What should family law do about divorcing parents? "Teach them a lesson," a legislative wave sweeping through the United States has answered. (1) As a result of the legislation, growing numbers of divorcing parents are required to attend "parent education programs," (2) turning these programs from a fad in family courts into an established and mandatory stop on parents' path to divorce. This legislation mandates informational classes that focus on the harm children suffer as a consequence of divorce and on behaviors parents should change in order to reduce the damage. This Article is the first to analyze the enactment discussions accompanying the legislation and to explore judges' extensive role in promoting and securing its passage. It demonstrates that despite its child-oriented goals, the legislation is preoccupied with casting a negative judgment on parents' decision to separate and with blaming parents for the negative effects of divorce. (3) This Article argues that this preoccupation with blaming parents has resulted in laws that do little to help children and much to belittle the tangible negative implications that divorce holds for parents, especially mothers. Doing so, the legislation downplays the role that legal, social and economic forces play in producing the undesired behaviors that classes currently try to eradicate. (4) Moreover, by laying the full responsibility for possible harm to children of divorce in individual parents' laps, states have also shirked their responsibility for these children.
Parenting class mandates are of further interest because they embody two often conflicting trends in family law. (5) One is a shift to consider ties between parents and children, rather than relationships between adults, as the core sources of legal obligation. (6) The second is a lingering adherence to the autonomous nuclear family ideal] Unlike contemporaneous suggestions for anti-divorce measures, such as waiting periods and covenant marriage, parenting class mandates were not designed to create an impediment to divorce. Nevertheless, despite the legislation's focus on the parent-child relationship, it still reflects an underlying conviction that it is wrong for parents to break up the marital family unit. (8)
In this Article, Part I explores the characteristics of legally mandated parent education programs. The programs are generally short, educational interventions and their main goal is to improve children's wellbeing during and after a divorce by teaching parents how to better interact with children and with each other. This Part argues that the literature documents programs' scant success in achieving their stated goals. The Article then makes a brief interlude, in Part II, to contend that although mandatory parenting classes appeal to common sense, we ought to challenge such a reaction in order to allow for a critical analysis of the legislation.
Drawing on previously unexplored legislative materials, Part III explores judges' and lawmakers' inflated estimation of the harm caused by divorce and analyzes its influence on the resulting legislation. This Part relies on substantial empirical work, gathering and analyzing detailed minutes and recordings of committee meetings, public hearings, and floor presentations and votes. The choice of states for this study was therefore influenced by the availability of these primary sources. Still, the information represents diverse states and the analysis shows patterns common to all of them. The primary source data is complemented by public reports, news reports and papers written by key players in the enactment process: judges, parent educators, and lawyers.
Part III.A highlights the extraordinary involvement of judges in the legislative process, a fact largely unnoticed in earlier studies. It shows that judicial discontent with divorce litigation, combined with an exaggerated judicial view of the harm caused by divorce, has been the motivating force behind the legislation. …