New Reforms Abound at D.C. International Family Courts Conference

The Association of Family and Conciliation Courts, a well-known international group of lawyers, judges, mental health professionals, social workers and mediators, held its annual International Conference quite close to the Commonwealth this year, at the Capital Hilton in Washington.

A variety of current efforts to reduce divorce got a lot of attention at this conference, as did other present and future policy initiatives that have major and often unforeseen impacts on families. "Examining the Partnership between Policy and Practice" was the theme of the conference.

The Devaluation of Divorce

Asian Family Law: How Half the World Lives - Korea | Japan | India

The Association of Family and Conciliation Courts

Pro-Fatherhood and Biparentalist Initiatives

Other Family Law Reforms

The Devaluation of Divorce

Several sessions dealt with how to improve and protect marriage and reduce divorce. David Popenoe, an advocate of marriage and fatherhood, divorce opponent Barbara Dafoe Whitehead, and California court official Isolina Ricci debated how to reduce the damage divorce does to children. Ricci, author of a book called Mom's House, Dad's House, emphasized helping children adjust to divorce (traditionally a major approach of the AFCC, judging by the number of similar materials for sale), while Whitehead and Popenoe focused on reducing divorce and the number of children exposed to it. Wade Horn and others denounced the tax code's "marriage penalty." A workshop was devoted to techniques for "marriage education," which aims to arm couples with skills to handle their disagreements, before therapy or counseling is needed.

Another workshop, on "Sustaining Marriage", was presented by Palo Alto divorce lawyer Sheryl Cassedy and her husband, psychologist Matthew Sullivan. From their combined experience they argued that many failing marriages can and must be saved. Cassedy began by saying she felt "weary. I am feeling the accumulated sadness of 15 years as a divorce lawyer." She said about half of the couples she deals with could have stayed together. She proceeded to criticize several cultural "myths." Unlike most lists of "myths" and "facts", hers was quite original and bears repeating:

Myth: Marriage to the right person is happy. If you're unhappy, you're with the wrong person.

Fact: Marital strife is normal. We need to learn to deal with it, instead of looking for someone to blame for it.

Myth: "Love dies." Love is an uncontrollable emotion. It appears and disappears automatically.

Fact: Love is a decision, a choice, a volition, and a responsibility. "Loveless marriage" is not a fait accompli or an end result. It is a stage many relationships go through, and is followed by a different kind of love. Acting responsibly and working to live up to your commitments is not dependent on emotions - it begets its own emotions.

Myth: Marriage is personal and private. People in happy marriages shouldn't talk to others about how they deal with their problems. People in bad marriages, in contrast, can tell the whole world about it.

Fact: If people in successful marriages don't pass on their knowledge of how to make it work, every couple will have to reinvent centuries of accumulated know-how. Most will fail.

Sullivan, who specializes in marriage counseling, identified cycles that his clients' marriages go through. They are not regular or predetermined, but are set in motion by events that change the demands placed on a couple, such as pregnancy, a career change, health problems or addictions, childbirth, or a child's starting school or graduating. These often initiate a gradual decline, which finally leads to a crisis when the spouses either run away from the marriage with contempt for each other, or commit to dealing with the change and adjusting their habits. If they stick with it, life at first remains difficult, unhappy and confused as they rake through the "muck" of their problems, but creative improvements are usually possible. The spirit of the relationship is eventually renewed and a new routine emerges.

Asked about pre-marital counseling, Sullivan opined that that is "too early" for most of the training and counseling people need, because many couples are in an "idealization" stage at that time. The time when people are most receptive to advice is when they really realize they need it, at the time of the "change events" mentioned above. If counseling is mandated, he suggested, perhaps it should be at the one-year, four-year or seven-year mark, or during pregnancy. Even high school or college-age kids might be more receptive to advice and training than people about to marry. An exception, not surprisingly, is second marriages, which are an excellent opportunity for premarital counseling.


Asian Family Law: How Half the World Lives

A session on Asian Family Law provided a bit of contrast and perspective to the current family problems that so vexed the great majority of delegates, who were from the U.S., U.K., Australia and Canada. Law professors from Korea, Japan and India, and the Vice-President of China's bar association, reported on the latest developments in family law and policy in their countries.

Korea, according to Prof. Kyung-Hui Lee, is one place that has hardly been touched by the divorce culture, despite its modernization. Family and responsibility are still overriding values there, and extended families are still strong. Divorce is rare enough there that "family law" mostly deals with inheritances and the perils of marrying someone with the same surname, and so that is what Prof. Lee mostly had prepared to discuss. The Japanese, in contrast, are struggling with the problems of marrying someone with a different surname.

The Japanese have relatively low but rising divorce and illegitimacy rates, and are considering allowing more non-consensual no-fault divorce, according to Prof. Tomiyuki Ogawa. No-fault divorce is currently available by mutual consent, and 90% of divorces are settled by this means, and are not handled by the courts in any way. Another 9% settle in mediation, and 1% go to trial. For the 1%, a divorce can be granted for adultery, desertion, incurable insanity, or grave irreconcilable differences. However, a spouse who is at fault cannot get a divorce on any of these grounds, unless the separation has been very long, there are no children, and there is no damage to the other spouse. A committee is considering one change to this scheme: decreasing the separation period to five years. Reformers and scholars are also gravely concerned that the 90% of divorces that are by mutual consent usually give mothers custody, but no child support!

India, like most South Asian and Middle Eastern countries, has different systems of family law for members of different religions. Some people in India have become concerned about how oppressive to women some of these legal systems are (especially, though not exclusively, in other people's religions!), and about truly savage customs that continue despite being outlawed. Prof. Nilima Chandiramani reported that incidences of "dowry harassment" and "dowry death", imposed on brides for insufficiency of dowry, are rising in India's cities, and that child marriages are still widespread and treated as valid. Adultery laws still treat men and women differently. Muslim husbands (but not wives) have the right to unilateral no-fault divorce, or "Talaq." Women have hardly any rights to marital property under the laws governing various religions, but state and national legislation has been introduced to give women equal property rights. Suits for "conjugal rights" are still allowed, although courts are beginning to hold that they violate the right to privacy.

The Association of Family and Conciliation Courts

The AFCC's members are predominantly from government, academia, and the self-styled "helping professions." Their political and cultural orientations appeared to be mostly left-wing and government-minded, but tempered with heavy doses of the reality that they deal with every day in working with people who end up in family courts.

Family Courts, by the way, appear to be an article of faith with this group. They repeatedly indicated that every city, county, riding, emirate etc. should have one; that it is the least we can do if we take families' problems seriously.

The idea of legal restrictions on divorce got little sympathy and considerable visceral revulsion from delegates. Several speakers nonetheless advocated reducing divorce by other means. All of them, however, felt obliged to recite that they were "not trying to go back to Ozzie and Harriet." Ozzie and Harriet are apparently T.V. sitcom characters from the 1950s who inspire strong, immediate fear and loathing in baby boomers.

Pro-Fatherhood and Biparentalist Initiatives

It was interesting, then, to observe that to AFCC members, protecting the two-parent family was still considered a progressive cause. One general session and one workshop dealt with programs that promoted fatherhood, and featured Wade Horn of the National Fatherhood Initiative.

The idea of trying to get parents to agree on "parenting plans" before having a custody trial, which is currently before the Virginia legislature, apparently has been promoted by the AFCC for several years, in many states. It was enacted in England and Wales in 1996. An official from the Labor government's Lord Chancellor's office urged its further proliferation with the kind of strategies, doggedness and zeal that usually drive progressive initiatives.

Reforms upon Reforms

Reform of court systems is even more popular, and easier to support, than reforms of substantive law. Several architects of such reforms spoke at the conference, including William Howe, a lawyer who had led a total redefinition and reshaping of Oregon's courts. He was asked about another reform that is currently proposed in Virginia and many other states - discarding the terms "custody" and "visitation" and replacing them with less loaded terms. His response was thoughtful, and was not disputed by anyone else at the conference. He said that the term "custody" was by now deeply imbedded in people's everyday vocabulary, and in laws dealing with many other areas besides custody itself, so it was foolish to try to change it. "Visitation", however, was a gross misnomer, he pointed out. It is not mere visiting, no one yet dares to argue that that is all it is, and no one would ever think to call it "visitation" if they were speaking English rather than legal jargon.

Another reform to look for in the near future: Teen Day Care. Yes, it sounds crazy at first, but here's one fact that changes all that: studies show that most teen pregnancies begin after school, before parents get home from work.