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"Not 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.

Marriage

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

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

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.