- The Washington Times - Wednesday, September 13, 2006

In a world in which it’s not uncommon for both spouses to work, lesbians to share parenting duties and unmarried couples to buy houses together, how should the law treat these couples — and their children, property and financial assets — when the relationships break down?

In 2002, the prestigious American Law Institute (ALI) proposed answers to these questions in its massive “Principles of the Law of Family Dissolution: Analysis and Recommendations.”

The 1,187-page book — written with more than a decade’s worth of input from several law professors, judges, lawyers and family-law professionals — offered clarifications and recommendations in areas such as divorce, custody, alimony, property distribution and child support.

But traditional values groups and conservative scholars expressed concern that the ALI approach will further secularize the culture and hasten the “deinstitutionalization” of marriage. These charges are repeated in a paper issued today by the Institute for American Values (IAV) and Institute for Marriage and Public Policy (IMAPP).

Marriage is the social institution that is best for families, children and society, said “Marriage and the Law: A Statement of Principles,” which was signed by more than 100 law professors, family scholars and public-policy analysts. Policy-makers — and the law — should diligently preserve and protect marriage, as well as discourage divorce, unmarried childbearing and high-conflict marriages, the IAV-IMAPP statement said.

Law professor Ira Mark Ellman, chief reporter for the ALI book, said the ALI project came about because the American family had undergone dramatic changes and “coherence” was missing in several legal arenas.

“Unpredictable law generates litigation,” he said. But if the law is predictable and people understand what the rules are, they will spend less time fighting in court, said Mr. Ellman, who teaches at Brooklyn Law School. “So there’s a great virtue, in family law in particular, for having coherence — and we have not traditionally had it.”

But several ALI recommendations are viewed with alarm, such as calls to eliminate “fault” in all divorce law, to treat domestic partners the same as married couples in property disputes, and to give “de facto parents,” such as boyfriends or homosexual partners, the same standing as biological parents in custody battles.

Such policies may be pragmatic and in sync with “family diversity” thinking, but they go in the wrong direction, by reducing marriage to a set of legal benefits and treating marriage as “just one of many equally valid lifestyles,” said the IAV-IMAPP statement.

“If it is really true, as the Supreme Court once said, that without marriage, ‘there would be neither civilization nor progress,’ it makes no sense for the law to promote family diversity, confuse marriage with cohabitation or fail to find new ways to discourage unnecessary divorce,” said author, syndicated columnist and IMAPP leader Maggie Gallagher.

Participants in the ALI book defended their efforts.

The ALI recommendations are reality-based and developed by a large and diverse group of people, many of whom are “on the front line” of family law, Mr. Ellman said. The IAV-IMAPP statement, he said, is a “very lazy” document that doesn’t address the “hard problems” in family dissolution. Some of the groups’ recommendations, such as having waiting periods before divorce or developing “reconciliation” services for divorcing couples, are “old ideas,” Mr. Ellman said. States already have waiting periods before divorce, he said, and the idea of a “court conciliation service” was tried and abandoned years ago because “it didn’t work.”

“The ALI project does affirm family diversity, but this should not be twisted into a view that anything goes, or that adult ‘rights’ somehow trump children’s interests,” said Katharine T. Bartlett, dean of the Duke University School of Law and a co-reporter for the ALI book.

“The point is, rather, that the state needs to deal with families as it finds them and try to do the best for children in every circumstance in which it finds them,” she said. When parents separate, children are best served when the law recognizes diversity among families rather than imposing a single formula on them, she said.

The divorce code isn’t about “protecting marriage” — it’s where courts and families come to deal with the realities of a breakup, and it’s fantasy to think otherwise, added Pennsylvania divorce lawyer Lynne Gold-Bikin, who served as an adviser on the ALI project.

If people want to protect marriage, they have to start a lot earlier, with marriage education in high schools and communication skills counseling, she said. But trying to save marriages when couples are in divorce court? “That’s the wrong end of the animal,” she said.

The IAV-IMAPP paper is the latest critical response to the ALI book. In July, Cambridge University Press released “Reconceiving the Family: Critique on the American Law Institute’s Principles of the Law of Family Dissolution,” which offers feedback from about 30 law scholars on all the ALI chapters. “My vision for the book is that it will be on the shelf, side by side with the Principles, to be consulted by legislators and judges,” said editor Robin Fretwell Wilson, a professor at the University of Maryland School of Law who signed the IAV-IMAPP statement.

The full influence of the ALI recommendations isn’t known yet. Mr. Ellman said West Virginia adopted the child-custody section, the book has been cited numerous times in legal documents, and it has attracted interest from many courts and states. But “the jury is still out,” he said.

However, just because legal changes occur at a “glacial rate” doesn’t mean they won’t one day become conventional wisdom, especially if no one registers any objections, said William J. Doherty, a professor of family social science at University of Minnesota. The IAV-IMAPP’s marriage statement is intended to show that “there are intelligent people on the other side of this,” he said.

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