Rules, Responsibility and Commitment to Children: The New Language of Morality in Family Law

Part One of this Article explores the meaning of morality by briefly reviewing a variety of attempts to explore the meaning of moral conduct. This Section draws on a variety of contemporary moral philosophers who have built on the classical tradition to develop a broader definition of moral behavior. This discussion provides a context for the current debate about the meaning of morality in family law and moral discourse in the no-fault era. Part One also reviews the historical debate about how law should strike a balance between promoting communitarian values and respecting autonomy and individual rights. The Article argues that the conflict underlying this debate may be overstated. All laws have moral implications, and decisions about law, made by citizens, legislators and policymakers, necessarily involve choices that privilege some values over others. Regulating family members is a particularly value-laden task. A tension will always exist between protecting individual freedom and privacy of family members and state intervention to further the common good. However, this tension does not require a retreat from the concept of rights within the family; rather, rights can be conceived in a way that furthers the moral vision of family law by using rights as a tool to ensure the protection of vulnerable members of the family. Part One concludes by noting that the hierarchy of values embodied in the moral vision of family law has changed over time. Sexual morality has become less important over time while protecting children has become central to the moral framework of family law. Part Two of the Article examines the traditional, fault-based moral discourse in the law governing grounds for divorce, alimony and child custody that prevailed in this country until the 1970's. It concludes that this approach has several significant drawbacks. First, the fault-era's emphasis on sexual practices and traditional gendered family roles reinforced patriarchy and tended to hurt custodial parents-primarily women-and children. Additionally, the fault-era's reliance on broad discretionary standards resulted in inadequate financial awards and dual standards for men and women. Further, because moral discourse in family law has been primarily focused on issues of sexual conduct in marriage, the fault-era moral vision excluded families created outside of marriage. Litigating issues of fault also exacted significant financial and emotional costs on families. Finally, the emphasis on regulating sexual conduct in the fault-era did little to promote the evolving moral goal of family law-protecting children. Part Three of the Article explores the ways in which some laws that developed in the no-fault era express morality in family law. Examining current laws governing divorce, marital property, child support and custody, the Article identifies ways in which both the language surrounding the debates about such laws and the laws themselves express values of equality, commitment and responsibility for family members, particularly dependent members. The Article notes that for the first time, the language of morality has expanded into two areas that were largely unregulated in the “fault” era-access to marriage and family violence. The Article concludes that these developments over the last thirty years represent a healthy trend toward an overall family policy that strengthens families and protects each family's weakest members. Nevertheless, more needs to be done to achieve a family policy that protects children. Finally, the Article identifies additional measures, both in traditional domestic law and in the broader policy arena, that must be accomplished to truly strengthen families, and most importantly, to protect children.