Learning from the Process of Decision: The Parenting Plan*
In her recent overview of women's rights and family law,1 Herma Hill Kay succinctly characterizes the divorce reform movement of the 1960s, the "full-scale campaign to reverse the no-fault revolution" that accompanied the twenty-fifth anniversary of the first no-fault divorce statute,2 and the continuing debate as academics line up on either side of the issue.3 She concludes that "the landscape of family law reform" will continue to be dominated by such debates well into the present century,4 ending on a hopeful note that acknowledges the complexity of moral issues and the breadth of passionate opinion and belief while urging continued exploration and consolidation of valued reforms.5 Though I expect that many would disagree with Professor Kay's feminist characterizations, there is undeniable value in the bold strokes of her article. They present a manageable and accessible overview of some of the great tensions that inspire and inform modern family law and their histories. These same great tensions can be said to have inspired and informed the American Law Institute's ("ALI") Principles of the Law of Family Dissolution ("Principles") and even to be inspiring the founding question of the symposium for which this article was prepared: Do the ALI Principies tend to strengthen or deconstruct families?
Two authors cited in the Kay article, and the lines attributed to them, provide insight into the ongoing divorce debate from somewhere near its poles. Professor Katherine Shaw Spaht writes of nofault divorce laws as having "played an indispensable role in the near-- destruction of marriage."6 Professor Ira Mark Ellman writes that proposed counterreforms are likely to "increase the number of marriages that are, at any given time, legally intact but factually dead, to keep many victims of failed marriages from building new lives for themselves and their children, and perhaps to increase the proportion of children born out of wedlock."7
Professor Ellman's mention of divorcing spouses who are "building new lives for themselves" refers to the "clean break" theory, which flourished in the no-fault "revolution." The doctrine "assumes that both members of a divorcing couple are better off if they can cut ties with one another and start their lives afresh."8 It is no coincidence that both Professors Spaht and Ellman refer to the children of dissolving marriages in the quotations above.9 The "interests" of children of divorce is one of the main rallying points for argument about no-fault divorce. While the "clean break" theory developed in response to property considerations at divorce, it was soon perceived as permeating all aspects of no-fault divorce.10 The idea of a "clean break" between spouses divorcing upon the realization-either consensual or unilateral-that their marriage is irretrievably broken (regardless of potential claims of marital fault) seemed to be a Gordian
knot-cutter of an idea in the 1970s, against a background of decades of bitter litigation over marital fault and the unseemly institutionalization of collusion among matrimonial lawyers and judges,11 and in the rosy glow of emerging social and legal norms of racial and gender equality and individual privacy and autonomy. Whatever sense the "clean break" theory made in the allocation of property and income in the aftermath of divorce, its effect on families with children only began to be noticed later. Parents were sorted by child custody laws into fairly rigid categories of "custodial parents" (an approximation of the parental ideal from the intact family-with, perhaps, excessive expectations on individual parents) and "noncustodial parents" (parents-most often fathers-who exercised the lesser share of custodial and perhaps decisionmaking responsibility; parents with whom the children were not "at home"). Social scientists observed the increasingly common phenomenon of noncustodial parents' estrangement from their children. …