University of Baltimore Law ScholarWorks@University of Baltimore School of Law All Faculty Scholarship Faculty Scholarship 1999 Rules, Responsibility and Commitment to Children: The ewN Language of Morality in Family Law Jane C. Murphy University of Baltimore School of Law, [email protected] Follow this and additional works at: http://scholarworks.law.ubalt.edu/all_fac Part of the Family Law Commons, and the Juvenile Law Commons Recommended Citation Rules, Responsibility and Commitment to Children: The eN w Language of Morality in Family Law, 60 U. Pitt. L. Rev. 1111 (1999) This Article is brought to you for free and open access by the Faculty Scholarship at ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in All Faculty Scholarship by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. Rules, Responsibility and Commitment to Children: The New Language of Morality in Family Law Jane C. Murphy VOLUME 60 SUMMER 1999 ISSUE 4 RULES, RESPONSmILITY AND COMMITMENT TO CHILDREN: THE NEW LANGUAGE OF MORALITY IN FAMILY LAW Jane C. Murphy* Table of Contents I. Introduction. .. 1112 II. Morality and Its Role in Contemporary Family Law......... 1118 A. DefIning Morality............................................. 1118 B. The Relationship Between Law and Morality ............ 1126 C. Morality and Family Law .................................. 1127 1. Protecting Children: A Central Moral Goal of Family Law.............................................. 1127 2. The Link Between Family Law and Morality: Be- yond Individual Rights vs. Community Values.... 1130 III. The "Old" Moral Discourse: Regulating Sexual Conduct... 1134 A. The Meaning of Fault as Grounds for Divorce.......... 1136 B. Alimony Law in the Fault Era ............................. 1145 C. Custody in the Fault Era.................................... 1150 IV. The New Moral Discourse in Family Law..................... 1154 A. Access to Marriage ........................................... 1155 1. Who May Marry: Same Sex Marriage.............. 1156 2. Pre-Marital Procedures: Covenants and Counsel- ing......................................................... 1161 B. Reinforcing Responsibilities and Commitments Within Families. 1165 1. Family Violence ........................................ 1165 a. Eroding the Doctrine of Family Autonomy.. 1165 * Professor of Law, University of Baltimore School of Law, B.A. 1975, Boston College; J.D. 1978, New York University School of Law. This article was made possible by a summer research grant provided by the University of Baltimore Educational Foundation. I wish to thank Robert Rubinson, June Carbone, Marsha Garrison, Barbara Babb, and Cheri Wyron Levin for their com­ ments on this article. I also thank Margaret May for her excellent clerical and research assistance and Robin Klein, Will Tress, and Luann Dickie for their research assistance. This article is dedicated to the many children I have represented over the years and, most importantly, to my own four chil­ dren, who inform and inspire my work in so many ways. 1111 1112 UNIVERSITY OF PITISBURGH LAW REVIEW [Vol. 60: 1111 b. New Laws: Reducing Domestic Violence and Child Abuse ................................. 1167 i. Domestic Violence ....................... 1167 ii. Child Abuse ............................... 1169 2. Recognizing Commitment in Families Created Outside of Marriage ................................... 1172 C. Family Dissolution ........................................... 1175 1. Access to Divorce ..................................... 1175 a. What No-Fault Divorce Really Means ....... 1175 b. Continued Debate About the Morality of Di- vorce in the No-Fault Era ...................... 1177 2. Protecting Children: Changes in Custody and Vis- itation Law ............................................. 1180 a. Developments Encouraging Post Breakup In- volvement of Both Parents ..................... 1181 i. Joint Custody ............................. 1181 ii. Parenting Classes and Parenting Plans 1182 b. The Child's Voice in Custody Proceedings .. 1185 c. Refming the Best Interest Standard .......... 1186 i. The Nexus Requirement in Determin- ing Parental Fitness ...................... 1186 ii. Primary Caretaker Standard ............ 1188 iii. Recognizing the Connection Between Domestic Violence and Parental Fit- ness....... .... ..... ..................... ..... 1191 3. The Child Support Revolution ....................... 1192 D. Creating Rights for Family Members: From Discretion- ary Standards to Rules....................................... 1197 V. Conclusion............................................................ 1203 I. !NTRODUCTION In recent years, commentators with a broad range of political per­ spectives have called for renewed attention to "morality" in family law. This call has been made in a variety of contexts by legal scholars, I politi- 1. See, e.g., Bruce C. Hafen, The Family as an Entity, 22 U.C. DAVIS L REv. 865, 879 (1989) (finding that U[s]tate intervention into family life. _ . is less likely now than previously to be based on moral judgments"); Carl E. Schneider, Marriage, Morals & the Law: No-Fault Divorce and Moral Discourse, 1994 UTAH L. REV. 503 [hereinafter Schneider, Marriage, Morals] (evaluating di­ minished moral discourse in family law and noting both advantages and disadvantages of the trend); Carl E. Schneider, Moral Discourse and the Transformation of American Family Law, 83 MICH. L 1999] NEW LANGUAGE OF MORALITY IN FAMILY LAW 1113 cians,2 and policy makers.3 Two concerns about themes of family law commentary emerge from these diverse sources. The fIrst theme argues for a new direction in family policy. Those advocating a change in direc­ tion argue that traditional families-two parent, heterosexual married couples with children-are essential to a healthy society and must be en­ couraged.4 They argue that contemporary family laws, most notably no­ fault divorce and related laws, have contributed to and fostered the de­ cline of the traditional family.5 According to these commentators, the REv. 1803, 1807-20 (1985) [hereinafter Schneider, Moral Discourse] (noting the "tendency toward diminished moral discourse" in family law cases and statutes and the debate surrounding them); Jana B. Singer, The Privatization of Family Law, 1992 WIS. L. REv. 1443, 1527 (1992) (arguing that the "increased dissociation of law and morality . is directly linked to the privatization of family law"); Lee E. Teitelbaum, The Last Decade(s) ofAmerican Family Law, 46 1. LEGAL EDUC. 546, 547 (1996) (noting a decline in moral discourse in some areas of family law); Lynn D. Wardle, Divorce Violence and the No-Fault Divorce Culture, 1994 UTAH L. REv. 741, 741 (1994) (critiquing the "no­ fault divorce culture" and suggesting connections between no-fault divorce and violence). But see, e.g., Deborah L. Rhode & Martha Minow, Reforming the Questions, Questioning the Reforms: Femi­ nist Perspectives on Divorce Law, in DrvORCE REFORM AT THE CROSSROADS 191, 198 (critiquing the traditional moral judgments in family law as too narrowly conceived); Naomi R. Cahn, The Moral Complexities of Family Law, 50 STAN. L. REv. 225, 270 (1997) (arguing that moral discourse in fam­ ily law has evolved rather than diminished in recent decades); Ira Mark Ellman, The Misguided Movement to Revive Fault Divorce, and Why Reformers Should Look Instead to the American Law Institute, 11 INT'L 1.L. POL'y & FAM. 216, 230-36 (1997) (summarizing proposals adopted by the American Law Institute that remove concepts of fault and marital misconduct from marital property and alimony law). 2. As early as 1980, President Jimmy Carter, speaking from the White House, called for a "reaffIrmation of families as a fundamental building block of our society." President Jimmy Carter, Opening Session of the White House Conference on Families, Baltimore, Maryland (June 5, 1980). More recently, both Republicans and Democrats have called for restoration of family values. See, e.g., The Contract with America (July 11, 1998), <http://web.mit.edulrepublicansfwww/con­ tracthtml>; see also Robert Wright, The False Politics of Values, TIME, Sept 9, 1996, at 42 (evaluat­ ing the bipartisan interest in values and morality). 3. Policy makers calling for a more explicit integration of traditional values in family policy also cover the full range of the political spectrum. Compare CONTRACf WITH THE AMERICAN FAMILY (Ralph Reed ed., 1995) with WIlLIAM A. GALSTON. LIBERAL PuRPoSES: GoOD. VIRTUES. AND DIVER. SITY IN THE LIBERAL STATE 213-37, 257-89 (1991). 4. Of course, defining "family" is both a critical issue within this debate and one that divides many scholars. Compare Lynn D. Wardle, The Use and Abuse of Rights Rhetoric: The Constitutional Rights of Children, 27 Loy. U. CHI. Ll. 321, 327-28 (1996) (arguing that the institution of marriage is integral to familial love and security) with Martha Minow, All in the Family and In All Families: Membership, Loving, and Owing, in SEX. PREFERENCE. AND FAMILY: EsSAYS ON LAW AND NATURE 249,260 (David M. Estlund & Martha C. Nussbaum eds., 1997) (arguing for an "expansive" defini­ tion of family on the ground that "values signaled by 'family' are worthwhile and ••• should be promoted wherever possible"). 5. Another recurring target of this group is welfare and its claimed connection to family disin­ tegration. In recent years, key leaders and policymakers have blamed welfare