Academic journal article William and Mary Law Review

A New Formalism for Family Law

Academic journal article William and Mary Law Review

A New Formalism for Family Law

Article excerpt

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 


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. …

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