A new formalism for family law.

AuthorAviel, Rebecca
PositionIntroduction through II. Returning to Determinate Rules B. Procedural Frameworks, p. 2003-2038

TABLE OF CONTENTS INTRODUCTION I. A WORKING DEFINITION OF FAMILY LAW FORMALISM A. Synthesizing Multiple Notions of Formalism B. Contrasting These Qualities with Flexible Standards C. An Admittedly Imperfect Typology for Classifying Family Law Rules II. RETURNING TO DETERMINATE RULES A. Child Custody B. Procedural Frameworks 1. Modification 2. Jurisdiction C. Child Support D. Synthesizing the Trend Toward Determinate Rules III. FAMILY LAW'S FUNCTIONAL TURN A. Understanding Traditional Parentage B. The Tension Between Formal Parentage and Functional Parenthood IV. THE COMPARATIVE VIRTUES OF A NEW FORMALISM CONCLUSION INTRODUCTION

Family law is simultaneously moving toward and away from formalist decision making. Examining family law across its various component doctrines--custody disputes, jurisdictional frameworks, child support, and parentage determinations--reveals these two competing trends. In some of these areas, scholars and lawmakers have recognized that litigating under open-ended, amorphous standards is unpredictable and often painful, with costs that undermine the very purposes served by these legal frameworks. (1) The shortcomings of the famously indeterminate standard for awarding child custody have inspired reform efforts that seek to provide more certainty and predictability for separating families. These shifts have already occurred in the laws that govern child support and the jurisdictional frameworks used to determine where these disputes should be litigated. In these areas lawmakers have prioritized determinate rules over judicial discretion as the preferred means of resolving disputes.

In other areas, however, family law is experiencing a trend toward more flexible decision making that prioritizes functional assessment of relationships above formal legal status. With regard to disputes over parentage between individuals who do not conform to the traditional template of a heterosexual married couple, there has been a push for legislatures and courts to acknowledge more fluid conceptions of family, assigning rights and responsibilities on the basis of highly individualized assessments.

This Article brings all of these developments into the same frame for the first time. It demonstrates that the "functional turn" in some areas of family law would benefit from the lessons learned in other areas: that indeterminate standards and contextualized decision making do not necessarily provide the best means of doing justice for separating families, who turn to the law at junctures of conflict and strife. Moreover, reliance on the functionalist model of resolving domestic relations disputes perpetuates rather than alleviates inequality, particularly on the basis of sexual orientation. A family law framework that emphasizes formal legal status has been needlessly tethered to a traditionalist view of legitimate family composition, (2) obscuring the extent to which equality requires full access to legal mechanisms for formalizing relationships.

This Article argues for a new formalism: determinate but not traditional, it offers predictability and certainty on a much more inclusive basis than either the old formalism or the functional analysis that has increasingly been working as family law's stopgap. The new formalism I envision incorporates the best features of the functional turn--emphasis on intent, rejection of heteronormativity, focus on the interests of children--while doing much more to recognize the virtues of determinate rules at moments of conflict and strife.

I begin in Part I by setting forth a working definition of formalism and contrasting that to the flexible and discretionary standards that characterize much of family law. In Part II, I identify areas of family law in which scholars and lawmakers have recognized the shortcomings of unfettered discretion and have attempted to craft more determinate rules of decision. These include disputes over the initial allocation of child custody; petitions to modify existing custody orders and the jurisdictional frameworks that govern where parties can litigate such disputes; and the rules that govern the imposition of child support. In Part III, I identify the contrary trend: when it comes to ascertaining which individuals our legal system should recognize as the parents of a child in the first place, we are witnessing an increased willingness on the part of courts, scholars, and lawmakers to embrace flexible, individualized, and functional assessments of the relationships in question. I critique this development in Part IV, explaining why it is an inadequate response to the needs of nontraditional families, one that replicates, in more extreme form, the uncertainty and instability so thoroughly criticized in other areas of family law. Instead, I argue, the law should offer a re-imagined formalism, one that extends the benefits of predictability and administrability to a larger and more inclusive group of families. While this Article does not offer a comprehensive proposal for this formalist reform, it concludes with some preliminary ideas for the shape that such reform should take.

  1. A WORKING DEFINITION OF FAMILY LAW FORMALISM

    Before aligning multiple developments in family law upon any sort of axis that involves a notion of formalism, it is necessary to define what formalism is. As Professor Frederick Schauer recognized more than twenty years ago, the scholarly literature reveals "scant agreement" on what makes a legal decision or framework formalist, "except that whatever formalism is, it is not good." (3) I embrace and rely on Professor Schauer's own description of formalism as "the concept of decisionmaking according to rule." (4) Nonetheless, we must untangle various strands of formalism to arrive at a working definition that helps us sort out the trends in family law with which this Article is concerned.

    1. Synthesizing Multiple Notions of Formalism

      In a discussion of legal formalism, Professor Lawrence Solum uses the term "hard law" to describe "determinate legal rules which draw relatively 'bright lines.'" (5) In contrast, another core meaning of formalism describes a judicial practice: adherence to legal rules without consideration of purposes, policies, or other concerns underlying or external to the rule. (6) My observations primarily concern the first attribute of formalism. Family law has become increasingly codified in comprehensive statutory schemes, and this Article is oriented more toward the nature of the rules provided to judges rather than the method of judging or the interpretive approach used by the judges to whom the rules are directed. Professor Schauer captures this distinction by differentiating between "the denial of choice by the judge" and "the denial of choice to the judge." (7)

      This distinction is tenuous, of course, as these two elements of formalism often converge. Such convergence is reflected in one author's description of formalism as resting on the principle that "well-crafted rules embodied in authoritative texts will constrain the choice of an impartial decisionmaker." (8) Formalism, then, results from the combination of determinate legal rules with a judicial practice of adhering to those rules--even when they result in outcomes that seem contrary to what a sensitive and unencumbered decision maker, taking into account all that is relevant, might produce. (9) Although the realist critique has irrevocably weakened the law's claim to constrain decision makers and produce neutral results, (10) it remains possible to align legal rules along a spectrum that reflects more or less judicial discretion. (11)

      For the purposes of this Article, we must add to this understanding an element of formalism that has particular relevance to family law: the meaning conveyed by the transitive verb "to formalize," something one does to a relationship through a set of prescribed steps, triggering the application of particular legal rules. Marriage is the preeminent example. (12) To formalize a relationship (13) is to take action at the intersection of private and public; doing so synchronizes the personal, lived experience with the framework of legal rights and responsibilities that attend the intentional and voluntary recognition of such a relationship. (14) The connection between the verb "formalize" and the notions of formalism discussed above is that a relationship properly formalized in accordance with state-prescribed procedures is subject to legal rules that do not apply to other relationships, no matter how functionally equivalent they might be. In this sense, a system for formalizing certain relationships is "formalist" in that it results in the mechanical application of legal rules and screens off, from the decision maker, more nuanced determinations of how the relationship in question actually functions.

      Ultimately, the phenomena I describe in this Article turn on the quality described by Professor Schauer as "ruleness": the extent to which family law doctrines provide determinate instructions that can be more or less mechanically applied to domestic relations disputes. (15)

    2. Contrasting These Qualities with Flexible Standards

      As most students of family law quickly learn, many of the decisional frameworks in family law lack "ruleness." (16) They instead vest judges with enormous discretion to rely on their individual assessments of purposes, policies, and context. (17) Laws of this type provide little more instruction to judges than "decide what is right, under the circumstances." (18) To the extent that lawmakers have attempted to provide more concrete guidance by fleshing out the factors judges must consider in resolving family law disputes, the resulting standards seem to sweep in everything short of the parties' respective astrological signs. (19) We will see a variety of examples illustrating this type of legal framework. (20) For now, let us characterize these as contextualized, functionalist, and...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT