Family Law

Family Law

Description

‘Family law’ is really a set of disparate subjects grouped under one heading. Taken as a whole, it is a complex field made especially difficult to describe because most of this vast body of law is state law and no two states treat the subject identically. In recent years, however, the federal government has pa§§ed a wide variety of laws that have had a direct impact on local law. Because of this, more of family law today is uniform than at any time in American history. Fortunately, this ‘federalization’ of the subject allows a tidier discussion than was possible even 5 years ago. In all areas of family law, the state invariably looms in the background. Of course, intimate relationships are formed outside the law's authority. However, law determines whether or not these relationships will be formally recognized. This determination can be of great significance. It may mean whether the law recognizes a parent-child relationship—as when a child is born out of wedlock and the mother, child, or putative father seeks to have the parent-child relationship formally acknowledged. That determination, in turn, will affect a variety of vital matters including the child's right to inherit from the ‘father’, and the ‘father's’ right to visit with or obtain custody of the child or even to prohibit the child's adoption by others. To a corresponding degree, when the state refuses to recognize an intimate relationship (by making it unlawful for a couple to marry, for example), that determination has significant emotional and financial consequences. It can mean the difference between a person's having no entitlement to any part of another's property, and being entitled to half of all that person earned during the period of the relationship. In this sense, the state is omnipresent in the intimate affairs of Americans. But it looms in the background. It is in the background in still another sense. Not only are intimate relationships formed without state involvement, they are dissolved that way as well. When relationships break up, the parties are free to agree between themselves on virtually anything about their affairs. Many of these agreements will never be reviewed by state officials. Others will be formally approved, but without meaningful scrutiny. The vast majority of all breakups are resolved by such private agreements. But these agreements, nonetheless, are made ‘in the shadow of the law’. What the law has to say on a certain topic is known by both parties and is, to a greater or lesser degree, taken into account in fashioning an agreement. In these senses, then, law is ubiquitous even in the most private of family affairs. Because ‘family law’ covers so many subjects, it is necessary to divide it into categories. A useful, but imperfect, division is between public and private. ‘Public family law’ will refer to the formation and dissolution of families through direct state action. Included within this category is the law of child protection, foster care, state-initiated termination of parental rights, and adoption. ‘Private family law’ covers the formation and dissolution of family ties through private ordering. The principal topics in this category are marriage, divorce, custody and visitation disputes, and property distribution. As explained in the previous paragraphs, even ‘private family law’ matters invariably involve the state (law governs the conditions of marriage and divorce, and custody and property disputes in the wake of divorce commonly are decided by courts). A public-private distinction is nonetheless useful, with ‘private’ matters being characterized by people-initiated events, and ‘public’ matters involving state-initiated action. Finally, a brief word is appropriate about the evolving nature of family law. The law's definition of ‘family’ changes as society's cultural norms and practices change. However, the law is always playing catch-up to behavioral changes in society. There are 3 .5 million unmarried couples living together in the United States, over one-third with children. A large number of children today are being raised by other than their biological parents. Almost one-third of American children are born to unwed mothers, and a slightly larger percentage live with a single parent. Many of these new families have obtained an important measure of legal protection. In addition, several state courts have recognized gay and lesbian relationships as the equivalent to state-sanctioned marriages, at least for limited purposes such as being able to keep a lease after a domestic partner has died. Others allow gay and lesbian couples to adopt children. Extended families have been accorded legal significance in housing and child custody cases; unmarried heterosexual partners have had their unions legally validated; and discrimination against children born out of wedlock has repeatedly been held unconstitutional.

Source Publication

Fundamentals of American Law

Source Editors/Authors

Alan B. Morrison

Publication Date

1996

Family Law

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