recognition of same-sex marriages in many US states. However, this viewpoint also sees marriage and family as unstable societal institutions with unnoticed consequences.

Both Cere and Pope John Paul II express concern about the troubled state of families and call for prayers during this challenging period.

Marriage and Judicial Involvement

The courts have increasingly played a role in redefining the definitions of marriage, family, and parentage.

Under the Bush administration, the DOMA (Defense of Marriage Act) was implemented to safeguard traditional marriage. Despite efforts by proponents of inclusivity and growing support for same-sex marriage, America's

preference for the conventional viewpoint became apparent during Bush's tenure. Although two states have legally redefined marriage to encompass same-sex couples, numerous state high courts resist doing so. Currently, 41 states uphold their definition of marriage as between a man and a woman. Nonetheless, there has been an unparalleled emphasis on intimate relationships within family law and public policy history.

The push for gender-neutral marriage, influenced by liberal democratic beliefs in freedom and equality and the feminist movement, has caused debates about the purpose of marriage. Some extreme viewpoints question whether society needs marriage at all. The marital view of marriage represents a broad understanding of the institution. In this view, marriage is the union between a man and a woman who promise fidelity, love, care, and joint responsibility for raising children born from their union. Essentially, the marital model focuses on the reproductive aspect of marriage. The marital marriage has three key characteristics.

Marriage as a Bridge between the Sexes

According to Cere's study, marriage is distinct from other intimate relationships because it acts as a bridge between genders. Marriage disregards various sexual preferences and focuses solely on opposite-sex familiarity. The essence of marital unity lies in bridging the divide between males and females and overcoming associated challenges. Recognizing that sexual desires greatly impact human sociability, this bridge holds significant importance. Both men and women seek sexual fulfillment to establish connections with others while acknowledging our inherent self-centeredness.

Just as business communities use various strategies to increase profits by satisfying their customers, individuals also seek partnerships to satisfy women and vice versa. If this unregulated heterosexual world, where society or law chooses to ignore the natural sexual attraction

between men and women, is allowed to prevail, it will result in a societal disaster of endless failed relationships and children without fathers. Amidst this apparent chaos, stability is provided by the reproductive aspect. When mothers develop strong bonds with their children and men and women form deep connections with their respective sexual partners, a semblance of order is established. Men's inherent possessiveness over their "sexual domain" offsets their inclination towards sexual promiscuity. These unique attachments and desires arise from the inherent biology of men and women.

Marriage offers legal protection for the concept of "sexual complementarity". As a civil institution, marriage promotes and stabilizes reproduction and establishes the connection between sexual activity and its consequences, regardless of intention. Justice Cordy, in his dissenting opinion in the case of Goodrich v. Department of Public Health, explained how the official recognition of heterosexual behavior provided by marriage is essential in binding a mother and father as parents, and a society without this would be chaotic.

"The significance of the interaction between genders is pivotal to the achievement of societal organization and stability."

"A Social Institution"

Marriage is a crucial institution in civil society, bridging the gap between genders. It provides a space for continuous negotiation of differences, building intimate partnerships, and creating stability for children. Additionally, marriage regulates heterosexual behavior and promotes stability, elevating it from a personal relationship to an institution that greatly contributes to societal order.

In The Second Treatise on Government, John Locke states that marriage is a consensual agreement between a man and woman. It encompasses physical intimacy for procreation as well as mutual support, shared interests, and the responsibility of caring for and providing for children.

Rawls posits that the family is society's essential institution and has a vital role in transmitting norms and behaviors to future generations. Consequently, it is imperative for the government to establish measures that protect the welfare of both children and the community through sexual relations and intimacy.

The traditional notion of marriage is being challenged by supporters of the alternative "close relationship" model. This model prioritizes the welfare of children and sees marriage as primarily focused on reproduction. Although not all couples may want to have kids, heterosexual sexual relationships can lead to offspring. Marriage, as a State-recognized and regulated institution, is seen as offering the best support for children. Regardless of changes in sexual relationships and family structures, ensuring the well-being of children always remains an important consideration.

William Galston argues that the welfare of children should be a fundamental consideration in shaping policies relating to marriage and its impacts. He advocates for a child-centered "national family policy" that recognizes the potential of marriage, despite its flaws, in providing the best environment for raising children and cultivating capable, caring, and responsible adults. Galston expresses doubt that abolishing marriage, flawed as it may be, could possibly lead to improved lives or a better society for our children.

Marriage as a Close Relationship

A decline in child-centered marriages in North America is being noted by a decreasing number of scholars and legal experts. Nowadays, couples who choose to marry are less likely to prioritize having children in their marriage plans. The conventional idea of a happy marriage revolving around children is being modified in modern society. It is increasingly common for many adults to live without children

(emphasis added).

The child-centered theoretical model is being challenged by the alleged "close-relationship" or "couple-centered theoretical model" which changes the concept of marriage from "a child-based public institution to an adult-centered private institution". Cere and other marriage theorists fear that the growing acceptance of the close relationship model may weaken the institution of marriage in general, to the detriment of society. This alternative theory on marriage has these defining features:

Gender-Neutrality and Diversity

According to Cere, the close relationship model directly undermines the traditional definition of marriage as a heterosexual union focused on reproduction and raising children. Instead, this alternative model emphasizes diversity and gender neutrality, supporting non-traditional families and advocating for recognition of same-sex unions.

In the 1980s, scholars and academic groups started studying the close relationship theory, which emphasizes the formation of personal relationships. This theory considers marriage as a specific type of close relationship that individuals establish for their own satisfaction. Consequently, marriage is no longer as highly regarded as a social and legal institution, reflecting societal trends.

The original purpose of marriage, which was to negotiate wealth and possessions, has decreased due to alternative economic systems. Although marriage is still considered the preferred arrangement for sexual relations, non-marital sexual relationships have become less stigmatized after the sexual revolution and feminist ideology. The emphasis on child-rearing in marriage has also shifted due to the increase in children born out of wedlock and teenage pregnancies. Moreover, cultural changes such as higher divorce rates and the pursuit of finding a "soul mate" have redefined perceptions of happiness within marriage. Nowadays, individuals no longer gauge their happiness based on marital status or having/raising children

but rather on authentic connections known as "pure relationships."

The concept of happiness, particularly in Western democracies, is essentially a "committed friendship" with someone. By defining marriage as merely another variation of a close relationship, the distinct impacts that arise from such a partnership are overlooked and silenced. Consequently, what makes marriage unique - its role in bridging sexuality and reproduction - is disregarded in the theory of close relationships. Additionally, the interests of children are being pushed aside in the context of marriage. The theory of close relationships no longer considers the traditional marital model as the best case study for human relationships. Objectively, the marital perspective no longer aligns with reality because it promotes inequality by disregarding the experiences of women and sexual minorities, such as homosexuals and lesbians.

The close relationship theoretical model emphasizes the importance of protecting the various forms of intimacy in family law. The family diversity perspective challenges the conventional nuclear family structure and advocates for equal treatment of other forms of agreements like cohabitation. The alternative model also challenges the heterosexual definition of marriage by including same-sex unions in the definition.

De-Privileging Matrimony.

By either placing "traditional" and "non-traditional" forms of marriage on equal footing or by questioning the regulatory role of the State in marriage, the close relationship theory de-privileges marriage. Supporters of this theory argue that equality necessitates recognizing non-traditional forms such as cohabiting couples, singles, and gay and lesbian families, so that everyone can benefit from the advantages associated with marriage.

The study by the American Law Institute suggests that household law should focus on "relationships that may be identical to matrimony" rather than

on "legal formalities." Similarly, the Canadian study Beyond Conjugality advocates for a reorganization of household law based on the "substance" of relationships, rather than their formalities. Both studies argue that non-traditional forms of relationships should receive social support, as long as they do not cause harm, similar to the support provided to traditional marriages.

The concept of couple-centered brotherhood is another key aspect of the close relationship model. This model emphasizes the fluidity and lack of permanency in human relationships. By considering marriage as an "adult-centered" institution, it loses its normative nature. Individuals have a wide range of choices regarding the relationships they choose to participate in, and marriage becomes a flexible concept.

The definition of matrimony has been revised to refer only to "an emotional endeavor, with high returns and high hazards" and "a map of single committednesss and adjustments." The sentiment in Goodridge vs. Department of Public Health emphasizes the conceptualization of matrimony as an institution based on adult commitment, not on family and children. Marriage was defined as a "critical societal institution" which provides several public and private benefits and which consists of a "deeply personal" relationship that fulfills humanity's "longings for security, safe oasis, and connection."

''The importance of sentiment is that the court shifted the focus from the differences between children raised in same-sex and opposite-sex families to the similarities, which justify equal provision of marriage and its benefits. The statement 'A woman without a man is like a fish without a bike' represents a radical expression of a commonly held belief. While unions between men and women might not be entirely unnatural, like fish and bikes, they are unnecessary.''

The recognition of the

diminishing importance of work, especially for husbands, should have served as a clear indication of the troubled state of marriage in America. However, we were preoccupied with other political issues such as the women's movement, as well as divisions based on race and class. The increase in births outside of marriage among low-income African Americans did catch our attention, but we tended to view it as a problem specific to that community, rather than a reflection of a broader social trend. Regardless of whether we acknowledged it or not, men were increasingly being seen as unnecessary. Middle-class professional women were able to support themselves financially without relying on a chauvinistic husband, while low-income mothers found it more convenient to marry the local welfare department than deal with the uncertainties of an unreliable spouse.

The appearances were different: "I can make anything a man can make" from the middle class; "I can make bad by myself" from the poor. However, the trend was the same. Men - husbands - were increasingly unnecessary. My theory is that men began to become unnecessary when they started to become unreliable. Again, the trend showed itself differently among the middle class and the poor. For the former, it was the growing "pragmatism" regarding the temporary nature of marriage, culminating in no-fault divorce.

For the latter, there was an increasing likelihood that an unfortunate adult male, specifically an unfortunate urban black adult male, would be an unfortunate source of economic support. However, whether it was due to a fear of a divorce that would expose their vulnerability or a fear of an economy that would leave their men without any support, American women

learned to view men as ultimately unreliable. Reliability and necessity had always been the great appeals of men. Quite a few male chauvinists have been saved by their reputation as a dependable "family man" or "reliable breadwinner."

"Remove the duplicate attractive forces, and work forces appear emotionless, unsatisfying, and unfair. Who needs them? As a result of these factors, marriage may be in more trouble than we realize. We marry later (if at all), divorce earlier, and treat what we now consider the 'traditional' marriage contract with increasing contempt."

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