Family law's doctrines.

• Author: Murray, Melissa
• Position: The Constraint of Legal Doctrine

INTRODUCTION I. CREATING A DOCTRINE OF LEGAL PARENTHOOD--CALIFORNIA'S ADOPTION OF THE UNIFORM PARENTAGE ACT II. PUZZLING OVER PARENTHOOD--THE EVOLUTION OF THE CALIFORNIA UPA IN CASE LAW A. JOHNSON V. CALVERT B. IN RE MARRIAGE OF BUZZANCA C. IN RE NICHOLAS H. AND IN RE KAREN C. D. K.M. V. E.G. AND ELISA B. V. SUPERIOR COURT E. JASON P. V. DANIELLE S. III. FAMILY LAW'S DOCTRINES CONCLUSION Introduction

The father of the American law school, Christopher Columbus Langdell, famously conceptualized the law as akin to science. (1) On this account, legal doctrine was a series of scientific truths that judges systematically revealed over time. Decades later, the Legal Realists took issue with Langdell's rigid conception of legal development. (2) In their view, law was not simply a set of formal doctrines that was applied neutrally. Instead, the Legal Realists argued that real world concerns--including politics--informed the application and evolution of legal doctrine. (3) Judges thus were not scientists, faithfully applying doctrine in an evenhanded way, but rather keen political actors who could--and did--manipulate doctrine to achieve desired outcomes. (4)

Today, almost 150 years after Langdell elevated legal doctrine to the status of scientific truth, this Symposium questions whether doctrine survives in the present day, or if it has been completely subordinated to the exigencies of contemporary situations, as the Legal Realists claimed. I approach these questions from the domain of family law, where the circumstances that animate case law are often deeply idiosyncratic and particularized. As Leo Tolstoy observed (in a nonlegal context), "Happy families are all alike; every unhappy family is unhappy in its own way." (5)

Despite the idiosyncratic nature of families and family life, most family law scholars and practitioners would agree that there is a robust body of family law doctrine, as evidenced by the work of federal and state courts and the many efforts to codify various family law principles into statutes. While this growing body of state and federal law (6) plays an important role in the adjudication and resolution of familial disputes, it is not the only source of family law doctrine.

In this Article, I offer a more nuanced view of the field and the role of doctrine in it. Although there is a robust body of family law doctrine, including judge-made case law, (7) various state family law codes, (8) federal statutory law, (9) and federal constitutional law, (10) as well as the model codes that often inspire law reform, (11) the legal rules that these forms enshrine often assume and privilege a particular family model--marriage and the biological family produced in marriage. When families depart from the marital and biological model on which these doctrines rest, the assurances and predictability of legal doctrine evaporate. In these circumstances, the question of doctrine--of legal truths--becomes deeply contested as courts confront scenarios that require them to grapple with the fraught question of how to apply doctrine in light of real world concerns and the particular circumstances of litigants' lives.

This aspect of family law is perhaps most evident in the recent shift toward a more functional understanding of the family. (12) In recent years, courts and policymakers have taken affirmative steps to recognize the way in which groups may function in the manner of families--and indeed, may consider themselves to be family--even where they have not comported with the formal indicia that traditionally are used to establish family status. (13) For example, in the 1986 case Braschi v. Stahl Associates, the New York Court of Appeals concluded that two gay men could be considered "family members" for purposes of a local rent control ordinance because they comported themselves in the manner of spouses. (14) Similarly, in 2002, the American Law Institute published its Principles of the Law of Family Dissolution, which relied on a more functional understanding of the family in order to identify basic principles for guiding disputes involving, among other things, relationship dissolution and child custody. (15)

Critically, however, this functional turn has involved more than just efforts to resolve familial disputes in a more equitable fashion. In addition, courts have gradually integrated the emphasis on function into family law doctrine itself. (16) That is, the emphasis on function is not merely a supplement to the family law that was originally organized around the formal categories of marriage, biological parenthood, and heterosexuality. Instead, the functional turn has actually reshaped the law, embedding the logic of functionality into the doctrine itself. Thus, in trying to move beyond doctrine, courts actually have transformed the doctrine so that these exceptions have become part of the rules that govern everyone.

To elaborate on these observations, this Article offers a case study of the evolution of the doctrine of legal parenthood in California to show how courts have grappled with the fixed doctrine of parenthood and the rapidly changing realities of family life. In 1975, California adopted provisions of the Uniform Parentage Act (UPA), codifying them, with some modest modifications, as part of its Family Code. (17) The UPA was rooted in the assumption that parent-child relationships would emerge within marital families or, if not, through nonmarital heterosexual reproduction. (18) But California's doctrine of legal parenthood quickly confronted the complications of modernity. (19) Technological advances in the science of reproduction, coupled with changes in the demographics of family life, pushed the boundaries of the legal doctrine of parenthood, prompting courts to adapt doctrinal rules to account for the realities of family life. (20)

Although these changes produced reappraisals of family law doctrine, courts nevertheless emphasized--and indeed, entrenched--crucial assumptions associated with the traditional marital family. In particular, even as courts credited departures from the traditional marital family configuration in their interpretations of the UPA, they nonetheless emphasized the degree to which these families comported with the basic structure and functions of the marital family. (21) Moreover, in interpreting the various provisions of the UPA, courts underscored a traditional function of the marital family--the privatization of support and care of children. (22)

This Article proceeds in three parts. Part I provides a brief history of the UPA, including its adoption and codification in California in 1975. Part II then traces the California courts' evolving interpretations of certain UPA provisions in a series of cases involving the determination of parentage. Over time, California courts revised and modified existing interpretations of these statutory provisions in order to accommodate changes in technology and in the structure of the family. But even as the courts' interpretations of these statutory provisions evolved, what remained consistent was the underlying commitment to the marital family form, the two-parent dyad, and the privatization of dependency within the family. Part III explores these commitments to marriage, the marital family, and the privatization of dependency within the family. As I argue, these commitments, perhaps more so than case law and statutory text, reveal the true doctrinal framework that has undergirded--and continues to define--family law.

1. CREATING A DOCTRINE OF LEGAL PARENTHOOD--CALIFORNIA'S ADOPTION OF THE UNIFORM PARENTAGE ACT

   In 1968, the United States Supreme Court began dismantling the legal impediments that traditionally attended illegitimate birth. In Levy v. Louisiana (23) and a companion case, Glona v. American Guarantee & Liability Insurance Co., (24) the Court struck down state laws that prohibited illegitimate children and their parents from recovering under wrongful death claims. (25) According to the Court, the distinction drawn between marital and nonmarital birth had no rational relationship to the purpose and administration of the wrongful death statutes at issue. (26) Instead, the Court found that the distinctions invidiously discriminated against children born out of wedlock, punishing them for their parents' "sin[s]." (27)

   The Court's decisions in Levy and Glona and their progeny have been credited with ushering in a sea change in the legal approach to illegitimacy. (28) Although some scholars debate the extent to which the Supreme Court's illegitimacy jurisprudence was revolutionary, (29) it certainly influenced the law of parentage. Partly in response to the Court's illegitimacy decisions, the National Conference of Commissioners on Uniform State Laws promulgated the Uniform Parentage Act (UPA) in 1973. (30) In keeping with the Supreme Court's skepticism of illegitimacy as a basis for distinguishing between individuals, the UPA sought to remove distinctions based on the parents' marital status at the time of the child's birth while also providing ways to establish paternity in circumstances involving unmarried fathers. (31)

   California, like many states, adopted a modified version of the UPA in 1975. (32) As Senator Anthony Beilenson, the author of California's version of the UPA, noted at its passage, the new law struck "the entire concept of 'illegitimacy' ... from California's law books." (33) The California law "repeal[ed] all legal references to legitimacy and illegitimacy and substitute[d] the concept known as the 'parent and child relationship' which will be used in the future." (34)

   In this regard, the UPA looked beyond marriage to provide multiple ways to determine parentage. Women could establish maternity in the traditional way through gestation and birth. (35) But establishing paternity required more. In the case of marital births, the UPA deployed the traditional marital presumptions in place in most...