I am loving family law more and more because family law provides unique insight to all kind of aspects of the human condition. In its ideal form, family law does not bother with a recounting of sins- it wants to know how best to extricate people from a bad situation, another words – What should we do today, to get to a better tomorrow. The clock always starts running now. Of course, not everyone wants a family law, where the clock always starts at now, and many judges and attorneys would question whether is in fact the perversion of family law we have know. Below are two examples to illustrate my point. One example is from child custody and one example is from divorce law.
Child Custody:
Back in the day women would routinely get custody of young children (“tender years doctrine”). This law fell to the wayside, when at least on paper the law had to become gender blind. However, a remnant of the law continued – a remnant that was practically as good as the original. To make the law gender blind on paper, “tender years” was replaced with “primary caretaker” preference. Guess who turned out to be the primary caretaker? Mom. Thus a “breadwinner” dad, would always be at a disadvantage for custody, even if he seemed able and willing to the split responsibility with mom in the brave new world of divorce. That too is now gone, and replaced with the slippery “best interests standard” – this standard has the potential to start the count from now – aka the question it should be asking is what decision today, will create a better tomorrow for the children involved. However, courts have not really abandoned “primary caretaker” – it is still often used a factor in the “best interests” analysis. But potentially there is room for abandoning backwards looking factors all together. Such factors are automatically moralizing – aka, it a reckoning of the sins of our fathers and mothers. What did they do in the past that makes this more or less worthy? Regardless of the ambiguity that remains – “best interests” is surely the most forward looking standard thus far.
Divorce:
Back in the day, couples needed to have “fault” to divorce. Aka, the party asking for the divorce had to claim that the other party has wronged them in some way. The marital assets would be distributed accordingly. Today, while fault still plays some a role in some states (NY only state that has only fault), the majority of states have adapted “irreconcilable differences” and even in fault states like NY, the distribution of marital assets or custody will not depend on fault. That means that the unfaithful spouse will not be disadvantaged financially in the divorce, nor will she be disadvantaged in regards to custody. It does not matter who wronged who and how – the divorce is a “peace settlement” of sort, it’s away for the couples to extricate themselves from the situation that is not working without regard to who is at “fault” to begin with.
The “no fault” and “best interest” model can be a powerful tool for conflict resolution outside the realm of families. It speaks to a concept of justice that is about the now and about the dignity of people regardless of their sins. That is a concept of justice I can get behind – perhaps that is why I am so attracted to family law – at least it pretends to ask the following question. Starting from now – how do we do better?
