2008 Articles

Family Law Cases as Law Reform Litigation: Unrecognized Parents and the Story of Alison D. v. Virginia M.

Goldberg, Suzanne B.

One might ask, in light of the law’s intransigence in New York, why bother? Is law reform litigation in this area, no matter how carefully crafted, an exercise in futility? Certainly, if one evaluates the work by the win-loss record of advocates for non-legal lesbian mothers in New York during the past decade, there would seem to be little value in continuing to seek law reform on this issue. Yet to stop now would be to miss one of the central points of law reform litigation. As discussed at the outset, law reform cases are defined, in part, by an effort to move beyond the status quo and change the law in ways that advocates believe are in the interest of justice. Winning a lawsuit can accomplish this, of course. Even when cases are lost, however, the very act of litigating against injustice can sometimes be an important step toward a victory on a similar issue in a subsequent lawsuit. The drumbeat of lawsuits maintains both public and legal attention, helping to ensure that this class of litigants will not be forgotten. Further, repeated, unsuccessful litigation shows, in stark relief, the terrible losses caused by an approach to family law that, in this area, is unresponsive to family life. The litigation, in other words, helps shape the public conversation. It frames a problem and proposes a solution. Consequently, although lawyers for individuals like Alison continue to engage the same types of strategic questions about how best to persuade courts to recognize family relationships that are visible everywhere except in the law, the backdrop against which they are working is different, and richer, than when Alison first brought her case. There is now a documented history of the custody and visitation law’s non-responsiveness to families in which one parent is legally recognized and the other is not. In this history lies the opportunity for law reform efforts to continue, and for advocates to work on framing and reframing the story so that, one day, telling the family story in this kind of case will become run-of- the-mill family court conflict-resolution fare, rather than an achievement in and of itself.