The Constitutional Rights of Non-Custodial Parents

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David D. Meyer*



The legal treatment of non-custodial parents has become a lightning rod in modern family law. The topic is obviously important. Every year in this country, about one million children see their parents divorce.1 In addition, roughly a third of all children are born to parents who are not married.2 Many of these parents, of course, will never live together, and those who do face a high risk of breaking up before the children are grown.3 Taken together, the trends suggest that fewer than half of all * Professor of Law and Mildred Van Voorhis Jones Faculty Scholar, University of Illinois College of Law. An earlier draft of this Article was delivered as the 2006 Sidney & Walter Siben Distinguished Professorship Lecture at Hofstra University School of Law. I am most grateful to Professor John DeWitt Gregory and the rest of the Hofstra faculty for their generous hospitality and insightful comments on the lecture. 1. See ANDREW I. SCHEPARD, CHILDREN, COURTS, AND CUSTODY: INTERDISCIPLINARY MODELS FOR DIVORCING FAMILIES 28 (2004). 2. See Brady E. Hamilton et al., Births: Preliminary Data for 2002, NAT’L VITAL STAT. REP. (Ctrs. for Disease Control & Prevention, Hyattsville, Md.), June 25, 2003, at 3 (indicating that 33.8% of all U.S. births in 2002 were to unmarried women), available at; Robert D. Plotnick, Seven Decades of Nonmarital Childbearing in the United States, at 1 (Feb. 2004), available at 3. In the United States, most non-marital births are to women who are not cohabiting with a partner. See Marsha Garrison, Is Consent Necessary? An Evaluation of the Emerging Law of Cohabitant Obligation, 52 UCLA L. REV. 815, 881-82 (2005) [hereinafter Garrison, Is Consent Necessary?]. Unmarried parents who do cohabit are more likely to split up; most cohabiting relationships dissolve within five years. See id. at 839 & nn.90-92; Margaret F. Brinig & Steven L. Nock, Marry Me, Bill: Should Cohabitation Be the (Legal) Default Option?, 64 LA. L. REV. 403, 408 (2004) (discussing social science evidence showing that cohabiting “relationships . . . last a shorter time than marriage, even if there are children”); Marsha Garrison, Reviving Marriage: Should We? Could We?, at 19-22 (Oct. 2005) (unpublished paper available at (discussing evidence of comparative instability and qualification of commitment in cohabiting relationships and noting that “[e]ven the arrival of a child does not appear to alter the feeling that cohabitation is fundamentally different from marriage”) [hereinafter Garrison, Reviving Marriage]; Elizabeth S. Scott, Marriage, Cohabitation and Collective Responsibility for Dependency, 2004 U. CHI. L. FORUM 225, 244-46 (discussing the greater instability of cohabitating relationships); Robin Fretwell Wilson, Evaluating Marriage: Does Marriage Matter to the Nurturing of Children?, 42 SAN DIEGO L. REV. 847, 857, 869-70 (2005) (discussing growing incidence of childrearing and the high rate of dissolution among unmarried, cohabiting couples). As David Popenoe notes, the effective shift of childbearing from marriage into generally less stable non-marital relationships means that even as the divorce rate has leveled off, “[t]he estimated combined breakup rate of both married and unmarried unions . . . continues to escalate.” DAVID POPENOE, LIFE WITHOUT FATHER 20 (1996).




[Vol. 35:1461

children born today—and perhaps as few as a quarter—will live with both their parents throughout childhood.4 Defining the custodial rights of divorced or separated parents is therefore likely to be a matter of direct concern for a majority of the nation’s children. The topic is also timely. Non-custodial parents are in the news as never before. Frustrated parents are seen scaling the walls of...
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