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This blog is maintained by the Ruth Institute. It provides a place for our Circle of Experts to express themselves. This is where the scholars, experts, students and followers of the Ruth Institute engage in constructive dialogue about the issues surrounding the Sexual Revolution. We discuss public policy, social practices, legal doctrines and much more.
Interview with Brenda Baietto, Esq., (left) coauthor with Jennifer Johnson (right) on the American Bar Association Journal article advocating for Family Structure Equality
I was blessed with an opportunity to coauthor an important article for the American Bar Association Journal regarding the “family structure equality” argument I make in my book, Marriage and Equality.
Brenda Baietto, Esq., of Tampa Mediations, is the lawyer who spearheaded this opportunity. She reached out to me in May. We worked collaboratively to get the article published, and it was published in September. You can read the article here.
I want to introduce Brenda to our Ruth Institute audience. Here is an interview I conducted with her about the article.
Jennifer Johnson (JJ): Tell me about the opportunity you had to write for the ABA Journal. When and how did that opportunity arise?
Brenda Baietto (BB): This opportunity arose back in May of this year as a result of a very good friend of mine named Florence M. Johnson, Esq who I met in law school and have stayed friends with since.She is an accomplished litigation attorney in Memphis TN, active in her local and state Bars, the national American Bar Association (ABA) and, for the last year or so has headed the Practice Pointers section of the Minority Trial Law Section of Litigation for the ABA.She asked me to consider writing a practice pointer piece on mediation for the target audience of trial lawyers.She wanted to give me an opportunity because she is a generous person and trusted me that I would produce a solid piece.
JJ: Of all the interesting people and legal topics you could have chosen to write with and about, why did you pick me and the "family structure equality" (FSE) that I make in my book?
BB: I picked you and your argument to write about because after reading it I knew you had put to words concepts that had been ﬂoating around in my head for some time especially as these concepts relate to family law, speciﬁcally divorce.And you were so very authentic.Your personal story has big impact precisely because it is so real.It cuts to the heart.More to it, after the decision in Obergefell [Editor’s note: Obergefell was the Supreme Court decision in 2015 that legalized same-sex marriage throughout the United States], it was becoming more and more common to hear (from potential clients, other attorneys and in continuing legal ed seminars) about the creation and dismantling of new and different family structures and that these new structures have legal protection, deserve legal protection - all this with no discussion about the children other than an underlying belief that when adults are happy so are kids.So the predominant theme I am seeing in my legal community and reading about nationally is to support these new structures strictly based on compassion/sentiment for adult choices.It was surprising to me.
Your topic touched on these issues and I knew I had something to add.It was just a matter of putting it together such that it could ﬁt into what Florence was asking of me.Since it was not going to ﬁt into a practice pointer context, we discussed making it a short article and submitting it for consideration.
JJ: Your insight was to apply the FSE argument to the "best interests of the child standard." Why is that standard a good area to apply the FSE argument?
BB: In the context of divorce law, the best interest of the child standard is something we family lawyers and judges really see as the cornerstone of child custody/timesharing decisions. Judges and lawyers take very seriously their respective roles in determining what exactly is in the best interest of a child and work with a generous spirit to do what they think is “best.”However, the best interest standard traditionally focuses on “factors” that spring from either a previously accepted or “legal” arrangement whether or not the arrangement is “good” in and of itself for the child or from a decision to divorce which is accepted without question.Never are these accepted arrangements or decisions analyzed from a best interest of the child standard and it seems only logical to do so.Jennifer’s article made that easy because it gracefully begs the issue of what is in the best interest of the child and highlights a glaring deﬁciency in limiting the best interest standard to a sort of “after the fact” analysis.
JJ: What do you foresee as a positive outcome that can happen in the life of a child if a judge relies on the FSE argument?
BB: It is my belief that with rampant no fault divorce as well as the emergence of more and more diverse “family systems,” as they are called, children are being valued more as a commodity and not as human persons with dignity.In surrogacy contract cases, for example, children are property and where a dispute over custody arises between the surrogate and the buyer, many state laws subject the child only to property laws based on the contract and refuse to even entertain a best interest analysis at all.This loss of dignity brings with it the loss of understanding of what is truly in their best interest as humans who are alive in society as children, teens and adults.How we see children’s best interest is part and parcel of how we see the best interest of the family in society.
If judges and lawyers begin relying on the FSE argument several positive outcomes will result:ﬁrst, society will have to face the very real issues children suffer as a result of no fault divorce and diverse family structures including the grief so many adult children have experienced due to structural inequality.This could very well lead to a renewed interest in natural marriage and a rethinking of the import of children in society; second, the “best interest” standard will broaden and deepen bringing meaningful protections to children who as of now are wholly subject to the whims and desires of adults; third, the legal system will no longer be a wedge between a child and his biological parents blocking a child’s most natural desire to know who he is and creating stressors in the child that he would never dream could happen, i.e. will I marry my sister without realizing it? ; and ﬁnally, and so important, children will regain their dignity as humans and not a “thing” that is more and more being viewed only as a byproduct of adult desires.
JJ: Why do you think the Minority Trial Lawyers picked up the article, and not some other group within the ABA Journal?
BB: Because, as I understand better now and did not realize before, my friend Florence is particularly involved with the Minority Trial Lawyer section and she submitted the article directly through that channel. I do think, however, it is a gift that the article is published in the Minority Trial Lawyer Section.The FSE argument is meaningful to minorities when it is part and parcel of an overall understanding of the disproportionate impact of the welfare state on black families followed by the legalization of abortion in 1973 which had and continues to have a devastating effect of the black family. Supporting policies that reverse these programs and encourages a return to the natural triad family will help strengthen inequalities felt by children in the black community and begin to create generations that are more stable.
“According to a recent PEW report, 48% of nonwhites want to get married but say ﬁnancial instability is the reason they do not.One factor, which must be taken into account, is the disproportionate impact of the welfare state following the civil rights movement. Major welfare programs established in the late 1960s, which required recipients to be unmarried to qualify, followed shortly thereafter by the legalization of abortion in 1973, had a devastating effect on the black family.Data we have today should provoke a sense of urgency to focus policy on reversing the damage done by years of programs that have hurt the very low-income communities they were supposed to help.” From: https://townhall.com/columnists/starparker/2017/09/20/marriage-collapse-white-andblack-n2383765
We need policies that protect life and encourage marriage, ownership and individual responsibility and that includes the FSE argument.
JJ: Is there anything else you want our audience to know about the article?
BB: I want the audience to know that the truths in this article must get out into the world and be discussed.This article is a ﬁrst step to beginning a dialogue that heretofore was just not done and can focus on real analysis and exchange about the welfare of the family and children. Even more than that, it is about each of us living the truth of the natural family and letting others know that you do so in a spirit of love and devotion to the Lord whose precepts we accept and live out loudly.