Family Law | Law | Law and Gender | Sexuality and the Law
Center for Gender & Sexuality Law
Are children harmed when their parents divorce? If so, should parents' freedom to end marriage be restricted? These questions have generated uncertainty and controversy in the decades since legal restraints on divorce have been lifted. During the 1970s and 80s, the traditional conviction that parents should stay together "for the sake of the children" was supplanted by a view that children are usually better off if their unhappy parents divorce. By this account, divorcing parents should simply try to accomplish the change in status with as little disruption to their children's lives as possible. This stance has been challenged sharply by conservative family-values advocates who see divorce and marital instability as the key to societal decline. In their view, children whose parents divorce are damaged in their moral, social, and emotional development, and society ultimately pays a high price through increased teen pregnancy, school drop-outs, poverty, and delinquency. These advocates argue that marriage can only be saved if the government restricts divorce by reinstituting fault grounds and discouraging unhappy spouses from selfishly defecting from their responsibilities. In contrast, liberals and some feminists oppose any restrictions on the freedom of unhappy spouses to divorce, in part because they suspect (correctly for the most part) that the ultimate agenda for many conservatives is a return to the era of traditional marriage and gender roles. Liberals tend to discount concerns about the harm to children of divorce and assume that parents only end marriages that are intolerable.
Elizabeth S. Scott,
Divorce, Children's Welfare, and the Culture Wars,
Va. J. Soc. Pol'y & L.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/720