One of the only television shows I regularly watch (either cable or network) is Modern Family on the ABC television network. As a divorce lawyers with 32 years of service in the business, we have long been aware that families change at warp speed and the practice and services of the family law system creep ahead to try to catch up – never really making up the distance.
In my youth with TV shows like the Cleavers and the Nelson family; in my young adulthood with the family systems of Archie, Edith and “Meathead”, and the Bill Cosby Show, families tended to always to be intact, heterosexual and father-centered. The new family tends to be none of the above – second marriages abound; global partners (Jay’s Columbian wife) is common; gay relationships are a focus (Mitchell and Cam) with an adopted Southeast Asian daughter, and on and on.
So how does 21st Century family law deal with the blended families, gay relationships, and globalized family members and values in the current family system? The family law system of today is steeped in the 20th Century legal jargon of “best interests of the child”, “endangerment standard”, and primary parental decision-making, or custody in a very simple setting. I suggest that family law for the present and future must become less statute-based and more processed based.
What does this mean?
(1) Less emphasis in biological parenting and marital family systems and more emphasis on the quality of parent-family relationships (psychological – emototive – physical).
(2) Greater emphasis on creative access to children from quasi-parent figures, i.e. caregivers, nannies, family members and friends. This need to emphasize relationships is contrary to the current views of Troxell v. Granville, 530 US 57 (Supreme Court 2000), and the recent Colorado case of In re the Parental Responsibilities of Reese, 227 P3rd 900 (Colo. App 2010) which supported an adoptive parent’s rights as superior to the parties who had provided primary physical- emotional care for a number of years while the child had only minimal contact with the legal (adoptive) parent.
Without changes which emphasize process and relationships as opposed to statutory principles, family law will always follow in the wake of the changing realities of society’s ship to the detriment of children, families and social reality.