American Law Institute's Principles of the Law of Family ... - SSRN

Washington & Lee Public Legal Studies Research Paper Series

Accepted Paper No. 2012-9 March 1, 2012

“American Law Institute’s Principles of the Law of Family Dissolution, Eight Years After Adoption: Guiding Principles or Obligatory Footnote?”

Prof. Robin Wilson Accepted Paper 50th Anniversary Issue, 42 Family Law Quarterly 573 (Fall 2008) Washington and Lee University School of Law - Sydney Lewis Hall – Lexington - VA – 24450

http://ssrn.com/abstract=2014189

Electronic copy available at: http://ssrn.com/abstract=2014189

FAMILY LAW QUARTERLY Vol. 42

No. 3

Fall 2008

Golden Anniversary Issue Five Decades of Family Law Nonmarital Cohabitation: Social Revolution and Legal Regulation Golden Anniversary Reflections: Changes in Marriage After Fifty Years Domestic Violence Law Reform in the Twenty-First Century: Looking Back and Looking Forward Child Support Fifty Years Later Paradigm Shifts and Pendulum Swings in Child Custody: The Interests of Children in the Balance Changes in the Economic Consequences of Divorces, 1958–2008 A Short History of Child Protection in America Race Matters in Adoption Federal Law and State Intervention When Parents Fail: Has National Guidance of Our Child Welfare System Been Successful? The Changing Face of Family Law: Global Consequences of Embedding Physicians and Biotechnology in the Parent-Child Relationship The Constitutionalization of Family Law American Law Institute’s Principles of the Law of Family Dissolution, Eight Years After Adoption: Guiding Principles or Obligatory Footnote? Codification, Cooperation, and Concern for Children: The Internationalization of Family Law in the United States Over the Last Fifty Years Family Court Reform and ADR: Shifting Values and Expectations Transform the Divorce Process Uniform Family Laws and Model Acts Two Generations of Practitioners Assess the Evolution of Family Law


American Law Institute’s Principles of the Law of Family Dissolution, Eight Years After Adoption: Guiding Principles or Obligatory Footnote? MICHAEL R. CLISHAM*AnD ROBIn FRETWELL WILSOn**

I. Introduction In 2002, after eleven years of work and four successive drafts, the American Law Institute (ALI) published its long-awaited Principles of the Law of Family Dissolution: Analysis and Recommendations (Principles).1 Adopted in 2000, the final product considered many of the foundational questions in family law surrounding divorce, cohabitation, same-sex relationships, and parentage. The 1,18 page Principles grapple with how the law should respond to changes in family forms over the last half century. Famed law professor, Geoffrey Hazard, then director of the ALI, described the project as “among the most important that the [ALI] has ever undertaken.”2 * Associate Counsel, Bangor Hydro-Electric Company, Bangor, Maine. ** Professor of Law and Law Alumni Faculty Fellow, Washington & Lee University School of Law. We are immensely grateful to Caroline Osborne, Director of the Burks Scholars Program for Legal Research at Washington & Lee University Law Library, for her advice and assistance in mining electronic databases. Many thanks also to Doug Rendleman, Jana Singer, John Keyser, Todd Peppers, and Chris Zorn for their comments and advice on methodological questions, and to Stephanie Hager, Joseph Mercer, and Richard Schlauch for their diligent research assistance. Correspondence may be directed to Professor Wilson at [email protected]. 1. AM. LAW InST. (ALI), PRInCIPLES OF THE LAW OF FAMILy DISSOLUTIOn: AnALySIS AnD RECOMMEnDATIOnS (2002) [hereinafter PRInCIPLES]. 2. Geoffrey Hazard, Foreword to PRInCIPLES OF THE LAW OF FAMILy DISSOLUTIOn: AnALySIS AnD RECOMMEnDATIOnS, at xi (Tentative Draft no. pt. I, 1998) [hereinafter PRInCIPLES Tentative Draft no. ].


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Family Law Quarterly, Volume 42, Number 3, Fall 2008

The Principles were warmly received. Even before they were published in final form, the Duke Journal of Gender Law & Policy devoted an entire issue to examining the Principles’ proposals.4 One author applauded the Principles for “opening up a range of possibilities limited only by the imagination and creativity of lawyers and their clients.” Another claimed the project would be a “resounding success” for bringing to “domestic relations law an increased measure of uniformity and fairness.”6 Other journals also profiled the Principles. The New York Times, the Associated Press, USA Today, the Boston Globe, and national Public Radio all reported on the final publication of the Principles.8 The New York Times predicted that the Principles “are likely to have a major impact.” 9 Although the Director’s Foreword to the Principles urges that “nearly everything in the Principles can be found in the current law of some states, as well as in that of other countries with a common law tradition,”10 the Principles proposed sweeping changes to family law. Gone is the well-known “best interests of the child” standard used in fashioning custodial responsibility. The ALI discarded the best-interests test in favor of the approximation standard, a highly technical test proposed by Professor Elizabeth Scott that would employ multiple factors and a predetermined range of results to determine custody allocations.11 Heterosexual and . The Principles were adopted by the ALI on May 16, 2000, in Washington, D.C. See PRInCIPLES, supra note 1. The Principles were not published in final form, however, until 2002. See David Westfall, Unprincipled Family Dissolution: The ALI’s Recommendations for Division of Property, in RECOnCEIvInG THE FAMILy: CRITIqUE On THE AMERICAn LAW InSTITUTE’S PRInCIPLES OF THE LAW OF FAMILy DISSOLUTIOn 16, 16– (Robin Fretwell Wilson ed., 2006) [hereinafter RECOnCEIvInG THE FAMILy] (discussing adoption of the Principles). 4. See Symposium, Gender Issues in Divorce: Commentaries on the American Law Institute’s Principles of the Law of Family Dissolution, 8 DUKE J. GEnDER L. & POL’y 1 (2001) [hereinafter Gender Issues in Divorce]. . Mary Combs, Insiders and Outsiders: What the American Law Institute Has Done for Gay and Lesbian Families, 8 DUKE J. GEnDER L. & POL’y 8, 106 (2001). 6. Martha Ertman, The ALI Principles’ Approach to Domestic Partnership, 8 DUKE J. GEnDER L. & POL’y 10, 11 (2001). . See infra Part v. 8. See David Caruso, Think Tank: Family Law Should Be Expanded to Include Homosexual Unions, ASSOCIATED PRESS, Dec. , 2002; Robert Pear, Legal Group Urges States to Update Their Family Law, n.y. TIMES, nov. 0, 2002, at A; Karen S. Peterson, Love and the Law: A Reality Check, USA TODAy, Dec. 4, 2002, at D8; Patricia Wen, Cohabitators’ Pacts Tie the Legal Knot for Unwed, BOSTOn GLOBE, at A1; Talk of the Nation: New Principles for Family Law (national Public Radio broadcast Jan. 1, 200) [hereinafter Talk of the Nation]. 9. Pear, supra note 8, at A. 10. Hazard, supra note 2, at xv. 11. See Patrick Parkinson, The Past Caretaking Standard in Comparative Perspective, in RECOnCEIvInG THE FAMILy, supra note , at 446–49; Elizabeth S. Scott, Pluralism, Parental Preference, and Child Custody, 80 CAL. L. REv. 61 (1992).

ALI Principles of the Law of Family Dissolution

homosexual couples who cohabit would be treated in the same manner, “as though they were married,” when “their long-term stable cohabitations come to an end”—even if they deliberately decided not to marry or register as domestic partners.12 Legal strangers having no biological, adoptive, or legal connection to a child—such as a mother’s live-in boyfriend— would receive “parental rights” to continuing contact with the child over the legal parent’s objections as “de facto parents”—a term the Principles borrowed from case law but significantly expanded.1 Suffice it to say that the Principles took on the burning questions in family law: Who is a parent? Should fault matter in the dissolution of a relationship? Should individuals who cohabit be able to walk away with no obligation to the other and, if so, under what circumstances? Unlike the ALI’s Restatements of the Law, which have been directed mainly at individual “decision-makers,” courts, the Principles were directed largely to “rule-makers,” state legislatures.14 This is so because much of what the Principles recommend would require legislative action to make them a reality.1 By June 200, the New York Times’s prophecy appeared to be coming true. Professor Ira Ellman, chief reporter for the Principles, noted that West virginia had adopted the approximation standard for child custody determinations, and one family court in Arizona had adopted its alimony guidelines based on the Principles’ recommendations.16 The Principles had already been cited in thirty-nine court cases dating back to 199, when they were still in draft form.1 Asked in an ABA Journal article what impact the Principles would have, Professor Ellman predicted that the “full effect” of the Principles would be felt over a matter of years, not months.18 Eight years have passed since the ALI adopted the Principles and six years have elapsed since their publication in final form.19 Given the warm 12. Talk of the Nation, supra note 8 (statements of Grace Ganz Blumberg, a drafter of the Principles and professor at the University of California, Los Angeles School of Law); cf. infra Part vI; Marsha Garrison, Marriage Matters: What’s Wrong with the ALI’s Domestic Partnership Proposal, in RECOnCEIvInG THE FAMILy, supra note , at 0. 1. See David D. Meyer, Partners, Care Givers, and the Constitutional Substance of Parenthood, in RECOnCEIvInG THE FAMILy, supra note , at 4, 4–. 14. Press Release, American Law Institute, American Law Institute Publishes Principles of the Law of Family Dissolution (May 1, 2002), available at http://www.ali.org/ali/pr0102. htm. 1. Id. 16. See Mark Hansen, A Family Law Fight: ALI Report Stirs Hot Debate Over Rights of Unmarried Couples, 89 A.B.A. J. 20 (200). 1. Id. It is important to note that this figure does not assess the treatment of these citations and whether the cases adopted or rejected the Principles. 18. Id. 19. See supra note .

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reception of the Principles and the significant attention they received from the media and the academy, one cannot doubt that they have been noticed. Indeed, eight years out, the “full effect” of the Principles should be clear, at least up to this point. The time is ripe, therefore, for a careful examination of the Principles’ impact on both legislative enactments and court decisions.20 This article assesses the influence of the Principles eight years after their adoption. Part II explains the methodology for this empirical examination. Parts III, Iv, and v then present the findings. These Parts together show that the Principles have not had the influence the ALI hoped for with legislators or courts—the two groups at which they are principally directed. Although one state, West virginia, borrowed from the Principles in enacting child custody legislation, no other state code or legislation enacted since 1990 referencing the Principles was found, as Part III illustrates. Even in the custody realm, no legislature appears to have followed West virginia in adopting the approximation standard; neither has any legislature enacted legislation to effect the Principles’ concept of parent by estoppel. While we cannot say definitively that the Principles have not had some legislative influence somewhere, if legislatures are borrowing from the Principles, they are certainly not tipping their hands. Part Iv shows that while the Principles have had more success with individual decision-makers—courts—the impact is nonetheless slight and mixed. A paltry 100 cases have cited to the Principles since the beginning of the project in 1990. These cases come from twenty-nine states and the U.S. Supreme Court. Almost half of these cites, forty-eight of 100 cases, come from six new England states. As Part Iv demonstrates, the Principles’ recommendations are rejected more often than accepted by a ratio of 1. to 1. By far and away, the Principles are most frequently used to “pile on”—that is, to bolster the court’s holding in a case that would have come out the same way in the absence of the Principles. Thus, in nearly a quarter of cases (24.24%), the Principles serve as an obligatory footnote. Like Judge Robert Sack’s quip about law review articles, judges frequently use the Principles “like drunks use lampposts, more for support than for illumination.”21 20. The Principles have been a subject of scholarly interest for one of us, who has edited the only book-length examination of the ALI’s proposals and written individual critiques of the Principles’ custody proposals. See, e.g., RECOnCEIvInG THE FAMILy, supra note ; Robin Fretwell Wilson, Blind Trust: The American Law Institute’s Proposed Treatment of De Facto Parents, in PRAvnI ZIvOT [LEGAL LIFE] nOS. 9–10 (Ass’n of the Jurists of Serbia, 200) [hereinafter Wilson, Blind Trust]; Robin Fretwell Wilson, Undeserved Trust: Reflection on the American Law Institute’s Treatment of De Facto Parents, in RECOnCEIvInG THE FAMILy, supra note , at 90 [hereinafter Wilson, Undeserved Trust]. 21. Adam Liptak, When Rendering Decisions, Judges Are Finding Law Reviews Irrelevant, n.y. TIMES, Mar. 19, 200, at A.


By contrast, the Principles have been wildly successful in sparking a discussion among family law academics and, to a lesser degree, social commentators like the media, as Part v demonstrates. It is in this area that the Principles appear to have had their most “success”—sparking immense commentary on the past, present, and future of family law. By way of example, since 1991, over 60 articles have examined the Principles, with no sign of waning in the future. Fifty-three media publications also cite the Principles. Courts, however, have examined the Principles barely more than 100 times. The group most significantly affected by the Principles to date appears to be academics and social commentators. Part vI asks how we can explain the anemic impact of the Principles over the span of eight years. It notes that the ALI’s shrinking relevance, as measured by the Principles’ impact, is hardly unique to the ALI. As academic work has become more theoretical and less practical in recent decades, judges have increasingly dismissed its importance.22 This Part also suggests that the Principles, in Professor Harry Krause’s formulation, “may be ahead of our time.”2

II. Empirical Analysis A. Methodology In assessing the influence of the Principles, we began with the two groups that the Principles’ Reporters hoped to reach: rule makers (legislators) and individual decision-makers (courts and other fact finders).24 Because the Principles clearly have had some influence on academics and social commentators, like the media, we also reached outside the narrow realms of rule makers and decision makers to evaluate the Principles’ impact on academics and the media. To measure the influence of the Principles in these four realms (rule makers, decision makers, academics, and media), we searched electronic databases in Lexisnexis (Lexis) and Westlaw for any references to the Principles. Recognizing that not every reference to the Principles would be in the form of a proper Bluebook citation, we deliberately searched for miscited instances of the Principles, as well as miscites to the ALI. This decision was warranted. For example, in Cullum v. Cullum,2 the Principles are 22. Id. 2. Harry D. Krause, Comparative Family Law: Past Traditions Battle Future Trends—and Vice Versa, in THE OxFORD HAnDBOOK OF COMPARATIvE LAW 1099 (Mathias Reimann & Reinhard Zimmermann eds., 2006). 24. See generally Hansen, supra note 16. 2. 160 P.d 21 (Ariz. 200).

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cited as “the American Family Institute’s comprehensive study, Principles of the Law of Family Dissolution (199).”26 To capture as many permutations of the work’s title as we believed plausible, we constructed five different searches. The search logic for the five searches, and a shorthand description for each that is used in Parts III, Iv, and v below, appear in Figure 1.

Figure 1: Finding References to the Principles Search Term/Logic

Shorthand for Search

“American Law Institute” & “Principles of the Law of Family Dissolution”

full cite, independent terms search

“ALI” & “Principles of the Law of Family Dissolution” ALI abbreviated, independent terms search “Principles of the Law of Family Dissolution”

document name search

“ALI Principles of Family Dissolution”

miscited document search #1

“Principles of Family Dissolution”

miscited document search #2

Although there are any number of permutations of these searches that could be used, we believe these searches are the most likely to be successful in locating documents that cite or mis-cite the Principles. Within the first two realms (rule makers and decision makers), we performed all five searches in a variety of databases. For the remaining realms (academics and media), we performed only the full cite, independent terms search in the databases described below. Figure 2 presents the relevant databases we searched to evaluate each realm of possible impact. It is important to note that all of these searches are subject to the internal limitations of the databases searched. The coverage of each database is briefly described in the footnotes to Figure 2. The results of each search are recorded in Parts III, Iv, and v.

26. Id. at 2.


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Figure 2: Gauging the Principles’ Impact Realm of Possible Impact

Databases Searched

Rule makers (legislatures)

For enacted legislation, we searched Lexis in: • “Combined State & Federal Code Archives”2 and • “Codes from 0 States, DC, Guam, Puerto Rico, and virgin Islands.”28 Using Westlaw, we searched: • “All State Statutes Annotated” (ST-Ann-ALL).29 For legislative history, we searched Lexis in: • (a) for pending legislation,—“Legislation & Politics—U.S. & U.K.— U.S. States—Advance Legislative Service—0 States, DC, PR & vI, Combined,”0 • (b) for legislative history and current legislation, a combination of these databases: “State net State Legislative Bill History; nevada Legislative Bill History; Arkansas Legislative Bill History; north Dakota Legislative Bill History.”1 • Using Westlaw, we searched: “State Legislative History” (STATE-LH).2

Decision makers (courts)

We searched Lexis in: • “Federal & State, Combined.” We searched Westlaw in: • “All State and Federal Cases” (ALLCASES).

Academics

We searched Westlaw in: • “All Law Reviews, Texts and Bar Journals” (TP-ALL).

Social commentators, such as the media

We searched Lexis in: • “All news, all languages.”4 We searched Westlaw in: • “All news” (ALLnEWS).

B. Special Considerations in Assessing the Impact on Rule-Makers As Part III documents, no legislature has made reference to the Principles in enacting any legislation since 1990. This was true both of the actual statutory language and the available legislative history. Because the Principles have had at least some legislative success in West virginia, 2. With the exception of Mississippi, all codes covered in the subject database predate 1990. Mississippi comes forward from 1991. 28. Each of the codes in the subject database is current. 29. Each of the codes in the subject database is current. 0. Coverage varies with each jurisdiction. The reader should consult Lexisnexis (Lexis) for a more in-depth description. 1. This database contains materials from forty-seven states beginning January 1, 2001, and is continually updated. 2. This database contains materials from thirty-seven states, thirty-four of which have legislative history materials from 2000 forward or earlier. Materials for Oregon and Arkansas date from 2001 forward. The legislative history materials for nebraska date from 200 forward. . Full coverage in the subject database comes forward from 1994; selective coverage is available prior to 1994. We also searched Lexis for law journal hits, which yielded 466 citations. Because the Westlaw results dwarfed the Lexis results, we felt comfortable taking the larger of these two sets, especially since the impact on academics is not questioned. 4. This is a comprehensive database covering hundreds of news sources in English. Consult Lexis for a more in-depth description. . This database provides comprehensive coverage of newspapers, magazines, journals, newsletters, congressional testimony, and government press releases. Coverage varies depending on the source. Consult Westlaw for a more in-depth description.

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we conducted two additional checks—“backstop” searches—on the potential influence of the Principles with rule makers. We did this by searching terms of art found in child custody provisions from the Principles that would likely appear in legislation predicated on the ALI’s recommendation. The first backstop search examined whether legislatures have adopted the “approximation standard,” using terms that appear in Section 2.08(1) of the Principles.6 The second backstop search was deliberately broader, examining whether legislatures have borrowed the concept of “parent by estoppel” from the Principles. For each backstop search, we devised three search terms, each successively broader than the preceding one in order to capture variations that legislatures might introduce in the legislative process when borrowing from the Principles. These searches are shown in Figure . We ran the searches in the Lexis and Westlaw databases for enacted legislation presented in Figure 2.

Figure 3: Backstop Searches for Legislative Impact Term of Art “approximation standard” as recommended in Section 2.08(1) “parent by estoppel” concept used in Chapters 2 and

Search Term • Child w/ parent & “approximates the proportion of time” • Child w/ parent & approximates w/ proportion & time • Child & parent & approximate & proportion & time • “parent by estoppel” • parent w/ estoppel & “American Law Institute” • parent w/ estoppel

We also tried to measure legislative impact with Internet searches as well. We searched the websites of three groups that might advocate for family law reforms to see if they have advocated adoption of the Principles: the national Conference of State Legislators,8 national Council of Juvenile and Family Court Judges,9 and the national Center for State Courts.40 As a final backstop, we searched the Bureau of national Affairs’ Family Law Reporter for each of the five search terms presented in Figure 1. The results of these searches are presented in Part III. 6. no legislature prior to the Principles had adopted the approximation standard. See infra Part III. See generally Parkinson, supra note 11. . Of course, the “parent by estoppel” idea had some traction in case law prior to the Principles. See PRInCIPLES, supra note 1, § 2.0 cmt. b. 8. On March , 2008, we searched for “American law institute principles of the law of family dissolution” in all topics with the date. 9. On March , 2008, we searched “American law” (exact phrase) because the website’s search limitations only permitted that many characters. This yielded a null set. We also searched “ALI” (exact phrase) and received a null set. 40. On March , 2008, we searched “American law institute principles of the law of family dissolution” and received a null set.


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C. Special Consideration in Assessing the Impact on Decision Makers We searched Westlaw and Lexis for cases referencing the Principles, using the databases contained in Figure 2. All searches were current as of May 22, 2008. As Part Iv notes, the searches yielded 100 cases citing the Principles in either draft or final form, with 11 discrete treatments of the Principles (in other words, a single case may have discussed more than one provision of the Principles).41 We organized these results into “unique” hits for the Principles—that is, where the results of searches in various databases overlapped, we counted any given citation only once. Where there is more than one treatment of the Principles in a given case—that is, the case discusses multiple subsections of the Principles— we coded each treatment separately. An example of this occurred in Ketterle v. Ketterle.42 There, both the majority and the concurring opinions cited the Principles. The majority used the Principles to bolster the opinion they would have reached regardless of the existence of the Principles (Code ). The concurrence also referenced the Principles (Code ). Two of the three research assistants who worked on this article (RS and SH) independently coded the courts’ treatments of the Principles using the coding protocol contained in Figure 4. Figure 4: Coding of Cases Treatment Code Adopted Principles subsection 1 Adopted Principles’ rule with some modification 2 Concurrence cited Principles Used Principles to inform existing tests 4 Used Principles as a “pile-on” when the case would have come out the same way anyway Made reference to Principles, but otherwise declined to adopt the Principles’ rule 6 Principles cited by dissent Declined to adopt the Principles’ rule because the question is a legislative one 8 Flat out rejected the Principles’ rule 9 Principles argued by a party but not reached by the court for procedural reasons 10 Cited the Principles as evidence of a social phenomenon 11 Cited the Principles for a description of the majority rule 12

41. As Appendix 6 shows, there were 116 discrete references to the Principles, one of which was to a law review article containing the term in its title, yielding 11 total treatments. 42. 814 n.E.2d 8 (Mass. App. Ct. 2004).

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While many of the coding categories are self-explanatory (Concurrence cited Principles, Code 4; Principles cited by dissent, Code 44), a few categories deserve elaboration. Under Code 1, Adopted Principles subsection, we included cases that simply adopted a legal rule borrowed from the Principles,4 as well as lower court decisions affirmed as not being an abuse of discretion and which rested on a section of the Principles. For example, in Washburn v. Washburn,46 an unreported case, the trial court applied the “Proposed Final Draft, Part I” of the Principles in apportioning a Worker’s Compensation settlement after “[f]inding the Workers’ Compensation ‘Findings of Fact,’ to be unpersuasive.”4 The appellate court affirmed the lower court judgment based on the standard of review, as “not inequitable” in apportioning 4. See, e.g., Stitham v. Henderson, 68 A.2d 98 (Me. 2001). In Stitham, the majority used Maine statutes to determine that the district court had discretion in deciding whether Henderson retained parental and contact rights in a child after a DnA test showed another man was the biological father. The concurrence cited the de facto parent test of the Principles, suggesting that it is a “developing” legal area and could be used in the future. 44. See, e.g., Hoover (Letourneau) v. Hoover, 64 A.2d 1192 (vt. 2000). In Hoover, the majority stated that the issue of adoption of the Principles was not before them. The dissent argued that the court should utilize the Principles to determine custody in cases where one parent is relocating. The dissent criticized the governing state statute, vT. STAT. Ann. tit. 1, § 66 (2000), for negative inferences it makes about relocations and believed that the Principles’ standard would create fairer results in relocation hearings. 4. An emblematic example of a straight adoption is Ireland v. Ireland, 1 A.2d 66 (Conn. 1998). There, the parties received joint custody of their son at divorce, with primary physical custody awarded to the mother, Irene. Some time later, Irene remarried. When her second husband’s job forced him to move to California, she informed the court of her intent to relocate with her child. The child’s father objected and obtained an injunction temporarily stopping the move until the case could be adjudicated. The trial court placed the burden of proof on the mother, as the party seeking relocation, to show that the proposed relocation was in the child’s best interests. The trial court then found that Irene failed to meet this burden and enjoined the child’s relocation. The intermediate appellate court affirmed, and the case was appealed to the Supreme Court of Connecticut. The matter of where the burden of proof in a relocation case should properly rest was an issue of first impression. Ultimately, the Connecticut Supreme Court adopted the standard put forward by the ALI in PRInCIPLES Tentative Draft no. , supra note 2, § 2.20(4)(a): an initial burden of proof rested upon the party proposing relocation to show that the move was for a “legitimate purpose” and that it was “reasonable in light of that purpose.” Ireland, 1 A.2d at 682. If the moving party can prove both by a preponderance of the evidence, the burden shifts and the party seeking to block the relocation must show that the move was not in the child’s best interests. This outright adoption of the Principles’ relocation provision governed in Connecticut until it was legislatively abrogated by section 46(b)-6 of the Connecticut General Statutes, which replaced the burden-shifting test. See Hardy-Harris v. Harris, no. FA0402464S, 2008 WL 20929 (Conn. Super. Ct. Apr. 21, 2008) (“In 2006, the General Assembly amended the General Statutes basically overruling Ireland and eliminating the burden shifting scheme and setting forth the standard to be followed in postjudgment [sic] cases.”). 46. no. CIv.A. AP-99-48, 2000 WL 6 (Me. June 2, 2000). 4. Id. at *1.


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the settlement, but did not refer to the Principles directly itself. Although there was no suggestion by the trial or appeals court that this approach will be followed in subsequent cases, the Principles’ approach was authoritative in the Washburn case and is properly coded as a “1.” In Code 2, Adopted Principles’ rule with some modification, we included cases that borrowed heavily from the Principles, but added additional elements to the Principles’ test. An emblematic example of this occurred in In re Care & Protection of Sharlene.48 There, the Massachusetts Supreme Judicial Court, which had previously adopted the Principles’ test for a de facto parent, confronted the application of that test to a mother’s live-in boyfriend accused of having bludgeoned a child, Haleigh Poultrie, into a coma.49 When Haleigh’s adoptive mother committed suicide under suspicious circumstances, Haleigh was left without a legal parent. A juvenile court judge granted a joint emergency motion by the Department of Social Services and Haleigh’s guardian ad litem (GAL) to withdraw life support and make no attempt at resuscitation (the DnR order). The mother’s boyfriend—in an attempt to avoid efforts to disconnect Haleigh from life support, which likely would have resulted in a murder charge for him—then filed a motion to block the DnR order as Haleigh’s de facto parent. This maneuver immediately created a bind for the Massachusetts Supreme Judicial Court, which had previously adopted the Principles’ test for de facto parent in Youmans v. Ramos.0 The court recognized that allowing a man charged with brutalizing a child to assert de facto parental rights would be “unthinkable under the circumstances” and “would amount to an illogical and unprincipled perversion of the doctrine” of de 48. 840 n.E.2d 918 (Mass. 2006). Sharlene is a pseudonym for Haleigh Poultrie, an elevenyear-old girl who suffered injuries severe enough to place her in a coma. Haleigh’s adoptive mother and her mother’s cohabiting boyfriend were charged with abusing her and causing the injuries. Haleigh’s adoptive mother later died in a murder-suicide with the mother’s grandmother. The Massachusetts Department of Social Services took temporary custody of the child and moved to request that a “do not resuscitate” order be filed for her. However, the day after the Massachusetts Supreme Judicial Court authorized the removal of Haleigh’s ventilator and feeding tube, doctors announced that Haleigh was breathing on her own and responding to commands. The State’s charges against the cohabiting boyfriend for assault and battery on a child with substantial bodily injury, assault and battery on a child with bodily injury, three counts of assault and battery with a dangerous weapon, and one count of assault and battery will go to trial later this year. See Patricia Wen, The Little Girl They Couldn’t See, BOSTOn GLOBE, July 6, 2008, http://www.boston.com/news/local/articles/2008/0/06/the_little_girl_they_couldnt_ see/; Buffy Spencer, Lawyer to Challenge Competency of Girl Stepdad Allegedly Beat, REPUBLICAn nEWSROOM, July 1, 2008, http://www.masslive.com/news/index.ssf/2008/0/ lawyer_plans_to_ challenge_comp.html?category=Crime+category=Westfield. 49. See Wilson, Blind Trust, supra note 20. 0. 11 n.E.2d 16 (Mass. 1999).

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facto parenthood.1 To avoid such an outcome, the court held that the standard for de facto parenthood adopted in Youmans “presumes that the bond between a child and de facto parent will be, above all, loving and nurturing.”2 Thus, despite the fact that the Principles’ definition in Section 2.0(c) does not require a “loving and nurturing” relationship, Massachusetts now does. The hallmark of cases in Code 4, Used Principles to inform existing tests, is that the jurisdiction had guiding precedent on a particular topic but used the Principles to fill in interstices or gaps in the precedents. Thus, in Styka v. Styka, the court used the Principles’ definition of “in-kind employee” to aid in its interpretation of a state statute that did not define the term. The court also relied on a similar statute from another jurisdiction in its interpretation, concluding that together “[t]hese references support [the court’s] construction of in-kind benefits under Section 40-4-11.1 (C)(2) as employment benefits.”4 The Principles thus put flesh on an existing statutory framework. Code 5, Used Principles as a “pile-on” when the case would have come out the same way anyway, gauges the degree of reliance on the Principles. A case is coded as a “” when the court relied on existing state code sections or case law that was on point and predated the Principles, or when they borrowed from the law of a sister jurisdiction and only in passing noted that the borrowed approach was also consonant with the Principles. Consider, for example, In re Custody of Kali, which involved an appeal of a custody determination. In that case, the parties were the unmarried parents of a child, Kali. Between 1998 and 2000, the parties shared custody of Kali with the father having custody of Kali during the week and the mother having custody on weekends. In 2000, the father brought an action to establish paternity and seek custody of Kali. The court entered a temporary order awarding legal and physical custody of Kali jointly between the parents, with each to have physical custody of Kali on alternating weekends. The parties shared physical custody of Kali as they had before the paternity and custody action—with the father having custody during the week and the mother on weekends. At the hearing, the GAL appointed by the court testified that the parties should share legal custody and that primary physical custody should be with the father. The court, however, granted legal and physical custody of Kali to the mother, with the father having Kali on most week1. 2. . 4. .

Sharlene, 840 n.E.2d at 926. Id. 92 P.2d 16 (n.M. Ct. App. 1998). Id. at 20. 92 n.E.2d 6 (Mass. 200).


8

ends with provisions for school vacations. The father appealed on the grounds that the award violated Chapter 209C, section 10 of the Massachusetts General Laws, which required judges to preserve to the extent possible the relationship between a child and the child’s primary caregiver, and to consider where the child has lived and whether either parent has established a parental relationship or exercised parental responsibility over the child. In addition to citing the state’s own statute, the Massachusetts Supreme Judicial Court cited an Oregon statute and cases from West virginia, north Dakota, and Utah for the proposition that the relationship between a primary caregiver and a child should be preserved when possible. Only after listing all of this authority did the court then mention Section 2.08(1) of the Principles, the approximation standard, as additional support for the need to preserve existing relationships. The court did not apply the approximation standard; it merely cited it as evidence that continuity of current relationships is preferred. Ultimately, the court upheld the lower court decision on the ground that preserving preexisting relationships “where possible,” as directed by the statute, is consonant with the overarching consideration, the “best interests” of the child. Therefore, the trial court’s conclusion that the father’s long work hours made preservation of the relationship impossible within the “best interests” framework was not an abuse of discretion. Code 6, Made reference to Principles, but otherwise declined to adopt the Principles’ rule, relies on explicit statement by a court that it is not adopting the Principles’ approach, or a court’s references to the Principles’ approach while affirming a different approach. Thus, for example, in C.E.W. v. D.E.W.,6 the parties were female same-sex partners who cohabited in a long-term relationship that began in 1992. They decided to have a child together via artificial insemination, and D.E.W. carried the child. After their relationship ended, C.E.W. sought parental rights and responsibilities for the child. The Maine Superior Court decided that C.E.W. was the child’s de facto parent and awarded her parental rights and responsibilities. D.E.W. did not challenge the court’s de facto parent decision, but challenged the court’s award of parental rights and responsibilities. The Maine Supreme Judicial Court affirmed the lower court’s judgment, but decided the case on other grounds. As to the Principles, the court pointed out that the lower court cited Rideout v. Riendeau and the concurring opinion in Stitham v. Henderson8 to support the lower court’s 6. 84 A.2d 1146 (Me. 2004). . 61 A.2d 291 (Me. 2000). 8. 68 A.2d 98 (Me. 2001).

86


conclusion that Maine had adopted the Principles’ de facto parent standard.9 The Maine Supreme Judicial Court noted that the lower court erred, stating, “[a]lthough both opinions cite to the A.L.I.’s PRInCIPLES, neither adopts its standard, nor do we do so today.”60 An example of the second type of case—which mentions the Principles while advocating a competing approach—occurred in Justice Kennedy’s dissent in Troxel v. Granville,61 a U.S. Supreme Court case. The majority in Troxel found unconstitutional a Washington statute that allowed any third party to petition for visitation rights with a child despite objections by the child’s legal parent. Justice Kennedy’s dissent supported the application of the best-interests-of-the-child standard, explaining that “[c]ontemporary practice should give us some pause before rejecting the best interests of the child standard.”62 Justice Kennedy noted in passing, however, that this standard has been criticized as “indeterminate, leading to unpredictable results.”6 He cited the Principles for this proposition.64 no other mention was made in the opinion of the Principles. Thus, the Principles served as dicta in a dissenting opinion that advocated use of a competing standard, the best-interests test. Code 8, Declined to adopt the Principles’ rule because the question is a legislative one, relies on explicit statements by a court to this effect. In T.F. v. B.L.,6 for example, the parties were a same-sex female couple who lived together between 1996 and 2000. The couple decided that T.F. would undergo artificial insemination to give birth to the couple’s child, a birth that occurred after the parties separated in 2000. T.F. then filed a complaint requesting an order for B.L. to pay child support, relying upon theories of promissory estoppel and breach of an oral contract.66 The Massachusetts Supreme Judicial Court concluded that the parties’ agreement to create a child created an implied contract, albeit an unenforceable one.6 The court also assessed the plaintiff’s equitable claims, and decided that B.L. had no duty to pay child support because she was not a parent of the child under any statutory definition and had not become a de facto parent because she had no long-term relationship with the child.68 The dissent urged the court to adopt Section .0 of the Principles— 9. 60. 61. 62. 6. 64. 6. 66. 6. 68.

C.E.W., 84 A.2d at 112 n.1. Id. 0 U.S. (2000). Id. at 98 (Kennedy, J., dissenting). Id. at 101 (citing PRInCIPLES Tentative Draft no. , supra note 2, at 2 & n.2). Id. 81 n.E.2d 1244 (Mass. 2004). Id. at 1246. Id. at 121. Id. at 12.


8

which the dissent believed would provide a clearer definition of the types of parties that could be subject to a child support order.69 However, the majority opinion stated that clarification of this standard should be left to the legislature, noting that the Principles’ definition has an “elusive nature.”0 Code 9, Flat out rejected the Principles’ rule, also relies on explicit statements by the court. Consider as one example, Hobbs v. Bates.1 In this case, Hobbs and Bates were involved in a relationship between 1990 and 1998, during which time they produced two children. For the final two years of the relationship, they lived together. When the relationship ended, Bates brought suit to determine legally paternity, custody, and child support. Hobbs was established as father of the children, and Bates was awarded “residential parent status” and $460 a month in child support from Hobbs. After these proceedings, Hobbs brought suit alleging that the relationship between the two was meretricious and, as such, he was entitled to a fair and equitable distribution of the marital assets, which he asserted included over $1 million in Microsoft stock options. In his argument, he asked the court to adopt the test for domestic partnership outlined in Section 6.0 of the Principles. The trial court did not adopt the Principles’ test, and instead applied Washington’s existing common law definition of a meretricious relationship. The court of appeals affirmed the decision and explicitly declined to adopt the Principles. Outlining their refusal to adopt the Principles’ test, the court wrote: We believe that a case-by-case examination of each relationship at issue will better serve[] litigants than would the adoption of hard and fast rules regarding the consequences of decisions the parties may have made in their individual relationships. Moreover, our Legislature has adopted statutory means of determining the parentage and support of children; while the common law of meretricious relationships has been concerned with preventing economic injustice at the end of such relationships as between two adults involved. We see no public interest to be served by altering the status quo.2

Code 10, Principles argued by a party but not reached by the court for procedural reasons, is best illustrated by the case of In re Parentage of M.F. In that case, a stepfather attempted to receive residential time with his stepdaughter by being named a de facto parent. The court stated that they “have no reason . . . to either adopt or reject principles set out” 69. 0. 1. 2. .

Id. at 124 n.1 Id. no. 146-6-I, 2004 WL 146949 (Wash. Ct. App. June 2, 2004). Id. at *9. 10 P.d 601 (Wash. Ct. App. 200).

88


in the Principles.4 While declining to address the issue further, the court noted that even if Section 2.04(1)(c) of the Principles was adopted, the stepfather would not have a cause of action. Code 11, Cited the Principles as evidence of social phenomena, relies on the Principles as evidence for a change in society. In Department of Human Resources v. Offutt, the court used a quote from the Preface of Tentative Draft no. 1 to explain how changes in Georgia’s child support statutes have followed larger family law trends. Those reforms changed the focus in divorce litigation from “grounds for divorce” to the “incidents” of “dissolution,” and therefore, states must be flexible to adjust to this social change. Finally, and relatedly, Code 12, Cited the Principles for a description of the majority rule, relies on the Principles for a description of the law, while not embracing any given recommendation. For example, in Pursley v. Pursley,6 the Kentucky Supreme Court used the Principles as support for the majority rule regarding parent-determined child support in a case about enforcing the terms of a separation agreement. While Kentucky trial courts are restricted by Kentucky’s guidelines in ordering child support, the majority of jurisdictions will enforce child support payments agreed upon by the parents that exceed the guideline amount. 1. InTER-RATER

RELIABILITy

In order to measure inter-rater reliability, we used Jacob Cohen’s calculation of kappa coefficient. We tallied the agreement of the two raters over the twelve coding categories for each of the 11 discrete citations to the Principles. In nine cases, there was disagreement. We then plotted the numbers on a grid and compared them. This yielded a kappa coefficient for our raters of .910, with a 9% confidence interval of .84 to .966. According to J.R. Landis and G.G. Koch, a kappa value between .81 and 1.0 should be interpreted as almost perfect agreement.8 2. LInE

OF

CASES

Under the doctrine of stare decisis, a rule can only be adopted once in a given jurisdiction. Thus, subsequent cites to the initial case that announced the rule are as much a function of stare decisis as they are of 4. . 6. .

Id. at 60. 49 S.E.2d 9 (Ga. Ct. App. 199). 144 S.W.d 820 (Ky. 2004). See generally J. Cohen, A Coefficient of Agreement for Nominal Scales, 20 EDUC. & PSyCHOL. MEASUREMEnT (1960). 8. See J.R. Landis & G.G. Koch, The Measurement of Observer Agreement for Categorical Data, BIOMETRICS 61, 61–9 (19).


89

the Principles’ influence. In order to tease out discrete lines of cases, we performed Keycite searches on each case. Using the Keycite results, we also examined whether an opinion was subsequently withdrawn after a rehearing en banc, legislatively abrogated, or otherwise overturned. The results of this analysis are discussed in Part Iv and Appendix ,9 which highlights in red those cases that are now “bad law.” For example, in Young v. Hector,80 a judicial advisor to the ALI purported to adopt the “approximate the time” standard for custody dispositions following divorce as a matter of common law. At rehearing en banc, the district court of appeal of Florida withdrew the panel decision and rejected the Principles’ standard.81 Hence, Young is shown in red in Appendix . In various calculations of impact performed in Part Iv, overturned cases are removed from certain tallies and indicated in the text.

D. Special Considerations in Assessing the Impact on Academics Obviously, not all academic scholarship appears in journals available electronically through Lexis and Westlaw. To find books that may have drawn on the Principles, we performed a document search in WorldCat on February 21, 2008, for any books citing the Principles in their title. A large network of library resources and catalogs, WorldCat encompasses thousands of libraries worldwide. The results of this search appear in Part v. III. Impact on Rule Makers As Figure illustrates, no legislature has made reference to the Principles in its legislative history for any enacted legislation that we can find since 1990. Thus we searched for references to the Principles in the legislative history of adopted legislation and of pending legislation.82 These searches yielded no hits for enacted legislation, and only one hit for pending legislation, new york Assembly Bill 10446.8

9. In the interests of space, Appendix is available at Wash. & Lee Univ. Sch. of Law, Robin Fretwell Wilson Biography, http://law.wlu.edu/faculty/profiledetail.asp?id=216 (last visited June , 2008), together with all the appendices to this article. 80. 40 So. 2d 11 (Fla. Dist. Ct. App. 1999). 81. See id. at 118. 82. See Figure 2. 8. A memorandum in support of Assembly Bill 10446, which would change new york’s spousal support laws, cites the Principles. See n.y. State Assembly, Bill Summary—A10446, http://assembly.state.ny.us/leg/?bn=A10446 (last visited June , 2008). As of this writing, Assembly Bill 10446 remains in the judiciary committee of the new york state assembly and likely will not come out of committee.

90


Figure 5: Citation to Principles by Rule-Makers (as of May 22, 2008) Legislative History

Pending Legislation

Lexis 50 State Codes

Lexis Code Archives84 (unique code sections)

Westlaw State Codes Annotated

Total Unique Code Cites Generated by This Search8

New Code Cites That Did Not Appear in Previous Searches86

Full cite, independent terms

0

0

69

169 (1)

2

4

4

ALI abbreviated, independent terms

0

0

1

2 (1)

14

29

18

Document name search

0

1

180 (4)

111

22

Miscited document search #1

0

0

0

0

2

2

2


0

0

0

11(1)

4

Total

119

Searches of the websites for the national Conference of State Legislators, national Council of Juvenile and Family Court Judges, and the national Center for State Courts all yielded null sets. The additional “backstop” for the Bureau of national Affairs’ Family Law Reporter produced fifteen unique references to the Principles over the last decade. Thirteen of the hits were articles discussing cases previously found in our research on decision makers. The remaining cites were to a law review article about the Principles and a review article of a tentative draft with a discussion of topics under debate, including domestic partnerships and other nonmarital relationships. We then turned to the state codes themselves. A search of the annotated state codes for all fifty states in Westlaw and Lexis likewise found 84. In code archives searches, many code sections appeared as results multiple times, once for each year the code was archived. In the chart, the total number of results appears first. The number inside the parentheses represents the number of unique code sections the search generated, counting a code section only once even if it appeared under multiple years. 8. Results between databases vary. This number represents the total number of independent code sections generated by each search, counting each code section that appeared exactly once. 86. The results generated by each search also overlap to a degree. This number represents the total number of code sections generated by this search that were not generated by any of the searches listed above it in the table. Thus, the eighteen results for the “ALI abbreviated, independent terms” search represents eighteen state code sections generated by this search that had not appeared in the results of the search above it, “full cite, independent terms.”


91

scant evidence that the Principles are influencing state legislatures. As Figure illustrates, these searches yielded a combined 118 “unique” hits for the Principles—that is, where the results of searches in various databases overlapped, we counted any given citation only once. (The full set of results appears in Appendix 1.) These 118 instances represent references in the annotations to fourteen discrete sources.8 These sources consisted of practitioners’ guides that referenced the Principles in their title; academic articles that referenced the Principles in their title; and, in three state codes (Mississippi, Utah, and South Dakota), a reference to the Principles itself as a practice aid or research material.88 A cursory examination of the code sections in Mississippi, Utah, and South Dakota does not suggest that this legislation follows the Principles. Section 9--1 of the Mississippi Code Annotated, for example, provides that a divorce may be obtained on twelve separate grounds of fault, including natural impotency; adultery; desertion for more than a year; habitual drunkenness; and habitual and excessive use of opium, morphine, or other drugs. The Principles reject fault as a grounds for divorce.89 Likewise, section 8-0-1 of the Utah Code Annotated refers to the Principles in a heading entitled “research references.” This section discusses Utah’s legislative preference for married couples in adoption placements and concludes that placements with unmarried cohabitants are 8. See Katharine T. Bartlett, Child Custody in the 21st Century: How the American Law Institute Proposes to Achieve Predictability and Still Protect the Individual Child’s Best Interests, WILLAMETTE L. REv. 46 (1999); Katharine T. Bartlett, U.S. Custody Law and Trends in the Context of the ALI Principles of the Law of Family Dissolution, 10 vA. J. SOC. POL’y & L. (2002); Brian H. Bix, Commentary: Premarital Agreements in the ALI Principles of Family Dissolution, 8 DUKE J. GEnDER L. & POL’y 21 (2001); Margaret F. Brinig, Feminism and Child Custody Under Chapter Two of the American Law Institute’s Principles of the Law of Family Dissolution, 8 DUKE J. GEnDER L. & POL’y 01 (2001); Craig W. Dallon, Reconsidering Property Division in Divorce Under Nebraska Law in Light of the ALI’s Principles of the Law of Family Dissolution: Analysis and Recommendations, CREIGHTOn L. REv. 1 (200); Craig W. Dallon, The Likely Impact of the ALI Principles of the Law of Family Dissolution on Property Division, 2001 ByU L. REv. 891 (2001); Kathy T. Graham, Child Custody in the New Millennium: The ALI’s Proposed Model Contrasted with Oregon’s Law, WILLAMETTE L. REv. 2 (1999); Leslie Joan Harris, The Proposed ALI Child Support Principles, WILLAMETTE L. REv. 1 (1999); J. Thomas Oldham, ALI Principles of Family Dissolution: Some Comments, 199 U. ILL. L. REv. 801 (199); John C. Sheldon, Anticipating the American Law Institute’s Principles of the Law of Family Dissolution, 14 ME. BAR J. 18 (1999); Merle H. Weiner, Domestic Violence and Custody: Importing the American Law Institute’s Principles of the Law of Family Dissolution into Oregon Law, WILLAMETTE L. REv. 64 (1999); David Westfall, Forcing Incidents of Marriage on Unmarried Cohabitants: The American Law Institute’s Principles of Family Dissolution, 6 nOTRE DAME L. REv. 146 (2001). 88. For a complete list of cites, see Appendix 1, Wash. & Lee Univ. Sch. of Law, supra note 9. 89. PRInCIPLES, supra note 1, ch. 1.

92


not in the best interests of the child. This result sharply contrasts with the Principles’ recognition of a variety of nontraditional parents.90 In an abundance of caution, however, we examined each of the eighteen references in the South Dakota Codified Laws and Utah Code Annotated to the Principles to determine whether the statutes follow the Principles.91 In no instance do these sections adopt anything resembling the substantive provisions of the Principles’ recommendations.92 Both South Dakota and Utah, for example, demonstrate an unwavering adherence to the best-interests-of-the-child standard for determining custody, while the Principles would allocate custody according to past caretaking functions.9 Where there are points of commonality between the state code sections and the Principles, these most frequently occur with procedural mechanisms, such as the appointment of a GAL on the child’s behalf. Even here, the state codes continue to differ as to the mechanics of when and how a GAL should function.94 In other places, the Principles are added as a cross reference to what is essentially a procedural rule that predates the Principles. For example, both the Utah Code Annotated and the Principles provide that a court order entered incident to divorce can only be modified 90. See generally id. ch. 2. 91. We did not examine the sixteen references in the Mississippi Code Annotated to the Principles because the editors of the Lexis database did not supply pinpoint citations to specific sections of the Principles. The references appeared under the heading “Practice Reference,” which included products from Lexis’s Matthew Bender division, such as Family Law Litigation Guide with Forms: Discovery, Evidence, Trial Practice and Child Custody and Visitation Law and Practice, and products from Lexis’s Mitchie division, such as Divorce Practice Handbook by Lynne Z. Gold-Bikin, Stephen A. Kolodny, Allen R. Koritzinsky, and Barbara A. Stark. The Principles appear to be cited as a general title for consideration in family law cases and not because they have any application or relevance to Mississippi law. 92. See Appendices 2 and for a complete analysis, available online at Wash. & Lee Univ. Sch. of Law, supra note 9. 9. Cf. S.D. CODIFIED LAWS § 2-4-4 (2008) (allocating custodial responsibility according to the best interests of the child); UTAH CODE Ann. § 0--10.2 (2008) (allocating custodial responsibility according to the best interests of the child based upon enumerated factors); id. § 0-- (establishing a default, minimum parent-time schedule to apply to children five to eighteen years of age when the parties do not agree to a parent-time schedule, taking into account weekday evenings, alternating weekends, holidays, etc); id. § 0--. (establishing a default, minimum parent-time schedule to apply to children under five years of age); PRInCIPLES, supra note 1, § 2.08 (allocating custodial time according to past caretaking activities). 94. Cf. S.D. CODIFIED LAWS § 2--4.4 (permitting a court to appoint a guardian ad litem (GAL) if mediation is not feasible to represent the child when there are allegations of abuse or neglect and the court determines that it is in the best interests of the child to have counsel appointed for him or her); UTAH CODE Ann. § 0--11.2 (allowing a court to appoint counsel to represent a child in any instance where such representation appears to be in the best interests of the child); PRInCIPLES, supra note 1, § 2.1 (providing for the appointment of a GAL to represent a child’s interests and providing that the court shall specify the terms of appointment, including the GAL’s role, duties, and authority).


9

upon a showing of a substantial change of circumstances.9 This gate-keeping standard has long been used in divorce litigation to prevent parties from seeking modifications to the divorce decree unless a change in circumstances warrants the court revisiting an issue. Here, the Principles are used as a cross-reference for a time-honored norm in family law. It is not surprising to find citations to the Principles in the annotation to code sections that do not follow them. The editorial boards of Westlaw, Thompson, Lexis, and Reed Elsevier make the decision about what materials to cite in annotated codes in both the print copy and online.96 In sum, while it is possible that legislators have borrowed in some way from the Principles, the text and legislative history available online through Westlaw and Lexis do not suggest this. Moreover, nothing in the annotations to the state codes of all fifty states suggests this. We know, however, that the Principles have had at least some success with rule makers. For example, West virginia adopted the Principles’ approximation standard for determining custody in 200.9 Recognizing the potential weakness of searches run in annotated state codes and legislative history databases, we conducted additional checks on the potential influence of the Principles with rule makers. We did this by searching for terms of art found in child custody provisions from the Principles that would be likely to appear in legislation concerning these issues. The terms of art were the “approximation standard” and “parent by estoppel.” These additional “backstop” searches suggest that if legislatures outside West virginia are borrowing from the Principles’ custody provisions in these two areas, they are neither citing directly to them nor using their language. For example, when we ran searches closely mirroring the language of Section 2.08(1)’s approximation standard, we uncovered only West virginia’s statute. See Figure 6. Even the broadest search yielded no additional statutes on point. Instead, as Appendix 4 shows, the statutes that resulted contained case notes discussing other topics, for example, the calculation of earnings for purposes of child support payments.98

9. UTAH CODE Ann. § 0--10.4; PRInCIPLES, supra note 1, § 2.1. 96. ROy M. MERSKy & DOnALD J. DUnn, FUnDAMEnTALS OF LEGAL RESEARCH 81 (8th ed. 2002) (discussing enhancements added by the publisher primarily as “notes of Decisions”). 9. See Hansen, supra note 16. 98. A full set of search results reproduced from this backstop search is available in Appendix 4, available online at Wash. & Lee Univ. Sch. of Law, supra note 9.

94


Figure 6: Approximation Standard Summary Chart Lexis Codes from 50 States Westlaw State Statutes Annotated Total Unique Code Sections child w/ parent and “approximates the proportion of time”

1*

1*

1*

child w/ parent and approximates w/ proportion and time

1*

1*

1*

child and parent and approximates and proportion and time

0

1

9

* All of these results are found in section 48-9-206 of the West virginia Code.

Similarly, when we did a backstop search for “parent by estoppel” in all state statutes annotated, the broadest search (parent w/ of estoppel) found fifty-five instances of annotations to state code statutes using the terms. See Figure . Each of the fifty-five hits was a “false positive.” The overwhelming majority of these statutes used the term estoppel in another context, such as whether a parent’s suit for a child’s injury is collaterally estopped by a suit brought in the child’s name.99 In some instances, the terms “parent” and “estoppel” appeared in headings for independent ideas, one with respect to parents and one with respect to estoppel. In a single instance, the search terms appeared in a note of decision to a statute. That case used the common law doctrine of equitable estoppel in deciding whether a marital father who believed he was the biological father of a child for over ten years could be prevented from asserting that he was not the father.100 In that case, however, there was no mention of the Principles, and the best interests of the child figured prominently in determining whether to apply the equitable estoppel doctrine. In short, this backstop search yielded all false positives.

Figure 7: State Statutes Citing Parent by Estoppel Lexis Codes from 50 States

Westlaw State Statutes Annotated Total

“parent by estoppel”

0

4

4101

parent w/ estoppel and “American Law Institute”

0

0

0

parent w/ estoppel

20

9

102

99. Appendix contains a complete list of these results with analysis and is available online at Wash. & Lee Univ. Sch. of Law, supra note 9. 100. In re Sarah S. v. James T., 1 n.y.S.2d 61 (App. Div. 2002). 101. All these were “false positives” that appeared when one heading to an annotation ended with the word “parent” and the next independent heading began with the word “estoppel.” See Figure 6. 102. See supra note 98.


9

A number of the search results contained a positive hit for the search term in its case notes section—where editors add case citations that either interpret and apply a particular statutory section or otherwise discuss or elucidate a concept embodied in that particular statute.10 However, these results were not to statutes containing any of the search terms or permutations. In sum, we cannot say definitively that the Principles are not having an influence with legislators. This research, however, suggests that if they are having any impact with legislators, it is not widely felt.

IV. Impact on Decision-Makers As Figure 8 demonstrates, a mere 100 cases across thirty jurisdictions cited to the Principles. We summarize the Westlaw and Lexis searches for case law addressing the Principles in Figure 8. As before, search results in Westlaw and Lexis overlapped substantially, both for the same search term and between searches. For example, the search “Principles of the Law of Family Dissolution” yielded 100 results in Westlaw and 104 results in Lexis. Upon closer examination, this yielded a total universe of 100 cases. Figure 8: All Search Results for Cases (As of May 27, 2008) Search Term

Lexis

Westlaw

Combined Results

Full cite, independent term search

6104

8

ALI abbreviated, independent terms search

2

2

2

Document name search

10010

100

100


1

1

1


1

1

1

Each case was coded using the coding protocol presented in Figure 4 above. The complete set of results appears in Appendix 6 following this article. Because a case may be overturned by a subsequent judicial decision or legislatively abrogated, we performed Keycite searches. These searches were also used to construct lines of related cases, as explained in Part II above.10 10. See supra note 96. 104. The search yielded eighty-one cases, one of which, Wendt v. Wendt, no. FA96 014962 S, 1998 WL 16116 (Conn. Super. Ct. Mar. 1, 1998), was broken into five proceedings, giving seventy-six unique cases. 10. The search yielded 104 cases. Four hits were for Wendt, while two hits were for another case, T.F. v. B.L., 81 n.E.2d 1244 (Mass. 2004), giving a total of 100 unique hits. 106. The search “Principles of Family Dissolution” did not produce any new unique results. Searches in Westlaw and Lexis both returned only Hoover (Letourneau) v. Hoover, 64 A.2d 1192 (vt. 2000). 10. See supra Part II.C.2. As Appendix indicates, several cases are no longer controlling authority. See Wash. & Lee Univ. Sch. of Law, supra note 9.

96


In addition to the raw number of case citations from Figure 8, we considered how courts treated these cases using the coding protocol in Figure 4. As Figure 9 shows graphically, by far and away, courts have used the Principles to “pile on,” that is, as additional support when the case would have come out the same way anyway (Code ). The next most prevalent treatments, Codes 6 and , are references to Principles when otherwise declining to adopt a rule from the Principles (Code 6) and citations to the Principles by the dissent (Code ).

Figure 9: Distinct Lines of Cases per Coding 25 20 15 10

Code 12

Code 11

Code 10

Code 9

Code 8

Code 7

Code 6

Code 5

Code 4

Code 3

Code 2

0

Code 1

5

In terms of weight of authority citing the Principles, in 6% of cases, concurrences cited the Principles (Code ), compared to 14.14% of cases in which dissents cited the Principles (Code ). The remaining cases are majority opinions. See Figure 10.

Figure 10: Lines of Cases Broken Down by Treatment Code 1 2 4 6 8 9 10 11 12 Total

Treatment Adopted Principles subsection Adopted Principles’ rule with some modification Concurrence cited Principles Used Principles to inform existing tests Used Principles as a “pile-on” when the case would have come out the same way anyway Made reference to Principles, but otherwise declined to adopt the Principles’ rule Principles cited by dissent Declined to adopt the Principles’ rule because the question is a legislative one Flat out rejected the Principles’ rule Principles argued by a party but not reached by the court for procedural reasons Cited the Principles as evidence of a social phenomenon Cited the Principles for a description of the majority rule

Tally 6 2 6 9 24

% of Cases 6.06 2.02 6.06 9.09 24.24

1

1.1

14 4 8 2 2 99

14.14 4.04 .0 8.08 2.02 2.02 100%


9

We then grouped these lines of cases into positive treatments (Codes 1, 2, and 4) and negative treatments (Codes 6, 8, and 9). This yielded seventeen positive treatments to twenty-six negative ones, for a ratio of negative to positive of 1. to 1. The vast majority of cases, however, cited the Principles in a more neutral way (Codes , , , 10, 11, and 12). See Figure 11.

Figure 11: Lines of Cases by Coding 60 50 40 30 20 10 0

Positive

Negative

Neutral

We also classified each of the “parent cases” in the line of cases contained in Appendix into “initial adoptions” (Codes 1, 2, and 4) and “initial rejections” (Codes 6, 8, and 9).108 All other codes were classified as neutral. The results, presented in Figure 12, show that no portion of the Principles was adopted or rejected by any reported case prior to 1998. In only one year did initial adoptions of the Principles surpass initial rejections: 1999, a year before the ALI approved the final version of the Principles.109 In nearly every other year, rejections outpaced adoptions of the Principles by a substantial margin. Perhaps more striking is that neutral treatments outpaced both initial adoptions and initial rejections in every year except three. In each of those three years (1998, 2002, and 200), there was only one more initial rejection than neutral treatment of the Principles. Thus, over the course of the past thirteen years, courts have been more likely to merely cite a Principles’ rule than to adopt or reject it.

108. See supra Part II.C. 109. See supra note .

98


Figure 12: Court Reaction to the Principles 14

Number of Instances

12 10 8 6 4 2 0

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

Year Initial Adoptions

Initial Rejections

“Neutral” Treatments

The influence of the Principles differed by geographic area. The Principles have been cited in the decisions of twenty-nine states, as well as the Supreme Court of the United States.110 Of the 100 cases making reference to the Principles, forty-eight come from new England courts.111 Indeed, Massachusetts, Maine, Connecticut, and vermont account for forty-four of the cases, with Massachusetts alone contributing twentyone.112 Thus, as Figure 1 illustrates graphically, a substantial fraction of the overall cites arose in a relatively small section of the country.

110. See Appendix 6. 111. Id. 112. Id.

99


Figure 13: Cases Broken Down by State 25 20 15 10

Wisconsin

U.S. Supreme Court

New York

Oklahoma

New Jersey

Iowa

Louisiana

Hawaii

Georgia

Arizona

Delaware

Oregon

Rhode Island

Nevada

New Hampshire

Florida

Mississippi

Colorado

California

Maryland

New Mexico

Kentucky

North Dakota

Washington

Alaska

Tennessee

Maine

Vermont

Connecticut

0

Massachusetts

5

Analyzed by year, the number of cases citing the Principles picked up significantly after their publication, as Figure 14 illustrates. As one would expect, the number of cases was small in the mid-1990s as the Reporters continued to revise their work. From 1998 through 200, the number of citations remained fairly consistent, between six and eight cases per year. The number of cases spiked in 2004 to seventeen, which is also to be expected since the Principles, adopted in 2000, were not published until 2002. Given the lag time between the start of a proceeding and when it reaches an appellate court with published decisions, cases in which a party urges adoption of the Principles would likely not result in decisions until several years after 2000.

Figure 14: Total Cases 20

15

10

5

0 1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

600


As Figure 1 illustrates, when we factored in multiple treatments of the Principles in the same decision and analyzed it by year, a similar pattern emerged.

Figure 15: Total Treatments 20

15

10

5

0 1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

We also analyzed where the Principles have made an impact by examining which chapter of the Principles is cited. For the purposes of this analysis, each case was counted only once, even if it coded in multiple ways, for example, as a concurrence (Code ) and adoption (Code 1).

Figure 16: Gauging Areas of Impact Y Tally11

% of All Cases

0

0

Principles Chapter

Coverage of the Principles Chapter

1

Introduction

2

The Allocation of Custodial and Decision-Making Responsibility for Children

2

2.2

Child Support

18

18.18

4

Division of Property upon Dissolution

1

1.1

Compensatory Spousal Payments

8

8.08

6

Domestic Partners

.0

Agreements

.0

Total

99

100%

As Figures 16 and 1 show, Chapter 2 of the Principles was by far and away the most discussed chapter. This may be due, in part, to the fact that the law of parentage is in such a state of uncertainty and flux at the moment.114 Least influential was Chapter 6, recommending Domestic Partnerships. In only three instances was this chapter cited by courts in 11. One case cited to the preface of a tentative draft and is not counted here. 114. See, e.g., Melanie L. Jacobs, Why Just Two? Disaggregating Traditional Parental Rights and Responsibilities to Recognize Multiple Parents, 9 J.L. & FAM. STUD. 09 (200).


601

their decisions and in each, the courts treated this chapter negatively.11 This may be due in part to the Principles’ approach to domestic partnership or because domestic partnerships have been eclipsed by same-sex marriage in recent years as a way to address the needs of same-sex partners.116

Figure 17: Number of Cases 60% 50% 40% 30% 20% 10% 0% Chapter 1 Chapter 2

Chapter 3 Chapter 4 Chapter 5

Chapter 6 Chapter 7

We also assessed the influence of individual chapters of the Principles. In the cases dealing with Chapter 2 of the Principles, which governs custody and decision-making for children, courts treated Chapter 2 negatively in a quarter of all cases citing Chapter 2. See Figure 18. This is a rate of nearly 1.:1 over positive treatments. neutral treatment of Chapter 2, however, accounted for the majority of the treatment—nearly 60% of all cases.11 The single largest fraction of cases citing this chapter—nearly 2%—did so in a dissenting opinion.118 In only 10% of the cases did courts adopt a provision of this chapter.119

11. A complete analysis of the line of cases analyzing each chapter, together with an analysis of the positive and negative treatment of each, is provided in Appendix 8, available online at Wash. & Lee Univ. Sch. of Law, supra note 9. 116. See id.; infra Part vI. 11. A full breakdown of all cases citing Chapter 2, broken down code by code, appears in Appendix 8, Wash. & Lee Univ. Sch. of Law, supra note 9. 118. Id. 119. Id.

602


Figure 18: Chapter 2—Parenting 60% 50% 40% 30% 20% 10% 0%

Positive Treatment

Negative Treatment

Neutral Treatment

Number of Cases

% of All Cases Citing Chapter

Positive Treatments

8

16.6

negative Treatments

12

2.00

Chapter (Child Support) was the second most cited chapter, accounting for nearly 20% of all cases. Decision-makers treated Chapter only slightly more positively than they did negatively—at a rate of a 1.2:1. See Figure 19. Like Chapter 2, courts treated Chapter neutrally far more often than either positively or negatively. Cases citing Chapter most frequently used it as a “pile on” (2%).120 The second most prevalent treatment was to inform existing tests for child support.121 In only one case (% of the total) did courts adopt a provision of this chapter (Code 1) or refuse to adopt one, deferring to the legislature (Code 8).122

120. Id. 121. Id. 122. Id.


60

Figure 19: Chapter 3—Child Support 60% 50% 40% 30% 20% 10% 0%

Neutral Treatment

Negative Treatment

Positive Treatment

Number of Cases


Positive Treatments

2.00

negative Treatments

4

20.00

Chapter 4 (Property Division) served as a “pile on” (Code ) in nearly 6% of the cases. Courts treated Chapter 4 negatively almost three times more than they treated it positively. See Figure 20. Again, neutral treatment comprised the largest treatment of this chapter. In no instance did we find a case that adopted a provision of this chapter of the Principles, but we did find one case that flatly rejected a provision.12

Figure 20: Chapter 4—Division of Property 80% 70% 60% 50% 40% 30% 20% 10% 0%

Positive Treatment

Negative Treatment Number of Cases

Neutral Treatment % of All Cases Citing Chapter

Positive Treatments

1

.14

negative Treatments

21.04

12. Id.

604


Chapter —which was cited in only 8.08% of all cases—received a variety of treatment by courts. Seven separate cases cited this chapter’s spousal support provisions, and all fall into different treatment categories.124 One case adopted a provision of the chapter, while another flatly rejected it.12 On balance, Chapter was treated more positively than negatively by courts at a rate of 1.:1. See Figure 21. Unlike the earlier chapters, positive treatment comprised the largest proportional treatment of Chapter , followed by neutral and negative treatments.

Figure 21: Chapter 5—Spousal Support 60% 50% 40% 30% 20% 10% 0%

Positive Treatment

Negative Treatment

Neutral Treatment

Number of Cases


Positive Treatments

42.86

negative Treatments

2

28.

Only three cases cited to Chapter 6—the chapter dealing with domestic partnership that the Reporters for the Principles included at the urging of the ALI’s Judges Consultative Group.126 At just over %, Chapter 6 was by far the least cited of the Principles’ substantive chapters (the Introduction’s rejection of fault in Chapter 1 is not cited by a single court). In no instance did any court adopt provisions of Chapter 6. See Figure 22. Courts treated this chapter negatively 100% of the time. One case flatly rejected the Principles’ approach.12

124. 12. 126. 12.

For a more complete breakdown of the court’s treatment of Chapter , see id. Id. See generally Hansen, supra note 16. See Appendix 8, Wash. & Lee Univ. Sch. of Law, supra note 9.


60

Figure 22: Chapter 6—Domestic Partnerships 120% 100% 80% 60% 40% 20% 0%

Positive Treatment

Negative Treatment Number of Cases

Neutral Treatment % of All Cases Citing Chapter

Positive Treatments

0

0

negative Treatments

100

Like Chapter , the treatment by courts of Chapter was a mixed bag. Four separate cases cited to this chapter, all treating it differently.128 One treated it positively, one negatively, and the other two neutrally, as Figure 2 shows.

Figure 23: Chapter 7—Agreements 60% 50% 40% 30% 20% 10% 0%

Positive Treatment

Negative Treatment

Neutral Treatment

Number of Cases


Positive Treatments

1

0

negative Treatments

1

0

128. Id.

606


V. Impact on Academia and Social Commentators To capture the extent to which the Principles have influenced the debate among academics, we searched for law journal articles that contained a reference to the Principles in their text. As Part II indicates, we ran a document name search in Westlaw’s “Journals and Law Reviews” database. In total, 64 distinct articles have referred to the Principles since the project’s inception. As shown in Figure 24 below, academics began citing the Principles as early as 1991. References to the Principles by academics saw their first spike in 1998, reaching twenty-three unique articles. A second, larger spike came in 2001 shortly after the Principles’ adoption in 2000. In the space of a year, the number of articles more than doubled, going from thirty-one articles in 2000 to seventy-seven in 2001. With minor fluctuations, the discussion of the Principles has remained relatively constant since then. Leading scholars have consistently been writing about the ALI’s proposals.129 Figure 24: Articles per Year 100 80 60 40 20 0 1991 1992

1993 1994

1995

1996

1997

1998 1999

2000

2001

2002 2003

2004 2005

2006

2007

Our search for books on WorldCat mainly uncovered different drafts of the Principles themselves. Only two other publications appeared in the search results: the Student Edition of the 2006–200 Family Law Code and the book edited by one of us, Reconceiving the Family: Critique on the American Law Institute’s Principles of the Law of Family Dissolution.10 Thus the Principles, while receiving extensive publication in draft and final form, have not sparked manyYother full-length book treatments. 129. As just one sampling, see, for example, nancy D. Polikoff, Making Marriage Matter Less: The ALI Domestic Partner Principles Are One Step in the Right Direction, 2004 U. CHI. LEGAL F. ; Julie Shapiro, De Facto Parents and the Unfulfilled Promise of the New ALI Principles, WILLIAMETTE L. REv. 69 (1999); Westfall, supra note ; Westfall, supra note 8. 10. D. Kelly Weisberg, FAMILy LAW CODE: SELECTED STATES AnD ALI PRInCIPLES (Student ed. 2006-0); RECOnCEIvInG THE FAMILy, supra note .


60

Because no single research tool contains listings of chapter titles, we cannot say whether the Principles have had an additional impact through book chapters.11 Still, the Principles have received attention in law journals at many of the most prestigious law schools in the country, including Harvard.12 Whole issues of both mainline law reviews and specialty journals featured the Principles.1 There can be no doubt that the Principles have spurred discussion of family law in the academy at large. Like the academy, the Principles have received significant attention from social commentators, including the media. Our full-cite, independentterm search in the news databases of both Lexis and Westlaw yielded fiftythree unique references to print publications that were neither law journal nor law review articles. As Figure 2 shows graphically, over this elevenyear period, the most frequent references to the Principles occurred in 2002—the year they were published in final form. Before final publication, the number of citations was spotty—wavering between one and two in most years, with none in some years. References to the Principles trailed off in 200, but remained steady at nine per year from 2004 to 2006. The release of a new book by one of us critiquing the Principles in 2006 largely explains the media coverage in that year. A steep drop in 200 hints at waning media coverage in years to come.

11. We note, however, that a handful of chapters known to us have examined the Principles. See, e.g., Robin Fretwell Wilson, The Harmonisation of Family Law in the United States, in EUROPEAn CHALLEnGES In COnTEMPORARy FAMILy LAW 46 (Katharina Boele-Woelki & Tone Sverdrup eds., 2008); nancy G. Maxwell, Unification and Harmonization of Family Law Principles: The United States Experience, in 4 EUROPEAn FAMILy LAW, PERSPECTIvES FOR THE UnIFICATIOn AnD HARMOnISATIOn OF FAMILy LAW In EUROPE 49 (Katharina Boele-Woelki ed, 200). 12. See, e.g., David Westfall, Unprincipled Family Dissolution: The American Law Institute’s Recommendations for Spousal Support and Division of Property, 2 HARv. J.L. & PUB. POL’y 91 (Sum. 2004). 1. See, e.g., Symposium, The ALI Principles of the Law of Family Dissolution, 2001 ByU L. REv 8; Symposium, The American Law Institute’s Principles of the Law of Family Dissolution, 4 J.L. & FAM. STUD. 1 (2002); Gender Issues in Divorce, supra note 4.

608


Figure 25: Citations per Year 1 14 12 10 8 6 4 2 0 1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

Year of Citation

VI. Making Sense of the Findings As with any search of electronic databases, the results found are only as good as the coverage of the databases. Here we have more confidence that the snapshot of influence with decision-makers is complete and accurate than we do of the impact on rule-makers. The databases for cases in both Westlaw and Lexis extend back before the ALI undertook its work on the Principles in 1990. By contrast, while one of the two state code databases (Lexis) comes forward from 1991, the legislative history databases on both services are spottier, dating usually from 2001 and then covering only thirty-seven or forty-seven of the fifty states.14 Moreover, the legislative histories of state codes are notoriously thin.1 nonetheless, the two backstop searches, for “parent by estoppel” and the “approximation standard,” gives us comfort that no legislature other than West virginia has indeed borrowed these ideas from the Principles. When West virginia adopted the approximation standard, it lifted terms from the Principles and, not surprisingly, its code section turned up in the backstop search. With the exception of West virginia, however, we could find no evidence that legislatures are borrowing the parent by estoppel or approximation notions from the Principles. In one sense, the anemic influence of the Principles with rule makers to this juncture may represent nothing more than the shrinking relevance of all academic work. As our Introduction noted, judges have pushed aside academic work as it became more theoretical and less practical in 14. See Figure 2. 1. See MERSKy & DUnn, supra note 96, at 2 (“As a general rule, state legislatures do not publish their debates, committee reports, or transcripts of hearings held before legislative committees. yet the need for these sources is often just as great, since state laws can contain provisions that are vague and ambiguous and need clarification.”)


609

recent decades.16 In the 190s, federal courts cited the Harvard Law Review 4,410 times; that number plummeted to 1,96 by the 1990s.1 Even when judges cite academic works, it is not clear how much influence the cited work exerts on their thinking, as Judge Sack’s quip in the introduction illustrates. At the same time, the influence of the Principles may be specific to the project or the timeframe during which the Principles were adopted and published. For a comparison, we tried to assess the impact of other legal publications with decision makers over a similar time period. Thus, we selected two treatises published contemporaneously with the Principles, The Law of Torts and The Law of Remedies: Damages, Equity, and Restitution, both by Dan B. Dobbs, and examined how often the treatises have been cited by courts since their respective publications.18 Searching in only one database, Westlaw’s “All State and Federal Cases” (named “ALLCASES”), we found that courts have cited the treatises much more frequently than the Principles.19 While the Principles were cited in 100 unique cases, The Law of Torts was cited in 210 cases. The Law of Remedies was cited the most often by courts, 60 times since its publication. While we did not examine how the courts used the treatises in each instance, courts cited Dobbs’s treatise twice as often as the Principles in one instance, and five times more often in the other. The one place where one would expect the Principles to have had some influence with both rule makers and decision makers is with domestic partnerships, since domestic partnerships are a discrete topic on which legislatures and courts adopting the Principles’ recommendations would often be writing on a blank slate. In other words, existing statutory rules would not have to be conformed to any new approach borrowed from the 16. See Liptak, supra note 21, at A. Judge Reena Raggi stated that “if the academy does want to change the world, it does need to be part of that world.” Id. 1. Id. The declining relevance of academic legal work stems also from the burgeoning number of law journals and ballooning court dockets over the same timeframe. 18. The publication of The Law of Torts falls directly between the approval and promulgation of the Principles by the ALI in 2000 and the publication of the Principles in 2002. The 199 publication of The Law of Remedies came after the beginning of the Principles project and only two years before the publication of the Principles First Tentative Draft in 199. 19. The search logic for The Law of Torts was: Dobbs / “Law of Torts”/10 2001; the logic for The Law of Remedies was: Dobbs/ “Law of Remedies”/10 199. The results were reviewed to check that the edition of the treatise being cited was the correct one. Of course, if more tort law or remedies cases are published than family law cases, this could explain why courts cite Dobbs’ two treatises more frequently than the Principles. At least for torts, this is not the case. Westlaw’s Topical Practice Area database contains listings for tort law and family law cases, but not remedies. Using this database, we examined the total number of published state court opinions in family law and tort law since 1990, the year the ALI began its work on the Principles. From 1990 to August 8, 2008, there have been 19,20 family law opinions published, compared to 188,9 tort law opinions.

610


Principles since few states by 2000 had made statutory provision for obligations and rights between cohabitants.140 Moreover, the Judges Consultative Group for the Principles saw a real need for addressing such rights and obligations and urged the Reporters for the Principles to take this on.141 And yet, there is little evidence that the Principles’ approach is having any impact on domestic partnership. no domestic partnership statute enacted before July 2008 cites to the Principles, nor does any legislative history. Further, Chapter 6 was the least cited chapter in the cases we found and when it was cited, it was treated negatively by courts 100% of the time.142 This resounding rejection of Chapter 6 may be due in part to the fact that ALI’s proposals both overshot and undershot real needs. It overshot the need for domestic partnership laws by imposing financial obligations on all nonmarital, cohabitating couples—homosexual or heterosexual alike—without requiring that the parties intend to make such a commitment to one another.14 But despite its sweeping application, the Principles’ approach undershot the needs of lesbian and gay couples by confining its scope solely to the inter se claims of domestic partners—and not providing a basis for claims against any third parties and the state.144 The Principles’ approach would create financial obligations between domestic partners, but fail to give them a host of benefits—such as the right to intestate succession and workers’ compensation death benefits, among others—that many would expect to have as part and parcel of a stable, long-term relationship. It is perhaps because of the Principles’ impoverished treatment of domestic partnerships that many states adopting domestic partner statutes have not borrowed the Principles’ template. In Maine, for example, domestic partners are accorded a legal status similar to that of married persons with respect to matters of probate, guardianship, conservatorship, inheritance, protection from abuse, and related matters.14 new Hampshire has a “broad family recognition law” that extends to same-sex couples nearly all the rights and responsibilities given to married cou140. In 1999, the vermont Supreme Court ordered its state legislature to develop a system that provided same-sex couples with traditional marriage benefits and protections. See Baker v. State, 44 A.2d 864 (vt. 1999). In response, the vermont legislature passed the vermont Civil Union law, which went into effect on July 1, 2000. See no. 91. An Act Relating to Civil Unions., http://www.leg.state.vt.us/docs/2000/acts/act091.htm (last visited June , 2008). 141. See Hansen, supra note 16. 142. See Appendix 8, Wash. & Lee Univ. Sch. of Law, supra note 9. 14. See PRInCIPLES, supra note 1, § 6.01. The Principles define domestic partners as “two persons of the same or opposite sex, not married to one another, who for a significant period of time share a primary residence and a life together as a couple.” Id. 144. Id. § 6.01 cmt. a. 14. See 200 Me. Laws 62.


611

ples.146 Hawaii’s reciprocal beneficiary statute provides some marriagelike benefits, including hospital visitation rights, the ability to sue for wrongful death, and property and inheritance rights.14 One of the significant ways that the states adopting domestic partnership statutes depart from the Principles’ approach is by requiring the parties to intend to assume domestic partner status and the rights and responsibilities that accompany it. In fact, states reverse the Principles’ negative model—in which cohabiting couples are presumed to have assumed certain financial obligations with respect to each other, absent an explicit agreement to the contrary. A number of commentators, like Professor Marsha Garrison and Chief Justice Jean Toal of the South Carolina Supreme Court, question the basis for treating unmarried cohabitants as if they are married, especially since cohabitants generally do not see their relationships in the same way and would never expect this result.148 Rejecting this model, states require the parties to affirmatively declare and register their intentions to become domestic partners.149 The processes are not complicated, but they do require at a minimum that the parties intend to become domestic partners. It may be that the Principles have fallen flat in this area because they were not sufficiently sensitive to common sense and empirically grounded understandings of what most cohabitants intend when they decide to live together. The Principles’ failure to consider empirically proven phenomena is part of a broader blind spot exhibited throughout the Principles.10 Eight years out, the Principles do not appear to have influenced the two groups the Reporters hoped most to reach: rule makers and decision makers. This is especially surprising considering that the fact that the Principles carry the imprimatur of the ALI—which virtually guarantees that its works will have some impact.11 The ALI’s Restatements of the Law and other publications have profoundly shaped the evolution of American law and have come as close to binding precedent as nongovernmental authority can.12 By way of example, as of April 2002, the number of published case citations to the Restatements was just under 146. n.H. REv. STAT., Ch. 4-A (2008) 14. HAW. REv. STAT. Ch. 2c (2008). 148. See Garrison, supra note 12; Jean Hoefer Toal, A Response to the Principles’ Domestic Partnership Scheme, in RECOnCEIvInG THE FAMILy, supra note , at 42. 149. See, e.g., ME. REv. STAT. Ann. tit. 22, § 210 (2008); HAW. REv. STAT. ch. 2C (2008). 10. See generally Wilson, Undeserved Trust, supra note 20. 11. See generally Westfall, supra note (analyzing the effect of the ALI’s imprimatur on the Principles); Lynn D. Wardle, Introduction to the Symposium, 4 J. L. & FAM. STUD. 1 (2002). 12. See Carl Schneider, Elite Principles: The ALI Proposals and the Politics of Law Reform, Afterword to RECOnCEIvInG THE FAMILy, supra note , at 489, 491 (remarking that the ALI has “wielded influence beyond the fantasies of its founders”).

612


1,000, with over 40% to the ALI’s highly influential Restatement (Second) of Torts.1 The Principles’ scant legislative influence and the paltry 100 case citations pale in comparison to the influence of its Restatements brethren. When those 100 cases are examined, what is clear is that courts are rejecting the Principles by a ratio of 1. to 1. While a 200 ABA Journal article noted that the Principles had been cited thirty-nine times by that year, it never examined how courts used the Principles. The results of our research suggest the treatment of the Principles in those cases likely was not entirely positive. The Principles appear to have been most successful in sparking a discussion among academics and social commentators about family law, changing family norms, and the direction of the law in this area. How could so many jurists and legislators be doing so little with so much family law fodder? Professor Harry Krause has suggested that the Principles “may be ahead of our time.”14 Professor Carl Schneider has argued that the Principles radically depart from the ALI’s founding mission: the restatement of the law.1 According to the ALI’s founding documents, It is the province of the people and of legislative bodies, through constitutions and statutes, to express the political, economic, and social policies of the nation, of its states, and of smaller communities. It is the province of lawyers to suggest, construct and criticize the instruments by which these policies are effectuated. The proposed organization should concern itself with such matters as the form in which public law should be expressed, the details of private law, procedure or the administration of law, and judicial organization. It should not promote or obstruct political, social or economic changes. In order to ascertain what its work should be we have examined the defects in our law, rather than those merits of which the legal profession is justly proud.16

Our findings give some credence to this notion. Only in Chapters and —child support and alimony, the meat and potatoes of divorce law— have the Principles exerted a more positive impact on balance than negative. Perhaps provisions of these chapters conform more closely to existing law—cleaning it up at the margins—than the Principles’ treatment of 1. RESTATEMEnT (SECOnD) OF TORTS (196). 14. Krause, supra note 2, at 1099. By contrast, commentators have noted that “just as the law itself cannot stay abreast of a dynamic society, the ALI’s restatements will usually tag a little behind where the common law is leading.” Doug Rendleman, Restating Restitution: The Restatement Process and Its Critics, 6 WASH. & LEE L. REv. 9, 944 (2008). 1. See Schneider, supra note 12, at 491 (“The ALI has wielded influence beyond the fantasies of its founders. The Model Penal Code and the Restatements are as close to binding precedent as nongovernmental authority can be . . .”). 16. 1923 Report of the Committee on the Establishment of an American Law Institute, reprinted in AMERICAn LAW InSTITUTE 0TH AnnIvERSARy 11, 14 (19) (emphasis added).

61


equitable distribution in Chapter 4, cohabitants in Chapter 6, or parenting in Chapter 2. In short, while the full impact of the Principles may still be yet to come, early returns suggest that the Principles are not having a significant positive influence on their intended audiences. It is likely, however, that the Principles will form the grist of academic pieces for years to come.

Appendix 6: Judicial Decisions Principle Section1

Rule Covered

Code

11 S.W.d 18 (2004) 19

2 & n.2

Best interests

6

2 P.d 1012 (200)

2.0

Best interests

2 & n.2

Best interests

6

60–06 & 2.0(1)(c) n.16 (concur)

De facto parent

61 A.2d 291 (2000)

02, 0 (concur)

2.0(1)(c)

De facto parent, compelling state interest

Me.

61 A.2d 291 (2000)

02

2.0(1)(c)

De facto parent, compelling state interest

Hoover (LeTourneau) v. Hoover

vt.

64 A.2d 1192 (2000) 119n.6

2.20

Relocation

10

vT

Hoover (LeTourneau) v. Hoover

vt.

64 A.2d 1192 (2000) 1202–08 (dissent)

2.20

Relocation

DE

Smith v. Francisco

Del.

A.2d 1000 (1999) 1006 n.22

.14

Child support

6

nM

Erickson v. Erickson

n.M. Ct. App. 98 P.2d 4 (1999)

2–4

.14 cmt. b

Child support

4

nv

Hayes v. Gallacher

nev.

92 P.2d 118 (1999)

1140–42

2.20

Relocation

1

nv

McGuinness v. McGuinness

nev.

90 P.2d 104 (1998)

1440 n.1 (dissent)

2.2(4)(b)

Relocation

nM

Styka v. Styka

n.M. Ct. App. 92 P.2d 16 (1998)

20

.12(4)(a)

In-kind benefits in 4 calculating support

682 & n.

State

Case

Court

Citation

Tn

White v. Moody

Tenn. Ct. App.

OR

In re Marriage of Winczewski

Or. Ct. App.

ny

In re Farag

n.y. Fam. Ct. no. v-09449/99, 2001 *2 WL 12624 (Sept. 28, 2001)

ME

Stitham v. Henderson

Me.

68 A.2d 98 (2001)

ME

Rideout v. Riendeau

Me.

ME

Rideout v. Riendeau

vT

108 (dissent)

CT

Ireland v. Ireland

Conn.

2.20(4)(a)

Relocation

1

CT

Wendt v. Wendt

Conn. Super. no. FA96 014962 S, *2 Ct. 1998 WL 16116 (Mar. 1, 1998)

Tentative Draft no. 2, at 228

Equal division

9

GA

Dep’t of Human Res. v. Offutt

Ga. Ct. App.

49 S.E.2d 9 (199) 99

Tentative Draft no. 1, at xvii–xix

General

11

WA

In re Parentage of M.F. Wash. Ct. App.

10 P.d 601 (200)

2.04(1)(c)

De facto parent

10

MA

In re Guardianship of Estelle

2.0() & cmt. g

De facto parent

1

Mass. App. Ct.

1 A.2d 66 (1998)

Pinpoint

60 & nn.2–24

8 n.E.2d 1 (200) 21

1. References to the Principles may be either to the final adopted version published in 2002 or to earlier tentative versions. For a more complete Appendix 6, please see Wash. & Lee Univ. Sch. of Law, supra note 9.

614


Appendix 6: continued State

Case

Court

AK

Shepherd v. Haralovich Alaska

IA

In re Marriage of Hansen

Iowa

IA

In re Marriage of Hansen

Iowa

Citation

Pinpoint

Principle Section

Rule Covered

Code

10 P.d 64 (200)

648

.14(4)

Imputation of asset income

4

n.W.2d 68 (200) 69–9

2.02 cmt. f

Approximation standard

4

n.W.2d 68 (200) 69

2.02 cmt. f


8

vT

Rogers v. Parrish

vt.

92 A.2d 60 (200)

612

2.1(4)(a)

Relocation

6

vT

Rogers v. Parrish

vt.

92 A.2d 60 (200)

61–22 (dissent)

2.1(4)(a)

Relocation

CT

Martin v. Martin

Conn. App. Ct.

91 A.2d 41 (200)

48 n.6

.11

Deferred sale of family residence

10

CT

Weinstein v. Weinstein Conn.

911 A.2d 10 (200)

1082–84

.14(4)(b)

Imputation of 1 investment income

nH

In re R.A.

n.H.

891 A.2d 64 (200)

80

2.01–04, 2.18 Best interests, 8 grandparent custody

OR

In re Marriage of Hamilton-Waller

Or. Ct. App. 12 P.d 10 (200)

1 n.6

2.1(1)

nD

Woods v. Ryan

n.D.

696 n.W.2d 08 (200) 18–19 (dissent)

2.12 & cmts., Considerations in 21 cmt. f custody orders, moral fitness of parents

FL

Acker v. Acker

Fla.

904 So.2d 84 (200)

94

.04 cmt. f

Double counting problem

6

vT

Osmanagic v. Osmanagic

vt.

82 A.2d 89 (200)

899

.04 cmt. g, .0 cmt. b

Unif. Premarital Agreement Act

MA

Ketterle v. Ketterle

Mass. App. Ct.

814 n.E.2d 8 (2004) 92 (concur) .12 cmt. b & illus. 1

College expenses

MA

Ketterle v. Ketterle

Mass. App. Ct.

814 n.E.2d 8 (2004) 91

.12 cmt. B & illus. 1

College expenses

MA

T.F. v. B.L.

Mass.

81 n.E.2d 1244 (2004)

12–8 (dissent)

.0(1)

Parental obligations by agreement, parent by estoppel

MA

T.F. v. B.L.

Mass.

81 n.E.2d 1244 (2004)

124 n.1

.0(1)

Parental obligations 8 by agreement, parent by estoppel

CO

In re E.L.M.C.

Colo. Ct. App.

100 P.d 46 (2004)

8–62

no specific De facto parent, section cited best interests

n/A18

WA

Hobbs v. Bates

Wash. Ct. App.

122 Wash. App. 1010 (2004)

1, 8–9

6.0

Domestic partnerships

9

AK

Evans v. McTaggart

Alaska

88 P.d 108 (2004)

1098 & nn.–4 (dissent)

2.18 cmt. c

nonparent custody

ME

C.E.W. v. D.E.W.

Me.

84 A.2d 1146 (2004)

112 n.1

2.0(1)(c)

De facto parent

6

WI

Franke v. Franke

Wis.

64 n.W.2d 82 (2004) 84 n.21

.02 cmt. c

Property division in divorce

MA

In re Custody of Kali

Mass.

92 n.E.2d 6 (200) 641 & n.9, 2.08(1) 642, 644 n.1


Parental relocation 6

18. This treatment was not coded because the court cites a law review article that contained the Principles in the title but the court did not address a specific section of the Principles or otherwise mention the Principles.

61



Case

Court

Citation

Pinpoint

Principle Section

Rule Covered

Code

CO

People v. Martinez

Colo.

0 P.d 44 (200)

48–9

.14() cmt. e(i)

Imputation

4

MD

McCleary v. McCleary Md. Ct. Spec. App.

822 A.2d 460 (2002)

468–69 & n. no specific Dissipation of section cited martal assets

9

HI

Hartman v. Thew

Haw. Ct. App 61 P.d 48 (2002)

0 n.2

.0, .1

Guideline amount of child support

6

Ky

Terwilliger v. Terwilliger

Ky.

64 S.W.d 816 (2002)

82 n.18

4.0 cmt. c

Dissipation of marital assets

ME

Doucette v. Washburn

Me.

66 A.2d 8 (2001)

84 n.11

4.08(2)

Marital assets— permanent impairment

ME

Washburn v. Washburn Me.

no. CIv.A. AP-99-48, *1 2000 WL 6 (June 2, 2000)

no specific Apportioning section cited workers’ compensation

101 (dissent) 2 & n.2

1

US

Troxel v. Granville

U.S.

0 U.S. (2000)

MA

Braun v. Braun

Mass. App. Ct.

86 n.E.2d 814 (200) 86–

MA

Abbott v. Virusso

Mass. App. Ct.

862 n.E.2d 2 (200)

–6, 60–62 2.1(1),(4)(a), Relocation—“real (c); 2.0 cmt. advantage” test g; 2.14 cmts. a–b; 2.08 cmt. f

6

MA

Abbott v. Virusso

Mass. App. Ct.

862 n.E.2d 2 (200)

–6, 60–62 2.1(1),(4)(a), Relocation—“real (c); 2.0 cmt. advantage” test g; 2.14 cmt. a–b; 2.08 cmt. f

10

WA

State ex rel. M.M.G. v. Wash. Graham (en banc)

12 P.d 100 (200)

1010 n.

.08

Calculating monthly income and child support

10

vT

Miller-Jenkins v. Miller-Jenkins

vt.

912 A.2d 91 (2006)

92

2.0 cmt. b

Custody— same-sex partners, parent by estoppel, de facto parent

MA

Mason v. Coleman

Mass.

80 n.E.2d 1 (2006) 18–19 & n.10

2.1(1), (4)(c) Relocation— cause shown, best interests

Tn

Smith v. Smith

Tenn. Ct. App.

no. M200-0229* n.12 COA-R-Cv, 2006 WL 16201 (Jan. 2, 2006)

2.08 cmt. m

MD

Simonds v. Simonds

Md. Ct. Spec. App.

886 A.2d 18 (200)

1 (concur) .

WA

In re Parentage of L.B. Wash.

122 P.d 161 (200)

10 n.1, 16 1–4, 2.01–04, De facto parent nn.22 & 24, 2.18 1

2

WA

In re Parentage of L.B. Wash.

122 P.d 161 (200)

1 n.2

6

vT

Hawkes v. Spence

vt.

88 A.2d 2 (200)

2, 28, 29 2.1(1) & n.6 cmt. b

nJ

Mani v. Mani

n.J.

869 A.2d 904 (200)

909, 916

.0 cmt. b

Best interests

Life insurance

1

1

Temporary to 12 permanent custody arrangements Alimony & death

1–4, 2.01–04, De facto parent 2.18 with modification from Principles Determining changed circumstances

1

no specific Economic fault as 4 section cited valid alimony factor

616


Appendix 6: continued Principle Section

Rule Covered

Code

69 n.W.2d 29 (200) 8 (concur)

2.19 cmt. e, 2.11

Interference “without good cause” with other parent’s access to child

Wash. Ct. App.

99 P.d 1248 (2004)

no specific Calculating child section cited support

Mass. App. Ct.

814 n.E.2d 6 (2004) 68 n., 69 n.8

Dupre v. Dupre

R.I.

8 A.2d 242 (2004)

2, 2.1

Relocation

4

Cohan v. Feuer

Mass.

810 n.E.2d 1222 (2004) 1226, 1228

.0 cmt. b

Alimony & death

2

MA

Kittredge v. Kittredge

Mass.

80 n.E.2d 06 (2004) 14, 1

4.10(2) & cmt. c


OK

Holleyman v. Holleyman

Okla.

8 P.d 921 (200)

90 n.1, 96 n.4

.1(1)

Separation agreement

MA

Eccleston v. Bankosky

Mass.

80 n.E.2d 1266 (200)

124 n.16

.04(2) & Support for cmt. j, .12 children beyond (2)(a) & cmt. age eighteen a, .24(2), 2.0(1)(c)(ii)

State

Case

Court

Citation

nD

Sweeny v. Sweeny

n.D.

WA

State ex rel M.M.G v. Graham

MA

Brooks v. Piela

RI MA

Pinpoint

12 n.2

2–9

.04 cmts. b–c, e

10

Modification of child support order

MA

Eccleston v. Bankosky

Mass.

80 n.E.2d 1266 (200) 12 n.1

2.0(1)(c)(ii) De facto parent

1

CT

Bretherton v. Bretherton

Conn. App. Ct.

80 A.2d 66 (2002)

2.20(4)(a), (c) Relocation

1

Ky

Holman v. Holman

Ky.

84 S.W.d 90 (2002)

CT

Thomas v. Arnold

Conn. Super. no. FA98046116S, Ct. 2002 WL 984 (Apr. 19, 2002)

2–

906 n.8, 910 4.08(2)(b) *11

Disability benefits

no specific Relocation, section cited de facto parent

4 1

vT

Damone v. Damone

vt.

82 A.2d 1208 (2001)

1210 n.1

4.08(2)(a)

Separate property

6

Ky

Neidlinger v. Neidlinger

Ky.

2 S.W.d 1 (2001)

24 n.6 (concur)

4.0 cmt. b


vT

Clark v. Clark

vt.

9 A.2d 42 (2001)

4 n. (dissent)

.12(4)(b)

Child support

RI

Rubano v. DiCenzo

R.I.

9 A.2d 99 (2000)

94–

2.0–.21

De facto parent

ME

U.S. v. Costigan

D. Me.

no. CRIM. 00-9-B-H, 2000 WL 8984 (June 16, 2000)

*4 n.1

6.0

Domestic partners

6

CT

Nighswander v. Sudick Conn. Super. no. FA 999, Ct. 2000 WL 190 (Jan. 26, 2000)

*6

2.20(4)–()

Relocation

1

CT

Hauser v. Hauser

Conn. Super. no. CvFA 9040106S, *1 n., 2 Ct. 1999 WL 1280 (Aug. 2, 1999)

2.20(4)(a)

Relocation

1

MA

E.N.O. v. L.M.M.

Mass.

11 n.E.2d 886 (1999) 891 n.6, 89 n.10

2.0(1)(b)

De facto parent

1

MA

E.N.O. v. L.M.M.

Mass.

11 n.E.2d 886 (1999) 896–9 (dissent)

2.0(1)(b)

De facto parent

LA

Blanchard v. Blanchard

La.

1 So.2d 1 (1999)

4.08

Division of retirement benefits

69 n.E.2d 98 (1998) 992 n.8

181

MA

Rosenberg v. Merida

Mass.

FL

Young v. Hector

Fla. Dist. Ct. 40 So.2d 11 (1998) 114, 118 App.

.10 cmt. d

SSDI benefits

6

2.09

Custody— approximation, —best interests

4 (withdrawn)

61



Case

Court

Pinpoint

Principle Section

Rule Covered

Code

FL

Young v. Hector

Fla. Dist. Ct. 40 So.2d 11 (1998) 112– (dissent) App. (en banc)

2.0, 2.09

Custody— approximation, best interests

(withdrawn)

MD

Janice M. v. Margaret K.

Md.

948 A.2d (2008)

n.1, 84–8, 2.0 92 nn.12–1

De facto parent

9

MD

Janice M. v. Margaret K.

Md.

948 A.2d (2008)

9-96 & nn.2–, 100–01 & n. (dissent)

2.0

De facto parent

MA

Eyster v. Pechenik

Mass. App. Ct.

88 n.E.2d 22 (2008) 280

.02 cmt. c

Family contracts

MA

Eyster v. Pechenik

Mass. App. Ct.

88 n.E.2d 22 (2008) 281 & n.1

.04()

Family contracts

4

Citation

Search Engine: Westlaw; Database: All State and Federal Cases; Search query” “American Law Institute” & “Principles of the law of family dissolution” (Correct cite; independent terms); Total Results MA

A.H. v. M.P.

Mass.

8 n.E.2d 1061 (2006)

1064, 100–

2.0

De facto parent, parent by estoppel

MA

A.H. v. M.P.

Mass.

8 n.E.2d 1061

1064, 100–

2.0

De facto parent, 9 parent by estoppel

MA

A.H. v. M.P.

Mass.

8 n.E.2d 1061

1064, 100–

2.0

De facto parent, parent by estoppel

1

10

Search Engine: Lexis; Database: Federal & State Cases, Combined; Search query: “American Law Institute” & “Principles of the law of family dissolution” (Correct Cite; independent terms); Total Results 81 (1 additional result) MA

Smith v. Jones

Mass. App. Ct.

868 n.E.2d 629 (200) 61–

2.0

De facto parent

1

ME

Jacobs v. Jacobs

Me.

91 A.2d 409 (200)

MA

In re Care & Mass. Protection of Sharlene

MI

Killingbeck v. Killingbeck

MA

411

2.0

De facto parent

11

840 n.E.2d 918 (2006) 916

2.0

De facto parent

2

Mich. Ct. App.

11 n.W.2d 9 (200)

2.0(1)

De facto parent

Salten v. Ackerman

Mass. App. Ct.

86 n.E.2d 2 (200) 29 n.

4.10


6

MA

Blixt v. Blixt

Mass.

CA

In re Marriage of Bonds Cal.

MA

Youmans v. Ramos

Mass.

4 n.28 (dissent)

4 n.E.2d 102 (2002) 1061 n.1

2.0(c)

De facto parent

1

P.d 81 (2000)

.02, .0

Family contracts

6

De facto parent

1

81

11 n.E.2d 16 (1999) 16 n., 11, 2.02, 2.0 1 n.20

Search query: “ALI Principles of the law of family dissolution” (Abbr. cite; single term); Total results: Westlaw—2; Lexis—2. (8 new) Search query: “American Law Institute” & “Principles of family dissolution” (Butchered search); Total Results: Westlaw— 1; Lexis—1 (same result (Hoover (Letourneau) v. Hoover)) AK

Krize v. Krize

Alaska

14 P.d 481 (2006)

48 n.2

4.0 cmt. d

“good will” value

AK

Schmitz v. Schmitz

Alaska

88 P.d 1116 (2004)

112 n.16

2.18 cmt. b

Parenting plan

AZ

Cullum v. Cullum

Ariz. Ct. App. 160 P.d 21 (200)

2

no specific Spousal support section cited

26

AZ

Riepe v. Riepe

Ariz. Ct. App. 91 P.d 12 (2004)

2.18 cmt. c

Definition of parent

Ky

Pursley v. Pursley

Ky.

144 S.W.d 820 (2004) 824 n.1

.10 cmt. b

Provision for college expenses in divorce

12

nH

In re Clark

n.H.

910 A.2d 1198 (2006)

.1 cmt. a

In-kind benefits

1210

618



Case

Court

Citation

Pinpoint

Principle Section

Rule Covered

Code

Mn

Garcia v. Mayer

n.M. Ct. App.

920 P.2d 22 (1996)

2, 2

4.08(1)(b)

nonvested stock options marital property

nD

Weber v. Weber

n.D.

89 n.W.2d 8 (1999)

60

4.01 cmt.

Distribution of marital property

nD

Weber v. Weber

n.D.

48 n.W.2d 81 (1996)

8

4.01 cmt.

Distribution of marital property

Tn

In re Giorgianna H.

Tenn. Ct. App. 20 S.W.d 08 (2006) 22

2 & n.2

Best interests

6

Tn

In re Marr

Tenn. Ct. App. 194 S.W.d 490 (200) 498

2 & n.2

Best interests

6

Tn

In re Audrey S.

Tenn. Ct. App. 182 S.W.d 88 (200) 8

2 & n.2

Best interests

6

AZ

Standhardt v. Super. Ct. ex rel. County of Maricopa

Ariz. Ct. App.

46 n.1

6.0–.06

Domestic partnership

8

CA

In re Marriage of DeLuca & Broquedis

Cal. Ct. App. no. A11088, 2006 WL 14948 (May 1, 2006)

*8

2.1 cmt. b

Best interests

P.d 41 (200)

Search query: “Principles of the Law of Family Dissolution” (Document name); Total Results: Westlaw—100; Lexis—104; (14 new results)