How Our Family Law System Freezes Families in a Ruptured State

Yesterday’s note introduced the groundbreaking article from the Duke Law Journal, Clare Huntington, Repairing Family Law, 57 Duke L.J. 1245 (2008) and summarized Professor Huntington’s analysis of the “cycle of intimacy” theory of Freudian psychotherapist Melanie Klein. Today’s note focuses on Huntington’s description of the ways our present family law system operates in direct and fundamental opposition to the normal reparative work that needs to happen when relationships are tested.

Huntington says our present family law system has a binary orientation, an assumption that family relationships are driven either by love or by hate. The family law system is at its heart pretty simple: it allows (almost) all kinds of love and acts to end relationships marked by hate. This is why Huntington calls this the “Love-Hate Model” of family law.

Huntington uses “hate” to describe not only white-hot emotional fury but also what she calls “symbolic hate,” rupture of the relationship without accounting for the possibility of repair. So an amicable divorce might include symbolic hate in the form of a permanent rupture of the relationship between the spouses.

The legal system has its own priorities, says Huntington, that it values more than the potential restoration of relationships. These include finality, uniformity, judicial efficiency, and most importantly, determining winners and losers. Although the family law system makes an approving nod to principles like the best interest of the children, she says, at it heart it embraces the values of the adversarial legal system and makes essentially binary findings: couples are either married or divorced; a parent in family court either regains custody or loses parental rights; a biological parent in an adoption either gives up the child and forfeits all rights and keeps the child and retains all rights.

Courts must sift through conflicting narratives and determine the essential “truth” that will drive the decisions governing that family for years. And after the court rules, the system discourages family members from returning to the court with tougher standards imposed on those who advocate a subsequent change. The Love-Hate Model works against the fundamental cyclical nature of relationships, says Huntington, reinforcing hate with no recognition of the need to repair relationships.

In sum, traditional family law – embodied in the Love-Hate Model – actively thwarts the constructive human tendency to feel guilt and seek reparation. By recognizing only love and hate, family law freezes familial relationships at the moment of rupture. But because former family members so often continue to relate to one another, stopping at the moment of hate, be it real or symbolic, hinders the ability of individuals to heal the rifts that initially led to the legal proceedings and engage in the reparative work necessary for the future. Huntington at 1286.

Huntington recognizes the attempts to reform the family law system, including the use of mediation, collaborative law, and a mandated preference for co-parenting relationships. In general, however, she finds these efforts to be underused, underfunded, and incomplete. “As these reforms attest, family law already has begun to move beyond the Love-Hate Model. But this movement lacks a larger theoretical framework to support these reforms and encourage others.” Huntington at 1292.

Tomorrow: Huntington’s Proposal for a Reparative Model of Family Law.

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