Professor Marsha Garrison Book Talk Explores State of Today's Families
How can family law better meet the needs of today’s families? Professor Marsha Garrison was joined by renowned sociologist Andrew J. Cherlin, Benjamin H. Griswold III Professor Emeritus of Public Policy at Johns Hopkins University, and moderator Cynthia Godsoe, Brooklyn Law professor and Director of the Edward V. Sparer Public Interest Law Fellowship and the Marsha Garrison Family Law and Policy Fellowship programs, to discuss how the family-law reforms described in Garrison’s new book can answer that question.
Launching the April 17 discussion, Garrison said that the central purpose of Family Life, Family Law, and Family Justice: Tying the Knot (Routledge, 2023), was to tie the traditional law of private family obligations to the large and growing law regulating government benefits and burdens. “‘Tying the knot,’” she noted, “is not only a long-standing metaphor for marriage, but a good visual symbol for integrating these two areas of law to create a new family law that genuinely works.”
Garrison added that this new, integrated family law must reflect how families themselves have shifted. As compared with earlier families, the 21st-century family is smaller and more geographically dispersed; both parents typically work outside the home. These shifts make it harder for families to provide adequate care to both children and elderly or infirm family members. These basic problems are compounded by an increase in parental separation, she said, which “drives family resources into separate households and divides family capacity to provide care.”
Cherlin, who has studied changes in family structure throughout his career, asked Garrison how the reforms she advocated would apply to the large and growing group of nonmarital cohabitants. He noted that nonmarital children were about three times as likely to see their parents separate as compared to marital children. Garrison agreed that the rise in cohabitation created a range of problems that family law must address, a task made more difficult because cohabitant relationships are neither uniform nor based on publicly shared commitments and expectations. She urged that the classification of cohabitants should therefore reflect the underlying purpose of the relevant law, with laws relating to parental care—child support, residential care, and even Social Security benefits based on parental status—applied uniformly to all parents, including those who never lived together. But, she urged, cohabitants should not be treated as spouses when they separate, given cohabitants’ lack of marital expectations.
Garrison and Cherlin also explored alternatives to divorce adjudication, including Australia’s family relationship centers, which employ counselors and mediators to help couples reach agreements outside of the courtroom. Having “judges determining what should be done comes from the old, fault-based system of divorce,” said Cherlin. “With fault largely removed,” said Garrison, “there’s no reason to persist in using that model, with difficult cases being the exception.”
Godsoe introduced the American class divide in family formation and separation. “It’s a serious problem and a major reason why I wanted to write this book,” said Garrison. “We know that the way families form, live, and dissolve now plays an extraordinarily important role in determining the life prospects of children. And those at the top live very different lives than those at the bottom.” Cherlin agreed and noted that marriage and marital childbearing are now strongly associated with higher education. “It's almost as if we have a two-family system—a family system for the college educated and a family system for the rest,” he said. Cherlin and Garrison agreed that this educational divide enhanced risks to children because nonmarital parents are about three times as likely to separate as marital parents. According to the Fragile Families Study, an important source of information about nonmarital families, only about one-third of nonmarital children saw their parents’ relationship survive for as long as five years.
Garrison and Cherlin also discussed how U.S. programs to reduce children’s poverty and help families compare with those of peer nations. The United States, Garrison and Cherlin agreed, is far behind its peers when it comes to public support for families. “We tend to rely on market, or private, solutions, viewing government programs as a handout. As a result, children's poverty in the United States is much higher and families are more stressed than in any of our peer nations,” Garrison said. However, she added, we are seeing increasing public support in the U.S. across political, religious, and class lines for robust government support for families, such as the child benefit that was launched in 2021 in response to the Covid-19 pandemic. Garrison urged that child benefit programs were a much more cost-effective method of reducing child poverty than the Earned Income-Tax Credit—which, she pointed out, does not benefit the unemployed and subsidizes low-wage work. Garrison and Cherlin agreed that U.S. improvements in early education were also important. “Early childhood education is crucial to children’s life’s chances and parents’ capacity to work,” Garrison said.
An audience member asked how Garrison defines family justice. “Law is not necessarily just,” Garrison responded.; “It may not be fair, it may not work perfectly, it may not achieve the kind of equitable results that we hope to achieve. So, family justice connotes family laws that do achieve those goals, that provide fair, equitable, economically feasible, and workable solutions to the problems that families actually face.”
In closing, Garrison and Cherlin discussed how family justice could be achieved. Both stressed the need for better partnerships between legislators and experts on the family and family law.
“Building coalitions with advocacy groups is very important because that helps us get the stories of families out there,” Garrison said. She urged that “every journalist begins with an attention-grabbing story” and that stories could make abstract problems come to life. “As family law scholars, we need to put the stories of today’s families before legislators, back them up with the kind of evidence that Andy Cherlin and his colleagues are producing, and try a little harder.”