Family Law

The Reform Spirit in Family Law

by Jon T. Ferrier

A consistent theme in the legal policy deliberations in late 20th-Century family law was the perception of a need to reform the substantive law in several areas.

In the context of the Friend of the Court (FOC), for example, a number of changes were enacted in 1996, following public hearings held by various legislators, led by Sen. Robert Geake. At the public hearings, the repeated complaint was that the FOC was not ‘‘accountable.’’ The agency was also accused of not being ‘‘user friendly’’ to the parents and children forced to rely on their services in the child support and child custody/parenting time areas. Worst of all, the panel members heard their angry constituents alleging that the FOC operation was biased in favor of one gender or the other. Based on what they heard, the Legislature acted to reform the FOC.

In the name of accountability, citizens advisory committees were created in each Friend of the Court jurisdiction, charged mainly with monitoring the workings of the grievance procedure, an earlier accountability device for FOCs. Time limits were also placed on the resolution of grievances.

In the name of user-friendliness, the FOCs were required to be open 20 ‘‘nontraditional’’ hours per month to accommodate the schedules of those who worked when most FOC offices were open.

The Binsfeld legislation radically altered procedures in the child protection arena, based on what the Binsfeld Commission found when it conducted its fact-finding in an attempt to see what needed to be fixed. While not as familiar to domestic relations practitioners as to those who practice children’s law in abuse/neglect and delinquency proceedings, practitioners on both sides of the new circuit court family division’s broad swath of jurisdiction are generally aware that the Binsfeld (I and II) reforms were sweeping and only beginning to be appreciated by those who practice in this area.

Perhaps the biggest reform effort of all came from the mid-90s court reform legislative efforts, which resulted in the creation of the family division of the circuit court. In 1998, when the family divisions became an uneven reality in our circuits, all of what had been within the jurisdiction of the juvenile division of the probate court up to that point, together with the entire domestic relations jurisdiction of the circuit court (plus a few extras, like jurisdiction over personal protection order cases, even if they had nothing to do with ‘‘families’’) came within the jurisdiction of the new family division.

We have only just begun to wrestle with the meaning of our family division. For example, how do we combine a court that had a ‘‘philosophy’’ with a court that did not? How are conflicting standards of proof, admissibility of evidence, standards of review, and two, separately evolved bodies of jurisprudence to be comprehended within a harmonious whole? How do we bridge the gap between two cultures that view each other with as much suspicion as willingness to ‘‘synergize’’? Although these and many other questions concerning the family division are only now beginning to be asked, let alone answered, we need not become complacent that the Legislature or the common law will give us a rest while we try to contemplate the meaning of it all.

Reform efforts in the area of family law seem to me like evolving technologies, in the sense that technology is broadly an attempt to gain some control over our environment. As with any technology, progress and obsolescence will occur. If the Geake reforms of the Friend of the Court fail to resolve the citizens’ problems with that agency (and you can bet they will, it’s only a matter of time), then look for new reforms designed to further increase the FOC’s accountability and ‘‘customer service’’ (today’s term for user-friendliness).

If the Binsfeld reforms fail to address the perceived needs that called them into being, they will be revamped as sure as the sun will rise. If the court reform that gave us the family division, and that may still eliminate our probate courts and other interesting tinkering, fails to satisfy a future perceived need for which a new court technology is viewed as the provider, then we will see further reform in the way our justice system deals with family law cases.

What may we conclude? ‘‘Reform’’ is a process irresistible to politicians since it looks so much like genuine work. Reform need not be shown effective, or even likely to cause beneficial change, as long as enough people communicate effectively that it will cause beneficial change. We will see increasing efforts to ‘‘reform’’ the family law system in the coming years as our perceptions and attitudes toward ‘‘family’’ continue to evolve. This process is inevitable and natural, although frustrating and inconvenient. It is the predictable result of trying to ‘‘marry’’ an order-based system (the law) to a chaotigenic universe (society’s perception and tolerances of the limits of acceptable ‘‘family’’ behavior; sometimes referred to as ‘‘family values.’’)

While the law may provide useful technologies for dealing with the behavior of families and the government that ‘‘serves’’ them, it may not be ultimately judged the best technology. The law will ever ask questions like, ‘‘How can we reduce the number of divorces?’’ A reform answer might be, ‘‘Return fault to the divorce arena.’’ A different question might be, ‘‘How can (or should) we assist our citizens in the relationship and procreation choices they make to result in the promotion of family values?’’ Or, ‘‘What causes relationships between parents to break down, and are the problems different for married and unmarried parents?’’ If we could answer questions like that (or even ask them), we might be meta-lawyers, or we might achieve the greatest reform of all: removing the chaotic world of familial relations from the ham-fisted, order-worshipping, reform-addicted tender mercies of the law.

Jon T. Ferrier
Jon T. Ferrier is a past chairperson of the Family Law Section of the State Bar and he has served as circuit court referee in Kent County since 1981. He is a frequent lecturer, serving as faculty for ICLE, MJI, the State Bar and other organizations on a regular basis. He is also the author of numerous articles and essays on family law matters.

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