WETZSTEIN: Breakup rules not accepted

Column:

Sometimes a cure can look worse than the problem. That seems to be the case with a massive legal guidebook on how to handle family breakups in our brave new world.

When the 1,187-page “Principles of the Law of Family Dissolution” was published by the prestigious American Law Institute in 2002, it was assumed that courts and lawmakers would snap it up. After all, it offered unprecedented guidance for vexing problems with child custody, support and property distribution among unmarried and same-sex couples.

But apparently, the institute’s principles are too progressive for America’s judges and lawmakers.

Very few state legislatures and “a paltry 100” court cases have picked up or referenced the dissolution principles, Robin Fretwell Wilson and Michael R. Clisham say in an article in the fall issue of Family Law Quarterly.

The institute actually adopted the principles in 2000, they wrote, so courts and legislatures have had eight years to avail themselves of this guidance. But among legislatures, West Virginia is the only one to borrow heavily from the principles (on child custody); and among the 100 case citations, references were often a rejection, not an affirmation, of the principles.

I would like to defend the principles, in principle.

The authors’ task was Herculean - to help courts and legislatures figure out a clear, coherent, fair and equitable response to couples and families when they break up.

It was also a thankless task. Think about it. Do you want to decide the fate of a child born to two lesbians (one contributed the egg, the other the womb) who are fighting each other for custody - and who are both being challenged by the sperm dad, who also wants custody?

Do you want to oversee the distribution of 12 years of accumulated property to a man and woman who refused to marry but are now fighting over everything from the dog to the towel rods?

I sure don’t, but these kinds of mind-boggling cases keep pouring into courts.

The institute’s principles at least attempted - mightily - to respond to the new “diversity” in the American family. But it seems from the Wilson-Clisham study, neither judges nor lawmakers are eager to call boyfriends “de facto” parents, replace “parent” with “caregiver,” or treat all couples the same, whether they were married or cohabiting, heterosexual or homosexual.

Arizona State University law professor Ira Ellman, chief reporter of the institute’s principles, says he’s not tracking their impact per se, but he sees their influence in family laws in California, Ohio, Arizona and Canada.

He also believes that not only is the law, in general, “moving in the direction” of the institute’s principles, but one day, when same-sex marriage, cohabiting and other alternative family forms are widespread and accepted, the principles will seem “quaintly timid” - “half measures that we will by then have long since gone past.”

Mr. Ellman’s views about the inevitability of family diversity are shared by many - if not most - family scholars.

Story Continues →