Rules versus Discretion in Family Court

Would you prefer to have a human being or a computer decide who your child lives with?

Judges decide family court cases based upon the applicable law. The question is what type of law should be used to decide these issues.

There are two options. One option relies on rules-based considerations; the application of fixed guidelines to resolve matters. The other option trades exact rules in favor of more judicial discretion. Let judges weigh the evidence and decide what’s fair. Legislatures, the judiciary and public policy all tend toward the former paradigm, favoring fixed guidelines to decide such issues as child custody, child support, and maintenance issues.

Despite the overwhelming trends favoring fixed guidelines, I am a discretionist. I prefer that the human heart and mind decide issues that affect human families.

The advent of guidelines.

Historically family court was considered a court of equity. This means that cases were to be decided by judges weighing a variety of equitable factors and coming up with a fair resolution based upon the unique facts and circumstances before the court.

Then in 1975, everything started to change. Federal law was enacted to tie federal subsidies to states adopting specific guidelines to facilitate setting and collecting child support. All states complied and developed child support guidelines to remain eligible for federal assistance. Guidelines were thought to help courts quickly compute and assess proper child support orders and lend predictability to the process. This legislation reflects the shift from discretion in favor of more fixed guidelines.

In part, based upon the success of the child support guidelines, many states (including my home state of Illinois) have adopted guidelines to decide other issues including spousal maintenance. The thought behind the guidelines is that they help maintain more consistent awards and they are easier for judges to use. But should those policy considerations outweigh using human wisdom to resolve family law issues?

The Illinois experiment.

The public policy debate in Illinois illustrates these two competing notions of jurisprudence. I was fortunate to serve on the Illinois Family Law Study Committee that studied Illinois’ family laws--what worked and didn't work--and to make recommendations on how to improve our family law. A large and vocal group sought specific guidelines for courts to use when deciding issues of spousal maintenance. This group argued that a presumptive guideline for setting maintenance would be efficient, consistent and predictable, thus improving the administration of justice. The advocates for guidelines argued that they were merely “suggestions” for judges, who could opt out of the guidelines as circumstances warranted.

Other vocal guideline advocates argued for a presumed parenting schedule of 50/50. In other words, children would presumptively spend half the week with both parents.

The opposing view, which I led, argued that predetermined guidelines are bad policy. Family circumstances are so varied and unique that deciding such issues as spousal maintenance and child placement was a dangerous relinquishment of judicial responsibility. While the legislature, as the formulator of public policy, can and should provide suggested factors for a court to consider, cases should not be decided by legislative commandment rather than judicial discretion.

I lost the debate.

The Illinois legislature adopted guidelines for maintenance and legislation is regularly brought up pressing for the presumptive 50/50 parenting schedules. It may possibly become law at some point in the near future.

Why fixed rules are increasingly popular.

I think culturally we have become less comfortable with ambiguity and uncertainty. This probably results from Google’s instant answers to virtually any question. My own experience reflects people wanting precise predictions as to the likely outcome of their cases. Fixed rules allow for easy predictions.

Further as artificial intelligence becomes more prevalent, there is no reason to believe that courts won’t ultimately rely on systems that decide cases by an algorithm rather than human deliberation. Adoption of firm guidelines will be the data points for the robo-judge. I believe the future of family court may involve decisions by computer, with the judge’s sole job to either rubber stamp or reject the computer’s verdict. And based upon what I have seen in current practice, I anticipate more rubber stamping than the alternative.

Advocates for rules based legislation argue they are benign because judges may, when necessary, disregard the rules. In theory, this argument makes sense. In practice, however, judges rarely veer from the path. In my experience, judges like to apply guidelines and it is only the extremely rare circumstances when they don’t. Rules based adjudication is simple. Judges love the ability to punch numbers into a computer program and come up with a result. And while most judges will deny concerns about frowns from the appellate court, I believe that most play it safe to avoid reversal. Staying within the realm of the guideline is the safe course for the judge looking to be affirmed.

What is the cost of consistency?

As the old saying goes, “there is nothing for nothing”. Everything has a price tag. What is the price for this convenience? For one thing, when we use fixed rules rather than our minds, our minds become lazy and decrepit. We no longer have to think when we have formulas to do the thinking for us. This disability is odious to a court system that is charged with the responsibility to achieve justice. A society can’t function without a thinking judicial system, which should apply logic tempered by compassion.

And speaking of compassion, algorithms have no soul and thus no ability to empathize. While again, proponents of rules based laws argue that judges will deviate from fixed guidelines when necessary, this I question because when human beings (including judges) become so acculturated to punching data into the computer to reach the result, their emotions and empathy become rusty through lack of use. Think of the stereotypical bureaucrat following strict protocol. Is this what we want for our justice system? This is not to say that judges lack compassion or concern for litigants, only that their decision-making instruments (their heart and mind) are subject to impotence through lack of use. Justice needs to be dispensed by human beings. While I am not a Luddite, and don’t not object to Tesla building self driving cars or airplane guidance systems operating by computer, I object to marginalizing human thought and compassion in favor of an algorithm.

Justice works best when the human heart and head work in tandem to achieve a just result. Adoption of rules based thinking, while seemingly benign and practical, is the first step to the slippery slope leading to mathematical justice.

To quote a line from a Robert Frost poem, “Two roads diverged in a wood, and I— / I took the one less traveled by, / And that has made all the difference.” While I am not alone in the legal wilderness, I am certainly in the minority. But I remain a steadfast defender of judicial discretion. Our judges should be chosen for their wisdom. They should be allowed to weigh all of the evidence through the lens of their life experience, common sense, and humanity. Their minds should not be dulled with formulas or mandatory guidelines. They should be paid to think and feel, rather than punch data into a computer. Our families demand no less.

Published November 28, 2019

About the author


Steven N.Peskind

Principal Attorney

To be successful, a lawyer must have insight into the whole human catastrophe and be able to effectively traverse the legal system. It is the intersection of these two disciplines that fascinate me. I have been a lifelong student of both human nature and the law, and have created this blog to help others following my path.


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