Family Law

views updated May 23 2018


Statutes, court decisions, and provisions of the federal and state constitutions that relate to family relationships, rights, duties, and finances.

The law relating to family disputes and obligations has grown dramatically since the 1970s, as legislators and judges have reexamined and redefined legal relationships surrounding divorce, child custody, and child support. Family law has become entwined with national debates over the structure of the family, gender bias, and morality. Despite many changes made by state and federal legislators, family law remains a contentious area of U.S. law, generating strong emotions from those who have had to enter the legal process.

Historical Background

Most of the changes made in family law in the late twentieth century have been based on overturning concepts of marriage, family, and gender that go back to European feudalism, canon (church) law, and custom. During Anglo-Saxon times in England, marriage and divorce were private matters. Following the Norman conquest in 1066, however, the legal status of a

married woman was fixed by common law, and canon law prescribed various rights and duties. The result was that the identity of the wife was merged into that of the husband; he was a legal person but she was not. Upon marriage, the husband received all the wife's personal property and managed all the property owned by her. In return, the husband was obliged to support the wife and their children.

This legal definition of marriage continued in the United States until the middle of the nineteenth century, when states enacted married women's property acts. These acts conferred legal status upon wives and permitted them to own and transfer property in their own right, to sue and be sued, and to enter into contracts. Although these acts were significant advances, they dealt only with property a woman inherited. The husband, by placing title in his name, could control most of the assets acquired during marriage, thus forcing the wife to rely on his bounty.

Divorce law has also changed over time. In colonial America, divorce was extremely rare. This was partly because obtaining a divorce decree required legislative action, a process that was time-consuming and costly. Massachusetts in 1780 was the first state to allow judicial divorce. By 1900, every state except South Carolina provided for judicial divorce.

Even with availability, divorce remained a highly conflicted area of law. The Catholic Church labeled divorce a sin, and Protestant denominations saw it as a mark of moral degeneration. The adversarial process presented another roadblock to divorce. In the nineteenth century, consensual divorce was not known. For a couple to obtain a divorce, one party to the marriage had to prove that the other had committed a wrong of such weight that the marriage must be ended. The need to find fault was a legacy of family law that was not changed until the 1970s.

Finally, the issue of divorce raised the topic of child custody. Traditionally, fathers retained custody of their children. This tradition weakened in the nineteenth century, as judges fashioned two doctrines governing child custody. The "best-interests-of-the-child" doctrine balanced a new right of the mother to custody of the child against the assessment of the needs of the child. The "tender years" doctrine arose after the Civil War, giving mothers a presumptive right to their young children.


Beginning in the 1960s, advocates of divorce reform called for the legal recognition of no-fault divorce. Under this concept, a divorce may be granted on grounds such as incompatibility, irreconcilable differences, or an irretrievable breakdown of the marriage relationship. The court examines the condition of the marriage rather than the question of whether either party is at fault. This type of proceeding eliminates the need for one party to accuse the other of a traditional ground for divorce, such as adultery, cruelty, alcoholism, or drug addiction.

By 1987, all fifty states had adopted no-fault divorce, exclusively or as an option to traditional fault-grounded divorce. No-fault divorce has become a quick and inexpensive means of ending a marriage, especially when a couple has no children and moderate property assets. In fact, the ability to end a marriage using no-fault procedures has led to criticism that divorce has become too easy to obtain, allowing couples to abandon a marriage at the first sign of marital discord.

The division of marital property has also undergone significant change since the 1970s. Courts now consider the monetary and non-monetary contributions of a spouse as a homemaker, parent, and helper in advancing the career or career potential of the other party— as, for example, when one spouse works so that the other may go to school. In distributing marital assets and setting alimony and maintenance, the homemaker's contributions are significant factors, although there is disagreement as to their valuation. On the other hand, courts no longer look at alimony as a long-term remedy. Alimony is now often awarded for a fixed term, so as to enable a divorced spouse to acquire education or training before entering the workforce.

Child Custody

During a marriage, all custodial rights are exercised by both parents. These include decisionmaking power over all aspects of upbringing, religion, and education, as long as the parental decisions and conduct stay clear of the neglect, abuse, and dependency laws. Upon divorce, that power traditionally went solely to one parent who obtained custody. Traditionally, the visitation rights given to the noncustodial parent constituted little more than a possessory interest. This made the custody decision upon divorce a significant one: the relationship between the noncustodial parent and her or his children would change, as the parent would lose the ability to shape decisions affecting the children.

In the United States, since the nineteenth century, mothers traditionally gained custody of children. In the late twentieth century, changes in marital and social roles have led to fathers assuming duties once thought to be the exclusive province of mothers. This in turn has led to fathers showing more interest in claiming custody and to courts granting fathers custody. Yet the vast majority of custody dispositions still go to the mother.

From a dissatisfaction with custody decisions has emerged the concept of joint custody. Under joint custody, legal custody (the decision-making power over the child's conduct of life) remains with both parents, and physical custody goes to one or the other or is shared. The concept has met with mixed reactions. If both parents are reasonable, both may be able to participate fully in decisions that would have been denied one of them. On the other hand, joint custody is likely to be harmful if the parents play out any lingering animosity, or confuse the child with conflicting directions, or are simply unwilling to agree on basic issues involving the child's welfare.

Beginning in 1980, the laws governing custody disputes have been guided by federal statutes. A 1980 amendment to the judiciary act (28 U.S.C.A. § 1738A) authorized federal rules that control the enforcement and modification of custody decrees. When in conflict, these rules supersede state statutes, including the Uniform Child Custody Jurisdiction Act (UCCJA), which all states have enacted in some version. The UCCJA was created to deal with interstate custody disputes. Before it was passed, a divorced parent who was unhappy with one state's custody decision could sometimes obtain a more favorable ruling from another state. This led to divorced parents' kidnapping their children and moving to another state in order to petition for custody.

The uniform law commissioners strengthened the original UCCJA in 1997 when it approved the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Many of the provisions are the same as those in the original statute, but the new uniform law strengthened the enforcement procedures from the original UCCJA. Several of the new provisions are designed to expedite proceedings for determining proper jurisdiction in different states, including communication between judges in the two states. Thirty states have adopted the updated UCCJEA.

Despite the enactment of the original UCCJA, the problem persisted. In 1980, Congress passed the Parental Kidnapping Prevention Act (28 U.S.C.A. § 1738A), which aids enforcement and promotes finality in child custody decisions, by providing that a valid custody decree must be given full legal effect in other states. In an international context, in 1986, the United States adopted the 1980 Hague Convention on the Civil Aspects of International Child Abduction (42 U.S.C.A. § 11603). The convention was designed to facilitate the return of abducted children and the exercise of visitation rights across international boundaries.

With the growing number of disputes among parents regarding custody and visitation of children to the marriage, states have recognized that grandparents often play an important role in the lives of their grandchildren. Surveys by the american association of retired persons (AARP) suggest that more than 80 percent of grandparents responding said that they had seen their grandchildren within the previous month. Each of the 50 states has adopted provisions in their family laws allowing visitation for grandparents under certain circumstances.

Such laws have come under attack by parents, who argue that giving grandparents visitation rights infringes on their right to raise their children as they see fit. The U.S. Supreme Court, in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), addressed this

issue for the first time. The court ruled that the state of Washington's grandparent visitation statute violated the Fourteenth Amendment's due process clause, as it interfered with the rights of parents to make decisions concerning the care, custody, and control of their children.

The State of Washington, under section 26.10.160(3) of its Revised Code, permitted "any person" at "any time" to petition a state family court for visitation rights whenever "visitation may serve the best interest of the child." Jenifer and Gary Troxel used this statute to petition a Washington court in 1993 for the right to visit their grandchildren, Isabelle and Natalie Troxel. Tommie Granville, the mother of the children, opposed the petition. Brad Troxel, the son of Jenifer and Gary, had shared a relationship with Tommie that ended in 1991. Though they never married, they had Isabelle and Natalie. After they broke up, Brad brought his daughters to his parents for weekend visits. When Brad committed suicide in 1993, his parents sought to continue the weekend visitations. Tommie refused, however, allowing them one short visit per month. This led to the filing of the visitation petition in which the Troxels asked for two weekends of visitation per month and two weeks of visitation per summer. The family court ultimately ordered visitation one weekend per month and one week during the summer, along with four hours on each grandparent's birthday.

The Washington Court of Appeals and the Washington Supreme Court both found that the statute unconstitutionally infringed upon the fundamental right of parents to rear their children. It noted that the U.S. Constitution allows the state to interfere with this right only to prevent harm to the children. The Washington statute did not require a showing of harm. In addition, the statute permitted "any person" to file a visitation petition. The Washington courts found that this provision was too broad. In their view, parents have a right to limit visitation of their children with third persons.

The Troxels appealed to the U.S. Supreme Court, which upheld the decisions of the Washington courts. Justice sandra day o'connor, writing for the majority, acknowledged that the demographics of the American family had changed in the past one hundred years. In 1998, almost 4,000,000 children lived with their grandparents and 28 percent of all children under 18 lived in single-parent households. Though she noted that these changes helped explain the extension of statutory visitation right, there were "obvious costs" that came with these changes. The primary cost was the "substantial burden" placed on the "traditional parent-child relationship." Invoking the recognized liberty interests of parents "in the care, custody, and control of their children," the Court found that the statute unconstitutionally interfered with the parent's due process rights.

The Court in Troxel noted that the decision did not invalidate all grandparent visitation statutes. The breath of the Washington statute— for example, the fact that any person could seek visitation—was primarily responsible for the Court rendering it unconstitutional. As the AARP and other groups condemned the decision, state legislatures in 2001 and 2002 sought aggressively to amend their statutes to comport with the Troxel decision. Each of the 50 states still has a statue providing for visitation, but many now require grandparents to demonstrate harm to the child if visitation is not allowed or to show that one of the parents to the marriage is deceased.

Child Support

In most cases, a divorce decree will require the noncustodial parent, usually the father, to pay child support. The failure of parents to pay child support has significant consequences. Lack of support may force the custodial parent to apply for welfare, which in turn affects government budgets and ultimately taxes. This problem has resulted in increasingly more aggressive collection efforts by the government.

The Uniform Reciprocal Enforcement of Support Act (URESA) exists in all states in some form. URESA allows an individual who is due alimony or child support from someone who lives in a different state to bring action for receipt of the payments in the home state. This measure circumvents such problems as expense and inconvenience inherent in traveling from one state to another in pursuit of support.

In response to federal legislation that mandates a more aggressive approach, states have become more creative in extracting money from those who fail to pay child support—who, because they are usually fathers, have come to be labeled deadbeat dads. In 1975, Congress enacted a provision that created the Office of Child Support Enforcement in the department of health and human services (42 U.S.C.A. § 651). The office was charged with developing ways of collecting child support.

In 1984, the law was amended to strengthen enforcement powers. State laws now must require employers to withhold child support from the paychecks of parents who are delinquent for one month. Employers are to be held responsible if they do not comply fully. State laws must provide for the imposition of liens against the property of those who owe support. Unpaid support must be deducted from federal and state income tax refunds. Expedited hearings are required in support cases.

Other Areas

Family law has grown beyond the boundaries of marriage, divorce, and child custody and support. New areas of law have been created that deal with the legal rights of persons who have not been legally married.

Palimony The colloquial term palimony entered the U.S. lexicon in 1976, with the lawsuit Marvin v. Marvin, 18 Cal.3d 660, 134 Cal. Rptr. 815, 557 P.2d 106 (Cal.). The term refers to alimony paid out of a nonmarital union. In Marvin, the California Supreme Court ruled that although public policy is to encourage and foster the institution of marriage, an equitable distribution of property accumulated during a nonmarital relationship is not precluded. In this case, Michelle Triola Marvin, who had cohabited with film actor Lee Marvin for seven years without a formal marriage, brought an action to enforce an oral contract under which she was entitled to half the property accumulated during the seven-year period, along with support payments. Though the facts of the case ultimately led to Michelle Marvin's not recovering any palimony, the case established the right of a cohabitant to obtain a property settlement.

Same-Sex Marriage Despite court challenges, marriage can occur only between persons of the opposite sex. In Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), cert. denied, 409 U.S. 810, 93 S. Ct. 37, 34 L. Ed. 2d 65 (1972), the Minnesota Supreme Court sustained a clerk's denial of a marriage license to a homosexual couple.

The possibility of homosexual marriage was revived by the 1993 decision of the Hawaii Supreme Court in Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44. In Baehr, the court held that a state law restricting legal marriage to parties of the opposite sex establishes a sex-based classification, which is subject to strict constitutional scrutiny when challenged on equal protection grounds. Although the court did not recognize a constitutional right to same-sex marriage, it indicated that if the state prohibited such marriages, it would have a difficult time proving that gay and lesbian couples were not being denied equal protection of the laws. The debate over homosexual marriage continues at both the federal and state levels.

Although gay and lesbian partners have been unable to persuade states to recognize their unions as "marriage" in the traditional sense, an increasing number of states have passed laws allowing unmarried couples, including homosexual and heterosexual couples, to register as "domestic partners." A registry identifying these partners has been established in dozens of American cities, and other cities and states now extend certain benefits to domestic partners even if the city or state does not provide a registry. The ordinances and statutes also provide certain procedures for property settlement and resolution of other issues if the partners separate.

The movement has been most popular in cities in the state of California, where many municipalities and counties provide benefits to domestic partners, domestic partner registries, or both. Although several of the cities across the United States that have extended these rights to same-sex couples are larger, urban areas, some smaller counties and cities have also extended such rights.

Artificial Conception and Surrogate Motherhood Modern technology has created opportunities for conceiving children through artificial insemination, in vitro fertilization, and embryo transplantation. Combined with these techniques is the practice of surrogate motherhood. These new techniques have also created legal questions and disputes new to family law.

The most important legal question goes to the child's status, which encompasses the child's rights against, and claims on, the various actors in the child-bearing scenario. These actors might include one or more of the following: (1) the married mother's husband when the child was conceived by artificial insemination with semen donated by a third party; (2) a surrogate mother who carried the child to term and gave birth to the child, where the pregnancy resulted from either (a) her artificial insemination or (b) her receipt of a fertilized ovum (embryo) from another woman; (3) the donor of the semen; and (4) the donor of the ovum or embryo.

Artificial insemination Where a married woman, with the consent of her husband, has conceived a child by artificial insemination from a donor other than her husband, the law will recognize the child as the husband's legitimate child.

In vitro fertilization and ovum transplantation The technique of in vitro fertilization gained international attention with the birth of Louise Brown in England in 1978. This technique involves the fertilization of the ovum outside the womb. Where the ovum is donated by another woman, the birth mother will be treated in law as the legitimate mother of the child.

Surrogate motherhood In surrogate motherhood, women agree to be artificially inseminated or to have a fertilized ovum inserted into their uterus, and to carry the child to term for another party. Where women do this to assist members of their own family, few legal complications arise. However, where women have agreed to the procedure for financial compensation, controversy has followed.

The most famous case involved "Baby M" (in re baby m, 109 N.J. 396, 537 A.2d 1227[1988]). In 1987, Mary Beth Whitehead agreed to be the surrogate mother for sperm-donor William Stern. Stern agreed to pay Whitehead $10,000 for carrying the child. Whitehead signed the contract agreeing to turn the child over to Stern and his wife, Elizabeth Stern. Whitehead began to show attachment to the child when she was born, naming the child Sara Elizabeth Whitehead at the hospital. The Sterns, on the other hand, had prepared to take custody of the child, naming her Melissa. When Whitehead refused to turn over the baby, Stern went to court seeking custody of the girl.

The New Jersey Supreme Court held that the surrogate contract was against public policy and that the right of procreation did not entitle Stern and his wife to custody of the child. Nevertheless, based on the best interests of the child, the court awarded custody to the Sterns and granted Whitehead visitation rights.

Court Procedures

Family law has been governed by the adversarial process. This process is geared to produce a winner and a loser. In divorce and child custody cases, the process has increased tensions between the parties, tensions that do not go away after the court process is completed.

States have begun to explore non-adversarial alternatives, including family mediation. Court systems are also experimenting with more informal procedures for handling family law cases, in hopes of diffusing the emotions of the parties.


Family law has become a major component of the U.S. legal system. Attorneys seeking admission to the bar are being tested on family law subjects, and law schools provide more courses in this field. Many of the social and cultural issues U.S. society debates will ultimately be played out in its family courts.

further readings

Gregory, John De Witt et al. 2001. Understanding Family Law. 2d ed. Newark, N.J.: LexisNexis.

Jasper, Margaret C. 2001 Marriage and Divorce. 2d ed. Dobbs Ferry, N.Y.: Oceana.


Adversary System; Alternative Dispute Resolution; Child Abuse; Children's Rights; Cohabitation; Domestic Violence; Fetal Rights; Gay and Lesbian Rights; Husband and Wife; Parent and Child.

Family Law

views updated Jun 08 2018


Family law is that body of law having to do with creating, ordering, and dissolving marital and family groups. Although the exact scope of family law is given differently by different authors, at its core family law is concerned with such issues and events as marriage, separation, divorce, alimony, custody, child support, and adoption, as well as the more arcane topics of annulment, paternity, legitimacy, artificial insemination, and surrogate parenting.

This entry on family law in the United States should be read with two important caveats in mind. First, it is somewhat misleading to write of "United States" family law. Because the power to regulate domestic life is not one of the powers delegated to the federal government by the Constitution, in the United States most family law has been "a virtually exclusive province of the states" (Sosna v. Iowa, 419 U.S. 393 [1975]). Despite considerable variation in state law, however, certain general trends can be identified. Moreover, researchers have identified similar trends in a number of European countries (Glendon 1989).

Second, many kinds of law that affect the family cannot be discussed here. These include laws that are not ordinarily listed under the rubric of "family law" but that have significant effects on family life in this country. These range from the laws of inheritance to zoning regulations and regulations about social welfare programs. While the impact on the family of a diversity of laws seems to become increasingly significant, this is not a uniquely modern phenomenon. For example, 200 years ago poor laws affected family life in ways that anticipated the impact of modern welfare laws (tenBroek 1964).

As was typical of much of early law in this country, most American family law was received from English law; but family law was atypical in that much of it was not derived from secular or "temporal" English law. In England, from the late twelfth century (Pollock and Maitland 1898, Vol. 2, p. 367) until the passage of the Matrimonial Causes Act of 1857, issues pertaining to marriage and divorce were governed by canon law, and most family matters were thus subject to the jurisdiction of ecclesiastical courts. While the American colonies had no ecclesiastical courts, English canonical rules concerning family relations were incorporated—either by statute or by common law tradition—into the laws of the colonies and, later, the states (Clark 1980).

Notwithstanding its religious heritage, family law in this country was completely secular. Although marriages were frequently performed by members of the clergy, the authority to solemnize marriages was vested in them by the state, not the church. In legal theory, at the basis of the family was a marriage that was a civil contract and not a religious sacrament.

This contractual view of marriage had some interesting consequences. For example, it led to official recognition of informal as well as formal marriage. This informal union, the so-called common law marriage, was effected by the simple express agreement of a man and a woman to be married, followed by their cohabitation. (Contrary to popular myth, common law marriages did not require a specific number of years to go into effect.) While today they are recognized only in fourteen states, until the twentieth century common law marriages were as valid as formal marriages in nearly every state (Wardle et al. 1988, § 3:17). Recognition of common law marriage meant that settlers on the geographic fringes of society, without access to officials, could enjoy the same protection of their property rights and their children's legitimacy as was afforded in formal marriages. In 1833, Chief Justice Gibson of Pennsylvania ruled that rigid marriage laws were "ill adapted to the habits and customs of society as it now exists." Not recognizing common law marriage, or so Gibson suggested, would "bastardize the vast majority of children which have been born within the state for half a century" (Rodenbaugh v. Sanks, 2 Watts 9).

After the Civil War, there was a movement to strengthen state regulation of marriage. Most states already required marriage licenses, but in antebellum America, courts had treated these licenses as a means "to register, not to restrict marriage" (Grossberg 1985, p. 78). By the end of the nineteenth century, however, marriage licenses had clearly become a means of social control. Because the process of acquiring a marriage license brought the couple under scrutiny of some official, licensing requirements helped states prevent marriages of people who were too young or too closely related, either by blood (consanguinity) or marriage (affinity). Official scrutiny of those seeking to wed also helped to enforce laws against bigamy and polygamy.

But legislators, encouraged by eugenicists who believed that crime, mental illness, and other social ills could be traced to hereditary biological factors, also enacted laws enumerating other kinds of forbidden marriages. For example, marriage was prohibited to those not mentally capable of contracting owing to conditions variously labeled as insanity, lunacy, idiocy, feeblemindedness, imbecility, or unsound mind (Clark 1968, pp. 95–96). Marriage was also prohibited to those physically incapable of performing the "marriage essentials." Generally, this latter criterion involved only the capacity to have "normal" or "successful" sexual intercourse, not necessarily the ability to procreate. As one author explained it, "Copula, not fruitfulness, is the test" (Tiffany 1921, p. 29).

Eugenics also justified, scientifically, laws that prohibited people with certain diseases (e.g., epilepsy, tuberculosis, and venereal disease) and statuses (e.g., habitual criminal, rapist) from marrying. In most cases, such obstacles could be overcome only if the person consented to sterilization. Many believed such statutes were necessary to "prevent the demise of civilized-society" (Linn and Bowers 1978, p. 629). Even some of the most respected legal thinkers joined the eugenicists. Justice Oliver Wendell Holmes of the United States Supreme Court, for example, wrote that it would be "better for all the world, if instead of waiting to execute degenerate offspring for crimes, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind" (Buck v. Bell, 274 U.S. 200 [1927]).

The most notorious marriage impediment was race. By 1930, thirty states had enacted statutes prohibiting interracial marriages (Clark 1968, p. 91). For the most part, these antimiscegenation laws forbade marriages between whites and blacks, but in several cases the prohibition was extended to, for example, white and Malays, whites and Mongolians, whites and Native Americans, and blacks and Native Americans (Kennedy 1959, pp. 59–69).

Divorce was even more strictly regulated than marriage. However, the absence of ecclesiastical restrictions made divorces much easier to obtain in the United States than in England. This was especially true in the northern states. A few states even allowed divorce simply where the cause seemed "just and reasonable." Connecticut, for example, permitted divorce for conduct that "permanently destroys the happiness of the petitioner and defeats the purpose of the marriage relation" (Clark 1968, p. 283). During the latter part of the nineteenth century such generous statutes were repealed, and divorce was allowed only in response to specific types of fault—usually adultery, desertion, cruelty, or long-term imprisonment.

Despite stringent regulation of entrance to and exit from marriage, husbands and wives in intact marriages were generally protected from legal scrutiny. Indeed, traditionally, the principle of nonintervention was so strong that neither husbands nor wives could invoke the law to resolve marital disputes even when they wished to. In one case, for example, the wife of a well-to-do but stingy husband asked the Nebraska courts to require him to pay for indoor plumbing and to provide a reasonable allowance to her. The court agreed that, given his "wealth and circumstances," the husband's attitude "leaves little to be said in his behalf." But, said the court, "the living standards of a family are a matter of concern to the household and not for the courts to determine" (McGuire v. McGuire, 157 Neb. 226, 59 N.W.2d 336 [1953]). Similarly, the courts preferred a hands-off approach to parent–child relationships. As the United States Supreme Court ruled in 1944, "the custody, care, and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. . . . It is in recognition of this that [earlier] decisions have respected the private realm of family life which the state cannot enter" (Prince v. Massachusetts, 321 U.S. 158 [1944]).

The extent of the courts' reluctance to intervene in family matters or, as it was sometimes put, to "disrupt family harmony," was shown in the rule that spouses could not sue one another for personal torts or injuries. If, for example, a husband assaulted or battered his wife, she was enjoined from taking legal action against him in civil court (Keeton et al. 1984, pp. 901–902). In theory, the husband could be prosecuted in criminal court, but police and criminal courts too were reluctant to interfere in domestic matters (Pleck 1987, p. 187).

The practice of nonintervention was carried a step further at the turn of the century when the courts invented the doctrine of "parental immunity." Owing to reasons of "sound public policy, designed to subserve the repose of families and the best interests of society" (Hewellette v. George, 68 Miss. 703, 9 So. 885 [1891]), an unemancipated minor was barred from suing his or her parents for negligent or intentional wrongdoing.

Owing to the state's reluctance to intervene, the family has had a great deal of autonomy in this country, even to the extent that some have referred to the family as a "minisovereignty" (O'Donnell and Jones 1982, p. 7). In recent times, this autonomy has been justified on the basis of privacy rights. Speaking of the married couple's right to make decisions about the use of contraception, the United States Supreme Court said in 1965, for example, "we deal with a right of privacy older than the Bill of Rights" (Griswold v. Connecticut, 381 U.S. 479 [1965]).

But things began to change in the late twentieth century. First, beginning in the 1960s, strict regulation of entrance to and exit from marriage began to unravel. In the 1967 case of Loving v. Virginia, the United States Supreme Court ruled unconstitutional all antimiscegenation laws, saying that the states had no right to "prevent marriages between persons solely on the basis of racial classification." "Marriage," said the Court, "is one of the 'basic civil rights of man,' fundamental to our very existence and survival" (388 U.S. 1; quoting Skinner v. Oklahoma, 316 U.S. 535 [1942]). Since Loving, many other marriage restrictions have been repealed or eased. Age requirements in many states have been lowered; the mental ability needed to contract marriage has been ruled to be less than that required for other sorts of contracts; and the necessary mental competency is presumed to be present unless there is "clear and definite" proof to the contrary. Moreover, "there is a trend in modern times to abolish affinity restrictions" (Wardle et al. 1988, § 2:09); only one state (Missouri) still prohibits epileptics to marry (Wardle et al. 1988, § 2:47), and in many states, even prison inmates are deemed to have a right to marry (In re Carrafa, 77 Cal. App.3d 788 [1978]).

These changes reflect the courts' willingness to protect the rights of individuals to make their own choices about marriage and related matters. The decision to marry, according to the Supreme Court, is among "the personal decisions protected by the right to privacy" (Zablocki v. Redhail, 434 U.S. 374 [1978]).

Presumably, much the same can be said about the decision to divorce; recent changes in divorce laws have, if anything, been even more dramatic than changes in marriage laws. Implicitly accepting the principle that there is a right to divorce, the Supreme Court ruled in 1971 that welfare recipients could not be denied access to divorce courts because they could not afford to pay court costs and fees (Boddie v. Connecticut, 101 U.S. 371 [1971]). By the mid-1980s, every state had either replaced fault-based divorce laws with no-fault laws or added no-fault grounds to existing laws (Freed and Walker 1986, p. 444). No longer, then, must there be a "guilty" and an "innocent" party in a divorce. Instead, one spouse simply needs to assert that the couple is no longer getting along or has been living apart for a certain amount of time.

While regulations governing entrance to and exit from marriage and family life have decreased, there has been a corresponding increase in regulations affecting relations in ongoing families. Spousal immunity has been abolished in most states. Moreover, in many states the law recognizes the crime of "marital rape." Similarly, children now have more rights that can be asserted against their parents. For example, minors have the right to obtain information about and to use birth control without a parent's consent (Carey v. Population Services International, 431 U.S. 678 [1977]); to receive psychiatric care (In re Alyne E., 113 Misc. 2d 307, 448 N.Y.S.2d 984 [1982]); and perhaps even to separate from their parents should the parents and children prove "incompatible" (In re Snyder, 85 Wash. 2d 182. 532 P.2d 278 [1975]). At base, says the Supreme Court, children "are 'persons' under the Constitution" and have rights that should be protected by the state (Tinker v. Des Moines Independent School District, 393 U.S. 503 [1969]).

Both the easing of marriage and divorce restrictions and the loss of family autonomy can be traced to the growth of individual rights that began in the 1960s. The idea of family autonomy and privacy and, hence, the policy of nonintervention were traditionally based on "paternal" authority; the authority of the family patriarch. This pattern can be traced back to the Roman idea of patria potestas—or the right of the father to exert absolute control over his family, including the power of life or death.

Family autonomy and privacy that is based on paternal power is viable only when other members of the family are unable to invoke the power of the state against the father. It was for this reason, then, that traditionally the woman's power to invoke the law was suspended from the moment of her marriage (Blackstone [1769] 1979, Vol. 1, p. 430). Children, likewise, had no legal standing until they reached the age of majority.

Things are much different today: While children still have many "legal disabilities," they can no longer be regarded as chattel. Women have achieved at least technical legal equality (though whether this has served to their advantage in divorce law is still subject to debate—compare Weitzman 1985 and Jacob 1988). Although the courts still speak of "family privacy," it is becoming clear that such privacy is based on family members' individual rights and exists only as long as family members are not in serious conflict about how they wish to assert those rights.

Some mourn the loss of near total family autonomy; the family, they say, has lost its integrity (Peirce 1988). There is no doubt that the notion of family autonomy or privacy served an important value: It has been "a convenient way for dealing with a problem . . . [that is] especially acute in the United States—that of devising family law that is suited to the needs and desires of persons with different ethnic and religious backgrounds, different social status, and different standards of living" (Glendon 1989, p. 95). In many instances, however, nonintervention created private Hobbesian jungles in which the strong ruled and the weak could not call upon the law for help.

As we move into the twenty-first century, families will continue to play an important role in society, and there can be little doubt that family relations will continue to be regarded as legally different from other relations and worthy of special legal protection. The question is, To whom is the law's protection to be extended in domestic matters as the United States embarks upon the twenty-first century? Traditionally, lawmakers have extended this protection to a limited variety of relations—the father–mother–children household. If present trends continue, however, the traditional ideal-typical nuclear family will be something that is achieved (and perhaps aspired to) by only a small fraction of Americans (Difonzo 1997; Estlund and Nussbaum 1998; McIntyre and Sussman 1995; Reagin 1999).

As we move through the first decades of this new century, new and more complex family legal issues will emerge as people construct new communal arrangements, call them family, and seek the protections accorded by the law to more traditional arrangements (Dolgin 1999; Edwards 1999; Minow 1993). The most pressing question facing lawmakers is this: Will the law continue to afford its protections only to those domestic arrangements that mirror traditional family forms, or will it embrace and protect domestic arrangements insofar as they fulfill traditional family functions?

(see also: Family and Household Structure)


Blackstone, William (1769) 1979 Commentaries on the Laws of England, 4 vols. Chicago: University of Chicago Press.

Clark, Homer H., Jr. 1968 Law of Domestic Relations. St. Paul, Minn.: West.

——1980 Cases and Problems on Domestic Relations. 3rd ed. St. Paul, Minn.: West.

Difonzo, J. Herbie 1997 Beneath the Fault Line: The Popular and Legal Culture of Divorce in the Twentieth Century. Charlottesville: University Press of Virginia.

Dolgin, Janet L. 1999 Defining the Family: Law, Technology and Reproduction in an Uneasy Age. New York: New York University Press.

Edwards, Jeanette 1999 Technologies of Procreation: Kinship in the Age of Assisted Conception. New York: Routledge.

Estlund, David M. and Martha C. Nussbaum 1998 Sex, Preference, and Family: Essays on Law and Nature. New York: Oxford University Press.

Freed, Doris J., and Timothy B. Walker 1986 "Family Law in the Fifty States: An Overview." Family Law Quarterly 20:439–587.

Glendon, Mary A. 1989 The Transformation of Family Law, State, Law, and Family in the United States and Western Europe. Chicago: University of Chicago Press.

Grossberg, Michael 1985 Governing the Hearth: Law and Family in Nineteenth-Century America. Chapel Hill: University of North Carolina Press.

Jacob, Herbert 1988 Silent Revolution. Chicago: University of Chicago Press.

Keeton, W. Page, Dan B. Dobbs, Robert E. Keeton, and David G. Owen 1984 Prosser and Keeton on the Law of Torts, 5th ed. St. Paul, Minn.: West.

Kennedy, Stetson 1959 The Jim Crow Guide to the USA. London: Lawrence and Wishart.

Linn, Brian J., and Lesly A. Bowers 1978. "The Historical Fallacies Behind Legal Prohibitions of Marriages Involving Mentally Retarded Persons: The Eternal Child Grows Up." Gonzaga Law Review 13:625–690.

Long, Joseph R. 1905 A Treatise on the Law of Domestic Relations. St. Paul, Minn.: Keefe-Davidson.

McIntyre, Lisa J. and Marvin Sussman 1995 Families and Law. New York: Haworth Press.

Minow, Martha 1993 Family Matters: Readings on Family Lives and the Law. New York: New Press.

O'Donnell, William J., and David A. Jones 1982 The Law of Marriage and Marital Alternatives. Lexington, Mass.: D. C. Heath.

Peirce, Dorothy S. 1988 "BRI v. Leonard: The Role of the Courts in Preserving Family Integrity." New England Law Review 23:185–219.

Pleck, Elizabeth 1987 Domestic Violence: The Making of American Social Policy Against Family Violence from Colonial Times to the Present. New York: Oxford University Press.

Pollock, Frederick, and Frederic W. Maitland 1898 The History of English Law Before the Time of Edward I, 2 vols. Cambridge: Cambridge University Press.

Reagin, Milton C. Alone Together: Law and the Meanings of Marriage. New York: Oxford University Press.

tenBroek, Jacobus 1964 Family Law and the Poor. Westport, Conn.: Greenwood.

Tiffany, Walter C. 1921 Handbook on the Law of Personal and Domestic Relations. 3rd ed. St. Paul, Minn.: West.

Wardle, Lynn D., Christopher L. Blakesley, and Jacqueline Y. Parker 1988 Contemporary Family Law: Principles, Policy, and Practice, 4 vols. Deerfield, Ill.: Callaghan.

Weitzman, Lenore 1985 The Divorce Revolution. New York: Free Press.

Lisa J. McIntyre

Family Law

views updated Jun 27 2018

Family Law

Most Western legal systems have a body of law known as family law. This body of law concerns itself with defining familial relations, attaching and defining of legal consequences to those relationships and their dissolution, and the transition of individuals into new family formations. In concrete terms, this translates into marriage and its effects, divorce, the law of the parent-child relationship, including postseparation parenting and child support, and the recognition of nonmarital relationships. Other matters often included in family law, but depending on the local distribution of legislative powers and not discussed here, include domestic violence, adoption, and child protection.

The Eras of Family Law: From Form to Function

Before turning to examine some of the specific tasks confronting family law, it may be helpful to sketch the larger background against which these tasks are undertaken. That background is one of significant changes, or transitions, in the objectives, assumptions and techniques of family law systems (Glendon 1989). It has been suggested (Dewar and Parker 2000) that family law has passed through a number of eras—a formal era (which was in place from the introduction of judicial divorce in the mid-nineteenth century until the late 1960s and early 1970s), a functionalist era (which began when the formal era ended), and the complex era (which started towards the late 1980s and early 1990s).

In the formal era, family law rested on an identifiable legal-conceptual structure. Marriage was a contract in the sense of being a set of voluntarily assumed rights and obligations, but in the nature of a contract of adhesion and thus not freely negotiable. Under this model, spouses had identifiable rights and obligations, and remedies were available for breach of marital entitlements. Thus, divorce was available only on proof of commission by a spouse of one of a carefully defined list of matrimonial offences; innocence or guilt of matrimonial misconduct affected the consequences of a divorce in terms of money and children. This model of marriage also affected the civil status of the parties to it, especially the wife. For example, a husband could not be prosecuted for raping his wife; spouses could not be compelled to testify against one another in a court of law; and spouses could not sue each other for personal injuries.

The introduction of no-fault divorce marked the shift to a functionalist era. Marriage could be ended without proof of fault, but instead with proof of irretrievable breakdown, usually evidenced by a period of separation. The functionalist era of family law was one in which the task of the legal system was to assist parties in negotiating transitions, and employ judicial order-making power to achieve certain welfare-defined outcomes, rather than allocating punishment or blame. This functionalist model was seen to be supportive of family life—and of the institution of marriage in general—because it enabled individuals to move on from bad marriages to more satisfying ones. It thus marked a shift in techniques of family governance, from control through restriction to control through managed change (Smart 2000).

The Era of Complexity

The functionalist era has now been displaced by the complex era. It will become apparent that there is no single set of ideas or explanations lying behind the trends characteristic of the complex era, although there may be some loose connections between them. Instead, the patterns are diverse, fragmented, and sometimes contradictory.

The shift from functionalism to complexity can be seen in the following aspects of modern family law. First, marriage has been displaced as the central concept linking law to families. Instead, legislation increasingly recognizes other relationships, such as unmarried cohabitation, or attaches greater significance to existing ones, such as parenthood. Some jurisdictions have gone further and have created new forms of marriage or legal partnership to accommodate those who cannot enter marriage in its conventional sense (Barron 2000). At the same time, concerns about the instability of marriage have led to calls for a return to fault-based divorce laws, or for offering couples the option of entering marriages that are harder to exit than normal ones (Wardle 1999). Ironically, perhaps, these seem to offer a return to an older—prefunctionalist—mode of family governance.

Second, there has been a retreat from the discretionary legislation that was the core of the functionalist model. Family law legislation is increasingly drafted in more specific, rule-like, terms. For example, child support legislation, whether drafted as judicial guidelines or as legislation creating a separate agency charged with assessment and enforcement of child support, is drafted in terms of fixed entitlements rather than discretionary awards. Rules on property adjustment are similarly debated in terms of increasingly clearer rules rather than broad discretions (Blumberg 2000), whereas legislation on postseparation parenting often includes statements of principles of equality between parents, or of rights of children, in mandatory rather than discretionary terms. The explanation for this lies in governmental desire to control the costs of family breakdown to the welfare state and the legal system; an increased tendency to conceive of parties in family law disputes as bearers of rights rather than as objects of welfarist interventions; and a perceived need to offer a clearer set of principles for law in this area, so that parties are more easily able to arrive at their own agreements rather than having to litigate.

Third, there is a greater emphasis on family autonomy in decision making, through promotion of binding prenuptial agreements, and nonjudicial forms of dispute resolution for those who have no ready-made agreements to fall back on. Once again, this trend is informed by a wish to remove family disputes from costly judicial arenas as much as possible, while at the same time drawing on the concepts of individual, empowerment, responsibility, and autonomy as self-sufficient justifications for parties to agree without court or professional involvement. Indeed, it seems that the role of law itself—or, at any rate, of lawyers—is sometimes in question.

A final shift of emphasis has been in the area of postdivorce parenting. Under the functionalist model, the emphasis was on assisting parties to move on from one relationship, and household, to the next. The language was that of the clean break, of "looking to the future." In this context, little prominence was given to the issue of how ongoing relationships were to be maintained or managed between children and their nonresident parent. That issue has now moved to center stage, with policy makers increasingly concerned to respond to demands from nonresident parents, often framed in terms of fathers' rights, for greater participation and involvement in the lives of children. Indeed, much attention is focused on how best to manage postseparation relationships centered on children, including (perhaps especially) those relationships characterized by high conflict.

Relationship Definition: Entries and Exits

A central concern of modern family law is how familial relationships should be defined, and for what purpose (Diduck 2001). Under the functionalist model, as we have seen, marriage was the chief means by which families were linked to law. Marriage conferred a status, in the sense of rights not available to others, in private and public law. There was only limited recognition of other forms of family organization as having legal significance. Marriage is a convenient conceptual device for making families visible in law, provided that most family life is conducted within marriage. The difficulty facing legal policy in this area, however, has been the dramatic shift in attitudes and social practices in relation to nonmarital cohabitation and other family forms. This leads to two consequences, both of which have reduced the centrality of marriage as a legal concept.

The first is growing practical and political pressure to grant nonmarital relationships some form of legal recognition (Graycar and Millbank 2000). The terms and consequences of that recognition, however, are not settled (Polikoff 1993). For example, should such recognition be a matter of choice by the parties, or is it to be imposed; and in either case, how far should recognition extend and with what consequences? In some cases, it is argued that marriage itself, or something like it, should be extended to embrace couples previously excluded from it (e.g., same-sex couples). Indeed, in some jurisdictions there has been explicit judicial or legislative recognition of a right to marry for same-sex couples, by entering either marriage itself or something similar to it (Barron 2000). In most jurisdictions, however, legislation is confined to involuntary recognition of unmarried cohabitation, with consequences less far-reaching than those attaching to marriage.

The second is an increased prominence for the legal status of parenthood—if relationships between adults are increasingly fragile and transitory, at least the parent-child relationship is susceptible of clear proof, and is enduring. Indeed, in many jurisdictions, the legal consequences of being a parent are of far greater practical significance (especially in terms of child support) than are the consequences of marriage. The net result is that there is no privileged legal perspective on families—instead, the law now offers a variety of lenses through which family relations may be understood, whether between adults or between adults and children.

The most obvious evidence of this is the growth in child support schemes, which impose significant financial obligations on separated parents, whether they are married to the other parent or not. One consequence of this is that for many couples, especially those with few capital assets, the financial consequences of a separation will be the same whether they are married or not—it is the presence or absence of children that will make the biggest difference.

The increased significance of parenthood can be seen as the function of three separate developments. First, it is a necessary consequence of a policy of removing any distinction in the legal treatment of marital and nonmarital children, and of eradicating the common law concept of illegitimacy. One effect of this is that, from the child's point of view, the marital status of the parents is, or should be, irrelevant—what matters, in other words, is parenthood, not marriage.

Second, the decline in marriage as a social practice has meant that some other legal technique was needed to link men to children, and to impose parental obligations on men, especially obligations of support. Parenthood is a way of tying men into the nonmarital family. As Richard Collier (1995) has suggested, the rise of parenthood can be seen as a "widening of the net of paternal authority through facilitating the making of links between men and children just at the time when rising trends of divorce, cohabitation, step-parenthood and serial marriage might appear to have been breaking down the traditional family unit."

Third, parenthood has become a means by which family law maintains a notional set of links between family members after separation. That family law is increasingly emphasizing the maintenance of economic and legal ties between parents and children after separation, as if to create the illusion of permanence in the face of instability, is discussed below. Because, by definition, neither marriage nor cohabitation is available for the purpose, these continuing links are founded on parenthood.

Parenthood: Meaning and Effects

If it is the case that parenthood is an increasingly important legal status, then what does it mean? It is easy to assume that parenthood is a simple question of biology—that a child's parents are those who have provided the genetic material that created the embryo that grew into the child. Yet there are at least two reasons why this may not be as straightforward as it appears.

The first is that the creation of embryos is increasingly a matter of human intervention and one consequence of this is that a focus on nature or biology may be at odds with the social arrangements one wishes to reproduce. For example, a woman who has had a fertilized egg created from donated genetic material implanted in her womb, which she then carries to term, will usually wish to do so because she (and, often, her partner) wants to be considered the resulting child's parents, legally and otherwise. The legislative regimes governing assisted reproduction in most jurisdictions (where it exists) are happy to assist in maintaining this fictive parenthood, by specifying that the woman carrying the child to term will be deemed the child's mother, whereas her husband—or (male) partner— will be the father. Donors of genetic material will be exonerated from parenthood, and would no doubt be alarmed if it were otherwise.

The second complicating factor stems from the culturally specific nature of biological understandings of parenthood (Dewar 2000). A child has two biological parents, and this mirrors the social expectation that childrearing will be discharged in a nuclear, two-parent household. To that extent, biology underpins notions of kinship, and much of the legal structure of parenthood shares this two-parent premise. Yet this sits uneasily with the childrearing practices of, for example, indigenous or ethnic communities, for whom parenthood may be indistinguishable from subtle and extended notions of kinship, so that a child may be regarded as having many parents, and parenting regarded as a communal rather than individual responsibility. There is a danger that a shift towards parenthood in its crude biological sense will amount to the imposition of one set of cultural values on another.

Family Finances

Empirical research almost invariably finds that women and children are most adversely affected economically by divorce and separation. Because of the uneven distribution of childrearing tasks and wage inequalities in the labor market, women tend to bear the costs of failed marriages more heavily than men; and because women continue to bear a disproportionate share of childrearing tasks after divorce, those costs are passed onto the children. In addition, the parties' greatest asset is usually earning capacity rather than tangible assets, and it is also one to which the other party perhaps has the strongest claim; yet the law has only limited means to capture and redistribute this. Child support regimes, which seek to correct unfairness to children by guaranteeing children a portion of their parents' incomes, could be seen as a form of splitting future earning potential; and legislation splitting superannuation and pension entitlements is another, depending on how it is framed. Their effectiveness in achieving this aim is yet to be proven, however.

Many jurisdictions rely on a combination of the concepts of contribution and need in the distribution of assets on divorce. Under such regimes, the spouses' property is divided in accordance with their contributions to property and, more generally, to the family, and then adjusted in the light of disparities in their future needs. Sometimes need is the governing or dominant criterion. There are numerous variations on this theme, including regimes that apply presumptions of equal division only to property defined as marital as distinct from separate, before applying some form of needs-based adjustment. Yet there is a growing consensus that these conceptual tools are inadequate to explain or justify what is taking place (Ellman 1989; Brinig 2000). At the same time, most jurisdictions include provision for spousal maintenance, but evidence suggests that these powers are rarely used. For that reason, many couples are unable to divide what may be their most significant asset—namely, their future earning capacity.


Although there is a trend toward the public enunciation of more detailed and prescriptive rules for financial adjustment, there is a parallel trend towards greater contractualization of marriage and divorce. Contractualization refers to the use of private contracting as a way of ordering domestic relationships, both while they are on-going and when they end. As a legal technique, it has long been available to unmarried couples (subject to issues of enforceability, long since resolved—see, for example, Marvin v. Marvin [557 P.2d 106 Cal. 1976]); but legislators now seem keen to extend its possibilities to married couples as well, pointing to the control that enforceable contracts provide parties over their own affairs. Each relationship may potentially acquire its own proper law, determined by the parties themselves rather than by an outsider armed with discretionary powers of distribution. In this way, private contracting is set to become an autonomous, or semiautonomous, source of legal norms.

Sustaining the Postdivorce Family

A prominent feature of the complex era of family law is the increased emphasis on maintaining relationships between parents and children after separation. What form does this emphasis take? One obvious form is the creation of child support liabilities by statute (discussed above). Another is the increased legislative emphasis on postseparation contact between a child and the parent with which it is not living, and on the sharing of parenting responsibilities. This finds expression in different ways—joint-custody laws, legal presumptions of access, visitation or contact, and more funding for community agencies involved in supervising or supporting contact arrangements.

Postseparation childcare arrangements, and in particular visitation or contact, has become a key issue for feminist engagement with family law. Apparent attempts to shift the balance away from mothers towards fathers has attracted opposition and heightened attention. Research in Australia has suggested that the new regime has led to contact being ordered in inappropriate circumstances, and to women being harassed by men through abuse of court processes, thereby confirming the worst fears of its detractors (Rhoades, Graycar, and Harrison 2000). Legislation of this sort is said to grant power without responsibility, and to place women at the mercy of former partners.

The significance of this lies in the fact that divorce no longer represents the effective termination of parent-child relationships. As Carol Smart and Bren Neale (1999) have put it, "fragments of families are to be found in various households linked by biological and economic bonds, but not necessarily by affection or shared life prospects. We might say that family law is trying to hold the fragments together through the imposition of a new normative order based on genetics and finances, but not on a state-legitimated heterosexual union with its roots in the ideal of Christian marriage."

A Future Direction? Giving Children a Say

Much of the policy debate around postseparation parenting has been conducted as if it consisted of a zero-sum game of gains and losses to be distributed between mothers and fathers. The metaphor of the shifting balance between mothers and fathers, employed above, exemplifies this way of thinking. Researchers, though, suggest that one way to break out of this seemingly intractable debate is to focus more on the expressed needs and desires of the children involved (e.g., Lowe and Murch 2001; Smart, Neale, and Wade 2001; Woodhouse 2000).

See also:Adoption; Child Custody; Children's Rights; Divorce: Effects on Couple; Grandparents' Rights; Guardianship; Marriage, Definition of; Premarital Agreements; Protestantism; Sexual Orientation


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blumberg, g. (2000). "the financial incidents of familydissolution." in cross-currents: family law and policy in the u.s. and england, ed. s. katz, j. eekelaar, and m. maclean. oxford, uk: oxford university press.

brinig, m. (2000). from contract to covenant: beyond thelaw and economics of the family. cambridge, ma: harvard university press.

collier, r. (1995). masculinity, law and the family. london: routledge.

Dewar, J. (2000). "Family Law and Its Discontents." International Journal of Law, Policy and the Family 14: 59–85.

dewar, j., and parker, s. (2000). "english family law sinceww ii: from status to chaos." in cross-currents: family law and policy in the u.s. and england, ed. s. katz, j. eekelaar, and m. maclean. oxford, uk: oxford university press.

diduck, a. (2001). "a family by any other name . . . orstarbucks (tm) comes to england." journal of law and society 28:290–310.

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glendon, m-a. (1989). the transformation of family law:state, law and family in the united states and western europe. chicago: university of chicago press.

graycar, r., and millbank, j. (2000). "the bride wore pink. . . to the property (relationships) legislation amendment act 1999: relationships law reform in new south wales." canadian journal of family law 17:227–282.

lowe, n., and murch, m. (2001). "children's participation in the family justice system—translating principles into practice." child and family law quarterly 13: 137–158.

polikoff, n. (1993). "we will get what we ask for: whylegalising gay and lesbian marriage will not 'dismantle the structure of gender in every marriage.'" virginia law review 79:1535–1550.

rhoades, h., graycar, r., and harrison, m. (2000).the family law reform act 1995: the first three years. sydney: university of sydney/family court of australia.

smart, c. (2000). "divorce in england 1950–2000: a moraltale?" in cross-currents: family law and policy in the u.s. and england, ed. s. katz, j. eekelaar, and m. maclean. oxford, uk: oxford university press.

smart, c., and neale, b. (1999). family fragments? cambridge, uk: polity, c.; neale, b.; and wade, a. (2001). the changingexperience of childhood: families and divorce. cambridge, uk: polity press.

wardle, l. (1999). "divorce reform at the turn of the millennium: certainties and possibilities." family law quarterly 33:783–800.

woodhouse, b. (2000). "the status of children: a story of emerging rights." in cross-currents: family law and policy in the u.s. and england, ed. s. katz, j. eekelaar, and m. maclean. oxford, uk: oxford university press.

john dewar

Family Law

views updated May 29 2018


"N ot so many years ago, the law considered a man's wife and children as little more than his property, and he was free to treat them accordingly. Few areas of the law have undergone as much change in the past half century as the area known as family law, and few areas of the law affect so many people." (From The 21st Century Family Legal Guide, p. 19)

The importance of families to maintaining order in society has long been recognized. However, throughout much of history, most domestic (within the household) family matters were considered separate from general public law and not subject to government regulation. Family issues, including finances and disputes between family members, were almost always left for the family to resolve. Exceptions would include criminal cases of murder or assault, or other severe occurrences.

By the late twentieth century, fears were growing that a decline in "family values" was occurring. A greater desire to regulate family grew. In addition, medical advances in the 1980s and 1990s opened new avenues for both creating life and extending life. These advances led to new legal issues no one imagined only a few decades earlier. To further complicate matters, the character of American families was radically changing as well. Family law developed as a mix of diverse legal issues.

History of Family Law

Dating back to early historic times of the European feudal period and later English common law, the husband was legally considered the dominant person in a family. He owned all property and held certain rights not enjoyed by the wife. The husband controlled all of the wife's property after the marriage, but was obligated to provide support for the wife and children. Marriage and divorce were considered private matters. In fact, the biggest issue prior to 1900 was the recognition by one state of marriages performed in another.

By the middle of the nineteenth century, the Industrial Revolution led to many fathers working away from the household during a large part of the day. Wives assumed larger roles in raising children and taking care of the home. As a result, various states began passing laws giving wives greater legal standing. The earliest laws, like the Married Women's Property Acts, allowed wives to own and sell the property they held before marriage, to enter into contracts, and to sue others and be sued. A wife had become more of a person before the law. Then, by outlawing polygamy (having two or more marriage partners at the same time) in Reynolds v. United States (1879), the Court began to create national standards for marital (marriage) rights.

The American Family

Traditionally, many Americans normally thought of families as consisting of a husband, wife, and one or two children. However, by 1970 only half of American households met that idea. A later University of Chicago study showed that by 1998 only one-fourth of households had a husband, wife, and child. The study also showed that only fifty-six percent of adults were married in 1998, a dramatic drop from seventy-five percent in 1972. Similarly, the percentage of children living in a household with two parents had dropped from seventy-three percent in 1972 to just over half by 1998. The number of children living with single parents in the same time span rose from less than five percent to over eighteen percent. And finally, the number of households composed of two unmarried adults with no children had more than doubled from 1972 to 1998 to thirty-three percent of American homes, actually outnumbering households meeting the earlier ideal family model.

One contributing factor to these statistics is the aging U.S. population. Grown children of married couples of the post-World War II (1939–1945) "baby-boom" generation had left home. However, this study and others clearly showed that the character of the American family had indeed changed significantly.


Various aspects of marriage are addressed by family law. Known also as a "consortium," a marital relationship is a contract through which both partners have a right to support, cooperation, and companionship. Marriages require both governmental and public recognition. A governmental license to marry must be obtained and advanced public notice given to the community, commonly through local newspaper notices. These are followed by a public wedding overseen by an governmentally authorized person and one additional witness. Specific legal rights and duties are then established.

Increasingly looking at marriage as a public contract between two individuals, states sought to regulate most conditions of marriage. The Supreme Court affirmed this right of the states. State laws commonly set minimum ages for marriage, identifies duties and obligations of the husband and wife, how property is controlled including inheritance, limits who one may marry regarding incest and mental illness, and how a marriage may be ended. For example, bigamy (marrying a second time while still married) is considered a crime. A decreasing number of states legally recognize common law marriages in which a couple has lived together for a certain length of time and have consistently represented themselves as married to others.

Historically, husbands held the right to have physical control over wives, including physical punishment. Courts traditionally avoided involvement in such matters until the concern over domestic violence came to the forefront as a national issue in the 1980s. States made domestic violence a criminal offense. In 1994 Congress passed the Violence Against Women Act increasing penalties for domestic violence and making such gender-related crimes violations of constitutional civil rights laws.

The sexual relationship between spouses (marriage partners) has also come under family law. Historically, if one partner was unable to engage in sexual relations, it was grounds for divorce. In a birth control case, the Supreme Court ruled in Griswold v. Connecticut (1965) that state laws could not unreasonably intrude in sexual relationships of marriage. Marriage, they ruled, is protected by Constitutional rights of privacy. Similarly, in Loving v. Virginia (1967) the Court ruled that state laws prohibiting interracial marriages was unconstitutional, violating equal protection of the laws.

As late as 1953 the Supreme Court in McGuire v. McGuire was unwilling to define minimum living standards. It is a matter of the family. Adequacy of support by one spouse for the other and their children, however, began to be addressed in courts through the "doctrine of necessities." Under this doctrine, the state can hold one or the other spouse, or both, responsible for providing essential support, such as clothing, shelter, food, education, and medical care. In many states it became a criminal offense to not provide minimum support.

When the death or severe injury of a spouse occurs such as a car accident or doctor's error, the other spouse can sue those responsible for the death or injury. These suits are called wrongful injury or death lawsuits. The spouse can win money awards to cover expenses for the care of the injured spouse as well as for loss of love, affection, companionship, and future income.

Neither the husband or wife may be forced to testify in court against the other. This privileged communication is recognized as part of the constitutionally protected privacy. The Court did rule in Trammel v. United States (1980) that one can testify against the other in a federal criminal trial if they so choose.


Property issues related to marriage are also controlled by state laws. Therefore, disputes over property is handled differently around the nation. Types of property often involved in disputes include real estate, bank savings, stocks and bonds, retirement benefits, personal items, and savings plans. Usually, courts are reluctant to get involved in family property disputes except in divorce cases.

Two legal standards are used. Some states use a "title" standard which connects ownership of each piece of property to the spouse who controls it. Often it is the spouse who earned the money to purchase it unless given as a gift to the other. At death, the deceased (dead) spouse may have willed their property to someone other than the surviving (still living) spouse. However, to promote fairness under the title standard, state laws have established that the surviving spouse is entitled to some portion of the deceased spouse's property, often one-third, depending on the state.

Other states apply a "community property" standard which considers marriage to be a partnership of equal partners. This second standard assumes each spouse contributed equally to the accumulation of the property and, therefore, it is equally owned. The husband and wife can also have separate property including gifts from others and inheritance prior to marriage. In an important development, a new approach to fairly distribute property at divorce under community property law considers the non-economic as well as economic contributions of the spouses to the marriage. Non-economic contributions would include maintaining a home and tending to the children while the other spouse works.


Divorce (the ending of marriage) creates a new legal relationship between previous spouses, leading to different rights and responsibilities particularly when children are involved. Divorce was rare in eighteenth century colonial times. In the new nation, divorce actually required action by a state legislature, a difficult process. The only exception was Massachusetts which had passed a law in 1780 allowing court justices to grant divorces rather than state legislature. The U.S. Constitution, adopted in 1789, did not address divorce, leaving it to the states to regulate. By 1900 all states except South Carolina had passed laws like Massachusetts, greatly changing the way in which divorces could be granted. Special divorce courts were established to deal with the cases.

However, divorce was still strongly discouraged by religious groups. To seek divorce, the husband or wife commonly had to charge the other with some wrong doing, such as adultery (having sexual relations with someone other than spouse), desertion (walking out), or cruelty. The California Family Law Act of 1969 introduced yet another important change to divorce law with creation of "no-fault" divorces. Marriages could be ended through mutual agreement rather than one having to accuse the other of a wrong doing. Consideration of wrong doing was reserved for child custody and support and alimony (allowance to the former spouse) decisions. By the late 1980s all states had adopted no-fault divorce. Many critics charged that divorce had become too easy, not forcing couples to work hard enough to solve their problems and hurting many more children.

In 1970 Congress passed the Uniform Marriage and Divorce Act establishing national standards for marriage, divorce, property, and child custody and support. Still, the individual states vary considerably in regard to divorce law. As with marriages, states are required by the Constitution to recognize divorces granted in other states.

The Family's Children

Issues surrounding child custody and support are central to divorce law. Until the nineteenth century, fathers commonly retained custody of their children following divorce. In the early agricultural societies, fathers, owning the family property, needed the children to help with the farm he retained. However, during the nineteenth century the courts established two principles leading to mothers having the primary right to retain custody: the "best-interests-of-the-child" and the "tender years" doctrines. Such custody decisions at the time of divorce have important influence on a child's future. The parent retaining custody holds almost complete control over key decisions affecting the child's life. In contrast, the parent having visitation rights holds almost no control. @p:Responding to calls for custody reform, in 1980 Congress amended the Judiciary Act to establish greater governmental oversight of custody disputes. With each state having different divorce laws, parents would sometimes move to another state where they might get a more favorable custody decision. Sometimes the actual kidnaping of the child to another state might occur. To address this growing problem Congress passed the Parental Kidnapping Prevention Act of 1980 to stop the trend. Also, all states passed various forms of the Uniform Child Custody Jurisdiction Act to help resolve interstate (between different states) custody disputes.

Regarding child support, the divorced parent not having custody usually must provide financial support to help with expenses in the raising the children. With concerns over the rising incidents of non-payment and the effects on state government budgets because of growing welfare roles, the states and federal government have taken several measures to help locate parents (often referred to as deadbeat dads) that have not provided the court-ordered support. To enhance cooperation in tracking deadbeat dads, all states have adopted various versions of the Uniform Reciprocal Enforcement of Support Act. In 1975 Congress also established the Office of Child Support Enforcement to oversee collection of overdue child support. By the 1990s family law allowed for various collection methods, including employers withholding money from paychecks, taking away drivers licenses, placing liens (ownership claims) on property and bank accounts, withhold welfare and retirement benefits, and make deductions from tax refunds. The Welfare Reform Act of 1996 also provided for more aggressive child support collection.

In the late twentieth century women increasingly pursued careers outside the home and many families had both the father and mother working. The father became more involved in child rearing. As a result, a joint custody option arose in which both parents keep decision-making powers. Actual physical custody can go with either parent, or shared as well. By the close of the twentieth century, women, however, still predominately retained custody of children at divorce.

The rights of children also expanded late in the twentieth century. Historically considered as property, by the 1990s the courts recognized the right of children to end their relationship with parents in Kingsley v. Kingsley (1992). Children could now sue parents for lack of support, property loss, and personal injury. They could also sue to maintain a relationship with foster parents when challenged by the biological parents as recognized in Mays v. Twigg (1993). Some states have taken measures to protect parents against lawsuits, establishing "reasonable parent" standards.

Family Issues Multiply

By the late twentieth century, various means of conceiving babies had developed. These included artificial insemination in which sperm of a father are medically placed in the mother and in vitro fertilization which involves fertilizing an egg outside the womb then medically placing the resulting embryo in the mother. Use of surrogate (substitute) mothers also emerged. All of these medical advances brought with them new legal issues in family law. Who are the legal parents of children conceived with donated sperm or eggs, or given birth by a surrogate (substitute) mother? Family law normally does not recognize donors as legal parents. The famous case of "Baby M" known as In re Baby M (1988) involved the custody dispute between the surrogate mother and a married couple who had paid her to be artificially inseminated and give birth to a child for them. The New Jersey Supreme Court ruled that such financial arrangements are improper. But, using the "best interests of the child" doctrine, the court awarded custody to the couple and visitation rights to the surrogate mother.

In addition, efforts to legally recognize same-sex marriages grew. Key issues involved protection of such benefits as inheritance, property rights, and tax and social security benefits. The Minnesota Supreme Court in Baker v. Nelson (1971) ruled that marriage could only be legally recognized between people of the opposite sex. In 1996 Congress passed the Defense of Marriage Act defining marriage as only being between people of opposite sex. Same-sex marriage advocates argued the Fourteenth Amendment's "equal protection of the laws" was violated due to discrimination based on sex by denying the same protections and benefits to gays and lesbians. The issue rose to the Hawaii Supreme Court in 1999 which denied the legality of same-sex marriages. However, in December of 1999 the Vermont Supreme Court ruled that the state constitution guarantees the same rights to gay and lesbian couples as to opposite-sex couples.

Saving the Family

Though studies indicate Americans have become increasingly accepting of the many social changes and although these opinions are being reflected in family law applications, efforts are still popular to promote the traditional family idea and look for ways it could work in the twenty-first century. Child care, family leave programs under the Family and Medical Leave Act of 1993, non-traditional workweek arrangements, and "telecommuting" from home in the electronic age have raised new family legal issues.

Suggestions for further reading

Battle, Carl W. Legal-Wise: Self-Help Legal Guide for Everyone. New York: Allworth Press, 1996.

Binder, Julee, Harvey Loomis, and Nancy Nicholas, eds. Know Your Rights and How to Make Them Work for You. Pleasantville, NY: The Reader's Digest Association, Inc., 1995.

Gregory, John De Witt, Peter N. Swisher, and Sheryl L. Scheible. Understanding Family Law. New York: Matthew Bender, 1993.

Mierzwa, Joseph W. The 21st Century Family Legal Guide. Highlands Ranch, CO: Prose Associates, Ince., 1994.

Very, Donald L. The Legal Guide for the Family. Chicago: J. G. Ferguson Publishing Co., 1989.

Family Law

views updated May 23 2018

Family Law


Ideals. The law governing relations among family members illustrates the interplay between legal concepts and the pressures of everyday life. The patriarchal family had been the starting point for English settlers ideas about other types of authority, including that of the state. When traditional family customs in America began to erode, many colonists also began to reconsider the nature of governmental authority. In turn, the political upheaval of the Revolution, and especially the value placed on national independence, led to a profound transformation of social relations within families. As the United States had chosen to become a self-governing republic separate from England, for example, so the institution of marriage must be based on the free choice of both parties, with the possibility of an eventual divorce not unthinkable. The idea of republican motherhood, which gave women the primary responsibility for raising children into citizens prepared to sustain free institutions, further changed the relations between husbands and wives and between parents and children. Growing out of colonial practices, the ideal republican family was formalized in the laws that evolved from 1815 to 1850. At the same time, controversy over some aspects of domestic relations anticipated the powerful countercurrents that would gain full force after the Civil War.


In the case of Wightman v. Coates, 15 Mass. 1 (1818) Massachusetts chief justice Isaac Parker explained why women should be compensated for broken promises to marry:

When the female is the injured party, there is generally more reason for a resort to the laws, than when the man is the sufferer. Both have a right of action, but the jury will discriminate and apportion the damages according to the injury sustained. A deserted female, whose prospects in life may be materially affected by the treachery of the man, to whom she has plighted her vows, will al ways receive from a jury the attention which her situation requires. And it is not disreputable for one, who may have to mourn for years over lost prospects and broken vows, to seek such compensation as the laws can give her. It is also for the public interest, that conduct tending to consign a virtuous woman to celibacy, should meet with that punishment, which may prevent it from becoming common. The delicacy of the sex, which happily in this country gives the man so, much advantage over the woman, in the intercourse which leads to matrimonial engagements, requires for its protection and continuance the aid of the laws. When it shall be abused by the injustice of those who would take advantage of it, moral justice as well as public policy dictate the propriety of a legal indemnity.

Courtship. Judicial regulation of courtships, or more precisely, engagements, demonstrated the power of courts to shape policy in domestic relations. In England courts had long allowed people to sue for breach of a promise to marry, reflecting the economic importance of marriage as a means of acquiring property. In the United States, as the ideal of romantic love converged with a determination to let individuals decide their fates, the question emerged whether breach-of-promise suits should still be recognized. In Wightman v. Coates (1818), in which Maria Wightman sued Joshua Coates for violating his pledge to marry, Chief Justice Isaac Parker of

Massachusetts said yes. Although the suit no longer served as protection for both families entering marriage as an economic deal, it recognized the pressures upon women to marry and helped to safeguard the chastity of unmarried women. Theoretically men remained eligible to sue, but as the Alabama Supreme Court observed in 1846, a just regard to public morals has long since confined the action alone to the female sufferer. In most states, courts enhanced the breach-of-promise suit by granting additional compensation in cases of seduction, a trend reinforced by the call for legislation providing redress for seduction.

Common-Law Marriage. By generally requiring sanctioned ceremonies to make marriages legally valid, English law emphasized state authority over the rights of individuals to marry. American law reversed these values in recognizing the common-law marriage. This legal relationship was essentially invented by jurist James Kent, who argued in his influential Commentaries (18261830) that no formal solemnization was needed to ratify the consent of the parties to marry. Later courts agreed that marriage was one of the natural rights of human nature. This philosophizing was reinforced by the practical observation of the distinguished judge John Bannister Gibson, chief justice of the Pennsylvania Supreme Court, that enforcement of English marriage laws would bastardize the vast majority of children which have been born within the state for half a century. Massachusetts chief justice Theophilus Parsons and his son of the same name, a leading treatise writer, led the opposition to common-law marriages, advising that every young woman of honor ought to insist on a marriage solemnized by a legal officer, and to shun the man who prates about marriage condemned by human law, as good in the sight of Heaven.

Eligibility to Marry. The common-law marriage issue was part of a controversy over the power of the state to decide who was eligible to marry. Advocates of marriage as a natural right largely succeeded in resisting attempts to legislate minimum ages for marriage and to ban marriages between first cousins. In both instances, enforcement of community standards came to depend mainly on individual self-governance. One of the most revealing questions of marital eligibility was the right of slaves to marry. On the one hand, slave masters actively encouraged the stability associated with permanent unions between slaves and welcomed the formation of families that would add to the labor supply. Enforcement of slave marriages also enhanced their masters paternal selfimage; such proslavery ideologues as George Fitzhugh, George Frederick Holmes, Henry Hughes, and Robert Toombs called for the expansion of slaves marital rights. But the recognition of slaves marital rights would also undermine their marketability, reducing their value to their masters. As a result Southern judges refused to recognize slave marriages as legally binding, while acknowledging a wide distinction between the cohabitation of slaves, as man and wife, and an indiscriminate sexual intercourse.

Married Womens Property Rights. Under a common-law principle known as coverture, the property rights of a married woman were subsumed in the legal identity of her husband. In the absence of an antenuptial agreement, he alone enjoyed authority to manage the property that either of them brought to the marriage, or that came to either member of them after the wedding. Moreover, the creditors of the husband could satisfy his debts by demanding the assets brought to the marriage or earned thereafter by the wife. This common-law tradition was displaced through state legislation known collectively as married womens property acts. The first such statutes were enacted in Arkansas and the Florida Territory in 1835 and in Mississippi in 1839, the latter in response to the severe economic depression that followed the Panic of 1837. This legislation safeguarded wives assets from husbands creditors. Lobbying by womans rights activists, led by Elizabeth Cady Stanton, produced a second and stronger wave of married womens property acts, beginning in New York in 1848, that not only protected wives property from creditors but recognized the authority of women to manage the property that they contributed to the household. By midcentury seventeen states had passed some form of married womens property acts. The most powerful force impelling these reforms was the clarification of debtorcreditor relations, rather than the restructuring of relations between husbands and wives, but the creation of new rights for married women helped to redress the inequality in the traditional patriarchal conception of marriage.

Reproduction. In childbearing, as in marriage, the law responded to changes in social practices. The sharp decline of the birthrate, one of the most important demographic facts of American life during the nineteenth century, was achieved in various ways, including contraception and abortion. By the 1830s both of these had become sufficiently widespread to spark significant legal controversies. The approach to contraception reflected the American ambivalence toward the subject. Regulations were aimed at outspoken public advocates of birth control, whom lawmakers regarded as dangerous radicals, but little effort was made to interfere with prévate practices. The legality of abortion had traditionally focused on quickening, or the first movements of the fetus, generally around the fourth or fifth month of pregnancy. The common-law inheritance of the colonies treated abortion as a criminal offense only in the case of a quickened fetus. Unlike England, which began in 1803 to ban abortions prior to quickening, American courts continued to regard termination of pregnancy during the early phase as beyond regulation. The New York abortion law of 1828 even expanded the availability of postquickening abortions by sanctioning the termination of pregnancy at any point in cases of medical necessity. During the following decade an English immigrant born as Caroline Lohman, who styled herself Madam Restell, became a celebrity as the most prominent abortionist in New York; by the mid 1840s she supplemented her Fifth Avenue brownstone with offices in Boston and Philadelphia. But the prosecution of Restell for violation of an 1845 antiabortion statute, albeit a misdemeanor offense, signaled a shift in attitudes. Toward midcentury judges increasingly suggested that legislatures follow the more rigorous antiabortion laws of England. New Jersey lawmakers implemented this proposal in 1849 following a decision by the state supreme court that applied the principle of quickening to dismiss criminal charges against an abortionist. The stage was set for a post-Civil War crusade against birth control that would considerably expand the criminal regulation of contraception and abortion.

Custody Rights. Anglo-American law prior to the Revolutionary era regarded children as legal dependents of the male head of a household. Fathers enjoyed complete rights to the custody, services, and earnings of their children. The great English jurist Lord Mansfield helped to crack this patriarchal structure in Rex v. Delaval (1763), which asserted the authority of courts to consider the interests of children in custody disputes. With the elaboration of the ideals of domesticity in America after 1815, courts used the precedent of Rex v. Delaval to dismantle the patriarchal tradition. An 1834 decision by Massachusetts chief justice Lemuel Shaw identified one possible alternative by finding that fathers retained presumptive custody rights, although the interests of a child might nonetheless require an award to the mother if the father were unfit. By the 1840s New York and Massachusetts had passed statutes providing that the rights of the parents to their children, in the absence of misconduct, are equal and the happiness and welfare of the child are to determine its care and custody.


The case of DHauteville V. DHauteville (1840) illustrated the increasing tendency of judges to presume that mothers should receive custody of their children. The highly publicized litigation between Boston textile heiress Ellen Sears DHauteville and her husband, Swiss nobleman Baron DHauteville, took place in Philadelphia, where the mother had taken their two-year-old son because of Pennsylvanias favorable custody policies. The state supreme court fulfilled her expectations by rejecting the barons argument that he enjoyed a presumptive right to custody The court observed that the reputation of a father may be stainless as crystal, he may not be afflicted with the slightest mental, moral, or physical disqualification from superintending the general welfare of the infant and yet the interest of the child may imperatively demand the denial of the fathers right because every instinct of humanity unerringly proclaims that no substitute can supply the place of her, whose watchfulness over the sleeping cradle or waking moments of her offspring is prompted by deeper and holier feelings than the most liberal allowance of a nurses wages could possibly stimulate. The Victorian ideal of domestic womanhood had become embodied in the law.


Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1985).

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