Division of United States Studies Workshop on the American Law Institute's Principles of the Law of Family Dissolution: Analysis and Recommendations Proceedings of a discussion held at the Wilson Center May 20, 2003 PARTICIPANTS Sanford Ain, Sherman, Meehan, Curtin & Ain Margaret Barry, Catholic University School of Law Judge Judith Bartnoff, D.C. Superior Court Dr. Bruce Copeland, Bethesda, Maryland Richard Chused, Georgetown University Law Center Linda A. Delaney, Delaney, McKinney & Clark Sue German, Circuit Court for Baltimore City Patricia King, Georgetown University Law Center Judge Rufus King, D.C. Superior Court Michael Lamb, National Institute of Child Health and Human Development David Meyer, University of Illinois College of Law Jane Murphy, University of Baltimore School of Law Pamela Ortiz, Family Services Program, Maryland Administrative Office of the Courts Nancy Polikoff, Washington College of Law, American University Milton Regan, Jr., Georgetown University Law Center Catherine J. Ross, George Washington University Law School Jana Singer, University of Maryland School of Law Rufus King: I’d like to take a minute to describe advisory group, so we talked about some of the broader how the American Law Institute started the process of issues that had been raised in that and similar work. drafting these recommendations. Our notion was that before we tackled black letter law In my freshman year at the American Law and commentary, we needed to establish a context for Institute (I was then sitting on the Domestic One it. So we spent a lot of time early on discussing social calendar in the Superior Court), it occurred to me that theory, what worked and didn’t work, and what the ALI had done nothing to address the areas of problems arise from the breakup of families. family and domestic law. It also seemed to me that the The second unusual aspect of the process was kind of thoughtful discussion the Institute was known that, while state trial courts are where all the work on for, and its ability to draw leading scholars, domestic relations law is occurring, the American Law practitioners, and judges, would make it an ideal place Institute is not heavily populated with state trial to engage in some thinking about those issues. judges. To address this, we needed to put together an I learned that a white paper written in 1988 advisory group of judges, many of whom were not was circulating and that it outlined a possible project members of the Institute. The challenge, then, was to to address the law of family dissolution. The question find both judges and practitioners who were interested was one of funding, so we asked around and found and committed. We didn’t want Rolls-Royce-driving enough to get started. The project began with some Park Avenue practitioners. We needed people who unusual approaches. In the early discussions, there brought to disputes thoughtfulness and a commitment wa s an emphasis on underlying social theory. Lenore to resolution. Whitesman, author of Divorce in America, was in the Family Law Workshop One final aspect was that the legal terrain was to apply only when the parties couldn’t agree, and a seen by those at the Institute as being very much in great deal of deference should be shown to any flux. Much of the law was subject to varying state agreement by the parties. This belief is reflected in the rules. The child support guidelines had just been provision of the Principles subordinating all the rules established and were still getting settled, so a therein to agreement of the parties. restatement seemed beyond the reach of the project. Finally, there was an effort to look at the results We therefore settled on the notion of a Statement of of “best interest” inquiry, so that our results wouldn’t Principles. That framework also gave us leeway to be be too far from what was in fact happening in current aspirational where it seemed warranted. I think the decisions around the country. We wanted to determine product evidences that. what “best interest” often means, then try to find a Our basic approach was to look at trends in rule to capture that. decisions and try to come up with predictable rules The project continued for a long period of time. that removed some of the almost unlimited discretion We started in 1989 with the first appeals for funding characterizing much of family law, where decisions and the organization of a reporter, some advisers, and ultimately come down to the “best interest” and “fair the advisory group of judges. There was an evolution and reasonable under the circumstances” standards. both of reporters and of some of the advisers—as we These vague standards basically mean that it is a roll picked up interest along the way, we added advisors. of the dice whenever parties do have to go to court. At the beginning, we had virtually no member A fundamental backdrop to our discussions was advisers, and by the end we had the long list of them that over ninety percent of domestic relations disputes that appears at the front of the report. are settled, so that whatever rules we developed ought 1 Family Law Workshop The discussions were extremely rewarding for ordinarily order their affairs, that was a valuable the relatively young trial judge I was, as, I believe, contribution. they were for the other participants. We were walking The results are intended to guide both on air. It was exciting to sit in a room with forty or legislatures and courts. West Virginia has adopted fifty people who could discuss at such a high level and some of the guidelines. We hope that more of the who had the ability to draw on experience and legislative provisions will be adopted in other states. observations from all over the country. These meetings At the least, the recommendations already share the represented some of the highest-level discussions that excitement that all of us felt as we were discussing the I have ever been privy to. provisions, and they have brought some careful We believe we have been able to identify some thought to the field. simplifying principles. In particular, there was an Jana Singer: The ALI Principles are massive, so effort to do for alimony what child support guidelines Mitt and I decided to focus on the provisions that have had done for that field. We wanted to take the “dice to do with parents and children as opposed to the roll” element out of alimony, give it some provisions that deal primarily with financial issues, predictability, and establish guidelines for when it although of course the two are intimately related. would occur, under what circumstances, and in what Within that cut, we wanted to look specifically at two quantity. An important premise of the discussions was related areas. that the high level of conflict is itself a severely First, I will facilitate a discussion about Chapter damaging consequence of family breakup. If our rules 2 of the Principles, which addresses the allocation of could improve predictability, and reduce the high level custodial and decision-making responsibility. Second, of conflict without upsetting the way that people 2 Family Law Workshop Mitt will lead a discussion about the way the ALI I am generally supportive of both impulses, report expands definitions of parenthood. although I think that the drafters have I will start by describing two aspects of the ALI underestimated the difficulty of implementing these Principles on the allocation of custodial and decision- innovations in the real world. I am very interested in making responsibility for children that I consider hearing from Michael Lamb and Bruce Copeland about innovative, significant and controversial. The first is the apparent gap between the approximation standard the fact that Chapter 2 focuses significantly, if not and the literature about parent-child relationships. primarily, on the process by which parenting disputes Let me give a few words of background about are resolved as opposed to the outcome, making the each of those aspects, then open the topic for parenting plan the cornerstone of the process. This discussion. aspect is significant and promising although it raises a First, let me describe the process focus. The number of challenges in terms of implementation. drafters emphasized that a primary focus of Chapter 2 Second, to the extent that the Principles do is on structuring a process to enable divorcing or focus on outcomes, they attempt to substitute the more separating parents to make decisions about their backward-looking “approximation of past caretaking” children, and to resolve disputes about how their standard for the prevailing “best interest” standard. children will be cared for after separation or divorce. The drafters hope that the approximation standard As Judge King has mentioned, in this sense the will be both more predictable than the wide-ranging, Principles shift the focus of law reform efforts from the highly discretionary “best interest” standard, and at small percentage of cases that eventually will be least as individualized. decided by a judge after contested proceedings to the much larger percentage of cases that eventually will be 3 Family Law Workshop resolved by agreement of the parties. The Principles, inclusive term “custodial responsibility,” which is used in a manner unusual in major law reform efforts, to encompass all forms of post-divorce caretaking emphasize the process by which parents bring these arrangements. cases to court, and prioritize trying to help parents by The term “legal custody,” which refers to giving them the tools and the structure with which to physical custody and visitation, is similarly replaced resolve the cases without having to appeal to a judicial by “decision-making responsibility.” The report says decision maker.