Introduction
Scholars and think-tank researchers, as well as mainstream media and social media, increasingly focus on the “trouble with men.”
This attention is well deserved. Wholesale economic shifts have hollowed out the secure, well-paying jobs in the middle of the economy that once provided a source of security and status for many men without college degrees.
Men at the top of the socioeconomic ladder, who are disproportionately white and Asian, have adjusted, snaring the rewards of a new, more unequal society.
The majority of men, however, have not. Across multiple fronts, including educational attainment, employment, physical and mental health, and social integration, men and boys are struggling. A few statistics illustrate the scope of the problem: Men without bachelor’s degrees are 64% of the adult male population,
but since the 1970s, the labor-force participation of these men has decreased dramatically,
and their median wages have declined precipitously.
The overdose rate for men is rising sharply,
as is the rate of death by suicide;
overdoses and suicides are concentrated among men without a college degree.
Scholars agree that this crisis is rooted in structural economic changes,
but policy choices have exacerbated the declining economic prospects of men without college degrees. A heavy emphasis on incarceration makes it even harder for men—especially Black, Hispanic, and Native American men, who are overrepresented in prison and jail populations—to obtain jobs and integrate into society.
And the policy choice to tolerate a high level of child poverty has had profound impacts.
Childhood disadvantage affects educational and employment outcomes for all children, but the impact is more pronounced for boys than girls.
Moreover, these factors are compounding. Boys who struggle in school are unlikely to continue to college, but the pathways into the secure, well-paying jobs in the current economy often require a college degree. Thus, the disproportionate impact of childhood disadvantage on boys’ educational performance derails their life chances before they finish high school.
The decline in male well-being is not just a problem for boys and men. It is a problem for families. Men without college degrees have a hard time earning money to contribute to a family, and they have high rates of substance use and intimate partner violence.
These challenges make it difficult for men to sustain long-term relationships.
Indeed, 78% of women say they will not marry a man who does not have a steady job.
Instead, men without college degrees typically enter into short-term, less committed relationships and have children in the context of such relationships.
When the parents’ relationship ends, men tend to move to the periphery of family life, becoming less engaged with their children over time.
The number of affected men is substantial: One in four fathers in the United States lives apart from at least one child, and one in five fathers does not live with any of his children.
These family patterns stand in sharp contrast to the families of men with college degrees. Such men are usually able to secure well-paying jobs that can help support a family.
They generally find and sustain long-term partnerships, and they overwhelmingly have children within marriage.
College-educated men not only contribute significantly to family income, but they also increasingly share caregiving responsibilities with their spouse, albeit typically doing less than the spouse.
These couples tend to stay married, but if couples do divorce, fathers remain engaged in the lives of their children.
This divergence in family patterns—men with college degrees typically get married and stay married; men without college degrees are much less likely to get married and instead have short-term relationships—is a sea change in family life. In 1960, people with only a high school diploma married at nearly the same rate as college graduates.
Sixty years later, there is a gaping divide.
The challenges facing boys and men can be summed up in a word: isolation. Men are increasingly isolated from secure, status-enhancing jobs, family membership, and relationships with their children.
The isolation of fathers is a problem for everyone in the family. Many fathers want a larger role in their children’s lives, but they face barriers that can be surmounted only by strengthening their relationship with the mother.
Many mothers want fathers to play a larger role as well, but they are concerned about some of the issues fathers bring to the family.
And children want to get to know their parents and, ideally, have a relationship with both.
Family law is part of the problem. To begin—and this is the primary focus of this Essay—family law makes it harder for unmarried men without college degrees to maintain a relationship with their children. Over the last several decades, reforms to the substance and process of family law have increasingly sought to create and support “postdivorce families.”
This approach values ongoing involvement and cooperation of both parents. Shared parenting is the central custody principle, with rules and processes encouraging both parents to have substantial time with children. The transformation of family law also prioritizes parental autonomy, with states redesigning statutes, procedures, and personnel to encourage couples to reach their own settlements.
To these ends, family courts offer alternative dispute resolution mechanisms, counseling, and other support, recognizing that cooperation is essential to constructive two-parent involvement and that couples need help with co-parenting long after their romantic relationship is over.
At its core, this transformation recognizes and encourages the norm that fathers are both breadwinners and caregivers.
For married men and other fathers with the resources to access the family court system, the result has been a substantial increase in custodial awards and assistance in realizing the new paternal role.
For men facing economic precarity, however, the legal system does not help fathers realize the new norm of engaged fatherhood. The problem for these men is less the content of family law (although there is room for reform) than isolation from a formal legal system that encourages fathers to be hands-on parents. Unmarried parents have no legal tie to each other, so when they end their relationship, they do not need to go to court. As a practical matter, this means that unmarried couples typically are not channeled into the supportive parts of family law: the alternative dispute resolution processes, counseling, and other assistance that can strengthen fathers’ active membership in the family.
Instead, the ability of unmarried fathers to see their children is more likely to depend on the mother’s cooperation, which is not always forthcoming, and parents must figure out for themselves how to weather the conflicts, financial exigencies, and emotional crises that undermine family relationships.
In short, unmarried fathers do not benefit from the transformation in family law that has helped divorcing fathers maintain a relationship with their children.
The second way family law contributes to the isolation of men in their own families is the punitive enforcement of child support laws, a system that views lower-income men as breadwinners, not caregivers, and failed breadwinners at that. Married, college-educated fathers can afford to pay child support, and most do.
The legal system recognizes these men as caregivers by granting divorcing parents wide latitude in reaching their own bargain between custody and child support, with many men obtaining more custody and paying less support.
By contrast, the state often initiates child support proceedings on behalf of lower-income children, whether the custodial parent wants this or not.
And once in a proceeding, courts and administrative agencies insist that low-income men pay unrealistic amounts of child support, even if the men are unemployed or incarcerated.
Low-income parents rarely have legal representation, which hampers their ability to tailor custody and support orders to meet their individual circumstances and balance caregiving with economic support.
Even more troubling, the state often imposes punitive measures—including imprisonment for nonpayment—that drive fathers away from their families.
The result is a counterproductive system that deters the involvement of unmarried fathers and gives the greatest autonomy to couples who can afford lawyer-negotiated settlements.
Finally, family law isolates men from their families through the family regulation system (also known as the child welfare system).
Mothers are more likely than fathers to be subject to coercive state intervention, but the system undermines fathers who are involved, or wish to be more involved, with their children.
The state penalizes fathers who have not paid child support, sometimes by terminating fathers’ parental rights and sometimes by withholding family reunification services from the father.
In this way, the family regulation system makes paternal breadwinning a precondition for paternal caregiving. The system also treats fathers as threats. When the state investigates allegations of child abuse and neglect, it often resolves complaints by coercing mothers to separate from partners the state may regard as a threat, even when mothers have good reason for wanting fathers’ continued involvement with children.
This Essay offers solutions to each of these problems.
It argues that family law should bring men in from the periphery and make them less isolated in their own families. But it should do so on terms that work for both parents, rather than legally reimposing men on women. To these ends, this Essay proposes reforms to three areas of family law: custody rules and processes, child support, and family regulation. Across all three areas, the goal is to give families greater autonomy in shaping agreements, support to make these bargains workable, and opportunities for men to be active fathers. The proposals assume heterogeneity among families and preferences, and they recognize that shared parenting must be embraced rather than imposed. The reforms also reject the punitive approaches that often treat men as problems to be solved. More generally, the proposals seek to increase the role of men without college degrees as breadwinners and caregivers. In other words, the Essay argues that family law should help families—regardless of marital status—realize the new mainstream norm of shared parenting.
To address custody rules and processes, the Essay proposes adding an institutional alternative to family courts: community-based centers that are state-funded but operate wholly apart from the judicial system.
Drawing on an existing model,
these centers would encourage fathers, ideally together with the mothers of their children, to access dispute-resolution processes and needed services. The first step is to help parents devise an agreement about shared parenting. This includes legal advice about custody and child support options and assistance in making a detailed parenting plan. The next step is providing services that support shared parenting and spur the involvement of otherwise socially isolated fathers. These services will be varied and depend on the needs of the family, but they should include the following: employment assistance (preferably tied to employment subsidies or other financial incentives); counseling; supervised visitation, if needed for the safety of family members; and services to address intimate partner violence, mental health, and other behavioral issues.
In these ways, community-based centers would provide assistance in overcoming the obstacles to greater paternal engagement—involvement that many parents and their children desire. The centers would also aim to give couples greater ability to manage parenting on their own terms, and the centers would operate in the context of community norms, respectful of couples’ values and sensitive to the challenges facing lower-income families.
To address the problems with child support, this Essay proposes giving lower-income families the autonomy currently enjoyed by higher-income parents to negotiate their own support terms. The same community-based centers would help parents with these negotiations. With assistance, parents could decide and formalize an agreement about whether to have a support order, and, if so, the balance between cash and in-kind support and any offset for active caregiving. Further, this Essay argues in favor of radically rethinking state-initiated child support actions, which too often produce little money for families at a high cost to paternal engagement.
Finally, the Essay proposes reforms to the family regulation system that would promote family autonomy and paternal engagement. A critical reform is decoupling child support enforcement from the family regulation system. More broadly, the goal is to move decisionmaking authority out of courts and into the hands of families and communities—at least for the majority of cases.
A screening system would divert many if not most cases into community-based centers, where families could ask for and receive services that are better tailored to individual circumstances, more consistent with community-based values, and better designed to empower constructive parental decisionmaking. These centers would not be part of the surveillance apparatus of the family regulation system. To fund this work, states could channel at least some of the resources currently spent on the family regulation system into the centers.
Critically, the proposals do not replicate the results nor principles sometimes associated with the fathers’ rights movement. In that movement, advocates seek greater rights for fathers, often on the basis of biology or legal parental status alone, with presumptive fifty-fifty custody awards.
By contrast, this Essay’s approach acknowledges that unmarried lower-income women are more likely to have assumed primary responsibility for children since birth and to have substantial concerns about men’s behavior, such as substance use or violence.
Accordingly, the proposals promote paternal engagement on terms both parents can embrace. This requires both building parenting capacity through the provision of greater financial, counseling, and administrative support and ending the punitive approaches at the heart of the child support and family regulation systems. Most fundamentally, however, it requires increasing the respect and status associated with lower-income fathers assuming caretaking roles and giving lower-income families the ability to negotiate their own arrangements.
By addressing the family law aspects of the decline in male well-being, this Essay fills a significant gap in the literature. A few legal scholars have explored the challenges facing boys and men.
And family law scholars, including the authors of this Essay, have analyzed the problems facing nonmarital families.
But scholars largely have not brought these conversations together, using the research on the decline in male well-being to highlight the role of family law in male isolation and the impact on the entire family.
Before proceeding, three clarifying notes are in order. First, in focusing on men, this Essay does not intend to minimize the continuing difficulties facing women. Today’s society produces disproportionately male winners at the expense of most of the rest of the population, including women and nonbinary individuals.
This Essay is also cognizant of the growing calls to affirm traditional gender roles, including claims to restore male authority within the family.
In focusing on the disproportionate impact of social and economic changes on men without college degrees, the proposals do not seek to restore men to the head of the table but rather to give them a place at the table.
Second, although the Essay often uses marriage as a dividing line between family structures, the intention is not to valorize marriage.
Instead, the Essay uses this divide in family form for its descriptive power. As elaborated in this Essay, marriage has become a class marker that correlates with the ability to achieve a measure of economic security, relationship quality, family stability, and greater capacity to invest in the next generation. Marriage also correlates with greater paternal involvement, including maintaining a two-parent household throughout children’s minority and remaining involved in children’s lives when parental relationships end.
And the legal consequences of dissolving a marital relationship, as discussed below, are different from the dissolutions of nonmarital relationships in ways that affect the prospects of continuing two-parent involvement. The Essay nonetheless recognizes that families vary. For some families, cohabitation is indistinguishable from marriage, and patterns for many groups are different from the dominant divide. Black parents, for example, are less likely to be married but are more likely than other nonmarital families to maintain strong ties, at least while children are young.
This Essay assumes this heterogeneity of family forms and functioning and argues that family law needs to address the full range of family patterns.
Finally, the Essay focuses on men in different-sex relationships, in part because gay boys and men are faring better on the educational and economic measures of well-being than straight boys and men.
Additionally, although gay and bisexual boys and men face challenges on other measures of well-being,
there appears to be no research connecting these challenges to the formation of relationships between men. If researchers produce empirical work on that connection, it will be possible to extend the analysis in this Essay. Similarly, the available research on the decline in male well-being and family formation does not disaggregate the population by sex assigned at birth and gender identity. Although it is not possible to provide a comprehensive or distinctive analysis of how trans men and nonbinary individuals are faring, the solutions the Essay offers to strengthen family relationships, particularly the ties between nonresidential parents and children, should be available to everyone.
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This Essay proceeds in four parts. Part I offers a statistical portrait of the decline in male well-being before identifying the factors contributing to this decline. Part II describes and explains the impact on families. Part III analyzes how family law contributes to male isolation in the family, focusing on custody rules and processes, child support, and the family regulation system. Finally, Part IV provides solutions in each of these three areas as well as initial thoughts about a broader agenda for addressing the decline in male well-being. The structural macroeconomic forces that have isolated men in their own families may well deepen—whether through the expanded use of artificial intelligence or other means
—and now is the time for family law to respond.