By Stephanie B. Goldberg – WEnews Correspondent

(WOMENSENEWS)--The road to a civilized divorce recently hit a milestone with the publication of The American Law Institute's new formulation of custody law, contained in its 1,187-page "Principles of Family Dissolution."

The new principles represent an attempt by the legal academy's preeminent legal scholars to incorporate lessons learned from the most explosive custody battles of recent years. The principles may also be a significant breakthrough for those divorcing mothers who claim their children's fathers are abusers only to find themselves faced with losing custody to the parent they believe is hurting their children.

Judges and lawmakers use such statements for guidance although it's too soon to tell how much impact these principles will have.

The institute's scholars study court decisions from the 50 states and together write a document detailing what they believe are the best laws or legal standards. It is up to the state legislatures, court system and judges to decide to adopt the guidelines, adapt them or ignore them.

"The American Law Institute's custody and visitation proposals, although not a panacea for all the legal problems that mothers now face, represent a dramatic improvement over the existing law in most states," comments feminist law professor Sally Goldfarb, who teaches at Rutgers School of Law in Camden, N.J.

The American Law Institute approach places a heavy emphasis on protecting the role of the parent who has been the child's primary caretaker, recommends a number of measures to protect women and children from domestic violence, and grants legal recognition to non-biological parents, including the 'other mother' in lesbian couples," explains Goldfarb.

The most controversial provision, says Katherine T. Bartlett, dean of Duke University Law School in Durham, N.C., was the "proportionality principle," which would be applied to contested custody arrangements. In deciding time allotments and living arrangements, divorce and family courts would be required to assess how much time parents spent with their children in proportion to the other parent prior to divorce and replicate that in the custody agreement.

If the child is an infant, judges would be expected to apply the "best interests of the child" test and generally preserve the status quo--the caretaking parent would receive custody.

In place of proportionality, "some people wanted a presumption of joint custody while others wanted a presumption of sole custody," says Bartlett, who took a leadership position in the 10-year-long process of writing and approving the guidelines.

Instead, The American Law Institute decided to drop these terms altogether, because they're so closely identified with a view of custody that "awards" children to parents, creating winners, losers and no end of hard feelings.

Proportionality carries no such connotation. What's more, it resists judicial meddling. The standard takes the decision-making away from the state and judges "who will no longer find it as easy to decide how they think families should rearrange themselves after a breakup," says Bartlett. "The standard continues what the parents have already decided for themselves rather than imposing value judgments by the state."

Non-Biological Parents Aided by New Rules

The guidelines would impose a fairly radical change in the existing law of most states by recognizing of the rights of non-biological parents. Among those who could be granted custody are domestic partners who have a co-parenting agreement, individuals who raised the children for at least two years with a parent's consent and anyone who was subject to a child support obligation.

The same rights would apply to men who lived with their children for at least two years and who had a valid reason to think they were fathers. Even if DNA tests later disprove their paternity claim, they could seek and be awarded custody.

Lynn D. Wardle, a professor at the law school of Brigham Young University in Provo, Utah, is troubled by what he sees as an "unwarranted extension of the law" that he believes amounts to attack on the rights of biological parents. "Traditionally courts have allowed rights to quasi-parents in very limited and exceptional circumstances," he says. "The American Law Institute proposes to do this on a much broader scale that is not at all cautious or careful."

If adopted by a court system, the new rules could make it possible for live-in companions to obtain custody if there was merely a verbal agreement to co-parent, Wardle says. "That would be consistent with the whole trend of this proposal, which is to give effect to non-formalized claims or interests," he says.

Fathers' rights groups are likely to applaud the proposed rule that guarantees parental access to children even when financial obligations are not met so long as other responsibilities are discharged. In fact, parents who unreasonably interfere with visitation are likely to lose custody themselves.

The American Law Institute has also taken the position that sexual orientation, along with gender, nationality, race, religion and ethnicity cannot be factors in custody determinations.

The ban on considerations of sexual orientation unless there's a showing of harm to the child is already the rule in a majority of states, says to Patricia Logue, senior counsel for Lambda Legal in Chicago. "There's really no reason for it to be considered," Logue adds. "We should be past the day" when sexual orientation is "used to scare judges away from cementing important parent-child ties."

Nevertheless, some jurisdictions haven't gotten the message, says Mary Bonauto, civil rights director for Gay and Lesbian Advocates and Defenders in Boston.

"In the last 18 months there have been incredibly painful rulings in states such as Alabama and Mississippi essentially taking children away from their lesbian mothers even though that was the parent the children were most fond of." If the courts used the standard proposed by the law institute, the children would have stayed with the parent who shouldered the most caretaking responsibilities, Bonauto says.

Screening for Batterers and Child Abuse Built into Custody Process

The American Law Institute guidelines have also incorporated safeguards for victims of domestic violence. Courts would be required to develop a process to routinely screen for it and order investigations when warranted. If there were credible evidence of abuse, the abuser would not be able to obtain any measure of custody without first proving he is not a danger to either the child or the child's other parent.

Child abuse is treated the same way as domestic violence, says Bartlett. "The standards presume against the abuser having any custody or visitation at all. They have to demonstrate that visitation can be handled in a way that protects the safety of all concerned." And like domestic violence, courts are expected to screen for it.

Finally, out of consideration for victims, judges would not be able to compel spouses to undergo face-to-face mediation. Negotiations could still proceed, but the spouses would be kept separate while the mediator engages in "shuttle diplomacy."

Sally Goldfarb, who has worked extensively on legal remedies for domestic violence victims, is impressed with The American Law Institute's efforts to protect women. Nevertheless she would like to see its definition of domestic violence expanded to include emotional abuse.

Goldfarb acknowledges it can be difficult to delineate emotional abuse from the friction that accompanies any deteriorating relationship, which would make the standard hard to implement, but says the change is necessary nonetheless.

"Domestic violence scholars are becoming increasingly aware that physical violence is only one part of a more pervasive pattern that includes emphasizing power and control. The psychological impact of emotional abuse can be at least as severe as certain kinds of physical abuse."

Post-Divorce Life Could Be More Practical, Amicable

The new principles also address the problem of parents who have been denied permission to move to a new city or state because it would complicate joint custody. Wendy Burgess of Lancaster, Calif., sought to move 40 miles from her ex-husband to take a better-paying job, but a court ruled that she would lose custody if she did. It took a California Supreme Court decision in 1996 to set things straight, noting: "It is unrealistic to assume that divorced parents will permanently remain in the same location after dissolution or to exert pressure on them to do so."

Under The American Law Institute guidelines, a parent with primary custody would be free to relocate as long as he or she was moving for a valid reason and the other parent's relationships would not be significantly impaired by the move. Permissible reasons under the guidelines include taking advantage of employment or educational opportunities, remarrying, improving a family's quality of life, protecting the safety of a family member and addressing health problems.

"In the past, you would have had to prove to a judge that you had a good enough reason to move," says Bartlett. If the family courts adopted the institute's suggestions, a plaintiff would simply have to show that they're moving for one of the enumerated reasons and the inquiry would stop there, she says.

In addition, the institute suggests that all parents be required to file a parenting plan with the court, either jointly or individually. As part of the plan, parents would set up their own system for resolving disputes, which should include a way to handle violations of the agreement. Will these suggested rules lead to more amicable partings and happy separate parentings?

"That is always the hope, although one can never tell," Bartlett says.

Stephanie B. Goldberg is a Chicago writer who frequently covers women and the law.

For more information:

The American Law Institute: - http://www.ali.org/

Legal Information Institute: - http://www.law.cornell.edu/topics/child_custody.html

Violence Against Women Online Resources: - http://www.vaw.umn.edu/Vawnet/custody.htm

Copyright 2002 Women's Enews. www.womensenews.org

December 2002