Family Law

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Family Law

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.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
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