Affective Family Law


Affective Family Law



A casual observer of the US legal system (or any legal system for that matter) might think that if any area of the law is attuned to emotion it would be family law. It does not take a degree in psychology to understand that divorcing spouses may feel anger and resentment; that children in foster care may experience abandonment and fear; and that parents who lose custody of a child to the state may suffer a deep loss. Despite this intuitive understanding, family law fails, for the most part, the emotional intelligence test. That is, the US family law system is not well attuned to the emotional needs of the litigants. Rather than recognising a range of emotions, and rather than trying to work with these emotions productively, too often family law embraces a thin understanding of the emotional lives of families and fails to cultivate positive emotions within families. This chapter explores these themes, demonstrating that the emotional valence of family relationships presents both challenges and opportunities for family law. There are subjects within family law, but this chapter chooses the creation and dissolution of legal ties—whether through marriage, divorce, separation, adoption, or the removal of a child from the home—to illustrate the value of a law-and-emotion analysis.

In examining the role of emotion in these areas of family law, this chapter does not argue that family law has a unique claim on emotion. As the other chapters in this volume demonstrate, emotion runs through nearly all legal disputes. But there are distinct considerations in family law—as evidenced by this chapter as well as Conway’s chapter on siblings and inheritance1—that require attention to the role of emotion and make family law a fruitful site for exploring the themes in this collected volume. In particular, this chapter examines family law’s response to existing emotions and the appropriate place for emotion in family law. The chapter focuses on US law, but the broad lessons are applicable to other family law systems, especially countries that, like the US, rely on a court-based system of dispute resolution for family matters.

As elaborated below, the central argument of the chapter is that family law must be particularly careful not to introduce or exacerbate existing acrimony but that it also has an opportunity to cultivate more positive emotions in family members. Paying close attention to the emotional aspects of disputes within the family holds the potential for creating a more effective legal system that benefits both litigants and society more broadly. After establishing these principles, this chapter looks at one of the most important issues facing family law in the US: the treatment of non-marital families. These families present particular challenges for the family law system because parents often do not use the court system following the end of the relationship; thus, parents are left on their own to negotiate changes in their families. The chapter argues that a law-and-emotion analysis points to alternative strategies to help non-marital families restructure their families following the end of a relationship.

II.Family Law’s Response to Emotion

A starting point for examining the role of emotion in family law is what Terry Maroney has called the ‘emotion-theory approach’.2 This takes a discipline, such as psychoanalysis or cognitive neuroscience, and then focuses on a theory within that discipline. Investigating one theory of emotion—here, the cyclical nature of emotion within relationships, particularly as articulated by psychoanalytic theorist Melanie Klein3—demonstrates the severe shortcomings of family law.

The current system of family law reflects a shallow and binary understanding of the affective family. Families are either solidaristic and altruistic, filled with love and care, or families are filled with anger and jealousy and prone to violence. This binary model of family law infuses the substance, process and practice of family law in contexts as far ranging as marriage, child welfare and adoption. Yet, it stands in stark contrast to the reality of dynamic, fluid familial relationships with a range of emotions felt across and fluctuating across time. Understanding Klein’s theory of the cyclical nature of human emotions and the reparative drive offers powerful insights across the breadth of family law.

This chapter offers Klein’s insights into human intimacy not as a scientific theory that can be empirically proven, but rather as a point of entry for thinking about the cyclical nature of emotions in familial relationships.

A.The Dynamic Cycle of Intimacy

Klein, an early follower of Sigmund Freud and a pioneer in the field of child psychoanalysis, articulated an understanding of the cycle of intimacy.4 At its broadest level of generality, the theory is that close human relationships move through a cycle of emotions. A person feels love for another. This is almost always followed by negative feelings (which Klein usually calls ‘hate’, but which is better captured for a modern reader in her other term for these negative feelings—‘aggression’),5 leading to a breach in the relationship. The person then feels guilty about the breach and so seeks to repair the relationship.

Klein developed this theory in the context of the relationship between mothers and infants, theorising that infants first experience love and hate in relation to their mothers. Infants love their mothers when their mothers are satisfying their needs, say during breastfeeding. But when their needs are not gratified, infants feel hatred and aggression towards their mothers.6 This leads the infant to experience guilt about the negative feelings; the guilt, in turn, creates a powerful drive in the infant to repair the relationship and restore the feelings of love.7

This cycle—with feelings of love, then hatred and aggression giving birth to guilt and the reparative drive—is repeated throughout a lifetime, each time widening the scope of a person’s ability to love and make reparations. Klein argued that wherever there is a feeling of love, the conflict between hate and love is aroused, which leads to feelings of guilt and then wishes to make good. Thus, according to Klein, making reparation is ‘a fundamental element in love and in all human relationships’.8 Klein concluded that ‘these basic conflicts profoundly influence the course and the force of the emotional lives of grown-up individuals’.9

A key element of reparation is the acknowledgment of hate and aggression. As one of Klein’s colleagues, Joan Riviere, wrote, ‘we spend our lives in the task of attempting to keep a sort of balance between the life-bringing and the destructive elements in ourselves’—in other words, counterpoising love and hate.10 Balancing these forces requires recognition of the universal force of hate. Without such recognition, hate and aggression are more likely to take extreme forms and the cycle of human intimacy is more likely to be forestalled. Recognising the negative emotions enables people to move to the guilt and reparation phases of intimacy.11

Similarly, in Klein’s view, guilt is a productive emotion, fuelling the reparative drive. Other scholars agree, noting that unlike empathy, which is a ‘bystander emotion’ experienced by someone who is not responsible for hurting another, guilt is the recognition that the person feeling it played a role in hurting another.12 It thus becomes a signal to that person that a relationship is threatened and some action should be taken.13 The reparation that follows can occur within a person’s own internal, emotional landscape, but it takes its primary expression in a person’s relationships with others and becomes a powerful force for constructive action in repairing those relationships.14 Klein acknowledged that not everyone is able to realise the drive towards reparation, but she contended that it exists in everyone.15

Although Klein makes claims of innateness,16 the reparative drive does not have to be universal to be relevant.17 Instead, Klein’s reparative theory is emblematic of a broader discourse on the importance of repair.18 Moreover, the reparative drive is part of a larger group of relational instincts and motivations, such as tending19 and altruism,20 and parallels the enquiry of moral psychologists.21

In short, Klein articulated a cycle of intimacy, and argued that facilitating the flow from one phase to the next holds great potential both for individual development and wellbeing as well as for relationships between individuals. With Klein’s theory in mind, the next section examines the implications of the theory for family law.

B.Stasis and Opposition in Family Law

Despite its fundamental importance to the relationships that family law regulates, the substance, process and practice of family law too often fail to account for the cyclical nature of emotions in general and the reparative drive in particular. Family life is neither all about the positive (love, forgiveness, caring, altruism), nor all about the negative (anger, jealousy, envy). Rather, family life is a mixture of these emotions and many more. Perhaps most importantly, familial relationships are dynamic, cycling through emotions of love, anger, guilt and the drive to repair. And yet family law reflects a binary model of emotions—all positive or all negative—and does not reflect or encourage the reparative drive.

Beginning with substance, family law provides binary rules governing entry into and exit from close relationships. In the US, a couple is either married, with all the accompanying benefits and obligations, or unmarried, with very few of these obligations.22 In the US child welfare system, parents must regain custody of their children or face termination of their parental rights.23 In the adoption context, after giving birth, a biological parent either places the child for adoption, thus losing all parental rights, or retains custody of the child with parental rights completely intact.24 Gestational surrogates and close intimates are either granted parental rights or not.25 These binary rules are justified by the importance of certainty and stability for the child and the need to induce parents to undertake the difficult work of parenting,26 but they admit of only two possibilities—deep connection or complete rupture.

This binary substance suffuses the process of family law. Courts seek to determine the ‘truth’ about a familial conflict by settling on a single account of a disputed incident or circumstance. Courts decide whether a parent abused or neglected a child, whether a putative father established a relationship with a child such that he should be entitled to full parental rights, and whether a gestational surrogate intended to relinquish the child upon birth. Although a court will hear evidence on contested facts representing multiple perspectives, the court will ultimately choose one set of facts to the exclusion of others. Once these Manichean narratives reach their conclusion, the family law system then discourages disputants from revisiting such judgments by establishing a higher standard for appealing the outcome.

More fundamentally, the process of family law pits one family member against another. As elaborated below, some procedural alternatives are developing in the US, and mediation is widely used in the divorce context,27 but the adversarial system remains at the centre of family law. Most marital dissolution actions are settled,28 but the court remains an important force, with the parties aware that they cede control if the court decides the issues for them.29 And alternative dispute resolution has barely entered the world of child welfare cases, which are largely decided in courtroom proceedings.

Finally, the practice of family law both embodies and can reinforce the oppositionalism that this substance and process generates. Although it is important not to overstate the case, family law practitioners are often criticised for fuelling their clients’ winner-take-all mentality in familial disputes.30 This is unsurprising in light of the legal training provided to family law practitioners. Family law courses typically are not structured as an interdisciplinary study of family systems, with great attention paid to the emotional dynamics of family relationships. When teaching divorce, for example, most family law courses will examine the legal rules governing child custody and property distribution. The course may acknowledge the emotional stakes in these issues, especially child custody, but the class will not usually teach future lawyers how to work productively with clients who are feeling bitter and resentful towards the other party. Similarly, when teaching students about the child welfare system, the course will focus on the legal rules governing the removal of a child from the home and the standard for terminating parental rights. But very few courses will engage in an in-depth study of family-systems theory, exploring how the parent’s behaviour needs to be understood and evaluated in the larger context of the family as a whole, often across generations.

In short, the substance of family law provides only two options for family members—connection or rupture. The process of family law fuels negative emotions by pitting one family member against another in a win or lose battle. And the practice that flows from this substance and process reinforces the binary, adversarial approach. As the next section demonstrates, this approach to family law exacts a tremendous human cost.

C.Failings of the Binary Model

The law should not presume to interfere with private decisions about family relationships—such as whether to get divorced or give up a child for adoption—but the law does determine how those decisions are effectuated, and holds great potential to either exacerbate or alleviate emotional harm. By giving legal force to rupture but providing no room for repair, the binary model short-circuits the cycle of intimacy, thwarting the reparative drive and freezing relationships at the moment of conflict.

i.Hallmarks of Familial Disputes

To understand the harm of the binary model, it helps to recognise how family law is different from other areas of law. There are three hallmarks that typify family law disputes: intense emotions; ongoing relationships; and the need for repair.

Intense emotions. Litigants in family disputes typically know one another at the deepest personal level and are likely to have complicated, emotional relationships with particular histories. Parties include spouses and other romantic partners, biological and adoptive parents, children, extended family members, birth parents, donors of eggs and sperm, gestational surrogates, and prospective parents. Their disputes generally involve intense, usually negative, emotions. Divorce, for example, is understood to be one of the greatest emotional upheavals in a lifetime. The emotional process typically is not linear but rather cyclical, with emotions moving back and forth between love, anger and sadness.31

In the child welfare context, the emotions accompanying abuse and neglect for the child victims are complex and can include fear, anger, anxiety, guilt, sadness and bewilderment. A child’s emotional response to abuse is necessarily complex, and even though a child will almost certainly experience relief when away from the abuse or neglect, being removed from the home, even temporarily, can be deeply traumatising.32 For parents who abuse or neglect their children, the emotions are similarly complex. Parents often experience guilt over the abuse, along with anger, denial and fear of losing a child permanently.33

Likewise, adoption can evoke complex and conflicting emotions—joy, guilt, loss, fear, anxiety and denial—for birth parents, adoptive parents and adopted children, both at the time of adoption and later.34 A biological parent whose parental rights are terminated by a court may feel tremendous loss, grief and regret; and parents who voluntarily relinquish a child may feel ambivalent about the decision. During the adoption process, an adoptive parent is often on an emotional roller coaster, worried about the finality of the decision and unsure whether the child will be returned to a birth parent. And adopted children can experience a range of emotions towards their birth and adoptive parents.

These underlying emotions can lead family members to engage in a range of self- and relationship-destructive behaviours, which, in turn, often affect the legal proceedings. A divorcing couple, for example, may find it exceedingly difficult to set aside their own anger, resentment and disappointment about the ending marriage. Such parties will be more inclined to find fault with each other, rather than recognise the need to work together as co-parents (if the couple had children).

Ongoing relationships. More often than not, the relationships in a family law dispute will continue, even after significant shifts in legal status. When the legal relationship between the parties ends, an emotional relationship or tie is likely to continue. A divorcing couple with minor children will relate to one another for years to come, even if only about the children. A parent in the child welfare system whose parental rights are terminated may well continue to see that child, especially if the child is placed with a relative, as so many older children are. And in the adoption context, only 20 to 30 per cent of domestic adoptions are of infants by unrelated individuals.35 In all other cases, it is far more likely that the adopted child will maintain a relationship with the birth parent. Even in infant, non-relative adoptions, adopted children may either remain in touch with their birth parents if their adoptions were ‘open’ (that is, the adoption preserves some relationship between the birth parent and child, ranging from a simple exchange of information to ongoing visitation), or they may reconnect with their birth parents at some later point in their lives.36

Changing a legal status may be the right decision for a family. Some marriages should end. Finalising an adoption gives both the adoptive parents and the child peace of mind. And terminating parental rights in some cases is appropriate. But these legal changes do not mean that the underlying relationships are over.

The need to repair relationships. This ongoing contact means that it is critical to repair relationships. Although the romantic relationship between a divorcing couple may be finished, the children still need a relationship with each parent. For this to happen, the parents will need to get along well enough to facilitate these relationships and function as co-parents. In the child welfare context, for the children who eventually return home, it is essential to repair their relationships with their parents. Even when children do not return home, their parents often (although not always) remain an important influence in their lives, and therefore repair is needed. And in the adoption context, although the issues are complex and vary with each case, it is important to pay attention to a child’s relationships with both birth and adoptive parents.

ii.A Fundamental Mismatch

The binary model works against these fundamental realities. The central harm of the model is that it reinforces rupture with no recognition of the need to repair relationships. In some family law cases—particularly those involving domestic violence or sexual abuse—a complete break is essential for the safety and wellbeing of the parties. Too often, however, family law takes a complete rupture approach and imposes it on all cases, rather than recognising that in many cases, relationships will and should continue even after a change in legal status.

By bringing legal relationships to what the legal system perceives to be closure, courts determine ‘winners’ and ‘losers’ and this can be internalised by the parties. Parents often share custody of a child, but the sense that the person with more time with the child has won persists.37 Family law generally requires that marital assets are divided ‘equitably’, but parties often experience a sense of victory or defeat in this context as well.38 There is little recognition in the legal system that ‘winning’ may create or further weaken a fragile relationship with an ex-spouse, who now is a co-parent and with whom the litigant must work out myriad issues. Instead, the binary model takes any instinct for reconciliation and compromise and directs it towards hard lines and conflict. Some practitioners try to help disputants reach amicable solutions, but in a fundamentally adversarial system, there are substantial constraints on the practice.

In short, the binary model thwarts the cycle of emotions in general and the reparative drive in particular. By recognising only love and transgression, 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 rupture 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.

D.Partial Reforms

Sometimes drawing on models from other countries, such as New Zealand and Australia, US family law is slowly developing new rules and procedures that are beginning to move the system beyond the binary model. These reforms seem intuitively to embody the reparative drive, but this central organising instinct has not been well recognised and remains underdeveloped.

Much of the innovation has occurred in the field of marital dissolutions.39 States have adopted statutes encouraging shared parenting responsibility between parents after a divorce rather than awarding complete custody to one parent and only visitation rights to the other.40 This sharing recognises the ongoing tie between a child and both parents, as well as the possibility that former spouses can co-parent after a divorce. Similarly, no-fault divorce, widely available since the 1970s in the US, is an attempt to acknowledge that relationships do not always persist and that couples can choose, amicably, to end their marriages.

Mediation has a well-established place in marital dissolution proceedings,41 and studies have demonstrated its success, particularly in fostering a co-parenting relationship between the parents and an ongoing relationship between non-residential fathers and their children.42 States are also experimenting with innovations focused on co-parenting after divorce. Many states, for example, have formal parenting co-ordinator programmes.43 The parenting co-ordinator, typically a mental health professional paid by the hour by the parents (often on a sliding scale basis), helps parents work through issues related to the children. Although charged with decision-making responsibility, the co-ordinator more often helps the parents negotiate their own compromise. Another innovation is parenting programmes—education programmes, sometimes mandated by the court, designed to teach parents how to work together following a divorce or separation. In one study, a programme designed for non-custodial fathers showed that participants had a significant increase in co-parenting with a corresponding decrease in parental conflict after fathers participated in the programme.44

In another example of innovation in marital dissolutions, practitioners have led efforts to resolve disputes outside the adversarial system.45 In the growing field of collaborative law,46 both the parties and their lawyers agree to negotiate divorce settlements without litigation. To this end, the lawyers and parties decide that the attorneys will represent the clients only during settlement negotiations and, if settlement fails, the attorneys will be disqualified from taking the case to trial. The parties contract for this representation through a limited retention agreement between each attorney and client. The attorneys and clients also often sign a ‘four-way’ agreement setting forth the intention of the representation and understanding of the process.47 Collaborative coaches trained in the field of mental health help couples address emotional issues underlying the divorce, issues that may undermine the collaborative process.48 Practitioners who use collaborative law contend that the process is appropriate for a broad range of individuals, leads to far more creative and responsive settlements between the parties, is generally less expensive than traditional adversarial litigation conducted by attorneys, and can be more satisfying for clients and attorneys.49 Although collaborative law is best known for its use in marital dissolution proceedings, it is starting to be used in other settings, such as estate planning and probate, in which maintaining or repairing family relationships is at a premium and traditional litigation may threaten those relationships.

In the field of child welfare, the US has drawn from an innovative process used in New Zealand: family group conferencing. Part of the restorative justice movement, family group conferencing is a legal process designed to help families solve problems and avoid court proceedings.50 After substantiating a report of child abuse or neglect, the state convenes a conference with immediate and extended family members and other important people in the child’s life, such as teachers or religious leaders, to decide how to protect the child and support the parents. The participants, who include the parents and, if old enough, the child, identify the underlying problems and develop a plan for working on the challenges facing the family. Members of the family group conference and the state then work together to provide the needed supports to the family.

In the adoption field, birth parents and adoptive parents can have crafted agreements (often called open adoptions) to ensure ongoing contact between the child and birth parent. Some states make such agreements legally enforceable, but typically only in limited circumstances where there is likely to be ongoing contact even without the agreement, such as adoptions from the child welfare system, adoptions among relatives, or adoptions by stepparents.51

As these reforms demonstrate, family law has begun to move beyond the binary model, but this movement lacks a larger theoretical framework to support these reforms and encourage others. Additionally, although these nascent developments are promising, some of these efforts have met considerable resistance. For example, the Ethics Committee of the Colorado Bar Association in 2007 declared the practice of collaborative law unethical.52 The Committee found that the four-way agreement violated the rule of professional conduct that bars a lawyer from representing a client if that representation is materially limited by the lawyer’s responsibility to a third party.53

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