Professor Maldonado’s thoughtful post on fathers reminds of me of one area where the distinction between status and contract in the family still has a huge bite: Debt. In particular the debts created by child support obligations.
Most debts are created in one of two ways. The first method is by contract. I borrow money, I buy on credit, I breach a contract that gives rise to damages, etc. The second method is by committing some tort that gives rise to an award of damages. Interestingly, once these debts are reduced to a sum certain they are more or less treated in the same way. The failure to pay the debt is not a crime. Furthermore, we do not generally allow injunctive relief for debt collection. (In other words, a court will not order a debtor to pay on pain of contempt.) By and large, the debts are even treated in comparable ways in bankruptcy.
Not so for debts of child support. In some jurisdictions failure to pay child support is a crime. Child support debts receive preferred treatment in bankruptcy. In the Old Dominion they try to hit deadbeat dads were they really live, revoking their hunting licences if they refuse to pay. Indeed, some courts have even upheld injunctions requiring unemployed fathers to accept offered employment so as to comply with child support obligations, claims that such work-on-pain-of-contempt-and-imprisonment violates the Thirteenth Amendment’s prohibition on “involuntary servitude” notwithstanding. In short, we treat the debts created by the status of “fatherhood” as being quite different than the debts created by contract or even by harm to others.
I’m not sure what to make of this. Mainly, I suspect that it simply reflects the desire to protect the rights’ of children to the economic support of their parents. But it is more than that. For example, other debts for the benefit of children — say those created by contract such as insurance policies — are not given anything like the same kind of treatment. In other words, it is not simply about making sure that kids get paid. Rather, I suspect that Maine’s claim about the progress of the law notwithstanding, we view a father’s obligation of economic support as changing his status. He is not simply a citizen with a debt. He is a father, something different than an ordinary person, and thus subject to certain intrinsic obligations. In this sense, I think, the law insists that fathers are more than simply income sources. They certainly are not treated like other income sources. Rather, the law insists that the failure to support one’s children is an action of particular blameworthiness that we are willing to accept extra costs to avert and that we are willing to punish with greater severity than other kinds of non-payment of debt. This doesn’t respond to the sorts of concerns raised by Professor Maldonado’s post, of course, but it does suggest that we are willing to treat the obligations of fatherhood as being more than accidental to one’s legal personhood.
Fathers aren’t like everyone else.