Updated: West Virginia Case in NYT Magazine

In early June I wrote about a West Virginia case involving a lesbian couple (Kathryn Kutil and Cheryl Hess) and questions of foster care/adoption.   The case is featured in today’s NYT magazine.    The story includes a good deal of background information on the case and is surely worth a read.

[I posted that short intro yesterday because it is all I had time to post yesterday.  I wanted to add a couple of thoughts today.]  

This story and the extensive opinion in the Louisiana case from the day before are forceful reminders of the overwhelming complexity of real-life families.   As I think back to the summaries of facts I’ve done for so many cases and to the cases I drew the summaries from, I can see how much of that complexity gets glossed over most of the time.  

I suppose it needs to be that way.   In most of the cases I have discussed, courts are using the specific case before them to announce  a rule that will apply more generally.   Another way to say the same thing is that the courts use cases to make law.    When courts do this, they typically simplify the facts of the case before them in order to craft a rule that will apply to more than that case.   If the court’s discussion of the case before it went into too much detail, every subsequent case would be distinguishable and the rule announced by the court would not need to be applied.     

So, for example, the de facto parent test tends to be stated in broad terms–a person has had a parent-like relationship for a significant period of time, with the consent of any other parent and so on.  (I don’t mean to state it precisely here.  You can look for it elsewhere on the blog.)   While the opinions announcing adoption of a de facto rule provide a factual basis for the application of the test, they don’t really give a full flavor of the factual complexity of each situation.        

The Louisiana case stands as an exception to this because it isn’t really meant to announce a new general rule–the point about recognizing the California adoption is really made in passing.   Instead, it is simply an effort by a court to carefully resolve a complicated and disupted custody case.   In doing so, the court isn’t really establishing any new general principle of law, it’s applying established law to a particular set of facts.   And it needs detailed facts in order to assess the speciific case. 

The NYT magazine article is, of course, journalism.  The author,  Pamela Paul, constructed a much more textured picture of the operation of the particular family at issue, filling in masses of detail that the courts or the lawyers chose to omit.   It’s really quite striking to consider how much the West Virginina Supreme Court streamlined the facts in writing it’s opinion.   

This is a long way round to a simple but perhaps important reminder:  Reading cases doesn’t give you a sense of the reality of the families being discussed.  It provides only a simplified and rather flat version of their lives.  While this may be suitable for the purpose at hand–making law, announcing rules–it’s important to be mindful of its limitations.   Cases are about real people with real lives, and we only know the slightest part of that.

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