Divorced from Reality

Rethinking Family Dispute Resolution

Jane C. Murphy, Jana B. Singer

• Publisher: NYU Press
• Year: 2015
• Print ISBN: 9780814708934
• eBook ISBN: 9781479842209
• Subtopic: Family Law

Over the past thirty years, there has been a dramatic shift in the way the legal system approaches and resolves family disputes. Traditionally, family law dispute resolution was based on an “adversary” system: two parties and their advocates stood before a judge who determined which party was at fault in a divorce and who would be awarded the rights in a custody dispute. Now, many family courts are opting for a “problem-solving” model in which courts attempt to resolve both legal and non-legal issues.

At the same time, American families have changed dramatically. Divorce rates have leveled off and begun to drop, while the number of children born and raised outside of marriage has increased sharply. Fathers are more likely to seek an active role in their children’s lives. While this enhanced paternal involvement benefits children, it also increases the likelihood of disputes between parents. As a result, the families who seek legal dispute resolution have become more diverse and their legal situations more complex.

In Divorced from Reality, Jane C. Murphy and Jana B. Singer argue that the current "problem solving" model fails to address the realities of today's families. The authors suggest that while today’s dispute resolution regime may represent an improvement over its more adversary predecessor, it is built largely around the model of a divorcing nuclear family with lawyers representing all parties—a model that fits poorly with the realities of today's disputing families. To serve the families it is meant to help, the legal system must adapt and reshape itself.

1

Historical Overview

The paradigm shift that we describe in this book is principally a contemporary phenomenon, but it has a number of historical antecedents. These precursors include important doctrinal developments in both the nineteenth and twentieth centuries, which expanded and transformed the judicial role in divorce and custody disputes, ultimately making courts the primary guardians of children’s welfare in the face of family breakdown. In addition, the therapeutic underpinnings of progressive-era juvenile justice reform migrated in the mid-twentieth century from the delinquency to the divorce and custody context. Although these therapeutic principles initially foundered on the shoals of no-fault divorce, their migration from juvenile to family court paved the way for many of the dispute resolution reforms we analyze in this book. Finally, the shift from a fault-based, sole custody regime to a no-fault co-parenting model in the 1980s and early 1990s simultaneously undermined the efficacy of traditional adversary processes and invited ongoing court involvement in families affected by divorce and parental separation—both important elements of the new paradigm.

This chapter will examine these historical antecedents and explore their impact on today’s family dispute resolution system. This historical excavation will reveal three themes that inform the remainder of our analysis: the close connection between changes in substantive family law doctrine and changes in family dispute resolution processes; the shifting boundary between the public and private aspects of family dispute resolution; and the differential treatment by the family court system of families with and without economic means. While previous family law scholars have emphasized the disparate legal treatment of poor and wealthy families, they have tended to focus on differences in the substantive legal doctrines applied to these two groups;1 our examination indicates that the disparities extend as well to the impact of the processes and court practices used to resolve family disputes.

Colonial America and the Unified Patriarchal Family

During the colonial period, the American legal system viewed the marital family as a unified and cohesive entity.2 Divorce was rare and generally required a special enactment by the legislature. Mirroring the society around it, the colonial family was both hierarchical and patriarchal. Male heads of household exercised legal control over the women and children in their families, and represented those families in the public sphere.3 As historian Michael Grossberg has written, “The community charged each male governor with the duty of maintaining a well-ordered home and sustained his authority by granting him control of its inhabitants as well as of family property and other resources. Women and children, as subordinates and dependents in the corporate body, had limited capacity to engage independently in community life.”4

Consistent with this view, eighteenth-century Anglo-American law granted fathers an almost unlimited right to the custody of their minor, legitimate children. Children were viewed as paternal assets, and the legal rules governing the care and control of children reflected this property orientation. Married women had no legal right to custody of their children during marriage or in the unlikely event of divorce. Moreover, although a mother was assumed to be the natural guardian of her children upon the death of her husband, a father could overcome this assumption by appointing someone else as a guardian in his will, and the courts were bound to respect his testamentary wish.5

Because divorce was rare during the colonial era and women lacked independent legal status, the judiciary’s role in resolving disputes between parents was extremely limited. Courts became involved in disputes regarding the custody and control of children principally when they were asked to approve contracts for indenture or to resolve disputes between masters and fathers regarding the treatment of childhood apprentices.6 Although children were the subjects of these contract-based disputes, their welfare was not a primary consideration for the courts.

Colonial courts intervened more actively in the lives of poor children and their families. Following the tradition of the English poor laws, fathers who could not adequately maintain their families risked losing custody of their children to poor law officials. With the consent of the appropriate court or magistrate, these officials were authorized to “bind out” the children to a master who could support them.7 Impoverished widows and unwed mothers faced similar court-supervised intervention and forced separation from their children. Once a child was involuntarily “bound out,” the parents, if still alive, lost any claim to custody.8

Thus, during the colonial era, white families that were “well governed” and headed by a male patriarch faced minimal judicial scrutiny, while families that lacked an effective male governor were subject to considerably greater judicial control. Moreover, where the judicial system did intervene in family matters, its primary purposes were to preserve paternal rights and to protect the community’s economic interests, not to promote the welfare of children.

For black families in the colonial era, slavery made formation of legally recognized families impossible. Colonial and state laws considered slaves property, not legal persons who could enter into marriage or other contracts.9 Many enslaved adults considered themselves married and, along with their children, functioned as families. But the vast majority of African Americans could not legally marry until the end of slavery in 1865. Thus, while oppression by the state through slavery was a central feature of African American family life, the judicial system had little contact with African American families during this period.

Judicial Authority and the Republican Family

A series of changes in the post-Revolutionary era challenged this unitary and hierarchical vision of family, and significantly expanded the judiciary’s role in resolving intra-family disputes. One important influence was a new domestic egalitarianism based on the ideology of domesticity and separate spheres. This ideology emphasized the separation of work and home and assigned sharply differentiated roles to women and men; while men enjoyed primacy in the public realm of work and politics, women were the central actors in the private domain of home and family.10 The ideology of domesticity also identified the family as a key locus for the transmission of moral values and the education of future citizens—tasks for which women were now primarily responsible. Domesticity thus gave women and men complementary, as opposed to hierarchical family roles—women were now viewed as different from men, but not necessarily inferior to them, particularly with respect to family governance.

The importance that domesticity placed on the role of mothers significantly enhanced women’s ability to obtain custody of their children after separation, divorce, or death of a husband. Judges in contested custody proceedings increasingly cited the distinctive role of mothers as grounds for overcoming the father’s common law right to control and custody of his children. In addition, women used their enhanced status within the family to seek divorce or judicial separation when husbands behaved inappropriately or refused to live up to their proper role as economic provider.11

Domesticity did not eliminate women’s formal legal disadvantages, including the doctrine of coverture, which granted husbands control of their wives’ labor and property. Moreover, judges who awarded child custody to women did not do so on grounds of women’s equal rights, but rather based on the judicial view that placing young children in their mothers’ care was in the best interests of children. As Joel Bishop’s 1852 treatise on marriage and divorce law explained, a father’s right to custody “is not an absolute one, and is usually made to yield when the good of the child, which especially according to the modern American decision, is the chief matter to be regarded, requires that it should.”12 Thus, judicially inspired limitations on paternal custody and guardianship rights shifted child placement authority to the courts more than they changed the subordinate status of married women.13 For this reason, many feminists were ambivalent about these legal developments, advocating instead for legislation that would formalize women’s equal custody rights. These advocacy efforts were largely unsuccessful; in 1900 only nine states and the District of Columbia gave mothers the statutory right to equal guardianship of their children.14 By refusing to formalize maternal custody rights, legislators left the issue to the discretion of the courts, ensuring that judicial judgments of parental fitness and child welfare—as opposed to notions of gender equality—would determine custody rights.15

The ideology of domesticity also had a class dimension. Courts and social reformers used its precepts to critique the child-rearing practices of poor and immigrant women and to assert control of children whose mothers failed to live up to middle-class notions of maternal virtue. Historians have documented how social reformers and government authorities used the language of domesticity to control the behavior of poor families, including those who peddled and scavenged in city streets, declaring that children should be off the streets, wives and mothers at home, and husbands and fathers gainfully employed. Judges played an active role in these social reform efforts, using their expanded power to determine custody to remove children from allegedly harmful parental influences and place them in more “wholesome” environments, away from their families of origin.16

A new perception of childhood also contributed to the republican-era redefinition of the home. “During the nineteenth century, children came to be seen more explicitly than ever as vulnerable malleable charges with a special innocence and with particular needs, talents, and characters.”17 The colonial view of children as economic assets gave way to a more romantic view of children who no longer belonged to their fathers or masters, but instead were deemed to have interests of their own—interests that became increasingly identified with a nurturing mother.

As children began to be viewed as persons, rather than as property, the legal community took a more active interest in their well-being. Reflecting this child welfare orientation, “custody rulings increasingly devalued paternally oriented property-based standards, and instead emphasized maternally based considerations of child nurture.”18 Thus, a father’s traditional entitlement to custody gradually evolved from a property right to a trust tied to his responsibilities as a guardian: his title as father thus became both more transferable and more subject to judicial control. For wealthy families, the primary impact of this shift was to enhance the status of mothers in contested custody proceedings; for poor families, by contrast, the effect was often to transfer authority from a child’s parents to the state.

The community’s growing interest in child welfare also affected the legal treatment of children born outside of marriage. Rejecting the common law’s treatment of such children as filius nullius, with no legally recognized family ties, nineteenth-century legal reformers deemphasized criminal penalties for bastardy and gave formal legal recognition to the bond between mothers and their nonmarital children.19 Fathers retained the obligation to support their nonmarital children, but lost their superior right to custody. However, harsh economic realities often diluted women’s and children’s enhanced legal status. Although bastardy reforms halted the previously widespread practice of separating unmarried mothers from their children solely on the basis of the child’s place of birth, these changes did not protect a mother from losing her child because of poverty.20 The judiciary played a major role in these developments, using its newfound emphasis on child welfare to support the custody claims of financially solvent mothers and to validate the community’s interest in children whose parents could not support them.

Thus, although the community’s enhanced interest in the well-being of children reduced fathers’ custody rights, it did not necessarily enhance maternal power. On the contrary, judicially created standards of child welfare reduced the rights of parenthood generally, particularly for poor parents, and substituted judicial for paternal determinations of child well-being. As historian Michael Grossberg has concluded, “Courts applied judicially created standards of child welfare and parental fitness in order to take the ultimate decision of child placement out of the hands of both parents.”21

The rise of domesticity and its accompanying emphasis on children’s interests also led to a rethinking of the unitary vision of the family that had characterized colonial-era family jurisprudence. While eighteenth-century domestic relations law had conceived the family as an organic unit with a male householder at its head, republican-era legal reforms reenvisioned the family as a group of connected individuals, each with his or her specialized role and duties. Not only did men and women have different family roles, but children, too, had distinctive interests that warranted deference and protection. As a result, the legal system could no longer presume that a father adequately represented the interests of all family members before the law. Once traditional paternal governance lost its privileged legal position, the authority and legitimacy to oversee domestic relations shifted to the newly expanded republican state. Where family members were in conflict, the judiciary increasingly assumed the role of arbitrating among the various interests at stake.22

The shift from legislative to judicial divorce also enhanced the role of the courts in resolving disputes between family members. Starting soon after independence, the New England and mid-Atlantic states shifted jurisdiction over divorce from the legislatures to the judiciary. The Southern states moved more slowly, but as the number of divorce petitions rose, legislative divorce proved too costly and inefficient for even its staunchest Southern supporters.23 By 1867, thirty-three of the thirty-seven American jurisdictions had substituted judicial for legislative control over divorce.24

A significant rise in divorce rates...

Table of contents

• Cover
• Title Page
• Copyright Page
• Contents
• Acknowledgments
• Introduction
• 1. Historical Overview
• 2. The Critique of the Adversary System and the New Paradigm as a Response
• 3. Expanded Courts with Diminished Legal Norms
• 4. The New Vision Meets the New Family
• 5. From Gladiators and Umpires to Problem-Solvers and Managers
• 6. The Influence of Comparative and International Family Law
• 7. Creating a Twenty-First-Century Family Dispute Resolution System
• Notes
• Index
• About the Authors