RECONCEIVING THE FAMILY

Vol. 17 No.3 (March, 2007) pp.237-239

RECONCEIVING THE FAMILY: CRITIQUE ON THE AMERICAN LAW INSTITUTE’S PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION, by Robin Fretwell Wilson (ed). Cambridge and New York: Cambridge University Press, 2006. 560pp. Hardback. £55.00/$95.00. ISBN: 0521861195. eBook format. $76.00. ISBN: 9780511223181.

Reviewed by Rosalie R. Young, Public Justice Department, StateUniversity of New York at Oswego. Email: ryoung [at] Oswego.edu.

In 2002, following decades of dramatic changes in the make up of families and family law, the American Law Institute published its “first comprehensive work in the field of family law”: PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS (ALI website). The six principal parts focused on child custody, child support, division of property at dissolution, compensatory payments (alimony), domestic partners, and agreements. These issues became increasingly important during the second half of the twentieth century as restrictions on entering into marriage and dissolving marital bonds were loosened, and non-traditional families became more common.

The twenty-seven contributors to RECONCEIVING THE FAMILY view the PRINCIPLES as a guide to judges and legislators who are considering family law reform. In the twenty-six primary articles, divided into nine parts, the authors offer a critical examination of the PRINCIPLES and the process in which the PRINCIPLES were developed. The contributors, primarily professors of law, spare no punches in their critiques. While they respect the effort that went into the PRINCIPLES, they are wary of many of the ALI recommendations and question whether the full range of opinions were considered in the draft of the PRINCIPLES. Further the contributors decry what they see as a frequent lack of evidence and explanation for the recommendations in the PRINCIPLES. Some suggest that legal elites worked on the PRINCIPLES without due consideration given to the social and cultural institutions guiding families today. The contributors urge those contemplating reform to consider both the PRINCIPLES and RECONCEIVING THE FAMILY before promoting alterations in existing law and policy.

In each of the chapters, the contributors briefly summarize the recommendations in the PRINCIPLES before going on to offer their own critiques. The authors draw on court cases, legislative activity and the commentary of practitioners and consultants. The many citations and footnoted comments add welcome clarification. In addition, international perspectives are offered in many of the articles and most specifically in the three articles which focus on international law.

The PRINCIPLES attempts to promote legal reform through consideration of such major issues as judicial discretion, dissolution of long term cohabitation of both heterosexual and homosexual [*238] couples, de facto parenting, and a past caretaker child care practice standard for determining custody. While the contributors agree that these are areas which require reconsideration, they frequently question whether the PRINCIPLES have taken the reality of modern families and legal practice into account. Further, they suggest that in an effort to standardize practice, the PRINCIPLES have frequently opened the door to greater judicial discretion and promoted more legal wrangling and costs, rather than less.

For example, Lynn D. Wardle criticizes the PRINCIPLES for frequently ignoring community standards of spousal behavior and marital misconduct in determining alimony and property awards. She points out that opportunities to pursue misconduct through existing tort or criminal legal processes as noted in the PRINCIPLES will not reduce the tension during marital dissolution or ease the burden on the remaining spouse or children. Similarly, Robin Fretwell Wilson questions the responsibility which the PRINCIPLES give to de facto parents without fully evaluating the possibility that giving custodial responsibility to these adults, such as ex-live in partners, may expose children to abuse. Others argue that the PRINCIPLES grant new rights to adults without conferring complementary responsibilities, such as support.

Additional chapters review the imputation of income, the role of the underemployed or unemployed parent, informal family contracts and intent, the emotional and legal responsibilities stemming from cohabitation, and premarital and separation agreements. Other sections cover the freedom of partners to engage in private contracts and the possible vulnerability of the weaker partner, the financial and emotional costs to children following dissolution, and alternatives to our adversarial system of dissolution. Marie T. Reilly explores the issue of credit responsibility, a complicated issue not covered in the PRINCIPLES, but which effectively demonstrates one area in which the impact of marital dissolution goes beyond the family directly involved.

While readers of RECONCEIVING THE FAMILY would benefit from careful consideration of this entire volume, the division of the book into nine parts and the lengthy index make this book a ready resource for those focused on limited aspects of family law. The authors, however, clearly point out that most of the issues which must be resolved during dissolution of a marriage or significant relationship cannot be considered in a vacuum. Individual issues, for example, of employment, income, property division, credit, custody and support are intertwined and cannot be settled independently or in isolation.

All in all, the authors raise vital questions and clearly demonstrate that there are no easy answers. While for many, the two parent biological model remains the ideal, decreasing numbers of children grow up within such families and the social institutions of marriage and family have been altered. Pressure upon the state to promote equitable treatment of the parties, and particularly [*239] the children, vies with the philosophical view that the parties can best determine what will work for their particular family. As Carl E. Schneider points out in the conclusion, family law reform, while well intentioned, has severe limitations, since reforms rarely work as anticipated and the people involved are rarely influenced as expected.

The argumentative nature of many of the selections presses the reader to become actively involved in considering the implementation of the recommendations and criticisms articulated. While the contributors question the results of the ALI effort and see little evidence of the impact of the PRINCIPLES on family law reform, they view as positive the effort to direct attention to the issues raised.

The goal of RECONCEIVING THE FAMILY, according to its editor Robin Fretwell Wilson, is to promote a “robust discussion” of the issues and recommendations promulgated in the PRINCIPLES. The contributors to this volume have raised a multitude of concerns which are vital to legal practitioners, judges and the parents and children who are the focus of family law. The authors force the thoughtful reader, regardless of orientation, to carefully rethink assumptions, traditional responses and reform and have therefore succeeded in meeting their goals.

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