Consider this hypothetical family. A mother is an exclusive caretaker for the children. The father exhibits little interest in them.  He is a domestic tyrant mistreating both the children and their mother on nearly a daily basis. He invests nothing in the relationship with the children and all interaction is negative. Finally mom has enough and files a divorce. The children refuse to see their father.  As a result, dad accuses her of parental alientation and seeks custody.

Whether parental alientation is a clinical pathology or not, the fact remains that in some divorce cases, children refuse to have a relationship with one of their parents. Unfortunately, a new dynamic has taken hold in family court. The search for a lasting remedy is being disregarded in favor of the aggrieved parent’s exploitation of the tragedy to obtain custody. 

Nobody can blame a father for being angry when his child refuses to see him,  especially when the mother takes no pains to hide her animosity towards him.  But is he blameless if he never invested the time and effort in the relationship with the child prior to the divorce?  Or, even worse, what if he was emotionally or physically abusive to the child?  

Lex Familia’s experience is that children who have a good relationship with a parent prior to the divorce do not become alienated after the divorce.  This is not to excuse the reprehensible conduct of a parent so distraught by her own grief and anger that she tries to hurt dad through an overt campaign to destroy his relationship with the child.  But prevention is the best cure. Parents who have a firm bond prior to the divorce are rarely marginalized after the divorce.

Courts need to sensitize themselves to the incredible complexity of these situations. Coercion is not the solution, nor is automatic placement of the child with the alienated parent.  The conclusion that mom assumes all the blame if the children won’t see dad is naive and simplistic.  This is especially absurd if dad never established a meaningful relationship when he was living with the children.

People in divorce cases are often mercenary and will exploit even their own children to gain an advantage–real or imagined. Courts should realize that things are frequently not as they appear. A simplistic formulaic transfer of custody will not remedy this complicated problem. Unfortunately, too many custody cases are  about avoiding child support rather than quality parenting. In family court, there needs to be less emphasis on blame and more emphasis on solutions. Just as most states rejected fault in divorce cases, family courts should not become preoccupied with determining fault if a child becomes alientated. Instead, courts should consider this thorny issue with patience and wisdom,  acting as a healer, not an executioner.

There is an inherent conflict in American law that seeks to reconcile the need for specific rules– against the need for judges to have the discretion and latitude to decide issues on a case by case basis.  When rules are subordinated to the subjective discretion of individual judges, consistency is sacrificed. On the other hand, if courts are not given some latitude to address unusual or extraordinary circumstances, unjust results follow. How these two competing interests are reconciled is the challenge for any legislative body seeking to draft family law rules.

For example,  American custody law followed several rules based formulas evolving into the discretionary best interest standard we have today. Revolutionary America awarded custody to fathers, adopting the Roman  formula treating children as property of their fathers. 19th century America awarded custody to the “non-guilty” spouse in a marital breakup. Mothers, recognized as nurturers, next legally evolved as the preferred caretakers. In the 1960s, liberated from all sexual biases, the courts adopted a neutral best interest of the child standard that allowed trial courts the discretion to determine custody based upon all of the competing factors as they related to the child’s interests.

The opposite development has happened in child support laws. Initially child support laws were purely discretionary. Driven from the top down–federal mandates on states required that they draft laws with specific guidelines for setting child support. Now all states use some type of guideline or fourmula in setting child support.  Likewise there is a national dialogue now concerning the employment of alimony guidelines in order to avoid arbitrary results arising from a discretionary standard in determining alimony.

So how is the conflict resolved?  Unfortunately there is no easy solution. Legislatures have a duty to its citizens and the courts to provide certain presumptions and preferences reflecting  public policy. This helps guide the adjudication process and gives the courts and litigants direction. A dialogue needs to be commenced by lawmakers, academics and practitioners on ways to draft legislation that provides certaintly to courts–without limiting judges discretion to do the right thing. Not unlike federal sentencing guidelines, too much certainty may cause unjust results. On the other hand, a legal standard that is completely uncertain, e.g. “the best interest of the child standard’, invites litigation because both parties theoretically have a shot at convincing the judge that they can better parent.

Reconciliation of our need for certainty in family law versus the need for discretion is a challenge for any legislature.  The goal, while difficult, is neither impossible nor unachievable. Constant improvement of our family law is a worthy aspiration. The dialogue should start.

Increasingly Lex Familia is confronted with visitation schedules that are almost impossible to accomplish.  Parents have children enrolled in so many activities, it is difficult to find time for the child to spend with the non-residential parent. Should a child be allowed to participate in activities if they interfere with the the non-residential parent’s time with the child? There is no easy solution to this dilemma.

How should a court respond when the time-slighted parent objects? To be certain, it  would be unfortunate to deny a child of divorce access to activities available to a child of an intact family.  However, a child from an intact household presumably sees more of both parents and the need for uninterrupted time is less crucial. Perhaps, like in so many instances in the law, the courts need to use a balancing test. But what factors should be weighed?  Perhaps the court could consider the child’s aptitude at a given activity versus the benefits of time with the non-residential parent. For example, are circumstances different if the child is a superstar baseball player with potential to be a pro, versus an average player that will be lucky to make the high school varsity squad?  Should the social benefits of participation be weighed against the benefits of additional parenting time?  Also the court can consider the quality of parenting of the non-residential parent. It should matter that the child sits in front of a television during visitation rather than being actively engaged with the parent. 

The over-involvement of children is a symptom of modern society.  It is not limited to children of divorce. Children today have very little time to goof off or even daydream. While children clearly benefit from participation in organized activities, Lex wonders if sometimes they are fulfilling certain dreams their parents did not get to realize. Indeed, in this instance, forcing children into the activity is exploitation and should not be tolerated as a basis to limit visitation. But, where the child is genuinely interested in an activity and has aptitude, do the benefits of participation outweigh the missed time with the non-residential parent?

Years ago, Lex was involved in a case where the child wanted to go to a football camp that would deprive the non-residential parent of a large amount of his summer visitation time. He objected and it went before the judge. The child attended the hearing and begged the judge for permission to go.  She listened to the boy’s pleas and simply said, “Young man, you may not understand this today, but perhaps someday you’ll appreciate this comment.  Nobody has ever laid upon their death bed and said ’I wish I had more opportunities to go to football camp.’ But there have been countless people laying there that have wished they had more time to spend with their parents or other people they loved.”  The boy went with his father instead of football camp.

Indeed, life is short.  When is too much too much?

In what ultimately can  be described as a pro-life decision, The Pennsylvania Supreme Court recently upheld an agreement to create a child using in vitro fertilization. In Ferguson v. McKiernan, Pa. No. 16 MAP 2005, decided December 27, 2007, the Pennsylvania High Court affirmed an agreement between a man and his former paramour to donate sperm for her conception of a child– on the condition that he not be held responsible for support.

In rendering its ruling, the Supreme Court disregarded the lower courts’ rejection of the agreement on public policy grounds. Both the trial court and the appellate court rejected the agreement, finding that Pennsylvania public policy disallowed agreements that avoided child support. The High Court, however, distinguished divorce cases and other traditional parenting cases from assisted reproductive technology cases. The court found that the “analogy…is unsustainable in the face of the evolving role played by alternative reproductive technologies in contemporary American society.” As this particular contract was fundamentally no different than a clinical artificial insemination agreement (despite the fact that the sperm donor and mother had a prior relationship), it should be upheld.

This case hinges on the intention of the parties. The analysis is not unique. Many assisted reproductive technology (ART) issues are adjudicated based on the intentions of the parties rather than the traditional focus on biology.  A t least in this instance, children conceived through ART really are treated differently than children conceived traditionally.  While logically the law shouldn’t discriminate against children produced with the help of science, this court has determined the benefits to society in facilitating ART outweighs the denial of support in this instance. 

The Pennsylvania High Court is encouraging the creation of children using non-traditional methods. The court, in its progressive willingness to enforce non-traditional parenting agreements supports these procedures as a means for people–otherwise unable–to have children. The expression “pro-life” has certain definite political connotations. However, in a very literal sense, the Pennsylvania Supreme Court, by facilitating the creation of life, can only be described as pro-life.

Lex Familia has noticed a series of articles urging a re-evaluation of  alimony laws. Complaints are made by both payors and recipients alike. The complaints vary depending upon who is making them. However, both sides complain that alimony awards are arbitrary and subjectively determined by  judges relying on  vague statutory considerations. We agree that alimony laws should be looked at critically. However, the first question to be asked is what exactly is alimony. What is its goal and purpose? Until we determine what alimony is designed to achieve, a meaningful and consistent legal policy cannot be developed.

In Illinois, alimony is called maintenance. By definition, maintenance suggests that its purpose is to support or maintain an economically dependent former spouse at the former marital standard of living. But is this all there is to the concept? Many issues of public policy need to be explored in order to determine a cogent and fair policy on this subject.

For example, the American Law Institute in it’s “Principles of the Law of Family Dissolution” published in 2001 recommends calling alimony “compensatory spousal payments,” as a more appropriate definition of the nature of the payment. Specific guidelines and presumptions are suggested by the ALI to enhance predictability and consistency in awards. Therefore, under the ALI’s approach, alimony is not merely considered a form of “divorce welfare.” It also serves as a payment to recognize  lost economic opportunities by a spouse due to his or her contributions to the family as a homemaker or caretaker.  With that in mind, should maintenance automatically terminate upon the recipient’s remarriage? Does the right to compensation for lost opportunities automatically disappear as a result of a re-marriage?

Further policy issues need to be explored. With the advent of no-fault divorce in the 1970’s, consideration of conduct is frequently prohibited in deciding any divorce-related issues. Illinois specifically prohibits considerations of fault in determining maintenance issues. However, should there be a blanket prohibition against considerations of fault in deciding maintenance? One can think of several occasions where fault may be a legitimate consideration. For example, should a spouse who conducts a notorious public extramarital affair receive the same amount of alimony as a spouse not otherwise misbehaving? Should we as a society draft legislation designed to punish people who engage in behavior that harms the family?  Again, this policy should be explored.

Maintenance, at least in Illinois, is highly dependent upon the subjective discretion of trial judges. Case law sets no firm policy and is too fact-dependent to be of much help. One judge may automatically deny maintenance for any marriage under ten years, while another may allow it, but only for five years after the divorce has been finalized. Should we employ guidelines, like we do with child support, to limit some of the randomness of rulings? The American Academy of Matrimonial Lawyers, as well as several states, have formulated guidelines to ensure more consistent awards. Should legislatures set policy by adopting guidelines?  Or, do we prefer giving more latitude to judges who are intimate with the facts of the particular case?

It has been thirty years since Illinois has had a comprehensive review of its family law.  Maintenance in particular has significantly evolved during that time.  This topic needs to be reviewed with fresh eyes. But, in order to do so, a meaningful dialogue needs to start regarding the purpose and goals of any maintenance statute.  What is alimony? Only when that question is answered, can we craft legislation that fairly addresses this important family law issue.

Divorce is a life event that invites many people to re-evaluate their lives.  During our day to day lives, we often lose sight of our priorities, instead questing  for professional or economic  success at the expense of meaningful relationships. And when people ignore these relationships in favor of external rewards, family breakup often follows. This notion is no great insight but a tragic reality in our “go go” culture. What Lex familia finds interesting, however, is the court’s unwillingness to allow people to reprioritze and reconsider these relationships after the breakup. Apparently, there are no second chances in family court.

Consider this. A succesful professional regularly works a 60 hour week, both because he is a workaholic and to maintain the family standard of living. He never attends his children’s school or extracurricular events.  As a result, he  knows very little about his children and relies on his wife for periodic updates.  While his career ascends, his relationships with his children never develops. Then comes the divorce…and the hard charger is jolted into a focus on the importance of his children. He realizes that he has been going down the wrong road and now wants to change course. However, when he decides to reduce his hours to a more reasonable 40-hour week, thus reducing his income by 30%, he is accused of intentionally reducing his income to avoid paying child support.

The problem that confronts family court judges is the  inability to discern the well motived reduction versus the dead- beat looking for a way to beat his ex-wife out of support. Our experience is that courts will rarely, if ever, allow a non-custodial parent to argue that he should be entitled to cut back on work (and thus his income) so that he can spend more time with the children.  This is the trap that confronts many parents. Families disintegrate because of inattention. Divorce follows. People take stock and re-evaluate priorities, realizing the importance of the relationships. However, when the pursuit of relationships costs the family in terms of reduced income, it is effectively denied by courts refusal to recognize the reduced income as legitimate. Thus the support-paying parent may cut back on work, but will likely pay support based upon his former higher income. This requires him to finance the rebuilding of the relationship. One could argue that this is fair since he created the breakdown in the first place. However, in some cases the excess work is due to economic necessity to maintain an extravagant lifestyle. Should that person be “punished” and forced to work excessive hours to maintain the former status quo, at the cost of continued neglect of his children? Lex Familia thinks not.

One of the truths of divorce is that everything changes. Many people cannot accept this fact and expect that because “it is his fault, ” there should be no disruption in the family’s standard of living. The truth is that there is always plenty of blame to go around and things must necessarily change. Courts need to sensitize themselves to good faith attempts of support-paying parents to rehabilitate their relationships, even if it means reduced income. While Lex Familia is not advocating that parents quit their jobs to spend more time with their children, we also cannot tolerate courts denying a second chance to well-meaning parents.  We all sometimes get trapped in our pursuit of ”things” without recognizing the costs. Redemption too has a price. 

Last Saturday I was at Shabbat services at my synagogue. Also there was a handicapped little boy who was struggling to get around. Virtually every little girl at the service was coming to his aid, without any prompting by their parents. The other little boys seemed oblivious and generally unconcerned. My observations made me question whether there is some innate (or culturally developed) nurturing skill in little girls, seemingly lacking in boys. My generation grew up in a gender neutral political environment that emphasized the equality of the sexes in all respects. However, from my observation, it does seem that girls are wired differently, and have a tendency of care that boys rarely possess. 

Perhaps there may be something to the “tender years doctrine,” long rejected as being a relic of the past. The “tender years doctrine” arose early in the twentieth century, as a judicial presumption that children of divorce should ordinarily be placed with their mothers. It arose from Victorian views of the superiority of women morally and with regard to the rearing of children. This maternal preference replaced an earlier paternal preference in custody cases, long observed by American culture, which made women’s rights to their children secondary to the interests of their husbands.

In the 1960s the tender years doctrine, employed by virtually all states in resolving custody disputes, came under attack due to a variety of societal reasons that included challenges to women’s traditional roles in the home, and men’s claims of sexual discrimination in contested custody cases.  To be sure, these concerns were valid and deserved redress. On the other hand, the lack of any presumption in determining custody has created problems that may well exceed the progressive benefits of a gender neutral “best interest” standard. 

Custody litigation is the most toxic of all litigation. Undeniably, the litigation itself doesn’t serve a child’s best interest. The best interest standard, relied on by virtually all states in adjudicating custody, is an indeterminate standard that invites both parents to take their best shots, thus increasing custody litigation. If a rebuttable maternal presumption existed, courts still could award custody to worthy fathers and dispossess unworthy mothers; but much litigation caused by the leveling of the custody playing field would be avoided.

The maternal presumption reflects the politically incorrect reality that nature or society has equipped women with certain definite skills, equipping them to care for young children. While little boys are playing with cars and trucks, little girls for the most part are dragging around baby dolls. From my observation, most women have a caretaking instinct that the law currently ignores. When the law disregards principles of nature, unforeseen consequences occur–including more people competing to “win” the prize of custody. Perhaps it is time for legislatures and courts to rethink the notion of gender neutrality.

On December 20, 2007 the Ohio Supreme Court determined that gestational surrogacy agreements do not violate Ohio public policy and therefore may be enforced.  In J.F. v. D.B., a dispute arose concerning the enforceability of a surrogacy agreement between the surrogate and her husband and the sperm donating intended father. The eggs were donated by a non-party to the lawsuit and thus the surrogate had no biological connection to the children.  The Ohio High Court  determined that since Ohio had no formulated public policy against surrogacy agreements, the contract inherently did not violate any state policy and was thus enforceable.   ” No public policy is violated when a gestational-surrogacy contract is entered into, even when one of the provisions requires the gestational surrogate to not assert parental rights regarding children she bears that are of another woman’s artificially inseminated egg.” The Court went on to distinguish between gestational surrogacy contracts,  in which the surrogate carries another’s fertilized egg, vs. a traditional surrogacy agreement where the surrogate carries her own egg.  The court specifically refused to speak to the public policy of traditional surrogacy agreements and limited its holding to gestational surrogacy agreements.

Interestingly, the majority never speaks to the public policy concerning gestational surrogacy agreements–it only holds in the absence of a public policy against such an agreement,  gestational surrogacy contracts are enforceable. Does the High Court’s affirmation of the gestational surrogacy contract, absent a formulated public policy against such a contract, determine the policy in favor of such agreements? Indeed–despite the court’s reluctance to directly speak to the issue.

The dissent pointed out the majority’s evasion, correctly identifying the real issue as whether the contract violated public policy, not a default acceptance based upon the absence of any articulated public policy. The dissent opined that the contract did violate Ohio public policy because of state policy to safe-guard children and to disallow  the establishment of parental rights as an act of commerce.  For example, the Ohio adoption acts disallows payment for the relinquishment of parental rights in an adoption proceeding, evidencing the policy against surrender of children by a parent for compensation.  Since gestational surrogacy agreements compensate the parties for their involvement, they create children for profit. Since it was against public policy to create children  and establish parentage in a commercial transaction, the contract violated Ohio public policy.

While Lex Familia disagrees with the ultimate conclusion, that a gestational surrogacy agreement violates public policy, the dissent was well reasoned until its ultimate conclusion that, “enforcement of this contract, which viewed realistically is no less than a contract for the creation of a child, would open Ohio to the very real likelihood of being an interstate, and perhaps international marketplace for gestational surrogacy.”  One has visions of nefarious baby brokers from foreign lands invading Akron and Toledo in search of profits.  The well constructed argument of the dissent lost its punch with this unlikely scenario.

Gestational surrogacy is a appropriate and legitimate means of helping infertile couples. It should be regulated as Illinois has chosen to do, so that all parties and the resulting children can be protected by the law. Indeed, gestational surrogacy contracts are agreements for the creation of life. But this doesn’t inherently invalidate their legitimacy as suggested by the dissent. When all parties’ rights and responsibilities are addressed in advance, the state’s oversight responsibilities are accomplished.  This should be enough to keep us safe from the foreign surrogacy marauders in any event.

Lex Familia has been seeing many articles recently concerning the advent of collaborative divorce, which is a system designed to civilize the divorce process. In collaborative divorce, the parties and their lawyers agree to work out the issues, relying on joint professionals such as accountants and social workers, to help them  “collaborate” on reaching an agreement. In the event the dialogue breaks down or the issues become irresolvable, the collaborating attorneys must agree to withdraw from the case thus prohibiting them from prosecuting any issues in court. This prohibition serves as an incentive for the lawyers to facilitate as opposed to interfering with a peaceful resolution of the divorce.

David Crary, in an Associated Press article writes, “Lawyers by the thousands want to be part of the trend. ‘Most of us had that moment where we realize the adversarial process is so damaging for the clients — and there’s a recognition that we can do better,’ said Talia Katz, executive director of the International Academy of Collaborative Professionals.”

Lex Familia thinks, as an aspirational goal, everyone getting along and playing nicely together is a great notion. However, the reality for the vast majority of people who feel betrayed, frightened, angry and rejected, is that they cannot realistically utilize such a process. Our experience is that great love eroded can’t be resolved by a sterile businesslike negotiation.

Of course divorce lawyers would like to avoid the sloppy and nasty aspect of their jobs that require us to deal with people in crisis; however, to deny the passion of the break up does our clients a disservice.

True legal professionalism requires conflict management, not conflict avoidance. Each case is different, with different emotional dynamics and unique facts and circumstances. Attempting to take all cases under the “let’s be friends” umbrella is as nonsensical as litigating every case as mortal enemies. Divorce lawyers should work to facilitate settlements. However, we need to recognize that sometimes it is in our client’s interests to have the opportunity to tell their story in a controlled setting like a courtroom, in order to avoid outbursts in less controlled settings like the dinner table.  We must validate but at the same time discourage the emotions of revenge and anger. To deny them ignores the very real human emotions incident to the death of a marriage.

An interesting case was decided  by the Washington State Supreme Court on December 6, 2007, that addressed the issue of whether an indigent parent is entitled to appointed counsel, at state expense, to represent her during a custody dispute related to a divorce. In King v. King, http://www.courts.wa.gov/opinions, the husband was represented by a private attorney and the wife, who was a homemaker, could not afford an attorney.  While she had an attorney earlier in the proceeding, she appeared pro se at the trial and custody was awarded to her husband. On appeal she claimed that her fundamental liberty interest was at stake in her divorce proceeding, and therefore without state assisted counsel she was deprived of her due process rights to the companionship and custody of her children.  She argued that her circumstance was not unlike a parental termination proceeding that afforded a state sponsored right of counsel. The Washington Supreme Court rejected her arguments, distinguishing between termination of parental rights and allocation of time and control of the children.  

What I find interesting about this case is not necessarily the constitutional arguments but the question of why the non-working mother was not allowed fees from her husband in order to hire competent counsel to represent her. Perhaps she never sought fees after her initial attorney left the case. While I don’t know, I suspect that the mother may have thought that she would be able to present her case adequately without an attorney and then learned the hard way that such a notion is ill-conceived.  For obvious reasons, appointment of cousel for divorce cases would be onerous on otherwise strained government budgets. However, because of court’s near universal reliance on the best interest standard in adjudicating contested custody disputes, the skill of the lawyer becomes even more important. As I argued in a  Northern Illinois Law Review article “Determining the Undeterminable: the Best Interest of the Child Standard as an Imperfect but Necessary Guidepost to Determine Child Custody,” the inherent indeterminateness and subjectivity of determining a child’s best interest magnifies the importance of how the evidence is presented to the fact finder. Capable lawyering can’t insure success, but the lack of it almost guarantees failure.