Friday, December 6, 2013

Symbiotic Parenting: What Is It and Is It Contributing To the Paralysis Over Family Policy Reform in the United States?

In this post, I'd like to look at the problem of "symbiotic parenting", which may be contributing to the paralysis over family policy reform in the United States, including the continued discrimination against shared earning/shared parenting families.

What is "symbiotic parenting"?  Symbiosis is defined by a dictionary of psychology as follows:

"1. In animal world, connection between organisms that share close bond that is beneficial for both of them; 2. Developmental psychology defines symbiosis as a phase in early development when child is completely dependent-physically and emotionally closely bonded with mother."

Symbiotic parenting is when the parent and the child become a merged psychological unit, the child is completely dependent on the parent, and the parent seeks to get his/her needs met by the child as the child seeks to get his/her needs met by the parent; this appears on the surface to be "mutually beneficial" to the parent and child.

Because historically all women have had personal responsibility for meeting children's needs, but only some men have taken this responsibility (perhaps because paternity was not provable/disprovable), this is usually a problem of the mother doing this and, as I will illustrate, it occurs most often (or even only) when women are the only parent responsible for meeting an infant or child's needs.  Ironically and contrary to myth and scapegoating, this happens most often not in "single mothers" but in "stay-at-home mothers", whether married or not, where the father takes little or no personal responsibility for meeting the needs of the infant/toddler/child.   Single mothers and single fathers may be at risk for doing this, however.  It also relates to the problem that women have not had equal rights to men in most political economies, which actually increases the risk and likelihood of maternal symbiosis occurring and damaging a child's development and makes the problem invisible and even "normalized" so that it is seen as the healthy standard.  One reason for this is that these legal systems render women into a "childlike" status themselves, blocking girls from reaching adulthood. It is often very difficult for women to process this debilitation.  They then act out subsconsciously their issues of dependence themselves via the child's more understandable developmental dependence.

This subconscious "acting out" can take different forms with boy children and girl children.  A boy may be seen as "different", "other", not understandable, and given a "larger than life" status, encouraged to act out aggression, anger and other feelings and behaviors not allowed in women.  One psychologist, Lloyd de Mause, thinks that many wars of aggression have been based in this subconscious issue being acted out by men, often doing it for the "mother country" (including reflecting the displacement of the issues of the mother onto something that doesn't have a gender, a country).  A girl may be used to serve a mother, such as to listen to her issues and attempt to feed the deficits or crippling in the mother's development (something it is impossible for a child to remedy, for a number of reasons, especially because of the limitations and developmental stages of a child's mind).  Alison Bechdel's "Are You My Mother?" is a look at how she was used by her mother in this way. 

It is very important to keep in mind that symbiotic parent is usually subconscious by the parent; the parent does not have control over this behavior or access to what is driving her/him to parent this way.

Also, it is important to distinguish the phenomenon of a child's symbiosis with one or both parents and the parent's symbiosis with the child.  Because children, especially infants and toddlers, are completely dependent on adults for survival and because their brains are undeveloped (most brain growth occurs after birth and doesn't finish until a child is in his/her early twenties), their identification or merging of themselves into a parent's identity may be a normal stage of development.  There is debate today in psychology over whether a child's confusion of him/herself with the mother or father is a healthy and normal stage of development or whether it reflects a pathology in the parent that has caused a pathology in the child.  Research into families where both parents are taking personal responsibility for meeting the personal and developmental needs of infants and children by Kyle Pruett and others has indicated that children in these families are more likely to see themselves as separate from the parents and to be able to handle that, even though they are in normal stages of childhood dependence and brain and physical development, than children who have only the mother responding to their needs in a personal way.

In this post, I am referring to "parental symbiosis" as a general term and "maternal symbiosis" for the particular gendered version of it, which has its own set of issues.  While "paternal symbiosis" happens, it is less likely because of historical requirements of gender roles.  The fact that paternity was not provable until 1970, and only recently became inexpensive to prove, also may have contributed to many men not being personally engaged enough with children to engage in parental symbiosis.  Men with symbiosis issues often acted them out in the broader world, in politics, jobs, careers, etc. while women acted them out by having a child and repeating the cycle.

As recently as the 1970s and Margaret Mahler's 1975 publication of The Psychological Birth of the Human Infant: Symbiosis and Individuation, written in 1975 (with Fred Pine and Anni Bergman), maternal symbiosis was considered normal and healthy parenting, however, and even required for a child's development.

With Dorothy Dinnerstein's publication of the The Mermaid and the Minotaur in 1976 and Alice Miller's publication of The Drama of the Gifted Child in 1979 this view was deconstructed and seen as a pathology, however.   Dinnerstein and Miller both called out that many women have a desire to have a baby out of a subconscious need to address deficits, including abuses and neglects, from the woman's childhood as well as general problem of women not being seen as adults and holding rights of adults.  They illustrated the harm to the child, which was often lifelong and carried into the child's adult life and acted out in the world and repeated in the next generation, unless something happened to make the subconscious issues conscious so they could be dealt with in a way that did not harm a child or others.

While the prevailing view in psychiatry, in writings of Donald Winnicott and others, had illustrated that such harm to a child is a contributor to misogyny in both men and women (but particularly in men for reasons I'll explain later), the "cure" for misogyny advocated by Winnicott and others was that a person should forgive or feel gratitude to a mother who had so harmed him/her in order to reach maturity.   [In a 1964 talk on feminism, Winnicott states: "We find that the trouble is not so much that everyone was insides and then born, but that at the very beginning everyone was dependent on a woman.  . . . [Winnicott sees this dependence as the root of misogyny.] . . . The awkward fact remains, for men and women, that each was once dependent on a woman, and somehow a hatred of this has to be transformed into a kind of gratitude if a full maturity of the personality is to be reached."]

Dinnerstein and Miller illustrated the fallacy in Winnicott's view of forgiveness or gratitude and how such a view would actually cause these problems to be perpetuated. 

Because of this historical view that maternal symbiosis was a healthy thing, many men and women reach adulthood with "baggage" of subconscious resentment regarding it.  The resentment usually does not get resolved with the particular mother of the person, for a number of reasons, including societal taboos and requirements to "honor your mother and father", as well as problems of still needing the mother or her help, as well as the huge psychological fact of the child not having been brought into the world if it were not for the mother having the child and doing at least some of the work of tending to his/her needs in childhood.  The resentment and other subconscious baggage is there, however, and gets displaced onto women generally, perhaps by seeing women as less-than-human or by expecting all women to be "nurturing" even in contexts where this is not appropriate.   Some Supreme Court Justices, such as Antonin Scalia, actually state that in our Constitution  any woman (not just his mother) is less than a person, perhaps as a result of this phenomenon!  Likewise, some elected officials, such as President Barack Obama, former Speaker Nancy Pelosi and Secretary of Health and Human Services Kathleen Sebelius, create programs like the Affordable Care Act, which contain biological fictions that women are the only parents of children as well as distortions of the care into a required provision of a "well woman visit" (regardless of whether a woman is pregnant or even of reproductive age) and no similar "well man visit."  I list some of these distortions in the Affordable Care Act here.  A recent paper by a Yale sociologist also discusses this distortion, as does this book by a public health academic.

Scalia's view of women as not "persons" or citizens" is particularly interesting in that, as I've mentioned in this post, some of the framers of the Constitution, particularly those with Quaker backgrounds or who represented Quaker-populated areas, deliberately ensured that it was built around "rights of person" not "rights of man" and were themselves engaged in peer marriages, which were very difficult as they required a type of civil disobedience of laws of coverture of the time.  I suspect that if the United States Constitution had not been drafted around "rights of person" and instead was based in "rights of man" it would have drawn strong protests and would not have been ratified by the populations in the Delaware Valley.

Did the 17th and 18th Century colonial United States Quakers understand the problems of "maternal symbiosis" long before it became a more widely understood problem in the 20th Century?  Perhaps they did, as their insistence on seeing men and women as separate people, even in marriage, and their view that children should be seen as separate people as well, suggests.  I suspect that many of them had difficulty following through on this, however, because the phenomenon of the subconscious was not well understood then, and they had only primitive techniques to bring the subconscious to the conscious, such as their meeting style of a "priesthood of all believers".  The Quaker meeting involved the participants, men, women and children all in the same room, sitting in silence until one person is moved to speak. That person speaks and then sits down.

In any event, today we have many more tools to help ourselves and other people deal with subconscious "baggage" that leads to problems of parental symbiosis.  Preferably people deal with these issues prior to having a child although because the nature of the problem is subconscious, this often doesn't hapen.

The two-earner/two-parent family helps reduce risk of this problem occurring for children, however.  This is because the child has two parents to go to meet his/her needs.  If one or the other parent engages in symbiosis, the child can object to this and resist it because s/he has another parent also meeting the child's financial and personal needs.  Also, if one parent is present while the other parent is doing the symbiosis, the nonsymbiotic parent may be able to empathize with the child and be an ally in the face of this parental pressure (hopefully in a manner respectful to the symbiotic parent, who unfortunately is not in control of his/her behavior).

Thursday, November 7, 2013

The U.S. Consititution, Fundamental "Rights of the Child" and Child Responsibility

In this post, I'd like to look at what the U.S. Constitution says with regard to rights of children and responsibilities of parents (if anything) as well as whether an amendment to the Constitution, or to state constitutions, would be a good idea, and what such an amendment might say.  (Skip straight to the bottom of the text if you just want to see the proposed amendment.)

The Current U.S. Constitution

As I've written about in an earlier post, the United States Constitution, when it was written and when it has been amended over the years has been drafted and ratified by populations with diverging values.  In addition, immigrant populations who have become United States citizens have had additional diverging values. This has meant that the terms used in the document have had different meanings, sometimes wildly different ones, to different people and to different interpreters of the Constitution.

One term that is relevant to rights of children is the way the way the document is drafted around rights of "person" and rights of "citizen".  The starkest contrast in the meaning of this view is this:

     (a) Antonin Scalia, a sitting Supreme Court Justice, who defines the term "person" to exclude women.  He has said it excludes women altogether because of his view that "Nobody ever thought that that's what it meant. Nobody ever voted for that."  In other statements he has said that it does apply in some contexts, that "you can't  . . . give [women] higher criminal sentences." If women are not "persons" or "citizens", are men? 

     (b) John Dickinson, one of the drafters and ratifiers of the Constitution, who considered it to mean "he" or "she".  He also was the chair of the committee that prepared the initial draft of the Articles of Confederation, which later became the frame for the first drafts of the Constitution, and in which he used the term "person" throughout, except for a couple references to mustering armies (by time it was converted to the first drafts of the Constitution, the word "man" was completely gone from the document).  This was a contrast with the Declaration of Independence, which Dickinson and others refused to sign, built around a statement that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness" and with the contemporaneous French Constitution, literally called "Rights of Man and the Citizen".

(One aside: Some people have argued that the use of the term "man" in the context of the Declaration of Independence is intended to cover women as well.  Further, because the English language doesn't currently have a pronoun that applies to men and women in a non-gender-specific the way the word person does, the use of the words "he" or "she" or "her" or "him" have also been argued to cover both biological sexes or genders.  The French Constitution basis in "rights of man" is still being used today by its constitutional court to entitle men to pay lower tax rates than women, however.) 

All of the rights of person and citizen in the United States Constitution can be readily applied to both men and women.  The Supreme Court did not apply them to children, however, until the 1966 case, In re Gault.   Many of the rights could be applied to children, if in limited contexts.  A right "peacably to assemble"?  A "right to petition the Government for a redress of grievances?"   A "right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures"?   A "right not to be compelled to be a witness against himself"?  The Second Amendment is perhaps the most challenging of these to consider.  It states that "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."  Should a five-year-old have the right to keep and bear a gun?  It is a tradition in some parts of the United States to give small children real guns.  While federal law prohibits selling a gun to someone under the age of 18, adults can give guns to children. Regulations on how children access firearms and who can be held negligent for a child’s use of a gun are left to the states. There are also companies in the United States that market guns specifically made for children.

What is an open question, however, is how the Constitution regards the fact children cannot meet their own needs and who is responsible for meeting their needs.  There is not much about responsibilities in the Constitution; the discussion focuses on rights and among those rights the needs of children, such as the need to be fed, clothed, sheltered, to have their development supported and not traumatized, etc. are not included.

The developmental distinction between children and adults is not recognized except perhaps implicitly in the Twenty-Sixth Amendment, which says "The rights of citizens of the United States, who are eighteen years of age or older to vote shall not be denied or abridged by the United sates or by any State on account of age."  This seems to say children under the age of eighteen are citizens (and also persons), but can be discriminated against in the right to vote.  While some would say this means they can be discriminated against in other rights, others might say this implies that they cannot be discriminated against in other rights, including the Fourteenth Amendment right as a person not to be denied the "equal protection of the laws". 

The developmental distinction between children and adults is thus not really recognized in the Constitution, which could lead one to conclude the Constitution was not intended to deal with children's rights at all, only the rights of adults.   Moreover, the fact many of the rights specifically concern an individual's rights vis-a-vis government, but not against other private citizens on an individual basis, mean that application of these concepts in the context of the child vis-a-vis parents is awkward, even if in many contexts such concepts make sense, if for no other reason but to support the child's development.  The awkwardness of the language when used in this context does support a conclusion that the Constitution was not intended to deal with children's rights at all, except perhaps with regard to a child's rights vis-a-vis the state (or other citizens where applicable) in the same contexts as an adult's.

The reasons the original framers of the Constitution did not deal with this issue seem likely based in very different views the cultures had about children.  A significant contrast can be seen between:

     (a)  Thomas Jefferson, who had six children with Sally Hemmings, bound in slavery to him, and who never acknowledged those children as his own.  The children lived at his estate as slaves and were trained domestic servants and artisans.  He did free them when they came of age but still did not acknowledge them.   We don't know if he saw these children as having rights to have their needs met and who he thought was responsible for meeting those needs.  The fact he did not acknowledge them suggests he did not see himself as the father having any responsibility for meeting their needs.

      (b)  Benjamin Franklin, who, at about the age of 24, had a child with a unidentified woman he was not married to, who acknowledged the child and raised him.  Then when the child, William, later had a child himself with a woman he was not married to and the child was placed in foster care and Benjamin Franklin later learned about the child, Benjamin Franklin took custody of the boy, William Temple who was living in France and about the age of four at the time, and raised him as well, this time as a widower without his wife's involvement.   He thus seems to have seen these children as having rights to have their needs met and to have parents meet them.   We don't know if Franklin thought these children had rights to have their needs met by their mothers as much as by their fathers; we don't know anything about the mothers of William and William Temple; historians speculate that they were prostitutes.   It is possible that Benjamin Franklin thought children had rights to have their needs met first by fathers and second by mothers; or perhaps he thought that a prostitute was incapable by definition of meeting a child's needs.  (If the latter it is curious he did not also see a purchaser of sex as similarly incapable.)  The fact William Temple was put in foster care suggests the mother was not capable of meeting his needs.  While William paid some of the child's expenses he did not assume personal responsibility for meeting the child's needs.

Another issue that the framers faced that doesn't exist anymore is that paternity was not provable .  This means that the child's rights, vis-a-vis the father anyway, could not be established except through legal presumptions (such as the presumption that a married man was the father of any children his wife gave birth to).

How Might the United States Constitution or Individual State Constitutions Be Modified Today to Address the Issue?

(A) First, I'd like to illustrate at what some foreign governments and the United Nations have done or are doing and whether they work well.

The 1992 United Nations Convention on the Rights of the Child, provides the following language on this issue:

"1. [States/Parties] shall use their best efforts to ensure recognition of the principle that both parents
have common responsibilities for the upbringing and development of the child. Parents or, as the case
may be, legal guardians, have the primary responsibility for the upbringing and development of the
child. The best interests of the child will be their basic concern.
2.   For the purpose of guaranteeing and promoting the rights set forth in the present Convention,
[States/Parties] shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and
services for the care of children.
3. [States/Parties] shall take all appropriate measures to ensure that children of working parents have
the right to benefit from child-care services and facilities for which they are eligible.

Pros/Cons: The UN Convention was written and ratified after paternity became provable in 1970 but while it was still relatively expensive to do so.  Paternity now costs as little as $150 to establish, with the price expected to drop even further in the near future.  While the ideas in the UN Convention make sense, their vagueness about who is to meet these needs of the child is troublesome.  The vagueness likely came from (a) the UN Convention being intended to be a general set of guidelines, leaving it to specific countries how they wanted to implement them and (b) because of the difficulty of proving paternity, and the fact meeting these standards is difficult for mothers to do when the father is not sharing in the responsibility, thus requiring a socialized responsibility to fill the gap.

The United Kingdom has a concept of parental responsibility in its legal systemIn simplified form, as it exists in England and Wales, this concept states that:

1.  "Parental responsibility" is a set of legal rights and responsibilities.

2.  All mothers have parental responsibility from the birth of the child.   Only the following fathers do:
  • a father who his married to the mother;
  • a father who is listed on the birth certificate
  • a father who has applied for it and (a) obtained a parental responsibility agreement with the mother or (b) obtained a parental responsibility order from a court.
 3. The two principal rights and responsibilities of "parental responsibility" are:
  • providing a home for the child
  • protecting and maintaining the child
 4.  Other rights and responsibilities of "parental responsibility" include:
  • disciplining the child
  • choosing and providing for the child’s education
  • agreeing to the child’s medical treatment
  • naming the child and agreeing to any change of name
  • looking after the child’s property
4.   Parents have to ensure that their child is supported financially, whether they have parental responsibility or not.

In the United States, the term "parental responsibility" has a different meaning.  It is the right of third parties, including the state in a criminal prosecution, to sue the parents for an act of the child.
Pros/Cons: The UK method is good in how it lays out in simple and clear terms what the responsibilities are. It is curious how it does not require parental responsibility of all biological fathers, only those who are married or who assert it.  Also, a married father may not be the biological father so this seems to be an awkward assignment of responsibility that doesn't focus on the child's needs.  Finally, there is no clear allocation of the responsibility between the parents.  In practice, even with a father who does hold parental responsibility, this can means that a father assumes the mother is meeting all the parental responsibility even if she has not clearly consented to this role.  This then leaves the child at risk.  This risk would be even greater with an unmarried father who did not assert parental responsibility.  While some single parents may readily be able to meet the parental responsibility standard on their own, if one takes a child-centric approach, you would want the single parent to have to consent to assuming full parental responsibility before the other biological parent is relieved of it. 

(B)  How might the United States address this issue?

One possibility is a "Rights of the Child and Child Responsibility" Amendment to a state constitution or the United States Constitution that draws from these sources but that avoids some of their problems.  Here's what it might look like:
Rights of the Child and Child Responsibility

1.   A child, from the moment of birth until the age of majority, has the right to have the child's needs met by the child's biological parents.  The biological parents hold several liability for meeting child responsibility obligations.
  (a)   If a biological parent obtains uncoerced written consent from the other biological parent that that parent assumes part of all of the child responsibility, then such responsibility no longer exists with that biological parent, but only to the extent assumed by the other parent.

  (b)  If an adoptive parent or parents obtain uncoerced written consent from both biological parents to assume all of the child responsibility, then the adoptive parent or parents assume all of the child responsibility.  If an adoptive parent obtains uncoerced written consent from one biological parent to assume part or all of the child responsibility, then such adoptive parent holds such responsibility, in several liability, with the other biological parent and with the consenting biological parent (to the extent the adoptive parent has not assumed all of the responsibility of the consenting biological parent).
2. Child responsibility includes:
  • meeting physical needs of the child, including:
    • providing a home for the child
    • protecting the child
    • feeding the child
    • clothing the child
    • obtaining health care for the child in case of disease or injury and for prevention of disease or injury
  • meeting emotional needs of the child
    • recognizing the child as a distinct person from the parent
    • recognizing the child's dependence
  • meeting developmental needs of the child
    • obtaining education for the child
    • disciplining the child's behavior
    • supporting the child's development from dependence to adulthood
3.  The state may appoint a guardian ad litem to enforce the rights of the child and the child responsibility held by one or more parents.

What do you think of this idea?  Any comments much appreciated.

Saturday, October 19, 2013

The Gender of the Debt: How Unconstitutional Gender Stereotypes Separated the United States From Its Foundation and Led It to $17 Trillion in Federal Debt

In this post, I'd like to summarize the connection between the gender stereotyping in federal tax and benefits policy and the $17 trillion federal debt (as of the end of 2013).

 First, let's look at a chart of the aggregate federal debt over time.

  Here's a look at what has happened since 1980, when Ronald Reagan took office.

These charts were prepared by in Februrary 2012.

What were the background policies of these Administrations related to gender stereotyping?

All of these Administrations have been functioning under a basic federal template of assessing lower tax rates on sole breadwinners and the greater earners in two-earner marriages, higher tax rates on the lesser earners in a marriage (or stay-at-home parents who try to enter the market for paid work) and distributing extra benefits to sole breadwinners and stay-at-home parents, albeit with some adjustments or reinforcements in each Administration that I'll outline below.  The template also, generally speaking, charges higher taxes to two-earner marriages and single people and gives them less in benefits. The primary components of this template, as I explained in more detail in earlier posts, such as this post, this post, and this post are:

(i)  The practice of fictionally merging earned income of two partners to a marriage into one aggregate fused earned income for the purpose of measuring taxes, thus in a system of progressive tax rates creating a "marriage bonus" or reduced tax rate for the greater earner in a couple, a "marriage penalty" or increased tax rate for the lesser earner in a couple, and a requirement that people in couples with incomes closer to equal each pay a "marriage penalty".  The opposite effect on each spouse in a marriage of two people with different levels of income is sometimes called the "stacking effect problem."  This policy of "income splitting" was introduced in the United States in 1948, when a post WWII Congress imposed it, over two vetoes by President Truman, in an effort to displace women from the paid employment they had pursued to support the WWII effort and back into unpaid or lower paid work, especially of the home and children.  Paradoxically, it was also an objection to states with community property laws fictionally splitting earned income in marriages.

(ii)  The practice of assessing the payroll taxes that support Medicare and Social Security on the basis of individual wage income only, but distributing benefits based on marital status and in a progressive manner.  This means that a sole breadwinner pays the same payroll tax rate as a comparably earning single person or person in a two-earner marriage, but s/he and his spouse receive substantially more in benefits.  Many of these sole breadwinner/stay-at-home parent benefits are unfunded, a problem that has become worse with the fact people are living longer and the Baby Boomers are a large demographic group. This policy was instituted in the 1935 Social Security Act in connection with other New Deal policies, including those that prohibited married women from earning income, built around a concept of men holding first entitlement to paid work and women holding primary responsibility for unpaid or lower paid work of the home and children.  It was adopted with slogans such as "a working wage for the working man".

(iii) The practice of assuming that women are the only parents responsible for meeting children's needs personally and that they are the only biological parents of children.  Especially for parents of children under the age of 5, this leaves women unable to earn income and creates demand for welfare programs. It also hides information about the effect of paternal neglect in creating developmental distortions and problems in children that are expensive to remedy.  This in turn creates demand for expensive federal spending, both during the child's childhood and later adulthood, including spending on wars of aggression, as one commentator I'll mention below has illustrated.  And, as more studies increasingly indicate, the effect of men's health on the DNA quality of the sperm as well as paternal age effect on the DNA quality of sperm, becomes hidden, thus preventing men from making informed choices about when in their lives they conceive their children and preventing problems resulting from these uninformed choices.  This has been a continuous policy at the federal level in health and human services programs during the 20th Century and has recently become reinforced in the Affordable Care Act.  Some of this may have been reinforced by a faulty "mother's choice" model for bringing a child in to the world that became popularized in the 1970s in connection with the Supreme Court's 1971 decision Roe v. Wade, rather than a "two-choice" model involving both parents, including recognition of fundamental rights of the child (a topic I'll discuss in an upcoming post).  Some of the problem may derive from the Roe v. Wade decision being based on the due process clause of the Fourteenth Amendment and not the equal protection clause as well.

(iv) The practice of reinforcing biases against male preventive care in the health care system and of pathologizing women in the health care system.  These biases not only reduce men's longevity, by five years on average relative to women, but increase costs of caring for older men, who have accumulated chronic and other diseases that are preventable.  They also make women feel they are sicker than they are, causing them to overconsume health care resources, and fail to catch communicable diseases, such as sexually transmitted diseases, by treating only 50% of the population that is contributing to such disease.  This policy has been a problem for many years, but has recently become reinforced in the 2010 Affordable Care Act.

(v)  An "intermediate scrutiny" standard for sex discrimination established by the Supreme Court in a series of decisions, beginning with the 1972 Reed v. Reed decision, rather than a higher standard such as "strict scrutiny".  This "intermediate scrutiny" standard has also become eroded to "rational basis" or less by some sitting Justices, such as Antonin Scalia.  Justice Scalia was appointed by President Reagan.  These lesser standards for evaluating sex discrimination have then made it more difficult for the electorate to recognize tax discrimination against women, health care discrimination against men on preventive care, and retirement benefits discrimination against both women who earn income and men who take personal responsibility for their children.

How do these policies correlate to the federal debt?  How do they cause the federal debt?  How was the federal debt increased or decreased during the Presidencies of Reagan to Obama in connection with modifications made to this template?

First, what happened prior to Reagan:

1.  The Civil War increased the federal debt substantially, as this historical chart by the Congressional Budget Office shows.

 (Unlike the charts, this chart shows only debt held by the public, an omission of inter-governmental borrowing, which will become relevant for Clinton era policies discussed later.)  As I noted in a previous post, in the lead up to the Civil War, while some states were seeking to secede, some states that stayed in the Union, such as Kansas, perhaps in frustration with unconstitutional decisions made by the Buchanan Administration and the Taney Supreme Court, made gender stereotyping decisions in their state constitutions that conflicted with the United States Constitution, that in turn may have led to the heavy expenses of the Civil War rather than less expensive (and less lethal) methods for eradicating slavery. 

2.  As the CBO historical also shows, the 1935 Social Security Act, in connection with other New Deal spending, correlates with an increase in the federal debt.  Whether the Social Security Act caused an increase in the federal debt in the years prior to 1980 is more difficult to see.  Countering any view of causation is the fact the federal debt has returned to pre-1935 levels in some limited years since then, falling below those levels from the late 1960s until 1980, albeit still being relatively large on a historical basis.

3.  The CBO historical chart also shows WWII spending increased the federal debt enormously, but this debt was worked out or worked off precipitously from 1945-1950, and significantly from 1950 to the 1960s, with ever more reduction, at a lesser rate, from then until 1980 when it began to rise again.  [A relevant aside: Hitler was elected in newly democratic Germany after the Weimar Republic established equal rights for men and women, but not equal responsibilities, and after the Weimar Republic was only partly successful at dealing with big debts from reparations and other costs of World War I.  The Weimar Republic had also had destabilizing problems with intense attacks from both right wing and left wing extremists.  One of Nazi policies was "income splitting", mentioned above at item (ii)]

Next, what happened in each Administration after 1980, starting with Reagan, as the debt began to climb precipitously to today, with a small break in the late 1990s?

1.   During Reagan's Presidency, he cut some income tax rates and increased others, principally payroll tax rates.  [War spending?]  Nothing was done about the fiction of "income splitting" or the problem of the unfunded sole breadwinner/stay-at-home parent subsidies in Social Security and Medicare and the overtaxing/underbenefitting of two-earner couples.

2.   During George Bush's Presidency, he initiated the Gulf War.

3.   During Bill Clinton's Presidency, substantial tax reform in 1996 involved Newt Gingrich's  Contract with America reinforcing these policies.  While this was largely driven by Gingrich, at least one Clinton Administration tax advisor, Michael Graetz, has acknowledged that a "mistake" was made in not getting rid of the fiction of income splitting, according the book "Taxing Women" by McCaffrey.   The Clinton Administration also took the surplus in the Social Security Trust Fund that had been generated particularly by so many Baby Boomer and younger people being in two-earner marriages or being single, and lent it for general spending, with no plan for paying it back.  This is why the CBO chart above that only shows debt held by the public, rather than intergovernmental debt as well, can understate the problem.

4.  George W. Bush was elected on a platform of opposition to egalitarian marriage (usually associated with the issue of "same-sex marriage" although "same-sex marriage" equality currently just involves same-sex couples being subject to all the same tax and benefit distortions mentioned in this post) and reinforcement of patriarchal marriage (euphemistically labelled "traditional marriage", although it is not "traditional" for many in the United States, even tracing back to the founding, as this post discusses).  During his Presidency, he initiated a war of aggression, the Iraq War, and other military efforts that are estimated to have cost $4 trillion.  He also initiated tax cuts that substantially reduced taxes on sole breadwinners, particularly at higher levels of income, although he also (i) reduced one aspect to the "marriage penalty" problem for married couples with incomes between $30,000 and $130,000, and (ii) he partly reduced one aspect of the "marriage penalty" problem for families receiving the EITC.   Neither of these reforms addressed the "stacking effect" problem, however, that imposes a "marriage penalty" on the lesser earner and gives a "marriage bonus" to the greater earner.  He increased benefits in Medicare through the brand name prescription drug benefit.  He also initiated the process of big bank bailouts, shifting bad debt held by banks to the federal debt.  

5.  During Obama's Presidency, in conjunction with the House Tea Party coalition, first he reinforced the Bush tax cuts that (a) substantially reduced taxes on sole breadwinners at higher levels of income and (b) the part-reforms of the (i) "marriage penalty" problem for 2-earner married couples with incomes between $30,000 and $130,000 and (ii) "marriage penalty" problem for 2-earner married couples receiving the EITC.  He initiated a capital-earner tax to support the progressivity of benefits in Medicare.  After the voters chose him over Mitt Romney, he made federal rates more progressive for those with incomes over $200,000 (thus increasing the "marriage penalty" and "stacking effect" problem for 2-earner families above that level because nothing was done about the fiction of joint earned income).  He initiated a payroll tax cut (since repealed). He also continued and reinforced the process of big bank bailouts, shifting bad debt held by banks to the federal debt.  He ended the Iraq War.  He passed the ACA, with its bias that women are the only biological and psychological parents of children and against male preventive care.  He has made no effort to eliminate the fiction of joint earned income for tax measurement nor has he made much effort to deal with the debt-financed extra benefits payments and low taxes to sole breadwinners in Social Security and Medicare.  The Social Security Administration did release a proposal of moving to a "shared earnings" model for benefits, which would better recognize the higher payroll taxes that 2-earner families pay.  [The Senate Finance Committee is considering reform to tax policies that affect families, and has included removal of the fiction of "income splitting" in their discussions, along with other policy reforms that recognize women as earners but this reform still assigns a primary parent with responsibility for child care (while paradoxically given the child care tax credit to the higher earner), rather than modeling this on a concept of child care as the equal responsibility of both parents.]

[To be completed.]

As I discussed in an earlier blog post, the conflict in the United States regarding gender stereotyping goes back to the founding days of the country and our Constitution is built around the the term "Person" (rather than "Man") in order to prevent such stereotyping.

Monday, October 14, 2013

Proposed Colorado Amendment 66: Pro or Con?

Colorado's proposed Amendment 66 will be on the ballot in a few weeks.  How would this amendment affect shared earning/shared parenting families?

Background and Summary of the Amendment:  

The amendment would add a progressive element to the state income tax, doing away with the current 4.63 percent flat rate. Taxable income of household (or individual income for those not married) up to $75,000 would be subject to a 5 percent levy; income over that amount would be taxed at 5.9 percent.

The measure would would attempt to make state and local shares of district funding more equitable by resetting the equation for funding lower-income districts.  It would pour $165.5 million into full-day kindergarten and $77.5 million into preschool programs. It also targets $100 million for education-innovation grants, such as expanded school days, and $381.3 million for student testing, professional development for educators, early literacy and school accountability.  It promises a net gain in funding for every district and financial transparency through a website that would allow the public to track spending at the school level.

It also intends to channel more money toward early-childhood education, at-risk students, English-language learners, charter schools and locally determined innovations such as longer school days and years.

How does the tax affect shared earning/shared parenting families?

(A) First, how does Colorado's current tax work?

Unlike the federal income and payroll (or Social Security and Medicare) tax, the state income tax is, generally speaking, applied to all types of income, from wage income to rental income to capital gains.  

Like the federal income tax, and somewhat like the federal payroll tax, Colorado allows the fiction of joint earned income measurement for married couples.  Even though there is a flat tax, because of the way the deductions work, two-earner married couples very often pay higher rates of tax than one-earner married couples with the same gross income.  The effect of the deductions can also mean that the lesser earner in the couple pays a "marriage penalty" or higher tax rate because of the marriage and the greater earner in the couple receives a "marriage bonus" or lower tax rate.  (I am oversimplifying this for the purpose of illustrating the effect of Amendment 66; you will want to check your own personal tax situation to know the details.) 

For this reason, as I've discussed in earlier blog posts, many shared earning/shared parenting families that are not already married may prefer to form a civil union.  Under a civil union, the tax on each partner's personal income will likely be measured for both federal and state tax purposes separately from the other partner, avoiding the distortions mentioned above.   As I've also discussed in earlier blog posts, this depends on the circumstances of each such shared earning/shared parenting family; the extra federal benefits (such as Social Security survivor benefits to the lesser earner in the couple if one partner's income is greater than the other) of marriage taxation may be of value to some families, or one or both partners may be employed by a company or a government (including the federal government) that offers other benefits that outweigh the costs of being taxed as a marriage.

(B) How would the Amendment 66 tax change affect things?

Because the Amendment 66 proposal would add a progressive element to the tax system, for married couples (in contrast to civil unioned couples) this makes the "marriage penalty" and "marriage bonus" problem in 2-earner marriages WORSE.  It will place greater pressure on families to put as much earnings as possible on one partner and to put as much unpaid work, including child care and other parenting, on the other partner.   It will also increase the accelerating pressure over time to do this that I've mentioned in other blog posts regarding the current federal system.  While there are many reasons progressive taxes are a good idea, to prevent the progressive tax working against its purpose, the fiction of joint earned income by married couples needs to be repealed at both the federal state level.

(C) Conclusion 

Regardless of whether they wish to see more funding or pay more tax to support public schools, most married two-earner families, including shared earning/shared parenting families, may want to reject the tax scheme of Amendment 66.  Civil unioned or nonmarried two-earner/two-parent families would probably be OK with it but, like married two-earner/two-parent families, would like to see broader tax reform that gets rid of the fictionalizing of joint earned income for tax purposes for married couples.

How does the proposed expenditure affect things?

(a)  Making state and local shares of district funding more equitable by resetting the equation for funding lower-income districts.  

This expenditure will not likely affect shared earning/shared parenting families differently than other types of families.

(b)  $165.5 million into full-day kindergarten and $77.5 million into preschool programs.  $100 million and other funds for local education-innovation grants, such as expanded school days and years.

This depends on the degree to which a shared earning/shared parenting family outsources child care.

Many shared earning/shared parenting families use child care and would prefer that schools include preschool, full-day kindergarten and school schedules that run year round without a summer break.

On the other hand, many shared earning/shared parenting families don't use child care as much as 2-earner families where only one parent takes most or all of the responsibility for child care and they may prefer more options for parental care rather than the tax system requiring them to pay for full-time care of small children.

(c)  $381.3 million for student testing, professional development for educators, early literacy and school accountability.  It promises a net gain in funding for every district and financial transparency through a website that would allow the public to track spending at the school level.  

This expenditure will not likely affect shared earning/shared parenting families differently than other types of families.

(d)  It also intends to channel more money toward early-childhood education, at-risk students, English-language learners, charter schools.

To the extend this funding goes to remediate problems deriving from paternal neglect early in a child's life, it seems unlikely to draw support from shared earning/shared parenting families.  Because they are doing the prevention of these problems themselves, they would prefer to see measures that address parental neglect (including "rights of the child amendment" as I'll discuss in a upcoming post or a "two-choice model of parenting responsibility" as I discussed in a recent post) rather than allowing problems from paternal neglect to accumulate and thus require expensive remedial measures. 

What are some of the problems that have been traced to paternal neglect?   Psychologists and sociologists have identified a range of emotional disorders, from ADD to autism/Aspberger Spectrum problems to alcohol and drug addiction.   Also, propensity to perpetrate or become a victim of violence has been traced to paternal neglect.  School performance also improves with paternal responsibility for meeting children's needs and declines with paternal neglect.

Some of these may have biological causes related to DNA degradation associated with ""Paternal Age Effect".

To the extent this funding is going to address problems of the children of illegal immigrants, who comprise six percent of Colorado's population, one objection shared earning/shared parenting families may have is to demand for services of illegal immigrants, at below-market rates, being related to paternal neglect.  In other words, in families that are two-earner, but not two-parent, is the lack of responsibility by one parent (usually the father) being carried by the other (usually the mother) who is then hiring illegal immigrants to do some of this work?   Some working mothers who do not have husbands taking half the responsibility may be hiring illegal immigrants for child care and chores?

(e) Conclusion 

On balance the expenditures in the law will help those shared earning/shared parenting families that outsource a lot of child care; those that like to do their own child care may not like it as much.  Many shared earning/shared parenting families may object to the lack of attention in Amendment 66 to the role parental neglect, particularly paternal neglect, may be playing in the need for expenditures to (a) educate children with developmental problems tracing from paternal neglect and (b) educate the children of illegal immigrants who are being employed, at below market rates, to do work that fathers do in shared earning/shared parenting families. 


Overall Conclusion 

Shared earning/shared parenting families that are married, rather than civil unioned or not married, will likely oppose Amendment 66 because of its tax structure combined with the fictionalizing of joint earned income for married couples for tax measurement purposes, related "marriage penalty" issues and  the continued subsidy to sole breadwinners/stay-at-home parents already built into the Colorado and federal tax system.  

Civil unioned and unmarried shared earning/shared parenting families will face less tax penalty and pay less tax subsidy to sole breadwinners/stay-at-home parents and the structure of a progressive tax works in its best form when applied to them, so the tax structure in and of itself is not likely to be an objection for them. 

In the expenditures, shared earning/shared parenting families who outsource child care will like the ideas of longer school days, all-day kindergarten, and preschool.   Those who like to do more child care themselves will not be as interested in these programs.

Most shared earning/shared parenting families will likely object to the law's failure to get at problems of parental neglect, particularly paternal neglect, however, including how that may relate to (a) causing developmental disabilities in children and (b) demand for services of illegal immigrants.  These problems then in turn cause ever more increasing expenses for the public educational system and do not give children access to the good outcomes they could have if the paternal neglect problem were resolved.

Sunday, October 13, 2013

The Two-Choice Dilemma of Having a Child

In this post, I would like to look at how the decision to bring a child into the world is made.

In a family that sees a child as having two parents, this is a choice that both parents make together.  Both parents agree to bring the child into the world or else it doesn't happen.  For shared earning/shared parenting families, this is how they see it and they also discuss how they are going to raise the child and how they are going to meet the child's needs, and both parents see themselves as responsible for all facets of these needs.

The law does not currently regard this choice this way, however.  In this post, I'll look at how the law currently regards the decision to bring a child into the world.  Then I propose an a "two-choice model" as a possible improvement, and will illustrate how a "two-choice model" would apply to several recent high-profile cases:

(A) Adrian Peterson's two-year-old child ("Tommy Tyke") with an unnamed mother ("Jane Doe"), who died after being beaten by Jane Doe's boyfriend, Joseph Robert Patterson.

(B) Samuel Nathaniel Bode Miller-McKenna, a child born to Bode Miller and Sara McKenna, who had a highly publicized dispute over the fetus and now the child.

(C) The case of seven children subjected to gross child neglect in Colorado where the first four children were found, placed in foster and then adoptive care, and then the parents (a 65 year old father, a 35 year old mother) had three more children they again subjected to gross neglect.  

How does our current political economy, including the United States Constitution and our legal systems, including the Affordable Care Act (and the unregulated health care system that precedes the ACA), see this matter?

1.  Many states in the United States provide that everyone, male or female, has the right to object to sexual relations, through the criminalization of rape.  In such states, married people may object to sexual relations with a spouse because spouses are not exempt from rape laws, although unfortunately in some Southern states in the United States, if a spouse can use forms of coercion other than a high level of violence, there is no law considering such coercion to be criminally prosecutable.  Some states in the United States were among the first jurisdictions in the world to remove marital exemptions to rape laws, while some states still have not reformed their laws and lag many foreign countries.  South Carolina is a prominent example, where force of a "high or aggravated nature" is required for a rape to occur, effectively meaning that other forms of coercion are not prosecutable.  

[Many activists in the United States would like to change the nature of this framework so that affirmative consent is actually required for sexual relations, including within marriage, rather than just an absence of an objection. One example is The Consensual Project.]

2.  Everyone, male or female, who does engage in sexual relations has the right to use contraception under Supreme Court rulings, including Griswold v. Connecticut and Eisenstadt v. Baird.

3.  There are many very reliable methods of contraception.

(a)   Nearly every method available to women requires a doctor's care for fitting or prescription and insurance companies are required to include them unless the insurance coverage is provided through an employer that seeks a "religious exemption".    Outside the context of the "religious exemption" employer the ACA requires coverage of "All Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity."

(b)   Some methods available to men, such as condoms, don't require a doctor's care.  Others, such as vasectomies, do.  The Affordable Care Act does not require insurers to provide any such care to men, although many insurers may do this voluntarily or men may pay for these services out of pocket.  Higher tech, reversible versions of birth control for men are reported under development in the press.  A possible male pill, called RISUG, is being developed in India and has been submitted to the FDA.  Many scientists think the only reasons more such methods don't exist is insufficient market demand.  The fact that paternity is now provable, and increasingly less expensive to establish, may help drive that demand, although it is curious that the ACA did not include any governmental support for developing such methods and also that physician-assisted methods such as vasectomies were not included in the list of items insurers must include.

4.  If a pregnancy does occur, the mother has the right to obtain an abortion under Roe v. Wade.
The father does not have a right either to consent to or object to the abortion.  In practice, many partners to a pregnancy do discuss their respective wishes, their ability to meet the needs of the child if born, and the father thus does get a say. 

5.  If the mother decides to abort the fetus, neither the man nor the woman has any further legal obligation.

6.  If the mother decides to have the child and does not put the child up for adoption, both parents have obligations to financially support the child, although enforcement of these obligations varies widely.  Under U.S. law, only the mother has the obligation to meet the personal needs of the child.    While financial support obligations can sometimes be enforced against noncustodial parents, legal standards of abuse/neglect usually apply only to custodial parents and there is not currently clear provision for a noncustodial mother or father to be prosecuted for neglect.

[The United States Constitution does not recognize children as distinct from adults and does not include any concept recognizing that children have needs they cannot meet themselves and who is responsible for meeting them.

The 1992 United Nations Convention on the Rights of the Child, a binding convention signed by every member nation of the United Nations and formally ratified by all but Somalia and the United States, declares that the upbringing and development of children and a standard of living adequate for the children's development is a common responsibility of both parents and a fundamental human right for children, and asserts that the primary responsibility to provide such for the children rests with their parents.]

What are some ways this framework could be improved?

One possible model could be a "two choice" model of parental responsibility.  This could involve:

(a)  A "rights of the child" amendment to the U.S. Constitution or state constitutions, perhaps along the lines of the UN Convention but perhaps updated to recognize that paternity is now readily and inexpensively proven and disproven, with basic and simple language expressing that children have the right to have their personal and financial needs met by their parents and that in the first or default instance, both parents have several (or independent) liability for meeting those needs.  This would mean that if the child's needs were not met, both biological parents would be liable and could not sue each other unless they had an express agreement that one or the other, or an adoptive parent or parents, was going to assume 100% of some or all responsibilities for meeting the child needs that were neglected.

(b)  A requirement that consent is required for sexual relations, not just absence of an objection. 

(c)  Amendment of the ACA (a) to require insurers to cover (i) male methods of contraception that require a doctor's assistance, such as vasectomies and (ii) paternity testing and (b) to support research and development into higher tech versions of male contraceptives.

(d)  When a mother decides to have a baby, then the question of the child's rights enter the picture.  Unless the mother expressly assumes 100% of the responsibility for the child, the father would hold such responsibility fully (as does the mother), and severally from the mother.  Or unless the father expressly assumes 100% of the responsibility for the child (or any aspect of the child's needs), the mother holds such responsibility (as does he) fully and severally from the mother.  The state could then have the right to stand in for child, itself or through a guardian ad litem to ensure that these several liabilities of the parents for meeting the basic needs of the child are met.

Has this type of view been discussed much in the upper reaches of policy development?  Two prominent married-to-each-other economists, George Akerlof (who won a Nobel Prize in 2001) and Janet Yellen, nominated on October 6 by President Obama to be Chair of the Federal Reserve, wrote an article called An Analysis of Out of Wedlock Births in the United States in 1996 about the role that lack of paternal financial responsibility for children has played in the feminization of poverty.  The article does not discuss the impact on children. The structure of the article also assumes no paternal responsibility for meeting nonfinancial needs of children.  Instead the idea is that there has been a decline in "shotgun marriage" or the social convention that if an unmarried woman became pregnant the father of her child used to be pressured to marry her and support her and the child financially via the marriage (or through divorce laws if one then ensued).  The "shotgun" in that scenario was usually carried by the father of the unmarried woman, presumably because he did not want to have to support financially the unmarried woman and her forthcoming child.  In practice, of course, many women supported themselves and their children in these situations as they do today, however, today we also have many federal programs designed to provide taxpayer support to unmarried women with children. The EITC is one example, and much has been written about how it can actually discourage marriage and even cohabitation between parents.  Like Akerlof's and Yellen's paper, the discussion focuses on marriage as a construct for men to financially support their children rather than any paternal responsibility for nonfinancial needs of children (either inside or outside marriage).  Currently the United States government program "Temporary Assistance to Need Families" or TANF, requires of its recipients that the state be allowed to step into the mother's shoes in collecting child support from a father, and this also reflects a view that the default is that custody (and thus responsibility for meeting the personal needs of the child) belongs with one parent and financial support with the other, rather than a default that both parents are severally responsible for meeting all needs.

(e)  Welfare programs such as the EITC could be redesigned to be child-centric.  They could be designed to remove any marriage penalty and to make the payment to the child, rather than to the mother, in the name of both parents (perhaps divided pro rata to their respective incomes).  In the absence of any agreement to the contrary, the child would have the right to be placed in each parent's care 50% of the time.   If the parents form an express written agreement to the contrary, for example, that the mother assumes all the responsibility for meeting the personal needs of the child and the father all the financial responsibility, then all payments on behalf of the child would go to the father since he has assumed financial responsibility.  Any failure by him to pay for the child's financial needs would make him liable to the child, with the state or a guardian ad litem able to act on behalf of the child. 
(f)  As I've discussed in an earlier post, and many others have as well, outside the context of the EITC, there are many other subsidies to patriarchal families (whether married or not), including to very wealthy ones, many of which are unfunded and contributing to the $17 trillion federal debt.  These could be eliminated.  Families can still choose the patriarchal style but they would not be subsidized in it and if there is a failure to meet the child's needs, the child (and the state or a guardian ad litem on the child's behalf) would have a cause of action against both parents for any need not expressly assumed by one or the other.

How would these ideas work as applied to some real life cases?

Let's look at a recent case in the news:

(A) Adrian Peterson's two-year-old child ("Tommy Tyke") with an unnamed mother ("Jane Doe"), who died after being beaten by Jane Doe's boyfriend, Joseph Robert Patterson.   Below is what reportedly really happened, with the modification of what would have happened under a "two choice dilemma" model listed in brackets.

1. Peterson and Doe reportedly had sex in a very short-term relationship that created the pregnancy that resulted in Tommy Tyke.  There is nothing reported in the news that indicates there was any objection by either Peterson or Doe to having the sex.  They each had the opportunity to use contraception and there is nothing in the news reports to suggest that either of them did.

[They would both have had the opportunity to consent to this rather than just not to object to it.  If one or the other did not consent, this could be prosecuted as nonconsensual sex. Peterson would have had higher-tech, reversible contraceptives available to him in addition to current male methods. Peterson would have received, for no copay and as more routine part of health care for men, analogous services to those currently required by the ACA for women: reproductive health counseling and screening and counseling for interpersonal and domestic violence.]

2.  Doe decided to carry the pregnancy to term and Tommy Tyke was born.  She did not notify Peterson until Tommy Tyke was more than a year old.  Peterson did not contact her during the pregnancy or later to see if a pregnancy had resulted or a child was born.

[Because it is a "rights of the child" model, since Doe decided to have Tommy Tyke, once Tommy Tyke is born, he would still have the right to have his needs met by both his parents, under several liability, unless the nonconsensual nature indicates one parent lacks capacity, in which case that parent could also be prosecuted for neglect of Tommy Tyke.

Prior to Doe notifying Peterson and while Peterson was not contacting her, there has been no express agreement between Peterson and Doe allocating responsibility for the child's needs.  During this time, both parents are liable if there was any failure to meet any of Tommy Tyke's needs.]

3.  Doe notifies Peterson in July 2013, when Tommy Tyke is over a year old.  Peterson says "how can I help?"  Peterson does not go to see the child.  There is nothing in the news reports to indicate any agreement was made between Peterson and Doe at this point allocating the responsibility, beyond possible financial support from Peterson.  It is not clear if Doe expressly agreed to assume all responsibility for meeting personal needs of Tommy Tyke.

[Without an express agreement to the contrary, during all this time both parents are fully and severally liable if there was any failure to meet Tommy Tyke's needs.]

4.  Doe leaves Tommy Tyke in the custody of Joseph Robert Patterson, her boyfriend.  Patterson was given suspended sentences a year ago for simple domestic assault and violation of a domestic abuse bond, both misdemeanors.  It has not been reported whether Doe knew this.  Patterson beats Tommy Tyke on at least one occasion.  Patterson calls authorities about 5:45 p.m. Wednesday, October 10, to report that a 2-year-old was choking in his Sioux Falls apartment. Officers arrived to find the toddler unresponsive, and he was rushed to a nearby hospital.  Peterson goes to visit Tommy Tyke, for the first time, while he is unresponsive in the hospital.  Tommy Tyke dies in the hospital Friday, October 12.  Patterson was arrested Thursday, October 11, and charged with aggravated battery of an infant and aggravated assault. If convicted on the charges, both felonies, Patterson could face up to 40 years in prison and an $80,000 fine.  Doe is not under investigation.  Peterson is not under investigation.

[Without an express agreement to the contrary, during all this time both parents are fully and severally liable if there was any failure to meet Tommy Tyke's needs.  There was a failure to meet one of Tommy Tyke's needs, protecting him from violence by a babysitter or other custodian.  Both parents are liable for child neglect.  Doe may also be liable for child endangerment if she had any knowledge that Patterson was abusing Tommy Tyke and she continued to leave him in Patterson's custody.

Patterson and Peterson would both have had access to no-copay "well man" visits comparable to those women receive under the ACA, which in turn allows access to no copay depression screening and referrals that all adults receive under the ACA.  They would also have received no copay (a) reproductive health counseling and (b) counseling for interpersonal and domestic violence, both currently required by the ACA for women and not for men.]

[Ideally, with a "two-choice model" both Doe nor Peterson and everyone else would understand more clearly the implications of the choices each made all along this process and perhaps they would have had a child under circumstances where they could meet his needs and this tragedy could have been prevented.]

(B) Samuel (or Nathaniel) Bode Miller, a child born to Bode Miller and Sara McKenna, who had a highly publicized dispute over the fetus and now the child.

1. Miller and McKenna reportedly had sex in a six-week long relationship in San Diego April-May 2012 that created the pregnancy.  There is nothing reported in the news that indicates there was any objection by either Miller or McKenna to having the sex.  They each had the opportunity to use contraception and there is nothing in the news reports to suggest that either of them did.

[They would both have had the opportunity to consent to this rather than just not to object to it.  If one or the other did not consent, this could be prosecuted as nonconsensual sex.  Miller would have had higher-tech, reversible contraceptives available to him in addition to current male methods. Miller would have received, for no copay and as more routine part of health care for men, analogous services to those currently required by the ACA for women: reproductive health counseling and screening and counseling for interpersonal and domestic violence.]

2.  During the pregnancy, McKenna says she asked Miller to be an involved father, but he initially pushed her away. She released a text message from June 2012 in which Mr. Miller, explaining why he would not accompany her to an ultrasound, said, “U made this choice against my wish.”

[Because it is a "rights of the child" model, McKenna would not have to ask Miller to assume half the responsibility for meeting the baby's needs when born.  This would be the default unless one or the other parent offered to take full responsibility, with full understanding of what that requires, and the other parent agreed.  When Miller made clear he had no intention of following through on that responsibility, McKenna, or any party on behalf of the child, would be able to go to court to get an order on behalf of the future child holding Miller equally responsible both financially and for the work of meeting the child's needs.] 

3.    In October 2013, McKenna decided she could no longer do the firefighting job she had and began applying to colleges.  She was accepted to Columbia and moved to New York City.  By last fall, Miller was taking action to secure a major role in his future son’s life, filing a declaration of his paternity and interest in custody in San Diego.

[Under the "rights of the child" model, Miller effectively would be following through on his responsibility, but after a period of neglect and prior to the birth of the child.  During the period where Miller stated an intention to neglect the child, McKenna would have had an opportunity to obtain a court order.  If she did not do this, on might think she would be indicating an intention to assume full responsibility for the child when born.  From the child's perspective, however, she needs to expressly consent to this with full understanding of the responsibilities as set forth in the "rights of the child" amendment (or elsewhere if established in other law) for Miller not to have responsibility.   If she made such express consent, she would be entitled to have the baby live in New York after he was born.  If Miller then wanted to renegotiate the previous assumption of responsibility by McKenna, Miller would be required to move to New York to meet his responsibilities.  If Miller had not had the period of neglect, however, he might have a claim that the baby should live in San Diego after he was born, given that that was where he was conceived, and McKenna would have to live there to meet her responsibilities to the child unless Miller assumed them, with full consent and understanding of them.]

4.  The baby was born in March 2013.  McKenna names him Samuel Bode Miller-McKenna.   Miller then obtained permission from the California court to add Nathaniel as a middle name, in honor of his recently deceased brother, and he calls the boy Nate.

[Without an express agreement to the contrary, from this point forward as earlier both parents are fully and severally liable if there is any failure to meet Samuel's/Nathaniel's needs.  One need of children that is recognized in the UN Convention on the Rights of the Child is to be named.  Because these parents cannot agree on a name, a question is raised as to whether it meets the child's needs to have to hold both names.  If this is something that will harm the child, the parents could each be held liable for such harm unless McKenna expressly assumed full responsibility during Miller's period of neglect, in which case the name she chose would prevail.]

(C)  [Seven children subjected to repeated known cases of child neglect in Colorado; 65 yo father; 35 yo mother - to be completed]

Monday, September 2, 2013

Colorado's "Civil Unionists" Get Some Welcome, If Partial, Clarification From the IRS

The U.S. government tax authorities this week gave a clarifying boost to Colorado's shared earning/shared parenting families in the choices they make in seeking to eliminate some of the tax discrimination they face.

The U.S. Department of Treasury and the Internal Revenue Service (the "IRS") released a ruling that "all legal same-sex marriages will be recognized [as marriages] for [federal] tax purposes." The ruling expressly does not apply to "registered domestic partnerships, civil unions or similar formal relationships recognized under state law."  While the ruling is directed at same-sex couples, it suggests that the IRS will regard heterosexual civil unions as not being marriages for federal tax purposes.

While the ruling does not completely clear up federal tax and benefits discrimination that applies to shared earning/shared parenting families, it does make it more visible that a hetero Colorado shared earning/shared parenting couple may find the benefits of using the new Colorado law to form a civil union and not a marriage outweigh the costs.  (If you are curious why shared earning/shared parenting families may prefer not being taxed as a marriage for federal tax purposes, I discuss that here and summarize some of the reasoning below in this post.)  For those couples already in a marriage, the process of converting to a civil union is difficult; you will want to consult with a specialist on those issues.

One caution: as I've mentioned elsewhere, this blog is intended to provide education on matters of broad public policy.  With regard to your own personal situation, I recommend looking at the particulars with your own advisor/counselor.

There are some benefits to being taxed as a marriage (ironically some of these apply more in the case of divorce) and all couples will want to weigh pros and cons of choosing a civil union over marriage taxation.  For couples setting up their families in the shared earning/shared parenting style the net effects over time tend to tilt toward at least beginning as a civil union and perhaps converting to a marriage only if circumstances later exist that marriage taxation is preferable.  (It appears that conversion from a civil union to a marriage can always be done later in the course of a relationship if a couple finds marriage taxation is preferable (the reverse, or conversion from a marriage to a civil union, as noted above, is a difficult process)).  Or some couples may want to stay in a civil union but use planning devices, such as joint property ownership or trusts, over the course of their marriage that will effectively get them the benefits of being federally taxed as a marriage without the costs.  Some experts who have counseled same sex couples have become quite adept with these methods.

Revenue Ruling 2013-17 and Colorado's Civil Unions Law

In earlier blog post here, I discussed the prior guidance the IRS had given on this issue.  This August 29, 2013 IRS ruling ("Revenue Ruling 2013-17") on same sex couples is much more information, because it has broad application, unlike the private letter ruling the IRS issued November 14, 2011, with regard to a heterosexual couple that had formed a civil union under Illinois' civil union law.  As noted by commentators, the 2011 ruling specifically cited the positioning of the Illinois civil union law.  The Illinois civil union law, unlike the Colorado civil union law, does not clearly differentiate a civil union from a marriage, and the 2011 IRS private letter ruling, which found that a heterosexual couple in a civil union was required to be taxed as a "marriage" at the federal level, was based on that lack of differentiation.

As I discussed here, the Colorado law differs from the Illinois law in several important respects, including that:

(1) The plain language of the Colorado's law expressly provides that "The provisions of this article shall not be construed to create a marriage between the parties to a civil union." (One caution: Colorado has a "common law" marriage statute, where a "marriage" is deemed to have occurred based on the parties' behavior, that participants to a civil union will need to avoid.)

(2) Colorado has a Constitutional amendment defining marriage that arguably works to render a civil union a different type of partnership that must be taxed individually.

Because Colorado's civil unions law does not (and cannot because of the Constitutional amendment) render a civil union equivalent to a marriage, it seems there is an argument that individual tax returns are possibly required, and at least an option.

From Colorado's heterosexual "civil unionists'" perspective, ideally we'd like to see two clarifications, however:

(a) We would like to see the IRS clearly state that this rule applies to heterosexual couples in the same manner as it states it applies to same-sex couples.

(b) We would like to see the Colorado legislature add clarifying language to the civil unions law to give express permission to parties to the civil union, especially hetero parties, to file individual tax returns.

Ideally, we would also like to see the Colorado legislature, or Colorado courts, clarify that the the Colorado "common law" marriage law does not apply to couples that have affirmatively chosen a civil union.

Even without these clarifications, however, it seems that some hetero Colorado shared earning/shared parenting couples may have little to lose, and much to gain, by using the new Colorado law and forming a civil union and not a marriage.

Why Does A Shared Earning/Shared Parenting Couple Want To Avoid Current Federal Marriage Taxation?

There are three problems with the way the U.S. government taxes marriage:

(a) There are currently "marriage tax penalties" for couples whose joint earnings fall below $30,000 per year or above $130,000 per year.  These penalties allow couples to save tax dollars, sometimes in significant amounts, by not marrying or by getting divorced. 

(b) There is a "stacking effect" problem where personal earnings of married couples are fictionally merged and each is deemed to have earned the income (or lack of income) of the other, including income or nonincome from that other partner's personal labor or other work.  Why does this matter if the marriage laws, and many couples themselves, consider family income to be earned for the whole family?  The problem is that this distorts the personal labor contributions of the partners in a manner that can have dramatic effects on the family over time, reducing its income, destabilizing it, and creating an environment that is not conducive to raising children.  Divorce is also more likely in families that suffer these distorting effects.  These distortions from the "stacking effect" occur because, upon marriage, the partner with lower earnings gets bumped up to the bracket of the partner with higher earnings, thus creating a "marriage tax penalty" for the lower earner.  The partner with the higher earnings gets bumped down to the lower earner's bracket (which can be zero if the other partner has no earnings), thus creating a "marriage bonus" for the higher earner.   This can have an accelerating effect over time, so that even if a couple starts out their marriage in neighboring brackets, the tax incentives to shift as much income as possible to one earner, such as by setting up a sole breadwinner/stay-at-home parent family, increasingly push them in that direction so that their brackets become as far apart as possible.

This is particularly an issue for peer couples because of the transfer payments they currently have to make to sole breadwinner families.  Even a peer couple that avoids this "stacking effect" by having relatively similar earnings and both being in the same bracket, still has to subsidize the "marriage bonuses" of couples who have the same basic family income but who use a sole breadwinner model.  A chart I posted here graphically illustrates this subsidy, which is effectively a transfer payment designed to encourage families not to do the shared earning/shared parenting model, despite its many benefits (and cost savings) to children, to the couples in these families and to society at large.  (In an upcoming post, I am planning to detail more of these benefits and cost savings.) Single/divorced people also have to make these subsidy payments.

The amount of this subsidy from peer couples (and single/divorced people) to couples that put all or most of their earnings on one partner can become quite substantial over time.  The Tax Policy Center describes these "marriage bonuses", reinforced by the tax reform done during George W. Bush presidency, as primary contributors to our federal deficit, because they were not entirely funded.   Mitt Romney's speech criticizing "the 47%" of people in the U.S. who pay no taxes could be seen as referring to him and his wife, because Ann Romney has never paid income taxes or payroll taxes.

(c) Social Security and Medicare, and the payroll taxes that fund them, are built around taxing people as individuals, but distributing benefits based on marital status.  An equal earning couple therefore pays in more and receives less back than a comparably earning sole breadwinner couple, as this chart illustrates.  These subsidies are also partially unfunded and are one reason the trust funds for these programs run deficits.  This problem is compounded by the effect that benefits in these programs are progressive (you receive more benefits relative to the taxes you pay if your income is lower), but only wages are taxed to support these programs.  Earnings from capital (such as dividends or capital gains) or property are not taxed.   This means that mid and high wage earners, particularly those who are single or are in two-earner marriages, do all the subsidizing of low-wage workers.  A company like Walmart, which employs low-wage workers on the sole breadwinner model, has used this system to great advantage, maximizing shareholder profit while shifting the costs of its employees' disability and retirement to mid and high wage workers outside the company.

The Current Picture For Shared Earning/Shared Parenting Families with Regard to "Civil Unions" in Colorado

The choice to form a civil union rather than a marriage thus seems likely to offer some if not many people in shared earning/shared parenting families substantial benefits, even if it does not remedy all the problems.   In the short term, a civil union appears that it will give such couples the ability to file as individuals on their federal returns, while allowing them the other benefits of legal "marriage" at the state level.  In the longer term, it may give them clearer means to seek remedy for the other discriminations as well.

The civil union law and the apparent individual filing option gives such couples:

(a) relief from any "marriage penalty" if their joint income is below $30,000 or above $130,000 (or if they anticipate they will be out of this zone for any significant portion of their married life);

(b) relief from the distortions of "stacking effect" problems and relief from a "marriage tax penalty" for the partner with lower earnings.  It does not give much relief from the required income or payroll tax subsidies to sole or heavily primary breadwinner families, although as noted below in (c), it may provide means for collective political action to end these required transfer payments.

(c) a means for "collective action" with regard to seeking an end to the sole breadwinner subsidies in the income tax code, Social Security and Medicare, including their contribution to the deficit in the United States.  The more couples who form "civil unions" in Colorado, the more visible the political protest becomes.  Colorado is exporting $0.22 of every federal tax dollar it pays, almost entirely to red states, and due in significant part to these sole breadwinner subsidies.  We lead the country in our ratio of female legislators (42%), have many mid and high-wage workers, and our economy will greatly benefit we can solve his problem of federal discrimination against the healthy, economically responsible shared earning/shared parenting families.