NEW AND EMERGING ISSUES -- FAMILY LAW IN THE 21ST CENTURY

By Richard E. Crouch

Arlington, Virginia, USA

Address Delivered at the Meeting of the International Academy of Matrimonial Lawyers , Florence, Italy, September 1997

The question of whether matrimonial law practice, or “family law,” will survive in the next century is surely a legitimate one, given the current sociological trends and government policies working to abolish both the institution of marriage and the family as a recognized social unit. However, the probability is that family-related law practice will continue so long as sexual relations and births continue, so long as the hatreds that arise out of personal relationships gone wrong continue, so long as greed is a motivator of human conduct and so long as citizens are allowed to use lawyers to seek justice in the courts. Despite the tendencies of governments in the supposedly highly civilized nations to work to abolish the family and replace it with one-on-one relationships between lone individuals and the monolithic state, family law practice will probably survive in some form or another because of the inspired ingenuity and imagination of lawyers in creating new kinds of legal controversies. In fact the ground is especially fertile for the growth of such new kinds of legal controversy today, given the tendency of American law, at least, to erase all prior distinctions and bright-line tests in favor of a vague and amorphous court power to intervene in lives and take coercive action to make one party somehow feel better, choosing the party or viewpoint favored according to the winds and whims of shifting popular fashion in order to achieve a politically correct result.

In recent years American family law has tended to abandon previous rules with a blithe insouciance so that we are tending increasingly toward a legal world in which there are no bright-line tests, and no rules to live by, and the ground constantly shifts beneath the feet of the citizen, simply because the rule has become that courts should do anything conceivable in order not to deny the favored party what the favored party wants. The idea of the law trying to be logical and even-handed, or set up rules whereby citizens know where they stand and can conform their conduct accordingly, is being abandoned at a breakneck pace today. The tendency is to abandon all certainty and logic, which once gave predictability to the law, and to disdain the search for abstract and even-handed justice. Rather, the tendency is to turn the law into a playground for the recreation and a colony for the profit-taking exploitation of lawyers.

At best the new laws try to achieve justice in the “lawyers' relief act” format rather than the Twelve Tables format. The new concepts seem to make finding the right decision an arbitrary thing to be determined by the shifting tides of political fashion so that it becomes ultimately as unpredictable as doing business in the former Soviet Union. The duty of a judge to give a politically correct answer (an answer with which the judge feels good) and then rationalize it, no matter what kind of acrobatics that may take, has made this area of the law far less dull than it once was. No loyalty is felt to any permanent standard anymore.

Of course some ideas gain a certain fashionable currency, but then are recognized as being just too crazy after a few cases show where they can begin to lead -- as when they begin to harm members of politically favored groups as well as the unfavored. However, in the United States, the very vastness of the country and the ignorance of large sections of it can prolong fads that might have appeared the shortest-lived. Just when one thinks the craziest ideas are dead because they are being laughed at on the Coasts, they are just taking root the Provinces. Concepts such as “recovered-memory sexual abuse,” for instance, long after they become the subject of satire in the more sophisticated regions, can still be treated as the hottest new ideas among the schoolmarms and social workers of the Vast Interior. See, e.g., Ault v. Jaska, 70 Oh St 2d 114 (Ohio S Ct 1994).

This pattern can be contrasted with centralized legal and political systems such as that of England and Wales, where the pendulum can swing much more quickly and thoroughly, as in the case of the English child support agency. Disgust at its U.S.-style excesses led parliament to cut back its authority and make its substantive law fairer and less Prussian within a couple years. That may never happen in America.

New ideas are forever making waves in the American court systems, because with the abandonment of precedent as a guide, the courts are constantly seeing new theories brought up which appear original simply because they are too stupid to have managed to be appreciably advanced by anyone in earlier decades. And whereas judges were once accepted to be a very dull lot and disinclined to do anything new, the bewildering tendency now appears to be a judicial eagerness to make headlines. Surely the motivation for the decisions of some American judges is that if they do something no judge (even for the best and most obvious of reasons) has ever done before, they will surely be mentioned in the popular press and perhaps even on television. While once the acquisition of the judge's black robe was considered to be in itself a pinnacle of success, now judges seek further notoriety. Some of the “new ideas” to come along in recent years include the following:

STULTIFY AND TRIVIALIZE FAMILY BY INFINITE EXPANSION OF DEFINITION.

There is definitely a great eagerness in the judicial world to demonstrate the ability to treat virtually anything as “family.” This fuzzing-out of the concept is aided by generally poetic logic and concepts of psychological, rather than logical, truth. Some delightful arabesques of generally circular reasoning show up in this area. See Fisher v. Fisher, 23 FLR 1035, 477 SE2d 251 (1996). The new public policy of keeping half siblings together as a factor to deny an unmarried parent equal treatment in custody cases is seen in Tedesco v. Tedesco, 23 FLR 1015, 683 A2d 1133 (Md App 1996). And of course there are the famous “domestic partner ordinances” which are designed to destroy the concept of marriage by extending it infinitely in all directions, giving government benefits to the cohabiting “mate” of the employee, whether the coupling is heterosexual or homosexual. See, e.g., San Francisco ordinance summarized at 22 FLR 1192. An interesting example of the concept of extending family definition is seen In Re Coyle, 671 NE2d 938, 23 FLR 1020 (Ind. App. 1996), treating a child of a former marriage as a “child of the marriage” for purposes of making expenditures that would otherwise be “dissipation of property” legitimate.

Occasionally “Marvin” claims still arise, (See Cochran v. Cochran, 23 FLR 1417 (Cal App 7/14/97), and of course Marvin types of theories still have to be tried out in the homosexual cohabitation area. See Posik v. Layton, 23 FLR 1296 (Fla. App. 3/27/97). Thus it goes without saying that vigorous efforts are made to complete the erasure of all destinations between legitimate and illegitimate parenthood, and some of the unintended results include benefits for illegitimate fathers on occasion, as in collecting “wrongful death” damages after the child's death. See Beeston v. Gerard, 22 FLR 1508.

CHILD'S RIGHTS AGAINST PARENTS

Of course an important part of the campaign to eliminate families as such in our culture is the encouragement of children to attack parents and have independent status in relationship to the state. The idea that children's rights are actually protected by maintaining the independence and sovereignty of their parents and families is no longer an ironclad assumption of the law. Probably the most salient example is the ongoing controversy over whether it is constitutional to have a statute requiring that parents consent to their unmarried underage daughter's having an abortion. See, for example the Massachusetts case Planned Parenthood v. Attorney General, 23 FLR 1242, 424 Mass. 586 (1997).

CHILD SUPPORT FOR ADULTS

Though the tendency of modern legal theories towards the prolongation of legal childhood might seem at war with the theory of subverting family integrity by treating children as legal adults, the tendency everywhere in the United States is for reformers to seek prolongation of parents' financial responsibility for their children far into adulthood, while depriving the parents of ever greater measures of authority over even the littlest of infant children. The idea of erasing all legal distinctions combines nicely with the new idea of infinite extension of dependency and non-personal responsibility in this area. Many, many cases turn upon whether there should be child support for adults when they are attending college, and many judges are eager to be seen as helping out poor college students who are furiously independent of their parents in every area but the financial. See, for example, cases treating this issue, such as In re Pendergast, 23 FLR 1325 (Iowa 1997). It is also a much-favored idea today that absolutely nothing stops child support liability, not even full adulthood and the emancipation of children. Thus a New Jersey Superior Court can be seen agonizing over whether a 20-year-old U.S. military academy cadet is emancipated for purposes of entitlement to child support from his father. Bishop v. Bishop, 671 A2d 644, 22 FLR 1198 (7/28/95).

THIRD-PARTY CUSTODY

Cases are constantly going through the American courts seeking to advance on ever more fronts the war of government against natural parents in custody contests over a child. Most states have hesitated to actually declare that parents and non-parents stand on equal footing, because to do so would violate numerous declarations, including recent ones of the U.S. Supreme Court. Nevertheless, the Pennsylvania Supreme Court recently announced in Rowles v. Rowles, 668 A2d 126, 22 FLR 1063 (11/29/95), that the parental presumption in custody contests no longer exists. See also the West Virginia case Overfield v. Collins, 23 FLR 1237, and the 1997 North Carolina case at 23 FLR 1331 (Price v. Howard).

VISITATION RIGHTS WITH A PARENT

The law is now beginning not to hesitate to enter the tangled world of adult-child-and-parent relationships, as in the cases of elderly parents who are “captured” by a new spouse or another family member. See for example the New Jersey trial court decision at 23 FLR 1395.

NEW KINDS OF MARRIAGE

As far as I can tell it has not been decided yet, but a case in the Family Court of the Virgin Islands, involving a couple named Balch, is testing whether two licensed marriage celebrants can celebrate their own marriage without a third-party celebrant.

NEW REPRODUCTIVE TECHNOLOGIES

The new reproductive technologies are furnishing, and will obviously continue to furnish for quite some time, abundant work for lawyers, and “selling” new theories intended to integrate them into the wonderful world of family law litigation. Litigation being the favorite American method of solving any problem, attorneys everywhere have waded into these mysterious new areas with enthusiasm. Typical examples of new suits over the complications of assisted reproduction include courts' agreeing to decide controversies over frozen sperm (human) as property. See 22 FLR 1512. The philosophical entanglements into which political faction can get when thrashing out the many abortion issues require at times accepting the definition of a fetus as a person, and that leads to complications in all directions, as when the state attempts to punish mothers criminally for “abuse” of the fetuses inside their own bodies. See for example Whitner v. State, 22 FLR 1427. An interesting case in recent years concerned child support obligations for a man whose “parentage” of a child was limited to his having signed a contract that would allow an egg and a sperm that were both from anonymous donors to be implanted within a woman who was not his wife but serving as a child-producing “surrogate.” Jaycee B. v. Superior Court, 42 Cal App 4th 718, 49 Cal Rptr 2d 694, 22 FLR 1173 (Cal App 2/6/96). The new field of attacking fertility clinic fraud is bound to lead to further litigation. See, for instance, the California case involving forged signatures on consent forms by a wife's boyfriend pretending to be the husband. Alexandra S. v. Pacific Fertility Medical Center, 23 FLR 1348.

COHABITANT RIGHTS

The enterprise of inventing new legal rights of cohabitants, whether heterosexual or homosexual is proliferating everywhere. For an example of tort recovery by a cohabitant for a friend's wrongful death (Dramshop Act), see 23 FLR 1156. Severe penalties were levied against and sustained against a landlord who refused to rent to unmarried cohabitants because it was against her religion as a practicing Christian (a result sustained by the U.S. Supreme Court. See Smith v. Fair Employment and Housing Commission, 913 P2d 909, 22 FLR 1290 (4/9/96)).

VARIOUS DOMESTIC TORT THEORIES

Children were encouraged to sue their parents for an intentional tort (“abuse”) in Henderson v. Wooley, 230 Conn. 472, 20 FLR 1497 (Conn 1994). For a typical example of a state court system abolishing spousal and child immunity, and allowing anyone in a family to sue the spouse or parent for negligence, see Hartman v. Hartman, 18 FLR 1125, (Mo. 1991). Numerous theories are constantly being invented to toll the Statute of Limitations in cases of supposed domestic torts, as in 22 FLR 1513. It is also becoming increasingly difficult for any court to use a de minimis theory to preserve itself from having to decide inter-family conflicts in a tort context. See the case of one parent suing another over piercing the ears of a child, Hamilton v. Houston, 22 FLR 1579 (Oh App 1996). It is often just impossible for a judge to tell a party-litigant who wants satisfaction that there is just no remedy for something as small and private as this. Nor is it usually done to treat most litigants as unable to seek a remedy because of their own antisocial conduct, as when a paramour is allowed to sue a husband for a sexually transmitted disease in Stopera v. DiMarco, 22 FLR 1581. The expansion of criminal remedies between family members is likely to go on for some time. For an example of a wife being allowed to seek burglary and trespass prosecution of her husband because the two were living separated, see State v. Johnson, 906 P2d 122, 22 FLR 1039 (Col 11/14/95). However, yet another court allows burglary prosecution of even a recently-separated husband for going back into his former marital home at 22 FLR 1579. The tort remedy was so favored in Delahanty v. Massachusetts Mutual Life Inc., 22 FLR 1285 that it was considered all right to file the tort claim after divorce — the theory being that it is unfair for the court to require that all existing claims must be mentioned in the divorce action. The Texas Supreme Court turned down a theory that a repressed and “recovered memory” of a tort should justify disregarding the Statute of Limitations, S.V. v. R.V., 22 FLR 1261 (3/14/96), but these claims are brought all the time and they are bound to find sympathetic judges who are more receptive.

DEATH AS NO BOUNDARY

Many law suits now seek to collect support against the estate of a dead spouse, not withstanding the centuries-old assumptions that alimony and child support obligations run only against the living person. The estate of a dead person can be not only the defendant, but the plaintiff in a suit for divorce property division, the Louisiana Supreme Court determined at 23 FLR 1316. In Wingate v. Ryan Estate, 23 FLR 1334 [no A2d citation yet] (5/19/97), the New Jersey Supreme Court held that although there is a 23-year statute now on paternity claims for child support, it was all right to claim 31 years after conception so as to allow the estate of the alleged father to be sued after he died.

BASTARDIZING A CHILD

Once upon a time Lord Mansfield's rule stood as a permanent barrier to attacks on the sanctity of marriage, and a practical device for assuring the support of children by decreeing that no man would be allowed to enter the courts in order to bastardize his wife's child born during the marriage. That is still being reaffirmed every day for purposes of assuring child support, sometimes in the most bizarre situations, as when blood tests conclusively establish that the husband is not the father, but the father must pay for the support of the child anyway. See Rebecca R. v. David R., 53 Cal. Rptr. 2d 870, 22 FLR 1384 (Cal App 6/14/96). However, when it is a matter of the mother or her boyfriend wanting the personal satisfaction of being able to show conclusively that the father has no claim of parenthood, and thus no right to be included in the future life of the child, the rule is bent with ease. Nothing can stop the suit of a boyfriend of the mother to bastardize the child, for example, in JWO v. CAP, 22 FLR 1460 (Ala 1/26/96).

COMMERCIAL DAY CARE ENDORSED

Given the reformers' prejudices in favor of commercial day care centers as the preferred place for raising children, it is not surprising that due to the political popularity of the commercial day care industry becomes a powerful force in family law. In Ireland v. Smith, the Michigan Court of Appeals (22 FLR 1147) and Michigan Supreme Court, 547 NW2d 344, 22 FLR 1343 (11/7/95) let a local trial judge know that he had no business favoring, in a husband-wife custody contest, the parent who said he would have the child cared for by grandparents rather than commercial day care (the cause celebre).

HOMOSEXUAL CUSTODY ISSUES

Much of the controversial and cutting-edge litigation today in the United States concerns whether homosexual parents should be presumed to be the preferred parents of infant children. In this area the courts do not hesitate to reexamine the long-accepted principles of custody and visitation law in order to avoid the accusation of being unfair to the homosexual parent. See for example Bottoms v. Bottoms, __ SE2d __, 23 FLR 1460 (Va App 1997), In Re Jacob, 86 NY2d 651, 22 FLR 1003, or the case at 22 FLR 1488, where the issue is lesbian adoption, and In Re HNR, 666 A2d 535, 22 FLR 1028 (NJAD 10/27/95), where that issue is also discussed. Lesbian guardianship is approved in Re Astonn H., from a New York Family Court at 653 NYS2d 418, 22 FLR 1029 (11/1/95). It is declared at 22 FLR 1571 that a parent's beginning of a homosexual relationship is not to be treated as a change of circumstances for purposes of custody modification.