Fairness in Allocations of Parental Responsibilities, and the Limits of Law
Canadian Journal of Law & Jurisprudence 33(2) 2020, 397-433, doi: 10.1017/cjlj.2020.6
40 Pages Posted: 21 Aug 2020 Last revised: 24 Aug 2020
Date Written: July 26, 2020
When families dissolve, familial burdens and benefits as marital property and the burden of child support should be distributed. These allocations, sometimes made by courts and sometimes through private negotiation, are better to be fair. Also requiring allocation is the right and duty to take ongoing care of one’s children. Current legal schemes of allocation either ignore the allocation of caregiving while distributing property and support duties; or alternatively take the allocation of custody into account by seeing it as an extra burden inflicted on the custodian, hence seeing the custodian as entitled to exemption from the duty of support or even to a bigger share in the marital financial resources. Yet caregiving might be regarded as a benefit rather than a burden, at least when both parents genuinely desire to provide caregiving. Shouldn’t we lean the allocation of property and support in favor of the non-residential parent, as a counterbalance?
In order to evaluate this suggestion, the paper first undertakes a long list of simplifying assumptions, attempting to provide the best possible defense for such line of argument. Through these assumptions, the discussion abstracts from other relevant considerations as the best interest of the child, gender-justice considerations, various confounding contingencies and the obstacles for legal implementation. The paper then drops these assumptions, one by one, considering their effect on both the principled requirements of fairness and the appropriate legal regulation, thus carefully evaluating the argument and its limits. It then considers its ramifications on the general appropriate legal norm, on the legal norm that applies to private ordering, and on the moral norm that applies to the contracting parties, exploring the anti-Holmesian idea of assessing the law from the perspective of the good person.
Keywords: divorce settlement, child support, marital property, fairness, law and morality
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