Love and marriage—and family law

Public Interest, Spring, 2005 by Daniel Cere

The Law Commission report, for example, draws a bright line between marriage (a recognized close personal adult relationship) and parenthood. The authors argue that these two categories "raise very different issues." Parenthood is not related to marriage. The central purpose of marriage is "to provide an orderly framework in which couples can express their commitment to each other and voluntarily assume a range of legal rights and obligations." Children are stripped from the core meaning of marriage now defined as a close adult personal relationship. They are shuffled into another category of "close personal relationships" known as "intergenerational relationships that involved the rearing of children." With this comment, the authors of Beyond Conjugality wave good-bye to parenthood.

The ALI authors are on a similar path. Throughout their discussion, the authors view with suspicion any attempt to apply legal standards to parenting. For ALI authors, even age-old standards, such as that family law should operate in "the best interests of children," are questioned. They argue that such guidelines are always murky and usually mask prejudicial cultural values. They worry that any appeal to an "objective" standard for parental conduct might threaten the one value that features prominently throughout the pages of their report, that of diversity:

   Even when a determinate standard conforms to broadly held views about
   what is good for children, it can intrude--just as indeterminate
   standards do--on matters concerning a child's upbringing that society
   generally leaves up to parents themselves, and standardize
   child-rearing arrangements in a way that unnecessarily curtails
   diversity and cultural pluralism.

Katherine Bartlett, one of the ALI authors, notes proudly that she and her team were able to come up with a "default rule that avoids these kinds of empirical and normative assumptions about the family and is, accordingly, less family-standardizing." The "default rule," the main way in which the authors of the report circumvent broad legal standards being applied to individual cases, is to point to past parenting practices. How individual adult claimants have participated in the day-to-day raising of the children they are in close relationship with will determine their parental status:

   [This rule] operates not from a state-determined,
   family-standardizing ideal but from where the parents themselves
   left off. It is based not on empirical evidence of the experience of
   families in the aggregate but on the individual experiences of the
   family before the court.

Bartlett and her colleagues also attack the "best interests of children" standard as "a highly contingent social construction":

   Although we often pretend otherwise, it seems clear that our
   judgments about what is best for children are as much the result of
   political and social judgments about what kind of society we prefer
   as they are conclusions based upon neutral or scientific data about
   what is "best" for children. The resolution of conflicts over
   children ultimately is less a matter of objective fact-finding than
   it is a matter of deciding what kind of children and families--what
   kind of relationships--we want to have.