Mother or Father as Guardian of the Baby? Mother.

On October 30, 2018 I wrote this note on the LRC blog: “Should We Favor The Mother In Child Custody Cases? Yes.” ( I received two critical comments on this, see below.

Here is my response to Scott Tips: I was talking deontology, rights, you are discussing pragmatism. I based my claim on the mother, in child custody cases, since she did the lion’s share of “homesteading,” mixing her labor with the fetus, compared to the father. I think this is broadly in keeping with the quintessentially libertarian property rights theory of John Locke and Murray Rothbard. In contrast, you are making the utilitarian case that the father is needed to socialize boys. So, at least in this sense, our views do not conflict. However, in addition to being a deontological libertarian, I am also a utilitarian supporter of this philosophy. I think the freedom philosophy also best promotes human flourishing. I am a big fan of Farrell and Gray for emphasizing the crucially important role of dads, in socialization. But, still, if we had to choose which single parent would be better, I think there is a wealth of empirical evidence pointing in the female direction. Women are just more “into” kids than are men, apart from the rights of the matter.

Response to M: Thanks for your intense, well-thought out objection to my thesis. Unhappily, I cannot respond, fully, to each and every important point you make. Let me content myself with the following:

1. I regret you decline to accept me for your Covenant Community. If all your members are as intense libertarians as you are, as well-read, as erudite, your decision is a loss for me. However, I don’t remember ever applying for membership. On the other hand, I’m almost 80 years old, I’m getting senile, and my application may have slipped my mind.

2. I was talking about custody when the baby was born. For the past nine months, (not just “a handful of days at most”) the father’s contribution was virtually zero, while the mother’s was gargantuan. He may or may not have financially supported her. If he did, then, obviously, his claim rises somewhat.

3. Yes, ideally, both parents should have equal custody. That is of course best for the baby. But what about if we have to choose? Did you ever hear of “Sophie’s choice?” In baseball, the tie at first base goes to the runner. All I am suggesting is that if we must choose only one parent as the guardian, libertarian theory suggests that we incline in favor of the mother, not the father.

4. I accept the concept of implicit contracts, but I don’t see how it applies in this case.

From: Scott Tips []
Sent: Wednesday, October 31, 2018 9:05 AM
Subject: Should we favor the mother in child custody cases? No.

Dear Walter,

As a longtime libertarian from the Class of ’69, I thoroughly disagree with your analysis and conclusion on this issue. I strongly suggest that you buy & read The Boy Crisis by Warren Farrell & John Gray. It will change your opinion here. Especially in the case of boys, women are incapable of turning boys into men. It takes a father to do that, as very well demonstrated and argued in Farrell & Gray’s book. Custody has nothing to do with homesteading; and even if it did, doesn’t the father’s work outside the home (often far harder & dangerous work than the mother must ever do) to put a roof over everyone’s head and food on the table count towards homesteading? Of course it does. Please read the book. You will find it an eye-opener.

Best wishes,

Scott Tips

From: M
Sent: Wednesday, October 31, 2018 1:33 PM
Subject: You don’t get to be in my Covenant Community

Dear Doctor Block,

We appreciate your interest, but having reviewed your application we regret to inform you that you will not be permitted to join our Covenant Community at this time. The problem was your insistence that courts show bias in favor of the mother when custody is in dispute. The problems with this position are legion. In no particular order: You put forth a dubious category of property rights called “guardianship rights”; you apply too broadly an argument that at best would have limited application; you are too strict in what you will accept to establish “guardianship rights”; you leave no room for personal contracts nor for implied contracts according to community standards; you too strictly adhere to what we call Zero Stage Libertarianism; you fail to give any weight to basic human nature; and you strictly support an Ivory-Tower-concocted blue print for property rights though the heavens fall.

In our Covenant Community we recognize property rights, which means you can do what you want with your property as long as you don’t interfere with someone else’s. We do not consider children property, and apparently neither do you, which is why you speak of “guardianship rights”. But while we are fine with easements and partial property rights and temporary property rights and all the other subcategories that make a complex economy feasible, we don’t recognize any sort of property right that doesn’t involve ownership, however limited or unlimited in scope and duration. If a woman has “mixed her labor” with a fetus, this would seem to be an argument for ownership of the child, a condition which we do not accept.

We are willing to consider the idea of guardianship rights further, but even if we were to accept your arguments, we cannot see how they would apply beyond a very limited duration. The period during which the mother has labored long to bake the loaf while the father has yet to do aught but supply the seed would last only for a handful of days at most. You support a general bias in favor of the mother because of this with no mention of time limits. Shall a father who has put in years raising his children suddenly become a second class parent during a divorce because the mother gestated the fetuses fifteen years ago?

This raises the next point: why is gestation of the fetus the only consideration when deciding whom to favor in custody cases? Even before the child is born has the father done nothing to sustain the mother and therefor, indirectly, the fetus? Should this not at least be a rebuttable presumption in custody disputes, even those that occur the day after the child is born?

And what of implied contracts? I daresay many a factory worker has labored more on the widget than the factory owner, who merely supplies the seed, if you will. But our courts do not award ownership of the widget to the factory worker, because there is a contract between them. And if there were no explicit contract, whether written or verbal, an implied contract would be assumed according to the long-established custom of workers getting a salary and owners getting the fruits of the workers’ labor. Should a shared custody clause not be considered inherent in any marriage contract? Absent a marriage contract, why should not a shared custody contract be considered implied during any sexual encounter?

After all, libertarianism is a series of guidelines, not a precise blueprint or instruction set. Libertarianism tells us that noise pollution is a property rights violation, but it does not tell us under what conditions exactly a sound becomes noise pollution. Rothbard’s “relevant technological unit” will vary from community to community, and why should it not, since there is no single right answer, just wise and unwise ones? Moreover, one community will consider an implied contract to be in force under conditions by which another community will enforce no such contract. There is no single, correct answer to these questions. It is sufficient that a community set standards that enough of its members consider reasonable. The advantage of a Covenant Community is that these standards are explicitly agreed to in advance of moving in. In our CC, we consider the mother and the father to be equal parents and apportion custody accordingly in the event of an unfortunate breakup of the family.

This is, after all, more in accordance with human nature. The twentieth century is littered with the remains of civilizations who thought they could engineer humans differently. Giving the mother primacy in questions of custody is not what is best for the children – to which a veritable tsunami of scientific literature can attest – to say nothing of the cruelty this visits on the father, or the opportunities for cruelty that this bestows upon the mother, who, in the event of a break up, may be very much disposed to acts of cruelty.

There were CCs that were biased in favor of the mother, but they were not popular. Most men, who were, after all, the ones principally responsible for the construction and maintenance of the physical community, were not too keen on having the people they loved most in the world ripped away from them because of a nine month gestation period often in the distant past with no consideration given to their own contributions. And while many women coming out of a divorce would be more than happy to take a man’s children from him, going into a relationship these same women are of a very different mindset. The result was simply that Covenant Communities were overwhelmingly equitable in their child custody terms. The ones that weren’t did not attract many prospective inhabitants. Those few that did allow women to divorce a man and take his kids found within the space of a generation that the wanton promiscuity, drug use, mental illness and property crime that inevitably accompany a generation raised by a single parent were inimical to the peace and prosperity they sought.

Even if you could show us that the mother has a logically deduced right to take the kids in the event of disputed custody, we would get around this by the simple expedient of ignoring it. A logically deduced libertarian right is not a law of physics, nor is it a magic spell, and if it produces the sort of negative results that single motherhood produced in, say, the United States of the late 20th and early 21st centuries, we would simply assume that we had deduced wrongly, wrongly being defined as against human nature. And if no flaw in the logic could be found, then we would figure that Ivory Tower logical deductions of rights is not an infallible method for the design of a legal system. In our Covenant Community we value Justice second most of all. But more than Justice we value keeping the heavens where they belong. What does it profit a society that they adhered to Justice when only the cockroaches are around to read the epitaphs on their tombstones because they decided to let the heavens slip from their proper place because a deduction that was assumed to be logical but not yet tested against reality was allowed to influence their justice system?

As libertarians we can agree that we are not born with positive obligations. In the wild, absent a community, at the Zero Stage I mentioned above, we have only negative rights. But here in the Covenant Communities we have developed positive obligations through contract, whereas governments create them with legislation. We have prohibitions against libel and slander, which do not exist at Zero Stage but which have contractually developed. We have Good Samaritan Agreements, again achieved through contracts. These positive obligations are nearly universal among the Covenant Communities, and so is the agreement that any conceived child will be under the equal guardianship of the mother and the father, whether they are together or separate. Even if a case for maternal primacy at Zero Stage could be established, and we have serious doubts that it could be, the entire discussion is obviated by contractual agreement upon entering the Covenant Community.

Libertarianism is great at telling us how things ought to be, at least in broad terms. It is less useful for telling us how to get there, or how to behave in a statist world when sometimes you only have non-libertarian choices. My own opinion is that governments, if they are going to exist, ought to imitate the Covenant Communities as best they can, which means that libertarians need to get past Zero Stage Libertarianism. If a government prohibits its citizens from forming Covenant Communities, or inhibits their development by forced funding of and providing the law and enforcement that make Covenant Communities so attractive, at the very least it should fashion its laws in a reasonable manner, so that though the laws are created through unlibertarian means, they may yet appear libertarian in substance.

Though Truth may win out in the long run given a free and open exchange, in the short run people are rather inclined to behave as Winston Churchill said of Americans: they’ll always do the right thing after trying everything else first. We hope you understand that we simply cannot allow subversives to run rampant in our community. Those without must remain without, and those within must be physically removed, so to speak. As Moses on the edge of Canaan, you must remain without.

However, we are not so cruel as the God of the Old Testament. A year from now, if you have purged this deviancy from your ideology, you may reapply. Given your exemplary contributions to libertarian thought, we would be happy to have you.

Yours in Liberty, M

“To be governed is to be watched, inspected, directed, indoctrinated, numbered, estimated, regulated, commanded, controlled, law-driven, preached at, spied upon, censored, checked, valued and enrolled by creatures who have neither the right, nor the wisdom nor the virtue to do so.” – Pierre-Joseph Proudhon


9:26 pm on October 31, 2018