What Constitutional Law Can Learn from the ALI Principles ofFamily Dissolution*
In assessing the interplay of a statutory scheme and the Constitution, the usual question is whether the drafters of the code have taken sufficient account of the constitutional terrain. This is certainly a fair question when it comes to the American Law Institute's ("ALI") Principles of the Law of Family Dissolution ("Principles") because the Principles include significant innovations in the public regulation of intimate relationships, an area in which that terrain often has proved treacherous.1 The question seems especially salient in connection with chapter 2's custody provisions in the wake of the Supreme Court's recent disapproval of Washington's third-party visitation law in Troxel v. Granville.2 But certain innovations in the ALI Principles seem to warrant turning the question around to ask whether the judges who craft the evolving constitutional doctrines protecting family autonomy have taken sufficient account of the ALI.
Plainly, one of the central insights of the ALI Principles is their appreciation of the enormous complexity and diversity of families and the ways in which they order their relationships. This is perhaps most obvious in chapter 2's redefinition of "parent" to include not
only biological and adoptive parents, but also those who have played the caregiving role of a parent.3 Also eye-grabbing is chapter 2's matter-of-fact contemplation that a child may have more than two (and perhaps even more than three or four4) parents at a time and that circumstances might justify granting primary custodial responsibility to a nontraditional "parent," even over the objections of a fit biological or adoptive parent.5 The drafters' sensitivity to diversity and nuance extends beyond family form and also includes the dynamics of family interaction, as well. The Principles' abandonment of the traditional bifurcation of "custody" and "visitation" in favor of the unified term "custodial responsibility," consisting in most cases of whatever caregiving or parenting role each adult performed before the court's intervention,6 reflects the drafters' recognition that the roles of individual parents cannot be pigeonholed into a few discrete categories, but in fact exist across a vast and fuzzy spectrum.7
In this aspect, the Principles' drafters generally have served America's families, and especially its children, well.8 The Principles do not seek to "deconstruct" the theoretical "American family" so much as to "reconstruct"9 the judicial process so that it will do less damage to real, living families who find themselves splintered by internal discord.10 No family is threatened with destruction by a legal regime that seeks to understand how families actually live in the here and now and to honor children's need for stability and continuity at a time of upheaval and vulnerability. Rather than steer families toward some preferred model of child rearing, chapter 2's overriding goal is to ensure that parenting practices the parties saw fit to establish for their children before a family rupture are preserved thereafter to the extent possible. In this sense, as Dean Katharine Bartlett has rightly observed, the Principles are not "family[ ]standardizing" but "family enabling."11
Yet the success of the ALI's approach depends crucially on the readiness of constitutional doctrine to assimilate the ALI's own insight. Several of the most important innovations in chapter 2 would be difficult to square with a constitutional doctrine that conceives of family liberties in rigid, all-or-nothing terms. If legal parents, for example, really do have a fundamental right to the "care, custody, and control" of their children, as the Supreme Court has insisted as recently as last year,12 and if this is really to mean that any meaningful state intervention trammeling a parent's choices must survive strict scrutiny, as many have understood the Court's position, then several of the ALI's directives are in doubt. …