Wednesday’s note introduced a groundbreaking law review article on repairing our family law system, Clare Huntington, Repairing Family Law, 57 Duke L.J. 1245 (2008). Yesterday’s note described Huntington’s analysis of the ways in which our present family law system insists on binary views of family relationships and often “freezes” them in a ruptured state. Today’s note, the final one dealing with the article, summarizes her description of the ways we could change the system to make it more consistent with the cyclical nature of human relationships.
The cycle we’re dealing with is one theorized by psychotherapist Melanie Klein and consisting of four stages; love, hate, guilt, and reparation. Huntington argues that our present family law system embraces love and hate (although she says its embrace of love is both rigid and incomplete) and ignores or discounts opportunities for guilt and reparation.
As any good professor would, Huntington begins by setting out the theoretical framework of her suggested model, which she calls the Reparative Model of family law. Its goal, she says, is to facilitate better relationships between and among family members, aided by understanding that emotions in those relationships are cyclical, complex, and often conflicted. To do this, she says, we would tie decision making processes not just to love and hate (expressed as either intact or ruptured) but to the full cycle of human emotions of love, hate, guilt, and reparation. Instead of suppressing expressions of hate, the Reparative Model would embrace safe opportunities for them; understanding that this is an essential step toward guilt and reparation.
She envisages the application of the Reparative Model not just to the legal system but to intact family relationships as well. “The Reparative Model would function both when there are familial disputes – changing the substantive and procedural rules governing disputes – and as a background principle against which families live their lives. Thus, the Reparative Model would affect how disputes are conducted even when they do not play out in the legal system. A spouse could threaten divorce for a transgression, but if the legal system did not simply vindicate the feelings of hate and instead also encouraged guilt and reparation, the threat of divorce might well ring hollow, or at least the spouse might have to find another way of expressing the hateful feelings. The law would no longer be a servant exclusively to hate, but also would be a harbinger of guilt and reparation.” Huntington at 1300.
Huntington advocates changes to both the substance and the procedure of family law. Substantively, she suggests that we change child custody laws to make them more predictable, like the American Law Institute model that bases custody time after divorce on the approximate ratio of parenting time during marriage. Huntington specifically rejects returning to a fault standard in divorce cases, calling it to too one-sided in its inherent search for one party who is at fault for injuring his or her supposedly guiltless partner. Instead, she advocates a standard that provides for exploring fault and blame at an interpersonal level without attaching legal consequences to it. She expressly leaves for another day, or another author, the question of how to make that happen in a meaningful way.
She advocates that the family law system find ways to accept that the relationship between divorcing parents and between never-married parents will continue, perhaps by expressly calling them co-parents. “Although this proposal cuts against one of the central principles of the legal system – the value of clean lines – it would better reflect the messiness of real lives. Rather than wishing that a clear legal name – spouse/legal stranger, parent/nonparent – will resolve the underlying psychological issues, the new legal status acknowledges the ongoing connection that exists and thus conceives of a place beyond rupture.” Huntington at 1304.
In the dependency and juvenile arena, Huntington repeats a suggested she had made earlier in Clare Huntington, Mutual Dependency in Child Welfare, 82 Notre Dame L. Rev. 1485 (2007) that the family law system move away from a rigid view of family autonomy to acknowledge that the state and families have a mutual dependency in caring for children.
Procedurally, Huntington applauds the emergence of mediation and collaborative law as new ways of seeing and facilitating the decision-making that must be made when family status changes. Acknowledging that family relationships are inherently dynamic, she advocates the use of parenting coordinators so parents can explore and negotiate changes without triggering a new adversarial struggle.
Huntington advocates changes in the way family lawyers practice. She believes attorneys should have a responsibility for moving their clients from hate aggression to guilt and reparation. She admits that this may place the attorney in a difficult position, because it may set up a silent tug-of-war (my term, not hers) between the attorney trying to move toward guilt and reparation and the client mired in hate and aggression.
There are at least two ways to address these issues. First, attorneys could simply try to persuade their clients of the benefits of following a reparative path. Attorneys could model reparative behavior themselves by not adopting a win/lose attitude in their approach to cases. Attorneys also could counsel their clients, attempting to move their clients beyond hate and help them make decisions from a reparative mindset.
This counseling function is analogous to the role of attorneys representing children in abuse and neglect proceedings under a direct representation model. There, the attorney is supposed to advocate for the expressed wishes of the child client, rather than the best interests of the child. Experienced attorneys acknowledge, however, that even within a direct representation model there is an inevitable counseling role for the attorney to play to help the child client see what is in the child’s best interests, particularly in the long term. This modeling and counseling approach would be beneficial for both attorneys and clients. In addition to holding the potential to create a more satisfying legal practice, an attorney’s reparative mindset would help curb some of the hateful tendencies of familial disputants. Huntington at 1309-10.
Perhaps Huntington’s most daring suggestion is her last, that family lawyers might be asked to provide holistic advice rather than merely advocating for their clients’ interests. Specifically rejecting a requirement that attorneys work to reconcile the parties or act as therapists, she recommends that lawyers have an ethical obligation not only to consider the interests of their clients but also to consider the interests of the family and work to find ways of accommodating the divergent interests of all family members.