From Partners to Parents: Toward a Child Centered Family Law Jurisprudence

Abstract

Modern family law has undergone a revolution. Lenore Weitzman heralded its initial stages in her examination of the fall of fault-based divorce. The Supreme Court ushered in the second stage when it dismantled the distinctions between marital and non-marital children. The third stage involves rebuilding family obligation on the basis of the ties that remain: those between parents and their children.

The Family and Juvenile Law Section of the Association of American Law Schools devoted its 1999 annual program to the exploration of a child-centered family law jurisprudence. The program focused on two initial questions:

-- Are children's interests better served by securing the involvement of both parents or by support for their primary caretaker?

-- Are children's interests better served by state intervention designed to vindicate children's rights independently of their parents or by state support for the family unit?

Karen Czapanskiy and John Gregory address the first question. Czapanskiy argues that children?s interests necessarily depend on the well-being of their caregivers, and that recognition of this interdependency should result in giving greater priority to the needs of custodial parents, supporting the continued involvement of both parents when it strengthens, but not when it undermines, the quality of care. Gregory responds that a case by case determination of caregiving relationships would be just as indeterminate as the best interest test to which Czapankiy objects, and that interdependency theory ignores the conventional wisdom that a continuing relationship with both parents is important to children?s well-being.

James Dwyer addresses the second issue. He agrees that children's interests should be determined in the context of existing family relationships, but cautions against family court decision-making that systematically privileges parents' perspectives over those of their children. He proposes greater judicial willingness to recognize that there are some cases where the child may be better off without a relationship with a biological parent, more sensitive case specific decision-making, and a greater ability to identify parental interests with the provision of counseling, parenting classes, and other forms of state intervention rather than with autonomy alone. Greer Fox presents an overview of family research from the perspective of the social sciences. She reviews the different measures of children's well-being (physiological health, cognitive achievement, and socioemotional competence), the changing context of family life ? the increasing absence of fathers, reliance on multi-generational families, growing income inequality, and greater ethnic diversity ? and concludes that a child-centered social policy must make families central to the process.

Finally, June Carbone argues that where family once depended on the relationship between the adults, the new family law regime ties family rights and responsibilities to parenthood and concludes that parental relationships need to be built back in to the new model. Carbone reviews the often unrecognized importance of the parents' relationship to each other in recent custody cases, considers the growing body of social science literature that ties child's well-being to a cooperative model of parental support, and, maintains that a revised model of parental partnership is the missing piece of custody decision-making.