Trends on the Horizon: A Few Legislative Surprises You Might Possibly Not Be Ready For

Those who practice family law have to stay abreast of increasingly frequent waves of change. These days we no sooner get used to working with the rules then they change them on us and we have to learn a whole set of new ones. The new ideas now being advanced to change the face of family law may sound like the last gasp of a politically discredited Euro-socialist agenda from the far left, but there is enormous lobbying force behind them, and they will probably all be legislated. When they are, these new measures will, as intended, make it increasingly difficult for that poor old beleaguered historical phenomenon, the natural nuclear family, to survive. Several of these rough shapes, their hour come round at last, are slouching toward Washington even now. They include:

American Law Institute's (ALI) Model Family Law Code.

The prestigious American Law Institute, which has been writing the "restatements" all these years, includes a mixture of professors, judges and practitioners, but there is no question that the academics run the show. Some extremely reform-minded academics are now rewriting the basics of family law. The new law's departure from anything known before in this field is so radical that for the first time in history the ALI is not going to try to call its product a Restatement. Victimized by a sudden attack of honesty they have acknowledged that it doesn't restate anything, since it completely changes all that has gone before. Yet no doubt the new family code will be advocated with all the massive force of ALI's authority if its rather bizarre makeover scheme is adopted by the Institute.

Just a few of the most colorful ideas in this code are in the custody area. Parenthood is radically redefined so that mere biology would give no claim whatever to custody of a child. One who does not cohabit with the mother is simply not a parent. It is cohabitation that gives rise to parental status and a relationship with a child that is merely biological creates no sort of entitlement even to visitation rights -- although, weirdly enough, it still gives rise to monetary support obligations even though there is no other legally recognized relationship there. Among custodians and the custodians' cohabitants, when there is a fight over a child, women are preferred to men for child custody because, as the code explains, women are more loving and men are more abusive. For some reason which the model code makes no effort to explain in understandable terms, homosexual cohabitation relationships create stronger rights of child custody than heterosexual ones. As nearly as anyone can puzzle out, the idea seems to be that homosexual relationships are by definition more loving in some way, and thus better for the child.

The code junks the best interest standard and substitutes a virtually insurmountable primary caretaker presumption so worded that it places a high premium on not working in paid employment, seems to reward whichever parent quits a job fastest, and apparently presupposes replacement of the race to the court house with a race to the welfare office. It bars modification suits within two years, except when they would end a shared-parenting arrangement. These new rules are designed to encourage agreed arrangements, and accordingly will make them binding upon men. Women have a right to renege because men coerce agreements by means of their predisposition to violence and because "the value mothers place on their children makes them subject to coercion in the bargaining process." Visitation enforcement actions would no longer be coercive, because, like modifications, they would have to go to mediation. Though no state now has such a rule, the new code would allow a former stepparent to prevail over both natural parents in a custody contest. It would allow natural parents who bring a custody contest before the court as part of their divorce suit to lose custody to the state or third parties if the judge deems their parenting ability less than "adequate."

There are many other new rules embodied in this new code which will substantially change the way one practices family law, if, that is, one practices at all. Lawyers are advised to prepare themselves by obtaining drafts of the model code, and to keep abreast of this fascinating process of parallel-universe legislation.

The United Nations Declaration/Convention on the Rights of the Child.

Obviously it is impossible to be against anything that has the words "rights" and "child" in the title. Apparently something like 157 countries have signed this United Nations multilateral treaty, though the United States, because of its mismatch with our peculiar institutions, has not. The present Administration has just announced that it is going to change all this, and our State Department will sign the Convention very soon. After that, this Convention will not become law in the United States until it has been ratified by the U.S. Senate. After that, however, it will be of equal standing with (and since later, superior to) the U.S. Constitution, as Law of the Land.

State Department officials will explain, if pressed, that if the United States should sign this treaty it would have to take dozens of "reservations" in order to allow for the Treaty's conflict with our Bill of Rights. It may be comforting to civil libertarians to know that the State Department is being conscientious about this, since the President apparently is not. Apparently the international public relations value of being a signatory is now being enjoyed by numerous nations that blithely signed on with no intention whatever of taking the treaty seriously, while that same warm glow of favorable world opinion is being denied to us -- an injustice that must be remedied.

The U.N. Convention actually includes a ringing declaration of support for the family, even though its individual provisions might seem quite opposed to such a policy. The treaty will give all children an enforceable right to be educated, in the form of free and compulsory free public education. It will also give them an enforceable right to be raised in a home with an atmosphere free of all forms of intolerance or discrimination --which will of course cause problems for certain population groups such as Moslems, Jews and Christians as well as small ethnic and cultural groups that now are allowed to nourish their belief that they are better than others. There is no room whatever for Amish and Christian Scientist families in the New Order, given the children's rights to public schooling and health care.

The Convention may prohibit sex discrimination between children, which may be fine, but could create some real problems for old-fashioned parents who are just being traditional (as happens particularly among our immigrant families, bringing with them prejudices from cultures so far less advanced than our own), or who conscientiously believe it appropriate to prepare children for a world in which as adults they could just be steered by custom as well as biology to assume different roles. Its bestowal of a right to adequate nutrition, housing, recreation and medical services may force governments to do a lot more termination-oriented intervention than they are now used to. The socially as well as the mentally handicapped child must receive the appropriate therapy under the Convention, and one wonders if isolated rural families must accordingly lose their children to more suitable parents who live where the bright lights are. Its prohibition of "all forms of neglect, cruelty and exploitation" sounds nice but it opens up some very interesting areas of debate.

Adoption Reform.

One change that has already occurred on the state level is a major new adoption bill, which doctors up our state's adoption statute to cure a number of procedural problems that had worked very frustratingly against natural parents, adoptive parents and especially adoption lawyers in past years. Those who have complained about minor injustices and illogical wording of the existing adoption statutes should take a look at this year's revisions, because some salutary changes have been made.

Those most troublesome parties of all, the natural parents, will find that they are now known statutorily by a new term, which helps to make them sound a bit more like a minority fringe group, just one more of the many such groups clamoring for public favors, and one more special category of persons who owe their rights not to nature but to the magnanimity of the state.

Best Interest of the Child Standard.

Those who follow the case law on the interesting subject of taking children from natural parents for the benefit of third parties will have noted that in recent years the Virginia appellate courts have generally followed the national policy that it takes far more than mere "best interest of the child" to do this, and that courts have generally followed the nationwide rule requiring unfitness, abandonment, or extraordinary circumstances threatening the welfare of the child. (The U.S. Supreme Court has said several times that mere best interest will not do, but it has never really said what will do.) Somehow in recent years the Virginia Court of Appeals has shifted the standard to something only slightly more protective of parents' rights than a "best interest" test: the requirement that parental custody be "detrimental" to the child, as in Linkous v. Kingery, 10 Va. App. 45, 390 S.E. 2d 188 (1990); and Lyle v. Eskeridge, 14 Va. App. 874, 419 S.E. 2d 863 ( 1992). Then, confronted with arguments that would have required taking custody away from a lesbian mother, the Court of Appeals in Bottoms v. Bottoms, ___ Va. App. ___, 444 S.E. 2d 276 (1994), strengthened the standard by requiring that natural parent custody be "deleterious" for a third party to be preferred. Ignoring Constitutional and case law, however, the General Assembly in recent years has changed the standard for adoption of a child over the objection of non-consenting natural parents to a mere best interest standard in Code §63.1-225. Apparently the new Adoption Bill, SB 1096 and HB 2489, just passed by the General Assembly reaffirms this change to a mere best interest standard, but adds to the protection of parents' rights by supplementing the statute with a new Section 63.1-225.1. The latter is a list of component sub-criteria of best interest embodying some of the recent case law (though certainly not as protective as the Bottoms standard ).