Thanks for doing the groundwork of summarizing Mary Ann Mason's argument. (It's a good deal to follow you in this exchange.) I admire Mason's book for many of the reasons you do. To my mind, she's on the side of the angels. Her book should be cautionary reading for any couple who is thinking about having children.
However, I want to think out loud about why the legal reforms Mason proposes are wholly inadequate to the problem. First, there is a problem of sheer numbers. A huge population of kids falls under the jurisdiction of the court system. As Mason notes, half of all children today will be subject to a custody negotiation or dispute before they reach adulthood. All children of divorce are under the jurisdiction of the court, even if they reach a private settlement. And that's just children of divorce. More than a third of all kids are born out of wedlock, and they are likely to enter the court system at some point, either through the juvenile justice system or family court. So we have this massive jurisdictional shift in the ordering of kids' lives and family relationships. We've moved from a Leave It to Beaver society to a Leave It to the Judge society.
The practical result is that family court is swamped. In my state, the fastest growing part of the court caseload is not divorce. It's unwed fathers who have child support orders and are seeking access to visitation. Some of these fathers split when their girlfriend got pregnant, or they hung around for awhile after the child's birth but never shared a household with the mother and child. Some fathers didn't know they had a child until they got their tongues swabbed for DNA and their pockets frisked by the DOR (Department of Revenue). But once paternity is established and child support ordered, the dads show up in court, many trying to represent themselves, and the judge has to structure some kind of visitation order in five minutes and move on to the next case.
This is assembly line stuff, and it is hard for me to imagine how, under current conditions, each case could be managed in the sensitive child-centered way that Mary Ann Mason proposes. Moreover, the state is not sensitive to the emotional needs of children. It is sensitive to the electoral opinion of adults. Taxpayers have declared an interest in getting child support from private sources--namely, the deadbeat or absent parent, usually a father. The most efficient way to do that is to establish a biological link to the child. Biology should not be the only basis for establishing parenthood, as Mason argues, but it is the cheapest and easiest way to do so. In an era of lean government, this is the lean and mean way of getting dollars to children.
To change this, of course, requires a change in public and electoral opinion. But here is a second problem. Although there is no constituency to return to the Leave It to Beaver society, neither is there a constituency to invest in the Leave It to the Judge society. Americans want freedom in their sexual and private lives, but they don't acknowledge that there are costs to children associated with these adult freedoms. Or if they do, they don't want to pay the courts for managing the damage to someone else's children. No one is screaming for improvements in family court. Family court is at the bottom of the barrel in status. In states like mine, they've actually cut pay for children's representatives in court.
How to build a broad political constituency for spending on a child-centered family court system in the current political climate? Well, Jon, here's something you could do. Why don't you give some writer an assignment to spend a month sitting in New York's Family Court, now open to the public. Family Court needs a Dickens or a Tom Wolfe. At the beginning of this century, it took a handful of muckraking journalists, lawyers, and settlement house workers to arouse public concern about the problem of kids in criminal court and to establish the juvenile justice system. Maybe a piece in the New Republic would call attention to this mess and help to build support for a comprehensive juvenile court system.
Still, the model of Progressive reform may not fit. Mason laments that there is no national coalition of feminists, philanthropists, and lawmakers advocating for children as there was in the Progressive Era. Tomorrow I want to offer some thoughts on why that is so and on what's happened to pro-child liberalism.