Marriage, Biology, and Paternity: the Case for Revitalizing the Marital Presumption

This article examines the recent history and current status of the marital presumption of paternity. It explores the social, economic and legal developments that have contributed to the erosion of the presumption, focusing in particular on the efforts of federal and state governments to identify and collect financial support from unmarried biological fathers. The article then describes the procedural and equitable doctrines that some courts and legislatures have used to bolster the marital presumption in the face of conflicting biological evidence. Finding these approaches problematic, the article advocates a revitalized marital presumption as a substantive rule of law. It argues that marriage should generally be a sufficient – albeit not an exclusive – basis for ascribing legal fatherhood and that spouses and former spouses should have only a limited ability to rebut the presumption. The article also endorses the notion of dual fatherhood as an option for cases in which a child has both a marital and an involved genetic father

Bargaining in the Shadow of the Best-Interests Standard: The Close Connection Between Substance and Process in Resolving Divorce-Related Parenting Disputes

This essay, written for a Symposium celebrating the child custody scholarship of Professor Robert Mnookin, examines the close connection between changes in substantive child custody doctrine and changes in custody dispute resolution processes over the past 30 years. Part I of the article explores how the widespread adoption of an unmediated “best interest of the child” standard, and the ensuing rejection of the sole custody paradigm, precipitated a shift from adversarial to non-adversarial resolution of divorce-related parenting disputes. Part II of the essay reverses the direction of the analytic lens and considers how the shift from adversarial to non-adversarial dispute resolution has affected both the substantive legal norms that govern custody contests and the role of law and lawyers more generally in the custody decision-making process. The essay suggests that the shift from adjudication and adversary negotiation to mediation and collaboration as the preferred means of resolving divorce-related parenting disputes has delegalized custody decision-making -- initially by disaggregating the various components of child custody and ultimately by eroding the importance of custody as an essential legal concept in disputes between parents. The primary purpose of the analysis is not to evaluate the desirability of these changes, but to underscore the close connection between changes in substantive legal doctrine and changes in dispute resolution processes

Moving Family Dispute Resolution from the Court System to the Community

Over the past three decades, there has been a significant shift in the way the legal system approaches and resolves family disputes. Mediation, collaboration, and other non-adversarial processes have replaced a traditional, law-oriented adversarial regime. Until recently, however, reformers have focused largely on the court system as the setting for innovations in family dispute resolution. But our research suggests that courts may not be the best places for families to resolve disputes, particularly disputes involving children. Moreover, attempting to turn family courts into multi-door dispute resolution centers may detract from their essential role as adjudicators of last resort and forums for the creation and enforcement of important social norms. In this Essay, and in our recent book, Divorced From Reality: Rethinking Family Dispute Resolution, we suggest that family law reformers should rethink their continuing reliance on courts and consider moving some of the problem-solving processes and services that characterize today’s family justice system out of the courts and into the community