A new formalism for family law.

• Author: Aviel, Rebecca
• Position: II. Returning to Determinate Rules C. Child Support through Conclusion, with footnotes, p. 2038-2069

3. Child Support

   The transformation from judicial discretion to determinate rules has already taken place in the law governing child support. (156) The previous generation of child support statutes offered little more predictability or certainty than the best-interests standard used for child custody. (157) The provision of the Uniform Marriage and Divorce Act governing child support is illustrative, instructing courts to order:

   either or both parents ... to pay an amount reasonable or necessary for [the child's] support ... after considering all relevant factors including: (1) the financial resources of the child; (2) the financial resources of the custodial parent; (3) the standard of living the child would have enjoyed had the marriage not been dissolved; (4) the physical and emotional condition of the child and his educational needs; and (5) the financial resources and needs of the noncustodial parent. (158) This kind of flexibility resulted in awards that were not only wildly inconsistent across the similarly situated, (159) but also all too often inadequate, contributing to "spiraling poverty rate[s] among women and children." (160) Finding that the poverty attributable to inadequate child support awards was a matter of national concern, Congress responded with legislation that required states to develop quantitative formulae for child support awards as a condition of receiving certain federal funds. (161) Every state has since abandoned the "all relevant factors including" approach in favor of fixed rules for calculating child support. (162)

   The formulae that resulted are hardly impervious to criticism; in fact, the methodology used to develop the child support rules has been described as "theoretically suspect and empirically unverifiable." (163) Professor Katharine Baker goes further, demonstrating that fixed rules or formulae are not merely less sensitive to context than open-ended standards, but are in fact "mostly arbitrary." (164) She nonetheless argues quite persuasively why we must accept such arbitrariness, asking us to imagine a world in which a court issuing a child support order would endeavor to address the following:

   Has an adult developed a sufficiently important relationship with a child for that relationship to warrant the imposition of obligation? Whose views about the relationship should count? The child's? The potential obligor's? A current obligor who may know nothing about the potential obligor, but has much to gain from someone else being obligated? How should a judge allocate responsibilities between obligors? What if one obligor already has outstanding duties to another set of children? Should the formalization of the parental obligation to either set of children matter or just the reliance of the children? What about the reliance of another parent? How many other parents? When is such reliance reasonable? What if one set of children finds a new source of support, who should enjoy the windfall of that new support, the children or the obligor? Should the obligor's income, parenting philosophy, or intent to parent be at all relevant? (165) Noting that "[t]hese are very messy questions," Professor Baker concludes that "[a] parent and/or child eager to secure and keep resources flowing might strongly resent how much time it would take to answer the questions, how invasive the process of answering would be, and how many resources the whole process would drain." (166) Baker's critique is particularly powerful for our purposes because it illustrates that the benefits of a determinate approach accrue not merely in spite of, but because of, the limitations that are placed on the decision-making process.

   Studies comparing the fixed-rule regime to its predecessor suggest that the former has achieved higher awards (167) as well as more consistency across awards, (168) allows parties and their attorneys to predict with much more accuracy the amount of support ordered, (169) and has reduced the time and expense of child support litigation. (170) As one author asserts, "The consensus emerging from the studies and the stories is that child support guidelines are working. The guidelines seem to realize the virtues of having rules that fix, with more certainty than before, the parameters of parents' responsibility to support their children." (171)

4. Synthesizing the Trend Toward Determinate Rules

   The judgments being made in each of the preceding contexts are, of course, very different from one another, as are the legal developments taking place in each, and it would be a mistake to overgeneralize or overstate what they all have in common. (172) But with that caution in mind, it is fair to say that these examples illustrate an emerging recognition that families are not necessarily best served by infinitely individualized decision making. In fact, as Baker's work on child support illustrates so beautifully, infinitely individualized decision making places enormous procedural burdens on precisely the individuals the law is designed to serve. (173)

   Nonetheless, increasing the "ruleness" of legal frameworks always comes at a cost to flexibility and sensitivity to context, (174) and we can readily see why lawmakers might be particularly hesitant to accept these costs in family law, where advancing the goals of postdissolution child welfare or economic stability seems difficult to achieve by means of standardization. But even in these areas, lawmakers and scholars are recognizing that these costs are sometimes warranted: that the predictability and certainty that come from fixed rules can do more to further family welfare than the sensitivity to context that comes from an unconstrained decision maker. (175)

   In tension with these developments is a competing trend: in another area of family law we are seeing a move toward more flexible and more individualized decision making that eschews reliance on formal legal status in favor of functional assessments of the relationships in question. I examine this phenomenon in the following Part.

   3. FAMILY LAW'S FUNCTIONAL TURN

   The legal frameworks discussed above, which indicate a trend toward determinate rules, generally apply to disputes between two people both recognized as the legal parents of the children in question. (176) But when it comes to determining who the law should treat as a parent in the first place, a different trend emerges. Here we see movement away from a formalist, rule-based regime to one that affords flexibility, discretion, and sensitivity to context. In this Part, I describe the traditional formalist approach to legal parentage and the emerging functionalist response.

1. Understanding Traditional Parentage

   The determination of a child's parentage was traditionally an inquiry governed by determinate rules, the application of which yielded legally clear--though still normatively contestable--answers about which individuals enjoyed formal legal status as a parent. (177) The woman who gave birth to a child was identified as the child's mother, and her husband was presumed, often conclusively, to be the child's father. (178) Professor Susan Frelich Appleton illuminates the practical significance of the presumption: "Whether he is genetically related or not, the presumption makes the mother's husband automatically and immediately a full-fledged legal parent, without the need for any additional state intervention." (179) When the birth mother was unmarried, she was the sole legal parent of her child. (180) Legal parenthood, conferred automatically via these biological and marital-based defaults, was occasionally transferred to adoptive parents via judicial proceedings, bestowing upon them the full complement of parental rights and responsibilities. (181)

   To understand the implications of these rules that identify who is a legal parent, we need to explore in more detail what it means to be deemed a parent in the eyes of the law. Formal legal status as a parent has been an enormously powerful construct. It has traditionally been an exclusive status, afforded to at most two people, (182) and it has, for the most part, reflected a binary quality--one is either a legal parent or a legal stranger to any given child. (183) With certain carefully circumscribed exceptions, one's relationship with a child has traditionally been given either the full range of protection afforded to legally recognized parents or none at all, leaving the relationship entirely vulnerable to the consent of the child's parent or parents. (184)

   The central elements of the traditional parentage regime are still in place, both as to what it means to be a legal parent and how the law identifies one as such. (185) The binary and exclusive nature of legal parenthood is expressed and enforced through special gate-keeping statutes that delineate when an individual who is not a legal parent may initiate or participate in a child custody proceeding in which a court will allocate parental rights and responsibilities. Although some states allow fairly unrestricted access, (186) most require petitioners to satisfy specific conditions that reflect the legislature's judgment about which situations warrant interference with a parent's decision making. (187) For some states, the key inquiry is whether the petitioner is a relative of the child in question; nearly every state allows grandparents to seek visitation in some form, although some require the grandparent to first demonstrate that there is a custody case currently pending or that there has been a disruptive event in the family, such as a death or a divorce. (188) Other states allow nonparents to initiate child custody proceedings only if they have existing caretaker relationships with the child in question. In Colorado, for example, a nonparent may initiate a child custody proceeding only if the child has been in her physical care for at least six months and she files the petition within six months of the end of the period...