Poverty Law

Introduction Scholars and think-tank researchers, as well as mainstream media and social media, increasingly focus on the “trouble with men.”[footnote]For a small sampling, see Richard V. Reeves, Of Boys and Men: Why the Modern Male Is Struggling, Why It Matters, and What to Do About It, at xv (2022) (exploring the systemic roots of the social, educational, and economic challenges facing boys and men); David Shields, The Trouble with Men: Reflections on Sex, Love, Marriage, Porn, and Power 3 (2019) (discussing masculinity issues from a personal perspective); Christine Emba, Opinion, Men Are Lost. Here’s a Map out of the Wilderness., Wash. Post (July 10, 2023), https://www.washingtonpost.com/opinions/2023/07/10/christine-emba-masculinity-new-model/ (on file with the Columbia Law Review ) (describing the disorientation of many men in light of changing norms of masculinity and the political right’s efforts to engage men); Katelyn Fossett, Introducing the Masculinity Issue, Politico (July 14, 2023), https://www.politico.com/newsletters/politico-weekend/2023/07/14/the-masculinity-issue-00106295 [https://perma.cc/VQV2-CUNH] (noting the contemporary cultural significance of the politicization of masculinity); Brenda Hafera, Our Lost Boys, Heritage Found. (Apr. 5, 2023), https://www.heritage.org/marriage-and-family/commentary/our-lost-boys [https://perma.cc/HZG2-63TB] (“[W]e cannot overlook the fact that our boys are floundering and bereft of purpose.”).[/footnote] 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.[footnote]See infra note 125 and accompanying text. As described in section I.B.1, white men without college degrees were far more likely than Black men without college degrees to hold these jobs, although Black men did make some gains, especially in the middle of the twentieth century. See infra note 132 and accompanying text.[/footnote] 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.[footnote]See PINC-11. Income Distribution to $250,000 or More for Males and Females., U.S. Census Bureau, https://www.census.gov/data/tables/time-series/demo/income-poverty/cps-pinc/pinc-11.html [https://perma.cc/8HED-KAY3] [hereinafter U.S. Census Bureau, Income Distribution] (last updated Aug. 16, 2024) (showing that of the men who earned at least $250,000 in 2023 and did not report being more than one race or ethnicity, approximately 74.7% were white, 12.6% were Asian, 6.9% were Hispanic, and 4.8% were Black); Quick Facts: United States, U.S. Census Bureau, https://www.census.gov/quickfacts/fact/table/US/RHI125222#RHI125222 [https://perma.cc/FP3Y-8ZX4] (last visited Aug. 8, 2024) (showing that in 2023, the population in the United States was 58.4% white, 19.5% Hispanic, 13.7% Black, and 6.4% Asian).[/footnote] 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,[footnote]See Table 104.20. Percentage of Persons 25 to 29 Years Old With Selected Levels of Educational Attainment, by Race/Ethnicity and Sex: Selected Years, 1920 Through 2023, Nat’l Ctr. for Educ. Stat. (Oct. 2023), https://nces.ed.gov/programs/digest/d23/tables/dt23_104.20.asp [https://perma.cc/3DE8-WV8S] [hereinafter Nat’l Ctr. for Educ. Stat., Table 104.20] (showing that in 2023, of men between ages twenty-five and twenty-nine, 35.9% had earned a bachelor’s degree or higher level of education).[/footnote] but since the 1970s, the labor-force participation of these men has decreased dramatically,[footnote]In 1970, the labor-force participation of men with a four-year college degree was 96.1%, and it was even higher for men with only a high school diploma, at 96.3%. See Labor Force, Employment, and Earnings, in The Statistical Abstract of the United States: 1996, at 389, 395 tbl.617 (116th ed. 1996), https://www2.census.gov/library/publications/1996/compendia/statab/116ed/tables/labor.pdf [https://perma.cc/A8XA-YKXU]. In 2019, men with a college degree continued to participate in the labor force at a high rate—91.1%—but the labor-force participation of men with only a high school diploma dropped to 80.8%. See Women in the Labor Force: A Databook, at tbl.8, U.S. Bureau Lab. Stat. (Apr. 2021), https://www.bls.gov/opub/ reports/womens-databook/2020/home.htm [https://perma.cc/KZM8-T5P6] [hereinafter U.S. Bureau of Lab. Stat., Women in the Labor Force].[/footnote] and their median wages have declined precipitously.[footnote]See Steven Ruggles, Patriarchy, Power, and Pay: The Transformation of American Families, 1800–2015, 52 Demography 1797, 1811 (2015) [hereinafter Ruggles, Patriarchy, Power, and Pay] (“In 1961, young men were making four times what their fathers had made at about the same age. For the past three decades, the younger generation has consistently done worse than their fathers. Overall, generational relative income dropped a stunning 80 % since its peak in 1958.”).[/footnote] The overdose rate for men is rising sharply,[footnote]See Nat’l Acads. of Scis., Eng’g & Med., High and Rising Mortality Rates Among Working-Age Adults 222 fig.7-1, 223 (Kathleen Mullan Harris, Malay K. Majmundar & Tara Becker eds., 2021) (on file with the Columbia Law Review ) (documenting the increase for both men and women but the higher overall rates for men); see also infra text accompanying notes 104–107. This trend has grown since 2010.[/footnote] as is the rate of death by suicide;[footnote]See Nat’l Acads. of Scis., Eng’g & Med., supra note 7, at 284–86 (discussing the increase in suicide mortality for men).[/footnote] overdoses and suicides are concentrated among men without a college degree.[footnote]See id. at 284–86; see also infra text accompanying notes 102–110.[/footnote] Scholars agree that this crisis is rooted in structural economic changes,[footnote]See infra section I.B.1.[/footnote] 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.[footnote]See infra text accompanying notes 141–148.[/footnote] And the policy choice to tolerate a high level of child poverty has had profound impacts.[footnote]See infra text accompanying notes 150–155. As discussed below, a fourth factor in the decline of male wellbeing is technology, which has lured boys and men to move much of their social lives online and retreat from the analog world. See infra section I.B.[/footnote] Childhood disadvantage affects educational and employment outcomes for all children, but the impact is more pronounced for boys than girls.[footnote]See infra text accompanying notes 152–155.[/footnote] 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.[footnote]See infra text accompanying notes 152–155.[/footnote] 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.[footnote]See infra text accompanying notes 184–187; see also Kesha Baptiste-Roberts & Mian Hossain, Socioeconomic Disparities and Self-Reported Substance Abuse-Related Problems, 10 Addict Health 112, 116 tbl.2 (2018) (finding that among those who reported using alcohol and drugs, individuals without any college education were more likely to have substance-use-related problems).[/footnote] These challenges make it difficult for men to sustain long-term relationships.[footnote]See June Carbone & Naomi Cahn, Marriage Markets: How Inequality Is Remaking the American Family 73–74 (2014) [hereinafter Carbone & Cahn, Marriage Markets] (explaining that greater economic inequality has changed the ways that men and women match up, undermining relationship stability).[/footnote] Indeed, 78% of women say they will not marry a man who does not have a steady job.[footnote]Wendy Wang & Kim Parker, Pew Rsch. Ctr., Record Share of Americans Have Never Married 6 (2014), https://www.pewresearch.org/social-trends/wp-content/uploads/sites/3/2014/09/2014-09-24_Never-Married-Americans.pdf [https://perma.cc/C2C4-VYV8] (providing this statistic and noting that 46% of men say the same).[/footnote] Instead, men without college degrees typically enter into short-term, less committed relationships and have children in the context of such relationships.[footnote]See infra text accompanying notes 184–195.[/footnote] When the parents’ relationship ends, men tend to move to the periphery of family life, becoming less engaged with their children over time.[footnote]See infra text accompanying notes 192–204.[/footnote] 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.[footnote]See Lindsay M. Monte, The Two Extremes of Fatherhood, U.S. Census Bureau (Nov. 5, 2019), https://www.census.gov/library/stories/2019/11/the-two-extremes-of-fatherhood.html [https://perma.cc/ZG9S-M8JF]. Nearly three out of four fathers (72.6%) live with all of their children. Id. These statistics are for all nonresidential fathers, not only nonresidential fathers without a college degree. Nonetheless, for the reasons this Essay describes, men without college degrees are more likely to live apart from their children than men with college degrees.[/footnote] 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.[footnote]See Katherine Schaeffer, 10 Facts About Today’s College Graduates, Pew Rsch. Ctr. (Apr. 12, 2022), https://www.pewresearch.org/short-reads/2022/04/12/10-facts-about-todays-college-graduates/ [https://perma.cc/H35J-C59Z] (“College graduates generally out-earn those who have not attended college, and they are more likely to be employed in the first place.”).[/footnote] They generally find and sustain long-term partnerships, and they overwhelmingly have children within marriage.[footnote]See infra text accompanying notes 177–183.[/footnote] 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.[footnote]See infra text accompanying notes 219–223 (describing these patterns and noting that unequal caregiving is typical for different-sex married couples but not same-sex couples, who tend to have a more equal split of caregiving responsibilities).[/footnote] These couples tend to stay married, but if couples do divorce, fathers remain engaged in the lives of their children.[footnote]See infra text accompanying note 181.[/footnote] 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.[footnote]See D’Vera Cohen, Jeffrey S. Passel, Wendy Wang & Gretchen Livingston, Pew Rsch. Ctr., Barely Half of U.S. Adults Are Married—A Record Low 8 (2011), https://www.pewresearch.org/wp-content/uploads/sites/20/2011/12/Marriage-Decline.pdf [https://perma.cc/6CHC-CTGL] (explaining that in 1960, 72% of individuals aged 18 and older with only a high school diploma or less were married, as compared with 76% of individuals with a college degree).[/footnote] Sixty years later, there is a gaping divide.[footnote]See Lisa Carlson, Marriage in the U.S.: Twenty-Five Years of Change, 1995–2020, at 2 fig.3 (2020), https://www.bgsu.edu/content/dam/BGSU/college-of-arts-and-sciences/NCFMR/documents/FP/carlson-marriage-25-years-change-fp-20-29.pdf [https://perma.cc/MP4Q-QKGM] (finding that for women aged eighteen to forty-nine, 66% of college graduates in 2020 had ever married, as compared with 52% of women with only a high school diploma).[/footnote] 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.[footnote]See infra note 123 and accompanying text.[/footnote] 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.[footnote]See infra section II.A.2.[/footnote] 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.[footnote]See infra section II.A.2.[/footnote] And children want to get to know their parents and, ideally, have a relationship with both.[footnote]See infra section II.A.2.[/footnote] 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.”[footnote]See Jana B. Singer, Dispute Resolution and the Postdivorce Family: Implications of a Paradigm Shift, 47 Fam. Ct. Rev. 363, 363 (2009) (“[A]cademics and courts reformers have argued that family courts should abandon the adversary paradigm, in favor of approaches that help parents manage their conflict[s] and encourage them to develop positive postdivorce co-parenting relationships.”). There is still room for improvement. See Clare Huntington, Failure to Flourish: How Law Undermines Family Relationships 81–108 (2014) [hereinafter Huntington, Failure to Flourish] (describing the ongoing problems with this area of family law).[/footnote] 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.[footnote]See infra text accompanying notes 252–268.[/footnote] 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.[footnote]See infra text accompanying notes 252–268.[/footnote] At its core, this transformation recognizes and encourages the norm that fathers are both breadwinners and caregivers.[footnote]See infra section III.B.1; see also Joseph H. Pleck, American Fathering in Historical Perspective, in Changing Men: New Directions in Research on Men and Masculinity 83, 93 (Michael S. Kimmel ed., 1987) (describing the emergence of a new model of fatherhood in the last quarter of the twentieth century that embraced men as both breadwinners and active caregivers).[/footnote] 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.[footnote]See infra text accompanying notes 253–257.[/footnote] 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.[footnote]See infra section III.B.2.[/footnote] 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.[footnote]See infra section III.B.2.[/footnote] 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.[footnote]See infra text accompanying note 296.[/footnote] 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.[footnote]See infra text accompanying note 261.[/footnote] By contrast, the state often initiates child support proceedings on behalf of lower-income children, whether the custodial parent wants this or not.[footnote]See infra text accompanying note 303.[/footnote] 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.[footnote]See infra text accompanying notes 295–298.[/footnote] 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.[footnote]See infra text accompanying notes 295–298.[/footnote] Even more troubling, the state often imposes punitive measures—including imprisonment for nonpayment—that drive fathers away from their families.[footnote]See infra text accompanying notes 302–311.[/footnote] 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).[footnote]Professor Dorothy Roberts and other critics call what has traditionally been known as the child welfare system the “family-policing system” or the “family regulation system” to argue that it does not promote child welfare and instead polices or regulates families. See Dorothy Roberts, Torn Apart 3 (2022); Dorothy Roberts, Opinion, Abolishing Policing Also Means Abolishing Family Regulation, The Imprint (June 16, 2020), https://imprintnews.org/child-welfare-2/abolishing-policing-also-means-abolishing-family-regulation/ [https://perma.cc/5P72-X79H]. This Essay adopts that nomenclature.[/footnote] 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.[footnote]See infra section III.D.[/footnote] 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.[footnote]See infra section III.D.[/footnote] 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.[footnote]See infra section III.D.[/footnote] This Essay offers solutions to each of these problems.[footnote]The starting point for this Essay’s solutions is an insight from Jacobus tenBroek, who identified a dual system of family law: a private system for the well-off, and a public-system for lower-income families. Section III.A describes his work, and Part IV explains that the goal is to bring the benefits of the private system to the families stuck in the public system.[/footnote] 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.[footnote]See infra section IV.A.[/footnote] Drawing on an existing model,[footnote]See infra notes 364–371 and accompanying text (describing Family Relationship Centres in Australia and pilot programs in the United States).[/footnote] 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.[footnote]See infra notes 364–371 and accompanying text.[/footnote] 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.[footnote]See Clare Huntington, Rights Myopia in Child Welfare, 53 UCLA L. Rev. 637, 640 (2006) [hereinafter Huntington, Rights Myopia] (arguing in favor of a similar approach—replacing family courts with family group conferences—for the majority of cases in the family regulation system); see also Jane Spinak, The End of Family Court: How Abolishing the Court Brings Justice to Children and Families 274–93 (2023) (arguing for the abolition of family court involvement in family regulation cases).[/footnote] 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.[footnote]See The Fathers’ Rights Movement, https://tfrm.org [https://perma.cc/GP9E-JP4E] (last visited Aug. 9, 2024) (“The Fathers’ Rights Movement’s primary goal is to educate society on the importance of the rebuttable presumption of 50-50 Shared Parenting by raising awareness about the imbalances and injustices within the system of Family Law, which will empower fathers to exercise their full rights and responsibilities . . . .”). For a description of the historical and ongoing basis for the fathers’ rights movement, see Deborah Dinner, The Divorce Bargain: The Fathers’ Rights Movement and Family Inequalities, 102 Va. L. Rev. 79, 89 (2016) (“[Advocates] affirmed a set of entitlements regarding the sexual division of labor, husbands’ sexual control over wives, and patriarchy that had long defined the socioeconomic status of middle-class white men.”).[/footnote] 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.[footnote]See infra section II.A.2.[/footnote] 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.[footnote]See, e.g., Nancy E. Dowd, The Man Question: Male Subordination and Privilege 25, 63 (2010) [hereinafter Dowd, The Man Question] (arguing that feminism too often forgets that male privilege varies by race and class and contending that true equality for everyone requires a deeper understanding of how masculinity both privileges and subordinates); Nancy E. Dowd, Reimagining Equality: A New Deal for Children of Color 1–3 (2018) [hereinafter Dowd, Reimagining Equality] (identifying the multiple disadvantages facing Black boys to argue for greater investment in all children); Symposium, Evaluating Claims About the “End of Men”: Legal and Other Perspectives, 93 B.U. L. Rev. 663, 663–64 (2013) (“The Conference examined how the data supporting claims about the ‘end of men’—and the progress of women—appear when differentiated by class, race, religion, and other categories. It provided historical perspectives on current anxieties about imbalances between the relative power, opportunities, and status of men and women.”); Ann C. McGinley & Frank Rudy Cooper, Masculinities, Multidimensionality, and Law: Why They Need One Another, in Masculinities and the Law: A Multidimensional Approach 2, 10–11 (Frank Rudy Cooper & Ann C. McGinley eds., 2012) (illustrating how masculinity is socially constructed and varied); Barbara Stark, Anti-Stereotyping and “The End of Men”, 92 B.U. L. Rev. Annex 1, 10–11 (2012), https://www.bu.edu/law/journals-archive/bulr/volume92n4/documents/STARK.pdf%20 [https://perma.cc/9SXV-WBWK] (examining some of the ways in which many men are “victims of outmoded gender stereotypes”). These scholars generally do not explore the family law implications of the decline in male wellbeing.[/footnote] And family law scholars, including the authors of this Essay, have analyzed the problems facing nonmarital families.[footnote]June Carbone has argued that the changing family reflects the way men and women match up with each other in the new economy (described in greater detail below, see infra section II.A.3). In a society in which relative male and female incomes still predict relationship quality, this produces vibrant two-parent families at the top of the income scale and a shift toward more contingent relationships further down the income scale. See Carbone & Cahn, Marriage Markets, supra note 16, at 124–25 (highlighting the impact of financial differences on marital outcomes). Clare Huntington has explored the legal response to nonmarital families, arguing that family law is designed for married couples but needs to address the distinct needs of nonmarital families. See Clare Huntington, Postmarital Family Law: A Legal Structure for Nonmarital Families, 67 Stan. L. Rev. 167, 171–72 (2015) [hereinafter Huntington, Postmarital Family Law] (explaining the shortcomings of family law for nonmarital families). But no family law scholar has directly engaged the crisis facing boys and men and laid out possible family law responses to this sociological development.[/footnote] 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.[footnote]The closest work is a chapter in Nancy Dowd’s book, The Man Question . See Dowd, The Man Question, supra note 55, at 105. Dowd contends that there is a tension between masculinity norms and caring, involved fatherhood. She suggests that masculinities analysis may contribute to feminist analysis of parenthood by exposing gendered cultural assumptions embedded in public policies and assist in reimagining policies that facilitate a more equal balance between mothers and fathers. Id. at 119–21. This Essay draws on Dowd’s proposals below, but proposing institutional, doctrinal, and procedural solutions, as this Essay does, is not Dowd’s project.[/footnote] 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.[footnote]For an assessment of how men disproportionately continue to occupy the top rungs of the economy, see Naomi Cahn, June Carbone & Nancy Levit, Fair Shake: Women’s Fight for a Just Economy 4 (2024) (discussing how female college graduates have been losing ground economically to male college graduates since the 1990s).[/footnote] This Essay is also cognizant of the growing calls to affirm traditional gender roles, including claims to restore male authority within the family.[footnote]See, e.g., Shanti Das, Inside the Violent, Misogynistic World of TikTok’s New Star, Andrew Tate, The Observer (Aug. 6, 2022), https://www.theguardian.com/technology/2022/aug/06/andrew-tate-violent-misogynistic-world-of-tiktok-new-star [https://perma.cc/J6KD-86HE] (describing the misogynistic views of Andrew Tate, who says women should stay at home, not drive, and so on). In addition, the marriage movement has long maintained that marriage is a necessary institution to integrate “men into the care of their children.” Don S. Browning, Linda McClain’s The Place of Families and Contemporary Family Law: A Critique from Critical Familism, 56 Emory L.J. 1388, 1395 (2007) (emphasis omitted); see also Linda C. McClain, The “Male Problematic” and the Problems of Family Law: A Response to Don Browning’s “Critical Familialism”, 56 Emory L.J. 1407, 1413–14 (2007) (critiquing the parts of the marriage movement that maintain that a masculine head of household role is necessary to the centrality of marriage and that marriage itself is necessary to fathers’ assumptions of responsible roles in their children’s lives).[/footnote] 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.[footnote]For critiques of marriage, see, e.g., Katherine Franke, Wedlocked: The Perils of Marriage Equality 2–3 (2015) (arguing that the “‘freedom to marry’ . . . inaugurates a new set of hard questions about what it means to be liberated into a social institution that has its own complicated and durable values and preferences”); R.A. Lenhardt, Marriage as Black Citizenship?, 66 Hastings L.J. 1317, 1322 (2015) (“[T]he true story of legal marriage in this country involves racial caste and subordination.”). For work by the authors of this Essay arguing that the decline in marriage rates is a symptom, not a cause, of inequality, see Naomi Cahn & June Carbone, Nonmarriage, 76 Md. L. Rev. 55, 93–94 (2016); Huntington, Postmarital Family Law, supra note 56, at 219–20. But see Brad Wilcox, Get Married: Why Americans Must Defy the Elites, Forge Strong Families, and Save Civilization, at xix (2024) (offering a traditional defense of the links between marriage, two-parent families, and male well-being). For all the valorization of two-parent families, see, e.g., Melissa S. Kearney, The Two-Parent Privilege 21–41 (2023) (documenting the educational and economic disadvantages of children who grow up in a single-parent household), there is evidence that having two low-income parents does not confer the same benefit, at least for Black families. See Christina J. Cross, Beyond the Binary: Intraracial Diversity in Family Organization and Black Adolescents’ Educational Performance, 70 Soc. Probs. 511, 528 (2023) (finding that in low-income Black households, having two parents in the home did not affect the children’s grades, likelihood of repeating a grade, or rates of suspension).[/footnote] 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.[footnote]See infra text accompanying notes 177–183.[/footnote] 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.[footnote]See infra text accompanying notes 196–204.[/footnote] 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.[footnote]See infra text accompanying notes 86, 100–101.[/footnote] Additionally, although gay and bisexual boys and men face challenges on other measures of well-being,[footnote]See infra text accompanying note 112.[/footnote] 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. * * *

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[footnote]See Jan Hatzius, Joseph Briggs, Devesh Kodnani & Giovanni Pierdomenico, The Potentially Large Effects of Artificial Intelligence on Economic Growth (Briggs/Kodnani) 1 (2023), https://www.key4biz.it/wp-content/uploads/2023/03/Global-Economics-Analyst_-The-Potentially-Large-Effects-of-Artificial-Intelligence-on-Economic-Growth-Briggs_Kodnani.pdf [https://perma.cc/AGY9-RSLW] (“If generative AI delivers on its promised capabilities, the labor market could face significant disruption.”); Jack Kelly, Goldman Sachs Predicts 300 Million Jobs Will Be Lost or Degraded By Artificial Intelligence, Forbes (Mar. 31, 2023), https://www.forbes.com/sites/jackkelly/2023/03/31/goldman-sachs-predicts-300-million-jobs-will-be-lost-or-degraded-by-artificial-intelligence/?sh=2c28aa60782b (on file with the Columbia Law Review ) (“If generative AI lives up to its hype, the workforce in the United States and Europe will be upended . . . .”).[/footnote]—and now is the time for family law to respond.

Poverty Law

FATHERHOOD, FAMILY LAW, AND THE CRISIS OF BOYS AND MEN

JUDGING WITHOUT A J.D.