Consistency versus Discretion in Family Court

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.


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