In a 1936 court case involving a husband and wife’s disagreement over the religious upbringing of their child, the New York Court of Appeals ruled:

“Dispute between parents when it does not involve anything immoral or harmful to the welfare of the child is beyond the reach of the law. The vast majority of matters concerning the upbringing of children must be left to the conscience, patience, and self-restraint of father and mother. No end of difficulties would arise should judges try to tell parents how to bring up their children.”

Citing this passage in a new article in the Journal of Law and Contemporary Problems, Kimberly C. Emery and Robert E. Emery argue that its rationale should apply to a certain extent to separated, divorced, and never-married parents, as well as married ones. They propose specifically that:

First, the law should defer to agreements between parents who live apart for the same reasons that the judiciary refuses to enter disagreements between married parents: respecting parental autonomy and encouraging cooperative coparenting. Second, courts can and should refuse to hear some disputes between parents who live apart, as is done for all disputes between married parents.

Emery and Emery’s primary argument is that parents, not courts, know what is best for children. Rather than having to go to court to be told by a judge how to raise their kids, then, unmarried parents should be able to reach legally binding agreements through mediation and other forms of alternative dispute resolution, and when there is no concern over child protection, there should be no judicial review of parents’ agreements. Existing evidence on mediation suggests that in addition to relieving over-burdened courts, such innovations would reduce family conflict and increase nonresidential parents’ involvement in children’s lives.

The article, which can be downloaded here, makes a compelling case for legal reform. Yet it left me thinking about the many unmarried parents (and their children) who would not be helped by its proposals. For two parents to come to an amicable, working agreement about coparenting, they must both desire to be involved, and tolerate the other’s involvement, in their children’s lives. If one (ex-)partner has no interest in parenting, there will be no coparenting. And when one parent is adamantly opposed to the other’s involvement, even a court order may not be enough to protect that parent’s rights, as David Lapp has discovered:

One [unmarried] dad who has barely seen his toddler daughter says that more than anything he wants to be with his daughter. While a judge did award him the right to keep her at his house at designated times, to do so he has to contend with a mother who says that he’ll have to get past her parents as well as her new boyfriend’s parents—and their .45 handgun.

Perhaps that father could seek further legal help, but even if the mother of his child eventually abides by the judge’s order, the hostility of her and her new boyfriend’s families could create new conflicts and undermine his efforts to be a good dad. As examples like this one show, facilitating successful coparenting agreements will take more than mediators and judges: It will require society-wide recognition of the fact that kids benefit from having relationships with both their parents.