ROUND THREE

MND Roundtable Discussion on
Fathers' Rights and the Marriage Movement

Rebecca O'Neill has a talent for finding an Achilles' heel. Her concern about unmarried fathers is one of the most vexing dilemmas for fathers' rights. I concentrated on marriage because I thought this was supposed to be a dialogue with marriage advocates. I share her reservations about the "conservative" position. It seems to assume that a father's right and desire to see his own children is some kind of selfish privilege that benefits only him and not his children. As Ms. O'Neill seems to be saying, the right to be a father is also the duty to be a father.

But I also understand the conservatives' concerns. Marriage should be privileged somehow; one should get some protection in exchange for one's commitment. What advantages does marriage confer if unmarried fathers have the same rights as married? Put another way, what is the point in marrying if it confers to protection from government interference. I believe, and I think most dispassionate outside observers believe, that society has a legitimate interest in demanding that a couple make a formal (and yes, legally binding) commitment to stay together during the childhood of any child they have together. And I think refusal to recognize this is one of the greatest weaknesses of some (but only some) in the fathers' rights movement. A man who has a child out of wedlock has made a serious mistake. But he has made no more of a mistake than the woman with whom he made it, and I'm not sure he should be excluded from the children any more than she or that they need him any less.

So if we want to privilege marriage and ensure that as many children as possible have intact families but still allow those who do not to approximate this ideal by having fathers as well as mothers, here are the principles I propose: 1) A married parent who is legally unimpeachable and has not given grounds or consent to a divorce has an absolute right not to be interfered with by the government in any way in the raising of his or her children. If his or her spouse wants out of the marriage, that spouse presumably knows where the door is and may avail her/himself of it. 2) An unmarried parent who is legally unimpeachable and willing to marry should get custody in preference to a parent who is unwilling to marry. 3) An unmarried couple neither of whom is willing to marry or who cannot marry for some reason (perhaps one is married) should have joint custody of any children they have together. By having a child out of wedlock in circumstances where they will not or cannot marry, they have given the state an interest in ensuring the wellbeing of their children and have justified state intervention.

Notice that this is not a necessarily "presumption of joint custody." Joint custody involves state interference in private life. Even at its most equitable it deprives each parent of his and her children 50% of the time (and the children of one parent 100% of the time). The parent in 1) and 2) has not given grounds and should be left alone. This is the only position that is compatible with the centuries-old common law principle that an innocent citizen minding his/her own business has a right to be left alone in his/her own him with his/her own children.

Stephen Baskerville