Between Private Ordering and Public Fiat: A New Paradigm for Family Law Decision-Making

Abstract

Family law is in a period of pervasive uncertainty. The changing technology of assisted reproduction has called into question the definition of the most basic of family relationships - the meaning of motherhood. At the same time, legal changes in the relationship between marriage, biology and paternity have led to rapidly changing definitions of fatherhood that vary from state to state, and year to year. Changing expectations in marriage have increased interest in ante-nuptial and even post-nuptial agreements that specify the parties' understandings and attempt to govern their affairs in the event of dissolution. Life and technology are changing so quickly that traditional family law methods are insufficient to fulfill the desire of partners for certainty in their relationships - whether they seek recognition of unconventional parenthood, decision-making power over fertilized eggs, a pre-divorce determination of property rights, surrogate birth motherhood, or legal regulation of an unmarried partnership. This article provides a systematic examination of the procedures necessary to combine contractual bargaining with counseling, mediation, and family court or administrative approval. It begins with consideration of the debate over the role of contract in family law and the precedent provided by ante-mortem probate. It concludes that neither private bargaining nor publically mandated status arrangements can fully govern modern family arrangements on their own, and that the three procedures we have identified, which have never been used in tandem, offer an innovative way to use the law to shape the beginning, rather than the end, of intimate relationships. The article maintains that any family matter that can be litigated after a dispute arises is likely to be amenable to pre-dispute determinations that offer a foundation for faster, cheaper, and more amicable resolutions. We believe that the procedures we are proposing are the missing piece of the efforts to make family courts a constructive part of family life and a more active part of the response to the role of changing technology and changing understandings in family arrangements.