Mirror of Justice

My colleague, Peg Brinig, has posted a new family-law paper on SSRN, called "Best Love of the Child."  Here is the abstract:

This paper examines the creation of the ability to give unconditional love (perhaps in tune with the theologians' definition of “best love”) and to discuss how laws might make this easier for children. Given my past work, it is perhaps not surprising that I see this as requiring permanence in the relationship. I hypothesize that children acquire this tendency (or longing, as Aristotle and Jennifer Roback-Morse would term it) as they see it around them. The most likely three relationships from which children can draw models of unconditional love are God's love, the parents' love for each other, and the parents' love for the child.

God's love is of course the model for all human unconditional love. We might see parents' response to it in frequency of church attendance or how important they say religion is in their lives. The ability of law (at least in the United States) to influence belief and the exercise of it is of course a delicate constitutional question. The law can certainly continue to not discriminate against religion and to allow such benefits as charitable tax deductions for religious contributions and tax exemptions for religious properties. Tuition vouchers are a help, too. But the controversy in Massachusetts surrounding Catholic Charities' adoption policies show how fragile this balance has become.

The parents' love for each other also can serve as a model for children. Other research, including my own, shows that unconditional love is most likely to flourish in marriage as opposed to cohabitation. It is also most evident in what Judith Wallerstein calls “The Good Marriage,” whose opposite is the “Separate Spheres” (or marriage reduced to its lowest common denominator) discussed by Lundberg and Pollock or the “exchange relationship” detailed in Gary Hanson's “Marital Exchange Relationship” piece in psychology. This love is threatened by any attempt to equate marriage and cohabitation (as with current Canadian law and the American Law Institute's Domestic Partnership proposals). It is strengthened by legal efforts to make marriages stronger, whether these are through requirements for premarital counseling or through tax and other subsidies based upon marital status (listed in, for example, the Vermont same-sex marriage case of Baker v. Vermont) and perhaps by laws that force couples to carefully think through the decision to divorce. From a nonlegal perspective, marriage is strengthened by increased support from extended family and the community, secular and religious.

The parents' love for him or her is perhaps the first unconditional love noticed by a child. We can see it in what the parent says about the child, what kinds of activities he or she does with the child, and how close the child feels to the parent, perhaps whether the child feels the parent stands up for him or her or acts as an advocate. From an absent parent, we can still get some glimpse of this love through continued contact, attendance at the child's activities, and even faithful payment of child support. From a negative perspective, we see the absence of unconditional love in parents who say they are disappointed with their child, who neglect their child (when they have the means of support), perhaps when they engage in custody battles and certainly when they abuse the child. Law can strengthen parental relationships with children. On the extreme, children in foster care are unlikely to see this love, and efforts should be made to either strengthen the family of origin or place the child in a permanent adoptive or kincare situation. Child abuse is criminal and serious, and should be taken seriously by the law and prevented where possible (including abuse by non-parent adults living in the home). For another example (of many), custody laws can be carefully drafted to minimize incentives for vindictive behavior and to promote relationships with noncustodial parents. We can continue to promote family autonomy so that parents in less stressed families can effectively allow their children to flourish.

This paper tests these ideas to the extent possible, finding that characteristics favorable to unconditional loving as adults are present in environments consistent with each of these models. I conclude with a number of policy recommendations to strength families and make them more permanent.