Restructuring Family Law

Why does our current family law system so frequently fail children, and how can we fix it? These are the central questions asked by many family law scholars. Often, the proposed solution is a substantive one. Many scholars, for instance, have advocated altering the “best interests” standard, changing the rules for establishing parentage, or expanding marriage to include same-sex couples so that their children can enjoy greater stability.

In her book, Failure to Flourish: How Law Undermines Family Relationships, Professor Clare Huntington offers a different perspective. For Huntington, family law’s failure is less a matter of substance and more a matter of structure. The law is structured in ways that actively undermine family flourishing. Some of these structural features have obvious impacts on family law. Marriage laws that exclude LGBT couples, for example, are structural impediments to long-term stability for these couples and their children. But many of the structures Huntington identifies are ones that we may not realize undergird family law. Access to public transportation, the existence of sidewalks, playgrounds, and community spaces, and zoning laws that permit multi-generational dwellings, for example, all influence the daily lives of families, encouraging or discouraging families to become embedded in their communities and to be able to balance work, school, and leisure, all of which are factors that lead to long-term stability and flourishing. Many of these structures are designed without consideration for their effect on families.

In contrast, when the law regulates the family intentionally, it often does so in what Huntington characterizes as a “reactive” mode. Families encounter the law when they are in crisis—for example, at divorce, or when a shared parenting arrangement has broken down, or when family bonds have been eroded by violence. The state then enters to solve—or, at least, adjudicate—the problem, and then disappears once a resolution appears to have been achieved. But by then this intervention may be too little, too late. Family relationships have become adversarial, and a litigation model of dispute resolution only exacerbates the breakdown in trust and communication that the family is already experiencing.

Huntington proposes a radically different model, one in which the state’s aim is not to intervene in crisis, but instead to assist families in flourishing from their inceptions to their breakdowns to their repair. Unlike traditional family law, under Huntington’s model the state might be purposefully involved in a family’s life during many phases of its existence. Huntington draws on positive psychology, a field that studies the conditions that lead to human flourishing, rather than focusing on disease and dysfunction. If we can figure out what makes families flourish, she argues, we can craft state interventions that support families rather than working to undermine them.

The proposals that Huntington develops using this model are varied and paradigm-shifting. Some of her interventions would happen early in the family formation process. She would, for example, involve the state in assisting new parents. Rather than waiting for an individual to fail (by, for example, committing child abuse or neglect) and then intervening to terminate the parent’s rights, the state would instead proactively assist a new parent, especially those most at risk of committing abuse or neglect, by providing education and hands-on assistance early in the child’s life. Just as a good diet and exercise can prevent long-term medical problems down the road, so can early intervention prevent family crisis. As a real-world example of this type of program, Huntington describes the Nurse-Family Partnership, a program now serving first-time mothers and their infants in forty-three states. The program provides at-risk mothers with in-home visits beginning in pregnancy and lasting through the first two years of the child’s life, parenting skills training, and counseling to assist mothers with educational and career planning.

Huntington also advocates for other methods of state involvement with an eye to fostering family strength. She is a particular fan of the “New Urbanism,” an architectural and planning movement that encourages the building of new communities, and revitalization of older ones, so that housing, schools, shopping, and parks are all located within a short walk of each other. Huntington calls this “shrinking the home, work and school triangle,” and the effects on families can be very positive. Walking outdoors leads to friendships with neighbors, which in turn leads to networks that can provide shared child care arrangements, support during difficult times, and increased neighborhood safety. Huntington also takes on the current impediments to the formation of long-term relationships, especially in poor communities, including the high incarceration rates of African-American men and marriage penalties built into means-tested government programs. Access to free contraception and education, she argues, can also help women to delay childrearing until they have found a stable partner. Finally, legal recognition of a broader range of families than the traditional nuclear family would lead to greater stability for those families.

Not all of Huntington’s proposals focus on early intervention. Instead, some of the reforms she espouses are aimed at changing the way the state intervenes when a family is in crisis. Huntington observes that the current system assumes a conflict and resolution, but that most divorce and custody disputes do not match this model. Again drawing on psychological research, she argues that the law circumvents a key step in the cycle of intimacy, which includes a period of guilt followed by repair. Courts focus more on assigning blame and creating a “clean break” to relationships. This emphasis can disrupt the natural cycle of repair and prevent a former couple from becoming effective co-parents. In any divorce or break-up where children are involved, the relationship between the parents does not actually end. Instead, it must be transformed into something new. Huntington urges that we pay more attention to the relationships that will continue to persist after legal action ends and to encourage the divorce and custody dispute process to be less adversarial, through reforms in family law teaching, legal practice, and the adoption of new approaches to dispute resolution, such as the collaborative lawyering movement.

Huntington recognizes that a primary objection to her proposals may be that it puts too much faith in the state at the expense of family autonomy. She counters this objection with the observation that the state already pervasively regulates families. The question, she argues, is not whether the state will be involved in family life—we can’t escape that—but instead how. Her goal is to “redirect the pervasive state so that it encourages strong, stable, positive relationships within the family.” Getting there will require extraordinary efforts on many fronts. Huntington’s book gives us the roadmap for how to begin.

Cite as: Kerry Abrams, Restructuring Family Law, JOTWELL (April 20, 2015) (reviewing Clare Huntington, Failure to Flourish: How Law Undermines Family Relationships (2014)), http://family.jotwell.com/restructuring-family-law/.