Why Family Law Reforms Fail

My last post dealt with an overview of Child Support reform issues with a promise of going into details on the subject in future posts. However, before tackling that subject, I decided to jot down some of my perceptions as to why Family Law reform in general is so difficult, and why meaningful reforms are so hard to achieve.

Historically, there are three basic methods to achieve social reform:

1. Lobby representatives to introduce legislation, open up a public debate, and create new laws (legislative solution).

2. Appeal current laws in Court (Judicial Solution)

3. Agitate civil unrest (Grassroots solution)

When I first became peripherally involved in NH legislative reform efforts 3 or 4 years ago, there were several meaningful bills currently being debated and voted on at the State House. Eventually, a State sponsored committee report on child support was even issued, with the following results:

The report outlines the many problem areas, and to the legislature's credit, they did a complete rewrite of the child custody law, providing for a presumption of shared custody.

However, the resulting new laws were dubious at best. They were so watered-down that they effectively did nothing to address the real concerns of reformers; notably the unfairness of current child-support orders, and removal of the incentive for highly divisive and litigated custody battles.

Acrimonious custody litigation happens primarily because of the "winner-take-all" effect of the current system; to wit: the winner gets to collect child support and provide the majority of meaningful and joyous influence on the children. The new legislation makes matters worse by removing the legal distinction between "custodial" and "non-custodial" parents, thus rendering a legal perception that both parents are equally involved, when in fact effectively the system is still status quo.

Finally, in "selling" (i.e. lobbying) the idea of reform to the legislature, it is necessary to appeal first to the emotional side of legislators and the general public. Anti-reformers definitely have the upper hand here, in that they merely need to cite that reformers are "greedy", "selfish", and not interested in the best interests of children. Sadly, reformers' tend to defend against these attacks by citing facts and statistics. As any car salesperson will tell you, you don't sell a car on it's torque curve or gas mileage; you sell it on the emotional impact on the buyer. One picture of a child suffering from a parent's failure to pay financial support will undo all the facts and statistics in the world.

So when a legislative solution for an unpopular reform fails, the obvious solution is to resort to a judicial solution. This approach has been used very effectively for example by the homosexual marriage advocates. Recognizing that no amount of factual argument could hold up to the inevitable emotional public legislative debate, they turned to the Court to uphold their rights to marriage.

So why not use this approach in setting new, fairer Family Law precedents? Unfortunately, there is an entrenched economic incentive in the state Courts to maintain the present system. Under the terms of Federal Social Security Administration Title IV-D, the amount of funding received is directly related to the amount of money collected by the State Courts. This was explicitly spelled out in a letter by NH Administrative Judge Edwin Kelly in a letter in May 2006. A more detailed explanation of the workings of Title IV-D can be found here.

The only way I can see to overcome this judicial bias is to first remove the financial incentive to the NH Family Law Courts to maintain the current precedents, then challenge the precedents at the Supreme Court level. By the way, I have no idea how to do this. Email me your suggestions.

Which leaves only civil unrest as a method for change. I don't really advocate this approach; I only include it for completeness. I can only imagine that acts of civil disobedience, massed demonstrations, and (God forbid!) acts of terrorism can only further malign what is already in the public's view a negative cause.