Ensuring Fairness in Family Law
by darald and juliet libby and professor sanford n. katz
It's not hard to believe that Father Drinan began his teaching and scholarly career in family law. Family law was a natural area of interest because of his serious study of theology, which he undertook during his Jesuit training, and his interest in the application of religion to law. The interface between religion and law became a lifelong interest, although it took various forms, ultimately manifesting in his work on the separation of church and state. Father Drinan was chairman of the Family Law Section of the American Bar Association, which was established in 1958. Under his leadership, the Family Law Quarterly was begun, and he was its first editor-in chief. The Quarterly has become the most influential family law journal in the United States.
In the forty years that have passed since Father Drinan published his article,“Reflections on Contemporary Dilemmas in American Family Law” in the Family Law Quarterly, the issues that he thought were important remain relevant. He was concerned with the legal issues regarding the establishment and termination of marriage and the treatment of children of divorcing couples. He recognized the tension between the religious and secular aspects of marriage and believed that the state should be neutral towards all religions. However, he believed that the state should not reject “the ideal of marriage as a solemn covenant.”
Unlike in many other countries, especially
A year after Father Drinan’s article was published,
Another major concern is the divorce process itself. How can it be humane? How can it be fair? How can the vulnerable,women and children, be protected? How can an angry, often disappointed and distressed, couple go through a legal process and complete it feeling that they have been treated fairly? Father Drinan welcomed marital counseling programs, whether independent or court-related. He felt that hasty decisions about divorce could be examined and perhaps reversed with the appropriate kind of therapy. In this view, he has found many supporters.
The fairness of the divorce process is most important with regard to the assignment of property and the disposition of children. How unfair it would be if a husband could walk out on his wife without any economic consequences. But that is not how the law works. Whether a divorce is granted for fault or for no-fault, in an equitable distribution state, like
Throughout Father Drinan’s career, he was very concerned with the plight of children. He believed that they were often the victims of divorce and that a special effort should be made to protect them. He was particularly mindful of their need for financial support. At his death, Father Drinan was completing a book on human rights for children, as part of his major interest in international human rights. To the end, it was the vulnerable in society who concerned him and for whom he felt a special affinity.
Family law has changed enormously since Father Drinan left the field. It has taken various turns and moved into new directions. The major issues in family law today concern the application of state and federal constitutional law and the impact of new assisted reproductive technology on family formation. In both of those areas, Father Drinan’s cautious voice and sense of humanity will be missed.