NEW SHAPES OF FAMILY LIFE

...The United States Supreme Court was recently confronted by the claim of the State of California that parents should not have the final decision on major medical surgery for their adolescent child...

...53, pp...

...10 Thomas I. Emerson, "Rights of Minorities and Children: The Limits of the Legal Process," New York University Law Review, vol...

...For women, like other adult victims of discrimination, can hold their own in the world of the voluntarist ethic...

...Will we tell the children of parents consumed with their own problems that they don't need independent assistance in the divorce court, mothers with live-in friends that they must in all cases relinquish their children, pregnant minors that they must—if their parents insist— bear children when they don't want them and can't care for them...

...The advertising industry thus sponsors the diffusion of authority, the sensitivity of husbands to their wives, parents to their children...

...These two central institutions in American society, in fact, the foundation of our political system and the marketing arm of corporate capitalism, merely reflect the dominant focus on individual choice...

...The well-publicized Marvin case in California holds that unmarried cohabitants can legally be bound by implied as well as express contracts regarding personal finances, setting off a wave of parallel litigation in other states...

...Liberals, who have struggled to achieve equality, autonomy, and consensus in every other institution of Western life, suddenly find these values expressed in the life of the family...

...This, then, is where we are being led...

...While giving credence to talk of a crisis in the family can make one uncomfortable, it is hardly realistic to suggest that our most basic, primary association is being fragmented by media and market strategies and the pressure of individual claims on the legal system alone...

...What are "realists" supposed to do when American adults increasingly demonstrate an unwillingness to be bound by conditions of life not in their immediate interest...

...2 Marvin v. Marvin, 18 Cal.3d 660, 665, 557 P.2d 106, 109, 134 Cal...

...It commented: We feel it is imperative to recognize that the issues of who is actually responsible for the breakdown in the parent-child relationship is irrelevant to the disposition of this case...

...We mourn the decline of paternal authority and urge its public 355 recreation...

...President Carter organized a White House Conference on the problem...

...programs designed especially for `needy' children and families...

...Every conceivable relationship is now talked about, written about, and defended: group, serial, homosexual, May-December, December-May, unmarried, parent-child, sibling, prepubescent—even marriage itself...

...in response to youth pressure, has already largely surrendered absolute authority outside the family...

...Court challenges continue to advocate the expansion of specific rights and the abolition of the presumption of minority incapacity itself...

...Because of our suspicion that either alternative would present difficulties, we have, so far, made no decision at all...

...Lawyers and judges have in many cases acted simply out of a desire to incorporate experimental behavior as best they can within the existing system...

...T III he constant barrage of cases, statistics, and human-interest stories might be seen as a clear example of media sensationalism...

...Because of our reluctance to confront this issue we continue unproductively to seek the source of the erosion of the family in such causes as weak fathers, the women's movement, peer-group influence, the evolution of mass society, the media, and the rise of the "helping professions...

...3 This (and the similar view of several courts) was perhaps most poignantly expressed by a Court of Appeals judge in New York: It is a sad but telling commentary upon the relation subsisting between father and daughter that resort to the courts was employed to resolve this domestic problem...

...9 David M. Potter, People of Plenty: Economic Abundance and the American Character (Chicago: University of Chicago Press/ Phoenix, 1954), p. 204...

...Because the cultural dynamic shows no sign of abatement, the American people are being forced to come to terms with the consensual family by individual actions in their daily lives...

...Such a regime could never have sufficiently relaxed within the family so long as it remained diagnostic in the society...

...Along with the emerging area of child divorce, this development indicates that the standard of a successful adult-child relation is shifting from the absence of a specific harm to subjective compatibility...

...But each time, from the incremental liberalization of divorce to the decriminalization of adultery to legitimation of cohabitation, they only loosen the institutional ties of the traditional family and demonstrate in the process the tide of voluntarism...

...Would this result in stronger families and more intimate communication in every case— or also in bigamy, adultery, and for many an outright rejection of marriage...

...From this perspective, the dilemma of the family is clear...

...No one expected the young or adults within the family context to take such advantage of the reduction of restraints...

...Several recent books document the increase in the traditionally most censured relation, incest (as in The Broken Taboo: Sex in the Family and Kiss Daddy Goodnight...

...11 Ibid., p. 1244...

...Of course there has always been disaffection and generational struggle in the family, but under an organic model people sought informal resolutions within the institution...

...But with the demand for equal access to contemporary life styles, now at least partially met, there is no longer a rigidly separate counterculture or elite culture...

...Prime-time family programs no longer shy away from the graphic presentation of these issues...

...and extensive family education in schools at all grade levels to prepare children for a greater voice at home...

...For this reason, in Emerson's view, the questions raised by the children's issue "go to the heart of our social order...

...The most important and perplexing legal transformation comes in the area of children's rights...

...The liberalization and humanization of the family occurred because it accorded with the values by which most Americans live...

...The failure to consider alternatives stems not, I believe, from a feeling of confidence about the actual viability of the present structure, but from a fear of the great dislocations entailed by any significant withdrawal from the interdependence of primary associations...

...This, in turn, by distributing power to all members of the family and decreasing paternal authority, repeats the democratization earlier undergone by religious and political institutions...

...7 K. Keniston and The Carnegie Council on Children, All Our Children (New York: Harcourt Brace Jovanovich, 1977), p. 76...

...V Despite this experience by many Americans of a deteriorating family life and vast changes in the cultural perception of its structure, the maintenance of the present family arrangement remains the only serious viable alternative...

...The children, having learned their lesson, respond with an independent, increasingly desocialized youth culture...

...Cynthia Snyder, 16, initiated litigation in Washington State against her parents to have them relieved of parental duties, and won...

...Women are now shown increasingly in professional and work situations possessing "clout," and this new status also has profoundly altered the portrayal of family decision-making...

...Or how can the traditional family be reconstituted if we accept a lessened standard of parental commitment...

...State, local, and national funds were poured in to deal with child and wife beating, with runaways, drug and sex abuse by setting up facilities, hot lines, counseling and reporting agencies...

...A 21-year-old homosexual adopts a 23year-old homosexual as his son in Milwaukee County Court, claiming afterward that adoption is "more permanent" and, to be sure, more legal than gay marriage...

...This presents us with what is for many people an unwelcome choice: to bring the family into line with contemporary culture, at great cost to its traditional patterns of stability, or to explicitly compromise our commitment to voluntarism by restoring the vitality of its hierarchal arrangements...

...Nor could it have remained unmodified in the family, once society began to abandon it in other spheres...

...Even more recently, the Court agreed to let stand a ruling of the California Supreme Court that parents cannot give consent to the police searching their minor child's private property for contraband, because of the minor's right to privacy...

...Throughout television and the popular movies, the public is bombarded with themes of incest, divorce, runaways, parental abandonment, nonmarital cohabitation, and generational struggle...

...on programs and clinics dealing with family abuse...

...Few, in fact, would favor proceeding this way, because it is a cardinal belief in our culture that the only effective solution to the problems of voluntarism is more voluntarism...

...The Supreme Court of California began its precedentsetting Marvin decision: "During the past fifteen years, there has been a substantial increase in the number of [unmarried] cou351 pies living together," 2 and then cited an eight-fold increase in ten years...

...We must recognize here that the greatest challenge to liberal society will come not from the demands made by women but from those on behalf of children...

...The first interspousal rape trial in American history, the Rideout case, gathers front-page headlines for a year, until the husband is acquitted...

...Thus even the liberalization of the family, if ultimately chosen, would require a complete revision of liberal theory...

...The noted legal scholar Thomas I. Emerson explained: The extreme individualistic approach embodied in our legal system plainly raises some special problems when applied to children...

...What exists, in short, is not a problem of marginal or problem families but a crisis that has reached affluent and socially integrated families...

...Those conditions do not exist, or exist to a lesser degree, when children are involved.' 0 This legal model of individual autonomy, which serves as the operational basis of liberal voluntarism, fails to provide any clear guidelines for the role of children...

...Parents in Milwaukee in turn sued to "divorce" their 16year-old daughter, and they won...

...Even more striking is the new representation of children as a powerful constituency...

...Whether we shall soon be provided with any support from our public representatives may well determine the success of that enterprise...

...At the same time, parenting by proxy and by advertising have become alternatives to traditional mating...

...There are initial signs of such a response to the family crisis itself: the proliferation of family therapies seeking to enhance the possibility of communication, consensus, and a respect for differences within the institution...

...The worst of these forecasts are repeated in the more serious work of scholars and prestigious commissions...

...then, claiming that the family is "in serious trouble...

...The Supreme Court majority in the Danforth opinion permitting abortions for minors without parental consent acknowledged the serious possibility of a diversity of interests and the need to protect minors from parental action...

...The first stage was the rejection of a needs or benefits approach to the child's status in favor of a rights approach...

...52, 74 (1975...

...IV These dizzying changes force us to consider the issue more closely...

...Tommy Hansen of Boulder, Colorado, takes his parents to court in the first known case alleging parental malpractice...

...The voluntarism of Western culture, then, has pervaded the last authoritarian institution in liberal society...

...it is a cultural shift in our values produced by the triumph of the liberal ethos...

...We use terms like "growth," "self-realization," even "happiness...

...There is furthermore a constant escalation: the most disturbing statistics, the first litigation of its kind, the highest level of abuse, the strangest form of living arrangement, and so forth...

...In the media today, the traditional nuclear family appears to have become an ideal rather than a functional type...

...1240, 1243 (1978...

...It is followed shortly by the first conviction for such an offense in America, of an unemployed bartender from Salem, Massachusetts...

...VI /'lmerican society, by liberalizing the universities, secondary schools, and draft system (permanently...

...Advocates of equal treatment for women and gays continue to press for an end to the cultural domination of "masculinity" and male prerogative...

...The traditional family has become the permissive, child-centered family, lifelong marriage a series of continual renegotiations or realliances, and socialization a peer-group education with its implications of ultimate leveling...

...Every adult pursuit of personal fulfillment at the expense of parental responsibility legitimates that behavior to the young and erodes the institution's stability...

...This expansion of the role of children now extends to the very decision regarding the choice of the supervising adult...

...This belief is shared by many...

...the violation of these norms by the well-to-do or by cultural radicals was a socially marginal phenomenon...

...The phenomenon of childless (heterosexual) couples appears to be increasingly viable—note the recent book None's Been Fun...

...Its recognition of the cultural goal of independent decision-making, so easily catered to in nonfamily settings, has led to a perception of the family itself as governed far more by consensus and equilibrium than by secure power relations, not only in child and youth market products (which in their proliferation themselves define an economic and cultural shift of historic proportions) but in every family decision...

...special reports and regular spots on daily newscasts seek to convince us of the pervasiveness of these dislocations...

...II To gauge the full depth of the present crisis, we must examine the impact of cultural voluntarism upon the family, beginning with the public perception of available options in sexual and family life...

...Our appetite for information, propaganda, and melodrama regarding this issue, our sensitivity to its every nuance suggest that the sensationalism represents, with whatever distortions, a changing social reality...

...For this reason, ironically, debates over the existence of a crisis, no less than disclaimers of media hyperbole, by reinforcing the view that the traditional presumptions regarding the role of the family in one's life have become a matter for dispute, further alert the public to new desires and possibilities...

...How many of us would deny some need for autonomy within the family, or question the right of society to intervene in order to prevent abuse in the home...

...Extensive data on parental divorce, abandonment, single-parenting, and swinging makes the same point for adults...

...But the idea of an increasingly consensual family is ever more widely accepted, even by such establishment institutions as the legal system and the advertising industry...

...9 Explanations that seek to reassure us in the short run with claims of cultural manipulation or media exploitation of a non-issue fail to grasp the dynamics of liberal culture: once the groundwork has been laid by an overriding emphasis on voluntarism, a perception of new options will be sufficient to produce new patterns of behavior...

...Curfew laws were deemed unenforcible, child obscenitylaw age limits lowered, and runaways treated as a social rather than a criminal problem...

...We shall not in fact begin to resolve this crisis until we recognize the ever deepening isolation of the authority-centered family from other institutions of liberal society...

...While placing uncompromised importance on the role of autonomy and initiative in social life, liberals never considered how the structure of the family would meet the increasingly consensual parent-child relation and the increasing assertiveness and independence of the young in a way that ensured stable socialization and social order...

...While these efforts do proceed from a belief in the need for greater voluntarism in the family setting, they have to this point ignored the fragmenting impact of such reforms on the traditional operation of the family...

...on resolving the decision whether to have children, and how parents and children should deal with the rights of children—on, in short, every aspect of the changing tableau of youth and family life...

...the parent-child relationship has dissipated to the point where parental control is lost...

...Yet, once we seek the remedy of courts and collective standards, we have set in motion the voluntarization of the family...

...I A. Etzioni, Editorial, Science, April 29, 1977, p. 487...

...Their receptivity to voluntarist values come not from any commitment to social change but—in the pursuit of profit or in the case-bycase resolution of actual destinies before them—from an extremely pragmatic assessment of what the American public will accept...

...I Despite this growing clamor, however, American society has neither begun to work out new models nor acted effectively to shore up the traditional family...

...Hence the repeated demands by prominent citizens and civic groups for government action to arrest the "progressive fragmentation" of the American family...

...With Hansen and other cases, legitimation of intrafamilial litigation now extends not only to specific negligent and intentional tortious acts but—through the claims of parental malpractice —to the very relationship itself...

...What reforms will reestablish a healthy socialization process...

...In the Snyder litigation before the Washington State Supreme Court (in which the minor claimed a deteriorating and thus intolerable relationship with her parents), the Court reinterpreted the traditional law by granting the minor's claim to a "no-fault" separation without finding the standard grounds of either parental negligence or juvenile incorrigibility...

...David Potter foresaw this transformation in People of Plenty: 354...

...the State does not have the constitutional authority to give a third-party [i.e., parents] an absolute, and possibly arbitrary veto over the decision of the physician and his patient to terminate the patient's pregnancy...

...Rptr...

...nevertheless, they have...

...The child's traditional legal disability was eroded with a host of novel cases declaring constitutional rights with respect to criminal procedure, association, liberty, freedom of movement, privacy, sexual and health matters, life style and dress, legal counsel, and political expression...

...Claims by juveniles to rights regarding every aspect of their role within the family are now routinely presented to the American courts at all levels of jurisdiction...

...The drafting of childrens' Bills of Rights enumerating a series of protected forms of expression and realms of decision-making has been undertaken by a broad spectrum of legal and child-care professionals...

...It cannot be met simply by raising new funds or instituting welfare programs to cure historic inequities and disabilities...

...Whatever the original cause or the exacerbating factors now present, we must acknowledge the actual issue before us: how to cope with a culture in which the actualization of individual choice has become the primary standard of success and the legitimate solution to all personal dissatisfaction...

...S J. Goldstein, A. Freud, and A. Solnit, Beyond the Best Interests of the Child (New York: Free Press, 1973...

...Ultimately, there will be the necessity of some political effort to provide alternative structures that can accommodate the cultural shift toward adult voluntarism...

...Legal commentators have further suggested a stricter explicit code of legal responsibility for parental action, the application of the recent Swedish anti-spanking law, and the transformation pf the traditional right of family privacy into a legal right of privacy for each individual within the family...

...In an influential book, child psychoanalyst Anna Freud together with a noted legal scholar and therapist advocates that decisive weight be given in custody proceedings to the primary psychological relationship the child has with an adult rather than to the biological parentchild tie...

...The male and female students at my urban university, children of blue-collar workers, now frequently regard marriage as a postcareer, post-life-style choice and reject all alternatives to personal autonomy...

...The powerful, almost single-minded, voluntarist bias of our culture, while more highly visible in the legal system and the advertising industry, has encouraged pursuit of the liberated, personally fulfilling life style by Americans of every class, age, and sex...

...National runaway legislation is amended to make reporting the discovery of runaways to their parents optional rather than mandatory...

...The Carnegie Council on Children, headed by Kenneth Keniston, suggests in a major study on children in America the universality of the problem by announcing that its proposals "depart from those traditionally advocated on behalf of children, for we do not focus primarily on...

...8 Andrew Hacker, "Divorce a la Mode," New York Review of Books, May 3, 1979, P. 27...

...We are more self-centered than people were in the past, more insistent on having things the way we want them...

...Many television ads today portray parents increasingly solicitous of the taste preferences (and good will) of their children and children's friends, at the extreme even deferring to the child's product judgment —note the five-year-old child who claims to make the family decision on brands of peanut butter (though respecting the mother's choice of vegetables...

...There have been proposals to impose artificial constraints upon the young— by such means as military or government service or survival courses—to counter the voluntarism produced by the reduction of economic restraint...

...the authoritarian discipline of the child, within the authoritarian family, was but an aspect of the authoritarian social system that was linked with the economy of scarcity...

...When we can admit that we face novel and uncharted questions, this acknowledgment of the public investment in socialization will, by reversing the present posture of inaction, 356 enable us to begin the process of social research and development...

...My argument here is that the present crisis has proceeded from the consistent extension of voluntarist principles of autonomy, choice, and mutuality— universally approved standards in our liberal culture—to the last traditional institution...

...All these efforts (including the Reagan administration's policy initiatives), which seek the artificial restoration of authority, fail to address the underlying problem...

...Legal commentators have largely supported these liberalizations, speaking frankly about the transition of marriage toward a voluntary contractual arrangement with regard to all critical terms...

...Would we consciously adopt a policy that abandons runaways to their own devices or offers them on their capture only penal sanctions or a return to the situation from which they have fled...

...Given the universal rejection of constraints on individual autonomy, traditional norms no longer exist to be violated...

...State judiciaries together with the legislatures have responded to the freedom and flexibility of modern living arrangements by repealing or refusing to enforce adultery statutes, providing for personalized custody arrangements and prenuptial contracts, allowing for interspousal rape and tort litigation, and above all making divorce a matter of subject inclination ("I just don't feel like staying married...

...Studies on intrafamilial behavior note the upsurge of child abuse, wife abuse, then battered husbands, and finally parent abuse...

...The reported epidemic of youth sex, illegitimacy, and abortions suggests that for many young people the marital structure has 350 lost whatever moral hold it once had...

...Cult participants and their parents fight in courts across the land regarding the child's right to religious autonomy...

...It will be necessary to allocate funds for the creation and evaluation of model experimental projects involving alternative forms of nonauthoritarian child care and new communities for the young...

...Q In the Welfare of Cynthia Nell Synder, 85 Wash.2d 182, 186, 532 P.2d 278, 281 (1975), en banc...

...Within the family, the presumption of an identity of interests between parents and their children—the legal backbone of the traditional family (how, after all, could a single organic entity sue itself...

...Now that individuals have discovered their own separate existence in relation to it, and begun to assert claims to privacy, individual rights, and legal redress, they demand institutional recognition of separateness or opt to remove themselves altogether...

...4 Roe v. Doe, 29 N.Y.2d 188,191, 272 N.E.2d 567, 568,324 N.Y.S.2d 71, 72 (1971...

...Parents are no longer immune to tort actions by their children, and separate counsel is provided for children in divorce, custody, and related proceedings...

...If the media were to proclaim in a loud and unanimous voice the passing of the age of multinational corporations, would we then see a reemergence of family-owned businesses...

...Three clever women from New York City start a business, "Daddy, Don't Forget," to purchase and deliver presents to the children of divorced and absent fathers, promising to hide from the child the true source of the gift and, of course, to notify the father of his thoughtful choice...

...has given way to a recognition of often divergent and adversarial interests...

...one prominent sociologist, for example, wrote not long ago: "At the present accelerating rate of depletion, the United States will run out of families not long after it runs out of oil...

...on how to obtain rights and the competitive advantage when negotiating Marvin contracts...

...But all come down to demanding a life tailored to our liking...

...Child-development research will have to be conducted to find alternative ways of providing for children's basic psychosocial needs...

...5 This major rejection of the inviolability of the parent-child standards of some years ago from parental fitness to the child's 352 best interest, has had success in the courts...

...The surge of adolescent independence, the breakdown of parental authority and the frustration attending both are indeed matters of common occurrence...

...Given the unrestrained preeminence of the voluntaristic ethic, its curtailment in the family setting would require a massive repeal of liberalized divorce laws, punishment for abandonment and "swinging," the return to traditional treatment of women and children, censorship, and the public scrutiny of private commitment...

...815, 818 (1976...

...They must further be designed to teach the young the skills connected with the exercise of autonomy, initiative, and democratic participation...

...And how might society retain its necessary cohesion if we establish voluntarist norms for the young...

...Andrew Hacker recently wrote: Most of us realize why marriages are falling apart, even if we can't do much about it...

...The issue is whether...

...Despite strong language in support of marriage, the Court acknowledged the necessity for equitable forms of property distribution for these relations, since they form a realistic choice for men and women...

...8 The middle and working classes traditionally adhered to and supported strict behavioral norms...

...Ulla Jacobssen, professor of law at Stockholm University, has published a book advocating the universal legalization of voluntary parentchild separation and the creation of alternative socializing arrangements...

...And while we ought to retain a healthy suspicion about the government's intrusion in these matters, let us also recognize that it is precisely because of our commitment to human autonomy that we must choose to act with common counsel...

...a resort to official interference by the courts and public agencies...

...and] strained to the breaking 353 point by social and economic forces beyond its control," he ordered the creation of a federal Office for Families...

...Because of children's evident lack of such capacity, however, the mere extension of equality of rights and opportunities cannot effectively integrate them within democratic society nor satisfy the nurturing needs associated with growth and development...

...on hot lines, houses and religious communities for runaways and the work being done to save them from prostitution, drugs, and adult violence...

...In a similar development, mass-market women's magazines, once family-oriented, now carry articles on how to cope with divorce, joint custody, remarriage, multiple parents or spouses, meeting the ex-spouse socially, and the second try at dating...

...Our law, as we have developed it, assumes the existence of an individual citizen who is mature, autonomous, responsible, and possessed of the capacity to make decisions...

...In this context, what would happen if (arguendo) divorce laws were abolished...

...Litigation in behalf of children has led to a geometric increase of cases and to many successful challenges of existing laws...

...Other courts have advocated the child's right to independent determinations in educational and religious matters...

...So long as voluntarist values are held by a great majority of the population, the authority-centered, nonconsensual family will not find any secure or legitimate basis...

...It glorifies the liberated, swinging, single life style, the pervasiveness of liaisons and encounters, and the triumph of flexibility...

...This sort of thing is beginning to occur often enough to constitute a new series of messages to family members...

...Special attention is given to the dualcareer, two-city couple...

...Children are even shown as a force whose opinions on such "adult" matters as a new car or home flooring material must be won over...

...6 This recognition of the claims of children has led to the furthest extension of independence —the effort to define the parentchild relation as a quasi-contractual bond (modeled on the new contractual relationship between men and women) involving mutual rights and obligations...

...The crisis of the family is really the crisis of the culture itself...

...4 As a result, parental-consent requirements have been rejected by some courts in cases of medical treatment, abortions, contraception, psychiatric hospitalization, and participation in drug abuse programs...

...At the same time, the advertising profession has moved quickly—as one might expect—to project the changing relations in the family...

...3 Planned Parenthood of Central Missouri v. Danforth, 428 U.S...