Fairness in Allocations of Parental Responsibilities, and the Limits of Law Ram Rivlin Introduction We love our children. We really do. Yet we also find ourselves happy when they finally fall asleep, or when they go back to school at the end of their summer vacation. We wish we could spend more time with our children, we really do. Yet we also wish to pursue our own projects, both professionally and personally. This ambivalence hints at a basic characteristic of caring for one’s own child, which is known to every person who ever had a child: it involves both a burden and a benefit. 1 The indeterminate nature of caregiving creates a riddle in allocating parental responsibilities between parents in a fair manner. When families dissolve, the familial burdens and benefits require distribution. The marital property should be distributed, as also the burden of child support. It would be best, that these allocations, sometimes made by courts and sometimes through private negotia- tion between the parties, be fair, and the principles of justice and fairness in this regard have drawn extensive scholarly attention. Also requiring allocation is the right and duty to take ongoing care of one’s children, also known as ‘physical custody’ or residency. Again, considerable discussion has been devoted to the principles for such allocations, analyzing the place of fairness-based considera- tions in the context of custody vis-à-vis the child’s interests and welfare. I do not mean to contribute to these conversations here. This paper focuses on a different angle: the interrelations between these realms. In other words, it is devoted to inquiring into how the allocation of custody or residency should affect the prin- cipled allocation of the child-support burden, maybe even the distribution of the familial property as well, in terms of considerations of fairness. The Janus-faced nature of childcare, as both a burden and a benefit, poses a challenge for this interrelation. Yet another challenge stems from the problem of integrating the independent status of the child into the scheme of fair allocation between the parents, without returning to the notorious children-as-property era. These challenges are not only a concern for the law or for public policy, but For helpful comments and conversations on various versions of this paper, I am grateful to David Enoch, Re’em Segev, Ofer Malcai, Ori Herstein, Alon Harel, Shahar Lifshitz, Sharon Shakargy, Serena Olsaretti, Hanoch Dagan, Avihay Dorfman, and audiences at workshops in the Hebrew University of Jerusalem and Tel Aviv University. Ram Rivlin, Lecturer, Hebrew University of Jerusalem, Israel. ram.rivlin@mail.huji.ac.il 1. See Jennifer Senior, All Joy and No Fun: The Paradox of Modern Parenthood (Hachette UK, 2014). Cf S Katherine Nelson, Kostadin Kushlev & Sonja Lyubomirsky, “The Pains and Pleasures of Parenting: When, Why, and How Is Parenthood Associated with More or Less Well-Being?” (2014) 140:3 Psych Bulletin 846. Canadian Journal of Law & Jurisprudence XXXIII No.2 August 2020, 397-433 397 © The Author(s) 2020 doi: 10.1017/cjlj.2020.6 The Canadian Journal of Law & Jurisprudence August 2020 available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/cjlj.2020.6 Downloaded from https://www.cambridge.org/core. IP address: 207.241.231.83, on 03 Nov 2020 at 04:47:15, subject to the Cambridge Core terms of use,