The Joseph M. McLaughlin Professorship
When an unmarried couple ends their relationship, children usually live with their mothers. All the father usually gets is a bill for child support. “Traditionally, the child support system has been concerned with making the father pay without giving him meaningful contact with his children,” says Fordham Law Professor Clare Huntington, a leading scholar in family law. “It sees fathers as paychecks, not as caregivers.”
Huntington found that contrary to popular myth, most fathers who can pay child support do so, and that the so-called “deadbeat dads” who don’t pay aren’t the villains they’re made out to be. “The reason they’re not paying is because they literally don’t have money,” she says. “Many unmarried fathers did not graduate from high school and often have a criminal record, making it exceedingly difficult to find jobs, and yet the system assumes they can pay and slaps that expectation on them.”
While courts are starting to recognize that these dads are trying hard to provide for their children, the legal system still has a long way to go to make family law work for unmarried families. And indeed 40 percent of children are born to unmarried parents. In an article for the 2015 Stanford Law Review, “Post-Marital Family Law: A Legal Structure for Non-Marital Families,” Huntington explained how the state isn’t equipped to give these families what they need during their relationship and after they break apart. “Family law is designed for married couples, and it doesn’t work well for unmarried couples,” she says. “Unmarried couples do not need to go to court for a divorce, so they do not benefit from the system we have built to help parents adjust to co-parenting after a relationship ends.”
When Huntington writes about family law, she writes from experience. She volunteered in a Southern Indian orphanage before attending Oberlin College, then, after college, worked as a social worker at a foster care agency in New York. She liked helping families, but realized she could do more for them as a lawyer working at the policy level. Once at Columbia Law School though, she found herself loving the law for the law itself, opting to help families not as a family law practitioner but as a family law scholar. One of her first papers tackled what the 1996 welfare reform meant for families.
Huntington joined Fordham Law in 2011, where she teaches Family Law, Legislation and Regulation, Poverty Law, and Comparative Family Law, for which she takes students to countries like India and Taiwan. She serves as the associate dean for research and was just chosen for the school’s Joseph M. McLaughlin Professorship. Huntington also writes about issues such as the legal boundaries of corporal punishment as an associate reporter on the American Law Institute’s Restatement of the Law, Children and the Law.
Though she’s developed a focus on non-marital families, Huntington has shown how the state has let down traditional married families as well. Her 2014 book, Failure to Flourish: How Law Undermines Family Relationships, details the way laws handling divorce, child welfare, criminal justice, and even transportation can keep families from growing and thriving. These extra hurdles end up widening the inequality gap in America. “Families are supposed to be the places where children get the strong, stable, positive relationships that can help them prepare for the world,” she says. “Instead, families are often where children first encounter inequality.” The book, which earned an honorable mention for the Professional and Scholarly Excellence Award in Law and Legal Studies in 2015, suggests ways the legal system can change to strengthen families and, when it has to intervene, to help families heal.
Huntington also has her eye on emerging trends in family law, such as the increase in lawmakers and judges using empirical evidence to decide questions at the heart of family law. Her forthcoming essay, “The Empirical Turn in Family Law” in the Columbia Law Review, discusses when and how judges and other decision-makers should use empirical evidence. She is concerned, for example, that families will be put to the test—families who can show positive outcomes for children will gain legal recognition and support. “It was fortuitous,” she says, “that children raised by same-sex parents have similar outcomes to children raised by different-sex parents. But what if they had somewhat lower high school graduation rates? Should Obergefell have come out the other way?” She argues that “families shouldn’t have to be put to the test like that.”