Chief Judge Rufus King III, D.C. Superior Court; Milton Regan, Jr., Georgetown University Law Center; Jana Singer, University of Maryland School of Law; Sanford Ain, Sherman, Meehan, Curtin & Ain; Judge Judith Bartnoff, D.C. Superior Court; Dr. Bruce Copeland, clinical psychologist; Richard Chused, Georgetown University Law Center; Linda Delaney, Delaney & Associates; Sue German, Family Division, Circuit Court for Baltimore City; Patricia King, Georgetown University Law Center; Michael Lamb, Section on Social and Emotional Development, 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, American University Washington College of Law; Catherine Ross, George Washington University Law School; Joan Williams, Prof. of Law and Director, Program on Gender, Work and Family, American University

In 2002, the American Law Institute (ALI) released its 1,100 page Principles of the Law of Family Dissolution: Analysis and Recommendations, detailing new standards for the settlement of financial and custodial disputes. Because it is unlikely that the majority of state legislatures will adopt the principles in whole or in part in the near future, the Division of U.S. Studies convened a group of judges, family law attorneys, law professors, psychologists, and court administrators to assess whether and how on-the-ground policy-makers are utilizing or could utilize the standards in practice. Recognizing that the entirety of the report is too far-ranging for one session, the group focused on the sections of the Principles that address the allocation of custodial and decision-making responsibilities for children, discussing the advantages and disadvantages of the approach set out in the Principles and the practical applications of and obstacles to their implementation.

Rufus King, Chief Judge of the D.C. Superior Court, was instrumental in the ten-year process that led to the publication of the report. He opened the meeting by explaining the impetus behind the ALI's effort. When he became a member of ALI, he realized that the organization had not addressed family law issues and that family law was in a state of flux that made it amenable to guidance. Traditionally, family dissolution disputes have been and are decided using the relatively vague "best interest of the child" approach, which allows judges almost unlimited discretion and, as a result, makes out-of-court settlement negotiations particularly contentious. (In fact, as Judge King noted, over 90% of domestic relations disputes are settled. The new standards are meant to guide both settled disputes and the contested situations, which are not settled precisely because they are particularly contentious.) The ALI wanted to add predictability to the process while preserving its emphasis on benefiting children and reducing conflict, and so developed the set of simplified yet aspirational principles laid out in the volume.

Where the current practice is to speak in terms of "custody" and "visitation," meaning physical control of and access to children, the report substitutes the concepts of "custodial responsibilities" and "decision-making responsibilities." A parent who does not have custodial responsibilities, for example, might participate in decision-making responsibilities; a parent who has some decision-making responsibilities in one area (e.g. education) might not have them in another (e.g. health). The first session, led by University of Maryland School of Law Professor Jana Singer, examined the Principles' guidelines on the allocation of responsibilities. The "innovative, significant, and controversial" standards differ from earlier ones in two major ways. First, they focus on the process of resolving disputes rather than the outcome. The cornerstone of this approach is the requirement that parties submit "parenting plans" to the court, outlining comprehensive visions for the care of the children. This shifts the emphasis in contentious cases from decisions by judges to decisions by the parties themselves, and gives parents guidelines for resolving their disputes. The basis assumption is that each parent will continue to play a role in the child's life, rather than that one will "win" and one will "lose." The plan must include provisions for the resolution of future disputes, which again shifts the focus away from court-imposed decisions.

Second, the principles move from the "best interest" standard towards an "approximation of past care" standard, a "backward-looking" approach that assigns custodial responsibility based on how previous parenting and caretaking functions were divided. Singer said the new approach seeks to minimize manipulation of the process by the parents, each attempting to contest the other's claims about the child's "best interest." The approximation standard eliminates both the presumption in favor of the primary care-giver and the presumption of joint custody (such as exists in the District of Columbia), as well as the imposition of a single rule for all. It therefore increases predictability while maintaining individualization. The only exceptions to the approximation standard are 1) a presumptive floor of custodial responsibility for each parent; 2) consideration of the preference of a relatively mature child; 3) a desire to keep siblings together; 4) cases of child abuse, domestic violence, and parental impairment.

Singer acknowledged that the ALI principles are not without flaws and face serious obstacles to implementation. They establish a role that will be unfamiliar for most judges, requiring them to problem-solve rather than rule by decree. They place a heavy burden on court systems, which would need comprehensive services to, e.g., help with parenting plans. (This is a serious concern in jurisdictions like Baltimore City, where at least one party to 83% of marital disputes is not represented by counsel.)

Singer's comment about the principles' difficulties was emphasized in the discussion following her summary. Psychologists Michael Lamb and Bruce Copeland noted that social science research does not necessarily support the contention that the past division of caretaking responsibilities approximates parental attachment to their children, nor does it always provide continuity for families. While the research shows that children do better where there is a supportive relationship with two parents, 40% of parent-child relations are not supportive, and the strength of family ties is not identical to the quality of those ties. The amount of time spent caring for a child is not the same thing as competence in caring for the child. In addition, the relative involvement of parents frequently changes over time, as their own lives change.

D.C. Judge Judith Bartnoff added that she felt the D.C. presumption of joint custody is more beneficial to children, and she and practitioner Sanford Ain agreed that such a presumption reduces conflict in negotiations taking place in the "shadow of the law." Prior care-taking should not be the sole criterion, Bartnoff argued. People make accommodations with each other while they are living together but are less likely to do so thereafter. The lower wage earner in a marriage, usually female, also usually has the greater share of care-taking responsibilities, for example. The higher wage earner, usually male, often defers to the other parent's judgment during the marriage, but does not necessarily trust the other parent's parental style and goals. The higher wage earner may therefore be reluctant to give the person who has been the primary care-giver the major share of custodial and decision-making responsibility when the marriage ends. In addition, people sometimes discover hitherto-unknown competency in child-rearing only after a divorce.

Practitioner Linda Delaney and Professors Singer and Joan Williams defended the past care standard, commenting that marriage contracts often involve a division of labor between breadwinner and caretaker, roles which can be hard to renegotiate after divorce – especially for the caretaker spouse, who has often sacrificed economic viability. Professor Nancy Polikoff expressed dismay at the defense of a presumption of joint custody, as she believed it was instituted at the insistence of the fathers' rights lobby and not as the result of any child-centered advocacy. Given that complete judicial discretion is not feasible, she said, the ALI past care approximation is a good compromise between presumed joint custody and the older primary caretaker standard.

Prof. Richard Chused noted that the Principles attempt to move away from the basic premise of U.S. law, which is based on the existence of two opposing sides or interests, and towards more of a focus on a child. The Principles are not enough, he argued. What is necessary is a general move away from the (competitive) tort model to the (equitable) civil law model, with judges more active in assessing equity. For this, a dramatic restructuring of the court system would have to take place. Judge King concluded that looking at what people were doing when no one was looking is nonetheless a good way to minimize the allocation of loss that is a feature of any marital break-up.

Georgetown University Law Center Professor Milton Regan initiated the second session by describing the ALI Principles' guidelines on "parents by estoppel" (individuals who have lived with the child for at least two years and either believed themselves to be biological parents or regularly performed a caretaking function at least as great as the parent with whom the child lives) and "de facto parents" (other individuals who resided with a child during the six months prior to filing of dissolution papers or who consistently attempted to maintain a relationship with the child). Both categories fall outside the traditional definition of "legal parent" but may afford those who fall within them claims to custodial and/or decision-making responsibilities. The new definitions are based on a desire to provide continuity in the child's life, and may provide for multiple parental figures. While Massachusetts and New Jersey have adopted de facto parent status, the definitions in the ALI Principles are more expansive than those currently in use in most places, and may have significant implications in the cases of same-sex couples and non-traditional families with multiple parental figures. As Regan noted, the ALI definitions focus more on parental functions than on status or labels. Thus, a care-giving grandparent or other relative, or a non-biologically-related caretaker, might be assigned parental status. Numerous questions flow from the new categories, including what the impact on a non-custodial biological parent's time with the child might be if other parties are awarded time and whether de facto parents have a financial support duty.

Many participants, including court administrator Pamela Ortiz, felt that the function focus makes the custody process more child-focused. Though the expanded definitions make custody determinations more complicated by expanding the universe of claimants to parental rights, Sue German of the Baltimore City Circuit Court Family Division noted that it is important to recognize the "many permutations of family." The complications were evident in two examples of current cases presented by workshop participants. The first involves a lesbian couple that jointly decided to have a child by artificial insemination, with the selection of the biological mother based solely on physical fitness. The couple became estranged when the child was only four months old, meaning that the non-biological mother, who very much wanted to maintain contact but whose right to do so was contested by the biological mother, could not establish a lengthy pattern of care for and relationship with the child. Had the two partners been a married couple and had the child been the result of artificial insemination, the non-biological father would automatically have been recognized by the courts as having a right to maintain contact. In the second case, a man married a pregnant woman whose husband had died. The man became the father-in-fact to the child, and the couple then had another child. When the marriage dissolved, the mother challenged the man's right to access to his non-biological child.

Judge King noted that the ALI recognized from the start that the dissolution of all types of family units, including non-traditional ones, had to be addressed within the Principles. The participants agreed that follow-up workshops would be useful, as it is rare for judges, other court personnel, practitioners, and psychologists to have such discussions outside the boundaries of specific cases under litigation.

Drafted by Danielle Tarantolo and Philippa Strum (202) 691-4129